EXHIBIT 10(a)
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made and entered into as of this
28th day of December, 1999, by and between Southern Union Company
(hereinafter referred to as the "Company"), a Delaware corpora-
tion, and Xxxxxx X. Xxxxx (hereinafter referred to as the
"Executive").
WHEREAS, the Executive is presently employed by the Company in
the capacity of Executive Vice President Corporate Development
and Chief Executive Officer of the PG Energy Division;
WHEREAS, the Company is desirous of assuring the continued
employment of the Executive as a senior executive of Southern
Union Company and the PG Energy Division, and Executive is
desirous of having such assurance.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements of the parties set forth in this
Agreement, and of other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
Section 1. Term of Employment; Prior Agreements
1.1 Employment Term. Subject to the provisions of Section 6
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of this Agreement, the Company hereby agrees to employ
the Executive and the Executive hereby agrees to serve
the Company, in accordance with the terms and conditions
set forth herein, until June 30, 2010, commencing as of
the date hereof (the "Term"). If, in the sole discretion
of the President of Southern Union Company (the "Presi-
dent"), certain mutually agreed financial and performance
goals are achieved, the agreement will be automatically
renewed for 12 months, effective July 1 of each year and
a new Employment Agreement will be executed. Notwith-
standing the foregoing, in the event a Change of Control
of the Company (as defined in Section 6.7) occurs during
the Term of this agreement or any renewal thereof, the
Term shall continue until the second anniversary of the
Change of Control (or such later date as may be agreed to
by the parties).
1.2 Prior Agreements. This Agreement supersedes all prior
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agreements and understandings (including verbal agree-
ments) between Executive and the Company and/or any of
its affiliates regarding the terms of Executive's employ-
ment with the Company and/or its affiliates including,
without limitation, the Employment Agreement dated May 6,
1998 between the Executive and Pennsylvania Enterprises,
Inc, the Change of Control Agreement dated March 6, 1996
between the Executive and Pennsylvania Enterprises, Inc.,
and any assumption of those agreements by the Company and
the parties, shall have no liabilities under any such
prior agreements.
Section 2. Position and Responsibilities
During the Term of this Agreement, the Executive agrees to serve
as a senior executive of Southern Union Company and the PG Energy
Division. In such capacity, the Executive shall have such level
of duties and responsibilities as he may be assigned from time to
time by the President of the Company. The Executive shall have
the same status, privileges, and responsibilities normally
inherent in similarly situated executives of the Company.
Section 3. Standard of Care
During the term of this Agreement, the Executive agrees to devote
his full business time and reasonable best efforts to the busi-
ness of the Company and the PG Energy Division. Executive shall
not be engaged in any other business activity, whether or not
such business activity is pursued for gain, profit, or other
pecuniary advantage, without the prior written consent of the
President. The Executive may serve on the board of directors or
trustees of any business corporation or charitable organization
so long as such service is not injurious to the Company and is
agreed upon by the President. This Section 3 shall not be
construed as preventing the Executive from holding, as a passive
investor, up to two percent (2%) of the common stock of any
public company.
Section 4. Compensation
As remuneration for all services to be rendered by the Executive
during the term of this Agreement, and as consideration for
complying with the covenants herein, the Company shall pay and
provide to the Executive the following:
4.1 Base Salary. During the Term, the Company shall pay the
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Executive a Base Salary in an amount which shall be
established from time to time by the President; provided,
however, that such Base Salary shall not be less than
$16,346.15 per biweekly pay period. This Base Salary
shall be paid to the Executive in equal installments
throughout the year, consistent with the normal payroll
practices of the PG Energy Division.
While this Agreement is in force, the annual Base Salary
shall be reviewed at least annually, to ascertain
whether, in the judgment of the President, such Base
Salary should be increased, based primarily on the per-
formance of the Executive during the year and on the base
salary of similarly situated executives at comparable
companies. If so increased, the Base Salary as stated
above shall, likewise, be increased for all purposes of
this Agreement.
