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Exhibit 10.12
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of July 10, 1997, and effective as of August 4,
1997 is made by and between Getty Petroleum Marketing Inc., a Maryland
corporation (the "Company"), and Xxxxxxx X. XxXxxxxxxxx (the "Executive").
RECITALS:
A. It is the desire of the Company to assure itself of the
management services of the Executive by engaging the Executive as
President of the Company.
B. The Executive desires to commit himself to serve the Company
on the terms herein provided.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. Certain Definitions.
(a) "Base Salary" is defined in Section 4(a).
(b) "Benefits" is defined in Section 4(d).
(c) "Board" means the Board of Directors of the Company.
(d) "Bonus" is defined in Section 4(b).
(e) "Change in Control" means the occurrence of any of the
following:
(i) the Company is merged, consolidated or reorganized into or
with another corporation or other legal person, and as a result of
such merger, consolidation or reorganization less than fifty
percent of the combined voting power of the then outstanding
securities of such resulting corporation or person immediately
after such transaction are held in the aggregate by the holders of
voting stock of the Company immediately prior to such transaction; or
(ii) the Company sells or otherwise transfers all or
substantially all of its assets to another corporation or other legal
person, and as a result of such sale or transfer less than fifty
percent of the combined voting power of the then outstanding voting
stock of such corporation or person immediately after such sale or
transfer is held in the aggregate by the holders of voting stock of
the Company immediately prior to such sale or transfer.
(f) "Committee" shall mean the Compensation Committee of the
Board.
(g) "Disability" shall mean the absence of the Executive
from theExecutive's duties to the Company on a full-time basis for a
period of 120 consecutive days as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a
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physician selected by the Company and acceptable to the Executive or the
Executive's legal representative (such agreement as to acceptability not to
be withheld unreasonably).
(h) "Effective Date" shall mean August 4, 1997.
(i) "Stock Option Plan" means the 1997 Stock Plan of Getty
Petroleum
Marketing Inc.
(j) "Stock Option" is defined in Section 4(c).
(k) "Term of Employment" is defined in Section 2.
2. Employment. The Company shall employ the Executive and the
Executive shall enter the employ of the Company in the position set forth in
Section 3 and upon the other terms and conditions herein provided. The initial
term of Executive's employment with the Company (the "Initial Term") shall
commence on the Effective Date and end on the second anniversary thereof. After
the Initial Term, the term of employment hereunder shall automatically be
extended for successive one-year periods (collectively with the Initial Term,
the "Term") unless either the Company or the Executive shall give written notice
of non-renewal at least 90 days prior to the then scheduled expiration of the
Term.
3. Position and Duties.
(a) During the Term of Employment, the Executive shall serve as the
President of the Company with such authority and duties as are
customarily enjoyed and performed by a person holding the position of
President in a similar business or enterprise, subject to the overall
authority and supervision of the Board.
(b) During the Term of Employment, the Executive shall devote all his
working time and efforts to the business and affairs of the Company and
will not enter the employ of or serve as a consultant to, or in any way
perform any services with or without compensation for, any other person,
business or organization, where such conduct would be inconsistent with,
in competition with, or prevent the Executive from carrying out, his
duties to the Company, without the prior written consent of the Board.
4. Compensation and Related Matters.
(a) Base Salary. During the Term of Employment, the Executive shall
receive a base salary ("Base Salary") at a rate of $300,000 per annum,
payable no less frequently than monthly, subject to increases at the
discretion of the Committee; provided, however, that the Executive shall
be eligible for a formal salary review on the date that is six months
after the Effective Date.
(b) Bonus. Upon the completion of each 12-month period of employment
during the Term, the Executive shall be eligible to receive a performance
bonus in an amount no greater than the annual rate of Base Salary as in
effect on the first day of such 12-month period. The amount of the
bonus, if any, will be determined by the Committee based upon the
Company's and the Executive's achievement of performance objectives
established by the Committee upon recommendation of the Chairman of the
Board.
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(c) Stock Option. As of July 10, 1997, the Company shall grant the
Executive an option to purchase 75,000 shares of the Company's common
stock (the "Stock Options"). The Stock Option shall be granted pursuant
to the Stock Option Plan and shall be evidenced and governed by a written
Stock Option Agreement. The exercise price of the Stock Option will be
the fair market value of a share of the Company's common stock on July
10,1997, as determined pursuant to the Stock Option Plan, and the Stock
Option shall become exercisable with respect to 15,000 shares on each of
the first five anniversaries of the Effective Date, subject to the terms
and conditions of the Stock Option Agreement.
(d) Benefits. During the Term of Employment, the Executive shall be
entitled to participate in or receive benefits under any employee
benefit plan or other arrangement made available by the Company on terms
no less favorable than those generally applicable to senior executives of
the Company, subject to and on a basis consistent with the terms,
conditions and overall administration of such plan or arrangement.
(e) Expenses. The Company shall promptly reimburse the Executive for
all reasonable travel and other business expenses incurred by the
Executive in the performance of his duties to the Company hereunder.
(f) No Waiver. The Executive shall also be entitled to such other
benefits or terms of employment as are provided by law.
(g) Relocation Expenses.
(i) The Executive shall be reimbursed for reasonable actual
expenses incurred by him in moving and settlement of his personal
property from his current principal residence in Pennsylvania to a
residence near the Company's Executive offices in Jericho, New
York, including closing costs for the sale of his current principal
residence. Such reimbursement shall be made to the extent that the
Executive properly accounts therefor in accordance with the
Company's reimbursement practices.
