Exhibit 10.38
January 30, 1997
Petro Stopping Centers, L.P.
0000 Xxxxxx Xxxxx
Xx Xxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxx
SECONDMENT LETTER AGREEMENT
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Dear Xx. Xxxxxxxx:
By this letter, Mobil Oil Corporation, a New York corporation having its office
at 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"Employer") confirms its agreement with Petro Stopping Centers, L.P., a Delaware
limited partnership having its principal place of business at 0000 Xxxxxx Xxxxx,
Xx Xxxx, Xxxxx 00000 (hereinafter referred to as "Contractor") relating to the
temporary secondment of one (1) of Employer's employees to Contractor. The
agreement ("Agreement") is set out as follows:
1. Contractor has requested that Employer make available at Contractor's
offices the services of one of Employer's qualified employees. Contractor
previously specified the requisite qualifications of the individual and the
period of time for which his services will be required. Employer agrees to
assign such person (hereinafter referred to as the "Employee") temporarily
to Contractor for an agreed upon period of secondment, subject to the
provisions herein. Employer agrees to assign Xxxx X. Xxxxxxx (or successor
of Employer's choice) to Contractor for some period of time commencing from
the date that the Transactions contemplated under the Omnibus Agreement and
Operative Agreements as defined in the Omnibus Agreement are consummated
("Closing"). Subject to Paragraphs 8 and 11 of this Agreement, Employer
currently contemplates that this period of secondment will last until July
1, 2000.
2. During the period of secondment, Employee shall be on loan from Employer to
Contractor and shall be under Contractor's day-to-day supervision.
Employee, however, shall at all times remain in the general employ of
Employer, and Contractor agrees not to attempt to interfere with the
ongoing employment relationship between Employer and Employee or to recruit
Employee as employee of Contractor during the period of secondment.
3. Subject to any applicable laws and to the Marketing Services Agreement
between Employer and Contractor ("Marketing Services Agreement"), Employer
shall determine and set the Employee's salary, wages, allowances,
retirement or redundancy payments or other remuneration of any kind
whatsoever (provided that the total compensation and benefits set by
Employer for Employee is consistent with Employer's normal salary
administration and benefits policies) and will be responsible for their
payment or provision to or for the benefit of the Employee. Employer shall
continue Employee in all of its applicable benefit plans. Employee shall
not be entitled to participate in any benefit or bonus plan maintained by
Contractor for its employees. Employer shall pay or provide for any
employment taxes payable with respect to the Employee, any employee
contributions required for continued participation in Employer's benefit
plans, and any overhead expenses associated with the assignment.
Notwithstanding anything in this Paragraph 3 to the contrary, Xxxx X.
Xxxxxxx'x bonus payments from Employer will be determined as the
amounts he would receive if he were eligible to participate fully in the
Contractor's bonus and stock appreciation plans, beginning January 1, 1997,
at a level commensurate with his responsibilities within Contractor's
company. After Employer's February 1997 stock option xxxxx, Xxxx X. Brudahl
shall not be eligible to receive stock options from Employer during the
term of his secondment.
4. Contractor shall reimburse Employer promptly for all compensation, benefits
and other expenses of Employer in connection with the secondment of the
Employee upon the presentation of Employer's invoices therefor. Unless
otherwise agreed to, Contractor shall bear directly reimbursable employee
business expenses of the Employee consistent with Contractor's
reimbursement policy. It is understood that Employee's compensation is not
currently subject to the withholding of income tax in Texas.
5. Employer shall pay for Employee's (and, if applicable, his spouse's and
dependents') relocation to El Paso from Employee's residence at the time he
is notified of his assignment to Contractor's offices, as well as the cost
of shipping his household and personal effects.
6. During the period of secondment, Employee shall accrue vacation,
bereavement and sick leave in accordance with Employer's policies. However,
the scheduling of Employee's vacation will be subject to Contractor's
reasonable approval. Notwithstanding anything to the contrary in this
Paragraph 6, Xxxx X. Xxxxxxx will be eligible for four (4) weeks of
vacation per calendar year. In return for Xxxx X. Xxxxxxx'x agreement to
forego a fifth week of vacation for which he is eligible under Employer's
vacation program and to comply with Contractor's holiday schedule,
Contractor agrees that Xx. Xxxxxxx'x cash bonus referenced in Paragraph 3
above (without regard to any payments in respect of stock appreciation
rights) will be at least $3,000 in any calendar year.
7. Contractor shall have the right at any time after the commencement of the
secondment to notify Employer that the Employee is performing at an
unacceptable level and, therefore, is no longer required by Contractor.
Effective one hundred and twenty days after Employer's receipt of such
notice, the secondment shall terminate with respect to such Employee and
such Employee shall cease to be under the supervision of Contractor. The
notice period may be shorter if mutually agreed or if the circumstances
warrant it.
8. Employer retains the sole right to retain and/or dismiss Employee and, in
its absolute discretion, may unilaterally limit Employee's length of
assignment under this Agreement. Employer will endeavor to provide
Contractor with one hundred and twenty days notice in the event that
Employer decides to shorten the length of assignment. The notice period may
be shorter if the circumstances warrant it. Employer undertakes to confer
with Contractor regarding Employee's performance hereunder.
9. Should Petro Holdings GP Corporation take control of the Board of
Contractor's company under the Partnership or any other Agreement to which
Contractor is a party and, without cause (which will be determined by Xxxx
Xxxxxxxx, Xx. or Mobil's Distillate Business Manager), removes Xxxx X.
Xxxxxxx from his responsibilities as Xxxxx Xx. Vice President Strategic
Planning and Development (or successor equivalent position title), Xx.
Xxxxxxx will be entitled to, and Contractor will reimburse Employer for,
payment of an amount of money equal to his regular base salary for the
period of time commencing on the date of such removal through July 1, 2000,
such amount not to exceed an amount equal to Xx. Xxxxxxx'x base salary for
one year.
10. The parties agree that this Agreement memorializes the arrangement between
them and it supersedes any and all prior agreements respecting the subject
matter herein addressed. The provisions of this Agreement and all rights,
duties and obligations hereunder shall be governed by and construed in
accordance with the laws of the State of Delaware.
11. At any time, Employer may terminate this Agreement due to extraordinary
circumstances and upon request by the Employee by giving written notice to
Contractor not less than one hundred and twenty days prior to the effective
date thereof. Upon such termination, Contractor shall be liable only for
charges incurred prior to the effective date of such termination plus such
additional charges as are determined by the Employer to be required in
connection with the termination of the Agreement and relocating the
Employee.
If this Letter Agreement accurately sets forth the terms and conditions of our
agreement, please so indicate by having an authorized representative sign the
duplicate copy of this letter and return it to us.
Very truly yours,
MOBIL OIL CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Manager, Distillate Business
Attorney-in-Fact
Accepted and Agreed to this
30th day of January, 1997
PETRO STOPPING CENTERS, L.P.
By: /s/ Xxxxx X. Zine
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Xxxxx X. Zine, Executive Vice President & CFO