4.2 Sign-On Bonus. The Company shall pay to the Executive an
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amount equal to $906,618.31 as a sign-on bonus. This
sign-on bonus shall not be treated as compensation for
purposes of any other benefit plan or agreement
(including any retirement or severance benefits payable
to Executive, under this Agreement or otherwise).
4.3 Annual Bonus. July 1st of each year of the employment
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agreement the company shall pay to the executive an
amount equal to $600,000 as an annual bonus related to
the Executives corporate responsibilities.
4.4 Annual Cash Incentive Compensation. The Company shall
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provide the Executive with the opportunity to earn an
annual cash incentive compensation payment, at a level no
less favorable than that provided to similarly situated
executives of the Company, based upon goals and measures
for the Executive, the PG Energy Division and/or the
Company established by the President.
4.5 Long-Term Incentives. The Company shall provide the
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Executive with the opportunity to earn a long-term
incentive award by participating in the Company's Long-
Term Incentive Stock Option Plan at a level no less
favorable than that provided to similarly situated
executives of the Company.
4.6 Supplemental Retirement Benefits. The Company shall
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provide the Executive the opportunity to participate in
the Southern Union Company Supplemental Deferred
Compensation Plan.
4.7 Employee Benefits. During the Term, the Company shall
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provide to the Executive all qualified retirement plan
benefits and welfare benefits to which other senior
executives of the PG Energy Division are generally
entitled, without duplication of benefits. The Executive
shall be entitled to paid vacation in accordance with the
standard written policy of the PG Energy Division with
regard to vacations of employees. The Company shall
provide to the Executive, at the Company's cost, all
perquisites to which other similarly situated executives
are entitled.
Section 5. Expenses
The Company shall pay, or reimburse the Executive, for all
ordinary and necessary expenses that the Executive incurs in
performing his duties under this Agreement in accordance with the
Company's policy.
Section 6. Termination of Employment
6.1 General. Executive's employment may be terminated in
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accordance with any of the provisions set forth in this
Section 6, and the Term shall terminate upon the effective
date of such termination of employment. Upon such
termination, Executive shall be entitled solely to the
rights and benefits set forth in the applicable provision
of this Section 6.
6.2 Termination Due to Death or Disability
(a) Executive's employment may be terminated by the
Company on account of Executive's Disability, and
shall be terminated upon Executive's death. The
Company shall have the right to terminate Executive's
employment on account of Disability if, as a result
of Executive's incapacity due to physical or mental
illness, Executive shall have been absent from the
full-time performance of his duties with the Company
for six consecutive months.
(b) If the Executive's employment is terminated due to
death or Disability, the Company shall pay Executive
his accrued but unpaid Base Salary, unpaid bonus
earned in the previous year, a pro rata portion of
his target annual bonus for the year of termination,
based on the portion of the year elapsed prior to
such termination, plus any amounts otherwise payable
to Executive under the terms of the Company benefit
plans and programs in which he is a participant, at
the times such payments are due. With the exception
of the foregoing obligations of the Company, and, in
the case of Disability, the covenants of Executive
contained in Section 7 (which shall survive such
termination), the Company and the Executive there-
after shall have no further obligations under this
Agreement.
6.3 Voluntary Termination by the Executive
(a) The Executive may terminate this Agreement at any
time other than for Good Reason, death or Disability
by giving the President written notice of intent to
terminate, delivered at least thirty (30) calendar
days prior to the effective date of such termina-
tion. The termination shall become effective
automatically upon the expiration of the thirty (30)
day notice period. Such notice shall also
constitute the resignation by the Executive of his
positions as an officer and/or director of the
Company and its subsidiaries and affiliates.