(ii) The Executive agrees to relocate to the environs of the
Company's headquarters as soon as practicable, but in no event
later than three (3) months after the Effective Date.
5. Change in Control. If the Executive's employment shall terminate by
reason of a Change in Control, the Company shall reimburse the Executive for
reasonable actual expenses incurred by him in relocating his personal property
from his then current principal residence to a residence in Pennsylvania. Such
reimbursement shall be made to the extent that the Executive properly accounts
therefor in accordance with the Company's reimbursement practices.
6. Non-Disclosure of Confidential Information. The Executive
acknowledges that during his employment he will have access to:
(a) confidential or secret plans, programs, documents, agreements,
internal management reports, financial information or other material
relating to the business, services or activities of the Company, and
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(b) trade secrets, market reports, customer investigations, customer
lists and other similar information that is proprietary information of
the Company (collectively referred to as "Confidential Information").
The Executive acknowledges that such Confidential Information as is
acquired and used by the Company is a special, valuable and unique asset of the
Company. In addition, all records, files and other materials obtained by the
Executive in the course of his employment with the Company shall remain the
property of the Company. The Executive will not use Confidential Information
or property of the Company for his own benefit or the benefit of any person or
entity with which he may be associated. The Executive will not disclose any
Confidential Information to any person, firm, corporation, association or other
entity for any reason or purpose whatsoever without the prior written consent
of the Company. The obligations of this Section shall not apply to (i)
information that enters the public domain without a breach of this Agreement by
the Executive or (ii) information developed by or known to the Executive
independently of disclosure to him by the Company.
7. Non-Competition. The Executive shall be prohibited for one year
following termination of employment with the Company for any reason from
providing services to, or owning any interest in (other than beneficial
ownership of not more than 5% of the outstanding voting stock of any publicly
traded company), any entity which competes with the Company in any geographic or
product market.
8. Non-Solicitation. During the Term of Employment and for two years
thereafter, Executive shall not (i) induce or attempt to induce any employee of
the Company to leave the employ of the Company, or in any way interfere with
the relationship between the Company and any employee thereof, (ii) hire
directly or through another entity any person who was an employee of the
Company at any time during the Term, or (iii) induce or attempt to induce any
customer, supplier, licensee or other business relation of the Company to cease
doing business with the Company, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation and the
Company.
9. Disputes.
(a) Any dispute or controversy arising under, out of, in connection
with or in relation to this Agreement shall be finally determined and
settled by arbitration in New York, New York in accordance with the rules
and procedures of the American Arbitration Association, and judgment upon
the award may be entered in any court having jurisdiction thereof.
(b) The prevailing party in any such proceeding shall be entitled to
collect from the other party, all legal fees and expenses reasonably
incurred in connection therewith.
10. Binding on Successors. This Agreement shall be binding upon and
inure to the benefit of the Company, the Executive and their respective
successors, assigns, personnel and legal representatives, executors,
administrators, heirs, distributees, devisees and legatees, as applicable.
11. Governing Law. This Agreement is being made and executed in and is
intended to be performed in the State of New York, and shall be governed,
construed, interpreted and enforced in accordance with the substantive laws of
the State of New York.
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12. Validity. The invalidity or unenforceability of any provision or
provisions 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.
13. Notices. Any notice, request, claim, demand, document and other
communication hereunder to any party shall be effective upon receipt (or
refusal of receipt) and shall be in writing and delivered personally or sent by
telex, telecopy, or certified or registered mail, postage prepaid, as follows:
If to the Company, to the attention of Xxx Xxxxxxxxx at:
000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
If to the Executive, to him at the address set forth below under his
signature;
or at any other address as any party shall have specified by notice
in writing to the other parties.
14. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
15. Entire Agreement. The terms of this Agreement are intended by the
parties to be the final expression of their agreement with respect to the
employment of the Executive by the Company and may not be contradicted by
evidence of any prior or contemporaneous agreement. The parties further intend
that this Agreement shall constitute the complete and exclusive statement of
its terms and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding to vary the terms of this
Agreement.
16. Amendments; Waivers. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, signed by the Executive and the
Company. By an instrument in writing similarly executed, the Executive or the
Company may waive compliance by the other party with any provision of this
Agreement that such other party was or is obligated to comply with or perform,
provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder
preclude any other or further exercise of any other right, remedy, or power
provided herein or by law or in equity.
17. No Inconsistent Actions; Cooperation.
(a) The parties hereto shall not voluntarily undertake or fail to
undertake any action or course of action inconsistent with the provisions
or essential intent of this Agreement. Furthermore, it is the intent of
the parties hereto to act in a fair and reasonable manner with respect to
the interpretation and application of the provisions of this Agreement.
(b) Each of the parties hereto shall cooperate and take such actions,
and execute such other documents as may be reasonably requested by the
other in order to carry out the provisions and purposes of this
Agreement.
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18. No Alienation of Benefits. To the extent permitted by law the
benefits provided by this Agreement shall not be subject to garnishment,
attachment or any other legal process by the creditors of the Executive, his
beneficiary or his estate.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
EXECUTIVE
/s/ Xxxxxxx X. XxXxxxxxxxx
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Xxxxxxx X. XxXxxxxxxxx
Address
GETTY PETROLEUM MARKETING INC.,
a Maryland corporation
By: /s/ Xxx Xxxxxxxxx, Pres.
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