(b) In the event of such termination, the Company shall
pay to the Executive his accrued but unpaid Base
Salary, plus any amounts otherwise payable to
Executive under the terms of the Company benefit
plans and programs in which he is a participant, at
the times such payments are due. With the exception
of the foregoing obligations of the Company and the
covenants of the Executive contained in Section 7
(which shall survive such termination), the Company
and the Executive thereafter shall have no further
obligations under this Agreement.
6.4 Involuntary Termination by the Company Without Cause.
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The Company may terminate the Executive's employment at
any time by notifying the Executive in writing of the
Company's intent to terminate, effective thirty (30)
calendar days following the date on which the Company
delivers such notice to the Executive. If Executive's
employment is terminated by the Company for reasons other
than death, Disability, or for Cause, then the Executive
shall be entitled to the benefits provided below:
(a) The Company shall pay the Executive his full Base
Salary through the effective date of termination,
unpaid bonus earned in the previous year, the unpaid
annual bonus payments referred to in Section 4.3 (on
either an annual basis or at the discretion of the
company a lump sum present value of the bonus
payments), plus any amounts otherwise payable to
Executive under the terms of the Company benefit
plans and programs in which he is a participant, at
the times such payments are due;
(b) In lieu of any further salary and bonus payment to
the Executive for periods subsequent to the effec-
tive date of termination (other than the unpaid
annual bonus referred to in Section 4.3), the Com-
pany shall pay as a severance payment to the Execu-
tive, not later than the fifth business day
following the effective date of termination, a lump
sum severance payment equal to one times the Execu-
tive's Covered Compensation. "Covered Compensation"
shall mean the Executive's annualized Base Salary
(determined by multiplying the biweekly rate of base
salary in effect at the effective date of termina-
tion by 26). This severance payment will be in lieu
of payments (if any) from any other Company's
Severance Plans.
With the exceptions of the foregoing obligations of
the Company and the Executive's covenants contained
in Section 7 herein (which shall survive such
termination), the Company and the Executive
hereafter shall have no further obligations under
this Agreement.
6.5 Termination for Cause
(a) The Company may terminate the Executive's employment
for "Cause" which shall mean (i) the willful and
continued failure by the Executive to substantially
perform his duties with the Company (other than any
such failure resulting from the Executive's incapa-
city due to physical or mental illness or any such
actual or anticipated failure after the occurrence
of circumstances giving rise to a notice of termina-
tion by the Executive for Good Reason) after a
written demand for substantial performance is
delivered to the Executive by the President, which
demand specifically identifies the manner in which
the President believes that the Executive has not
substantially performed his duties, or (ii) the
willful engaging by the Executive in conduct which
is demonstrably injurious to the Company, monetarily
or otherwise, in a not insignificant amount or
manner. For this purpose, no act, or failure to
act, by the Executive shall be deemed "willful"
unless done, or omitted to be done, by the Executive
not in good faith and without reasonable belief that
the Executive's action or omission was in the best
interest of the Company. Notwithstanding the
foregoing, the Executive shall not be deemed to have
been terminated for Cause unless and until there
shall have been delivered to the Executive a copy of
a written notice of termination which shall include
a determination by the President (after reasonable
notice to the Executive and an opportunity for the
Executive, together with the Executive's counsel, to
be heard) finding that in the good faith opinion of
the President, the Executive was guilty of conduct
constituting "Cause" as set forth in this paragraph
and specifying the particulars thereof in detail.
The termination of employment shall be effective
upon the giving of such notice.
(b) In the event of a termination of the Executive's
employment for "Cause," the Company shall pay the
Executive his accrued and unpaid Base Salary through
the date notice of termination is delivered to the
Executive, plus any amounts otherwise payable to
Executive under the terms of the Company benefit
plans and programs in which he is a participant, at
the times such payments are due. Except for the
foregoing obligations of the Company and the
Executive's covenants under Section 7 (which shall
survive such termination), upon delivery to the
Executive of written notice of termination, the
Company and the Executive thereafter shall have no
further obligations under this Agreement.
6.6 Termination for Good Reason
(a) The Executive may terminate his employment for Good
Reason (as defined below) by giving the President 30
days' written notice of termination, stating in rea-
sonable detail the facts and circumstances claimed
to provide a basis for such termination. In the
event of termination for Good Reason, the Company
shall pay and provide to the Executive the amounts
and benefits set forth in Section 6.4 hereof. With
the exceptions of the foregoing obligations of the
Company and the Executive's covenants contained in
Section 7 herein (which shall survive such termina-
tion), the Company and the Executive hereafter shall
have no further obligations under this Agreement.
(b) Good Reason shall mean, without the Executive's
express written consent, the occurrence of any one
or more of the following:
(i) The assignment to the Executive of any duties
inconsistent with his status as a senior exe-
cutive of the Company or a substantial reduc-
tion in the nature or status of the
Executive's responsibilities from those set
forth in Section 2 hereof.
(ii) A reduction by the Company in the Executive's
Base Salary payable under Section 4.1 hereof,
as the same may be increased from time to
time;
(iii) The Company's requiring the Executive to be
based at a location which is more than fifty
(50) miles from the current principal
location of Executive's employment;
(iv) The failure by the Company to continue to
provide the Executive with the incentive
compensation and benefits set forth in
Section 4 hereof;
(v) The failure by the Company to pay to the
Executive any portion of the Executive's
current cash compensation, when due;
(vi) The failure of the Company to obtain a
satisfactory agreement from any successor to
assume and agree to perform this Agreement,
as contemplated in Section 9.1 hereof; or
(vii) Any purported termination of the Executive's
employment which does not comply, with the
applicable provisions of Section 6 of this
agreement; and for purposes of this Agree-
ment, no such purported termination shall be
effective.
Notwithstanding the foregoing, none of the events
described in clauses (i) through (vii) of this
Section 6.6(b) shall constitute Good Reason unless
Executive shall have notified the Company in writing
describing the events which constitute Good Reason
and then only if the Company shall have failed to
cure such event within thirty (30) days after the
Company's receipt of such written notice.
The Executive's right to terminate employment for
Good Reason shall not be affected by the Executive's
incapacity due to physical or mental illness. How-
ever, the Executive's failure to assert Good Reason
within six (6) months from the time he had knowledge
of the circumstance constituting Good Reason shall
constitute a waiver of his right to terminate em-
ployment for Good Reason with respect to such event.
6.7 Involuntary Termination by the Company Without Cause or
Termination for Good Reason, following a "Change of
Control" (as defined below.) Notwithstanding the provi-
sions of Sections 6-4 and 6-6, in the event the Company
terminates the Executive's employment without cause or
the Executive terminates his employment for good reason,
in either case, within two years following the date of a
Change of Control of the Company then the Executive shall
be entitled to the benefits provided below:
(a) The Company shall pay the Executive his full Base
Salary through the effective date of termination,
unpaid bonus earned in the previous year, the unpaid
annual bonus payments referred to in Section 4.3 (on
either an annual basis or at the discretion of the
company a lump sum present value of the bonus
payments), and a pro-rata portion of the target
bonus established prior to Change of Control plus
any amounts otherwise payable to Executive under the
terms of the Company benefit plans and programs in
which he is a participant, at the times such
payments are due;
b) In lieu of any further salary and bonus payment to
the Executive for periods subsequent to the effec-
tive date of termination, the Company shall pay as a
severance payment to the Executive, not later than
the fifth business day following the effective date
of termination, a lump sum severance payment equal
to three (3) times the Executive's Covered Compensa-
tion. "Covered Compensation" shall mean the Execu-
tive's annual Base Salary (at the rate in effect at
the effective date of termination) and the target
bonus potential established prior to Change of
Control; and
(c) For three (3) years after such termination, the
Company shall provide the Executive with life and
medical benefits substantially similar to those
provided from time to time to active employees of
the PG Energy Division. In the event that the
Employee obtains substantially similar benefits or
coverage from another employer, these benefits shall
be reduced during such period following the Execu-
tive's termination. Executive agrees to report any
such coverage or benefits he obtains to the Company;
With the exception of the foregoing obligations of
the Company and the Executive's covenants contained
in Section 7 herein (which shall survive such
termination), the Company and the Executive
hereafter shall have no further obligations.
For purposes of this agreement, a "Change of Control" of
the Company shall be deemed to have occurred if and when:
(a) there shall be consummated either (i) any consolida-
tion or merger of the Company in which the majority
of the Board of Directors are not on the continuing
or surviving Board of Directors or pursuant to which
shares of the Company's common stock are converted
into cash, securities or other property, other than
a consolidation or merger of the Company in which
each holder of the Company's common stock immedi-
ately prior to the merger has upon consummation of
the merger the same proportionate ownership of
common stock of the surviving corporation as such
holder had of the Company's common stock immediately
prior to the merger, or (ii) any sale, lease
exchange or other transfer (in one transaction or a
series of transactions contemplated or arranged by
any party as a single plan) of all or substantially
all of the assets of the Company;
(b) the shareholders of the Company shall approve any
plan or proposal for the liquidation or dissolution
of the Company;
6.8 Excise Tax Equalization Payment
(a) Anything in this Agreement to the contrary notwith-
standing, in the event it shall be determined that
any payment or distribution by the Company to the
Executive or for the Executive's benefit (whether
paid or payable or distributed or distributable
pursuant to the terms of this Agreement or other-
wise) but determined without regard to any addi-
tional payments required under this Section (a
"Payment") would be subject to the excise tax
imposed by Section 4999 of the Code or any interest
or penalties are incurred by the Executive 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 the Executive shall be entitled to
receive an additional payment (a "Gross-Up Payment")
in an amount such that after payment by the
Executive of all taxes (including any interest or
penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and
any interest and penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up
Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed
upon the Payments.
(b) Subject to the provisions of Section 6.8(c) below,
all determinations required to be made under this
Section, including whether and when a Gross-Up Pay-
ment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in
arriving at such determination, shall be made by the
Company's independent audit firm (the "Accounting
Firm") which shall provide detailed supporting cal-
culations both to the Company and to the Executive
within fifteen (15) business days of the making of
the Payment by the Company or the Company's receipt
of notice from the Executive that there has been a
Payment, or such earlier time as is requested by the
Company. All fees and expenses of the Accounting
Firm shall be borne solely by the Company. Any
Gross-Up Payment, as determined pursuant to this
Section 6.8, shall be paid by the Company to the
Executive within ten (10) business days of the
receipt of the Accounting Firm's determination. If
the Accounting Firm determines that no Excise Tax is
payable by the Executive, it shall furnish the Exe-
cutive with a written opinion that failure to report
the Excise Tax on the Executive's applicable federal
income tax return would not result in the imposition
of a negligence or similar penalty. Any determina-
tion by the Accounting Firm shall be binding upon
the Company and the Executive for purposes of this
Agreement. As a result of the uncertainty in the
application of Section 4999 of the Code at the time
of the initial determination by the Accounting Firm
hereunder, it is possible that the Gross-Up Payment
made by the Company is less than the payment which
should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder.
In the event that the Company exhausts its remedies
pursuant to this Section and the Executive is there-
after required to make a payment of any Excise Tax,
the Accounting Firm shall determine the amount of
the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company
to the Executive or for the Executive's benefit.
(c) The Executive shall notify the Company in writing of
any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company
of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten
(10) business days after the Executive is informed
in writing of such claim and shall apprise the Com-
pany of the nature of such claim and the date on
which such claim is requested to be paid. The Exe-
cutive shall not pay such claim prior to the expira-
tion of the 30-day period following the date on
which the Executive gives such notice to the Company
(or such shorter period ending on the date that any
payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing
prior to the expiration of such period that it
desires to contest such claim, the Executive shall:
(1) give the Company any information reasonably
requested by the Company relating to such
claim,
(2) take such action in connection with contesting
such claim as the Company shall reasonably
request in writing from time to time,
including, without limitation, accepting legal
representation with respect to such claim by an
attorney reasonably selected by the Company,
(3) cooperate with the Company in good faith in
order to effectively contest such claim, and
(4) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and
pay directly all costs and expenses (including
additional interest and penalties) incurred in
connection with such contest and shall indemnify and
hold the Executive harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest
and penalties with respect thereto) imposed as a
result of such representation (to the extent it
relates to issues with respect to which a Gross-Up
Payment would be payable hereunder) and payment of
related costs and expenses. Without limitation on
the foregoing provisions of this Section 6.8, the
Company shall control all proceedings taken in con-
nection with such contest and, at its sole option,
may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with
the taxing authority in respect of such claim and
may, at its sole option, either direct the Executive
to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine;
provided, however, that if the Company directs the
Executive to pay such claim and xxx for a refund,
the Company shall advance the amount of such payment
to the Executive, on an interest-free basis, and
shall indemnify and hold the Executive harmless, on
an after-tax basis, from any Excise Tax or income
tax (including interest or penalties with respect
thereto) imposed with respect to such advance or
with respect to any imputed income with respect to
such advance; and further provided that any
extension of the statute of limitations relating to
payment of taxes for the Executive's taxable year
with respect to which such contested amount is
claimed to be due is limited solely to such
contested amount. Furthermore, the Company's
control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be
payable hereunder, and the Executive shall be
entitled to settle or contest, as the case may be,
any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the Executive's receipt of an amount
advanced by the Company pursuant to this Section
6.8, the Executive becomes entitled to receive any
refund with respect to such claim, the Executive
shall (subject to the Company's complying with the
requirements of this Section 6.8) promptly pay to
the Company the amount of such refund (together with
any interest paid or credited thereon after taxes
applicable thereto). If, after the Executive's
receipt of an amount advanced by the Company pursu-
ant to this Section 6.8, a determination is made
that the Executive shall not be entitled to any
refund with respect to such claim and the Company
does not notify the Executive in writing of its
intent to contest such denial of refund prior to the
expiration of thirty (30) days after such determina-
tion, then such advance shall be forgiven and shall
not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.
6.9 Payments Conditioned on Waiver. Notwithstanding any
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other provision of this Agreement, where a payment is due
to Executive under Section 6.4, 6.6 or 6.7 hereunder, no
such payments shall be made unless and until Executive
(or his Estate) shall have executed a copy of a waiver
and release in the form annexed hereto as Exhibit "A";
provided, however, that any such waiver and release shall
expressly protect all rights and benefits of Executive
under this Agreement, including without limitation, the
rights under Sections 6.4, 6.6 and 6.7.
Section 7. Confidentiality
7.1 Confidentiality. During the Term of this Agreement and
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thereafter in perpetuity, the Executive will not directly
or indirectly divulge or appropriate to his own use, or
to the use of any third party, any "trade secrets" or
"confidential information" (as defined in Section 7.2) of
the Company or any of the Company's subsidiaries or
affiliates (hereinafter, the Company and its subsidiaries
and affiliates shall be collectively referred to as the
"Company Group"), except as may be in the public domain
other than by violation of this Agreement or as may be
required by law.
7.2 Trade Secrets and Confidential Information. "Trade
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Secrets" as used herein means all secret discoveries,
inventions, formulae, designs, methods, processes,
techniques of production and know-how relating to the
Company Group's business. "Confidential Information" as
used herein means the Company Group's internal policies
and procedures, suppliers, customers, financial informa-
tion and marketing practices, as well as secret dis-
coveries, inventions, formulae, designs, techniques of
production, know-how and other information relating to
the Company Group's business not rising to the level of a
trade secret under applicable law.
Section 8. Indemnification
The Company hereby covenants and agrees, to the fullest extent
permitted by law, to indemnify and hold harmless the Executive
fully, completely and absolutely against and in respect to any
and all actions, suits, proceedings, claims, demands, judgments,
costs, expenses (including reasonable attorney's fees), losses,
and damages resulting from the Executive's good faith performance
of his duties and obligations under the terms of this Agreement.
Section 9. Assignment
9.1 Assignment by Company. This Agreement may be assigned or
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transferred to, and shall be binding upon and shall inure
to the benefit of, any successor of the Company, and any
such successor shall be deemed substituted for the "Com-
pany" for all purposes under this Agreement. As used in
this Agreement, the term "successor" shall mean any
person, firm, corporation, or business entity which at
any time, whether by merger, purchase, or otherwise,
acquires all or substantially all of the assets of the
Company. Except as herein provided, this Agreement may
not be assigned by the Company.
9.2 Assignment by Executive. This Agreement shall inure to
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the benefit of and be enforceable by the Executive's
personal or legal representatives, executors, and
administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive should die
while any amounts payable to the Executive hereunder
remain outstanding, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's devisee,
legatee, or other designee or, in the absence of such
designee, to the Executive's estate.
Section 10. Dispute Resolution and Notice
10.1 Arbitration. Any dispute or controversy arising under or
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in connection with this Agreement shall be settled by
arbitration, conducted before a panel of three (3)
arbitrators sitting in a location selected by the
Executive within fifty (50) miles of the location of his
employment with the Company, in accordance with the rules
of the American Arbitration Association then in effect.
Judgment may be entered on the award of the arbitrator in
any court having proper jurisdiction. All expenses of
such arbitration, other than the fees and expenses of the
counsel for the Executive shall be borne, by the Company.
10.2 Notice. For the purpose of this Agreement, any notices,
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requests, demands, or other communications provided for
by this Agreement shall be in writing and shall be deemed
to have been duly given when delivered or mailed by
United States registered or certified mail, return
receipt requested, postage prepaid, or by recognized
overnight delivery service (such as, but not limited to,
Federal Express), to the Executive at the last address he
has filed in writing with the Company or, in the case of
the Company, at its principal offices, to the attention
of the President.
Section 11. Miscellaneous
11.1 Gender and Number. Except where otherwise indicated by
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the context, any masculine term used herein also shall
include the feminine, the plural shall include the
singular, and the singular shall include the plural.
11.2 Modification. This Agreement shall not be varied,
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altered, modified, canceled, changed, or in any way
amended except by mutual agreement of the parties in a
written instrument executed by the parties hereto or
their legal representatives.
11.3 Severability. In the event that any provision or portion
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of this Agreement shall be determined to be invalid or
unenforceable for any reason, the remaining provisions of
this Agreement shall be unaffected thereby and shall
remain in full force and effect.
11.4 Counterparts. This Agreement may be executed in one (1)
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or more counterparts, each of which shall be deemed to be
an original, but all of which together will constitute
one and the same Agreement.
11.5 Tax Withholding. The Company may withhold from any
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benefits payable under this Agreement all federal, state,
city, or other taxes as may be required pursuant to any
law or governmental regulation or ruling.
11.6 Beneficiaries. The Executive may designate one or more
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persons or entities as the primary and/or contingent
beneficiaries of any amounts to be received under this
Agreement. Such designation must be in the form of a
signed writing acceptable to the President. The Execu-
tive may make or change such designation at any time.
Section 12. Governing Law
To the extent not preempted by federal law, the provisions of
this Agreement shall be construed and enforced in accordance with
the laws of the state of Texas, without regard to conflicts of
law principles.
IN WITNESS WHEREOF, the Executive and the Company has executed
this Agreement, as of the day and year first above written.
SOUTHERN UNION COMPANY Executive:
By: XXXXX XXXXXXXXX XXXXXX X. XXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Senior Vice
President -- HR
