Exhibit 10.25
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the
or this “Agreement”) is made and entered into on this
11 th day of October, 2004, to become effective on
November 1, 2004 (“Effective Date”), by and among
FERRELLGAS, INC. (“FGI”), a corporation
organized and existing under the laws of the State of Delaware;
FERRELL COMPANIES, INC. (“FCI”), a corporation
organized and existing under the laws of the state of Kansas, (FGI
and FCI are each referred to in this Agreement individually as the
“Company” or collectively as the
“Companies,” as the context so requires), and
BILLY D. PRIM (the “Executive”), an
individual residing at Winston-Salem, North Carolina.
R E C I T A L S:
FGI
is a wholly-owned subsidiary of FCI. FGI serves as the general
partner of Ferrellgas Partners, L.P., a Delaware limited
partnership (“Ferrellgas Partners”), and Ferrellgas,
L.P., a Delaware limited partnership (“Ferrellgas”).
Ferrellgas Partners and Ferrellgas are referred to in this
Agreement collectively as the “Partnerships.” The
Partnerships are engaged primarily in the sale, distribution and
marketing of propane gas and related products. The Companies,
through the Partnerships, conduct such business throughout the
United States.
The
Companies, through the Partnerships, have expended a great deal of
time, money, and effort to develop and maintain proprietary
Confidential Information which, if misused or disclosed, could be
harmful to the Business. The success of the Companies depends to a
substantial extent upon the protection of the Confidential
Information and customer goodwill by all of their employees and the
employees of the Partnerships.
The
Executive has heretofore been employed as the Executive Vice
President of FGI and as the Chief Executive Officer of the Blue
Rhino Division of Ferrellgas under the terms of his Employment
Agreement dated February 8, 2004. The Companies and the Executive
have agreed to enter into this Agreement to provide for the
continued employment of the Executive under changed terms and
conditions.
The
Executive desires to be eligible for opportunities within the
Companies which otherwise would not be available to the Executive
and to be given access to Confidential Information of the Companies
and the Partnerships which is necessary for the Executive to
perform his duties, but which the Companies would not continue to
make available to the Executive but for the Executive’s
signing and agreeing to abide by the terms of this Agreement as a
condition of the Executive’s employment with the
Companies.
The
Executive recognizes and acknowledges that the Executive’s
position with the Companies will provide the Executive with access
to Confidential Information of the Companies and the
Partnerships.
The
Companies compensate their employees to, among other things,
develop and preserve goodwill with their customers on each
respective Company’s behalf and business information for each
respective Company’s ownership and use.
NOW, THEREFORE , in consideration of the mutual covenants
and obligations herein and the compensation the Companies agree
herein to pay the Executive, and of other good and valuable
consideration, the receipt of which is hereby acknowledged, the
Companies and the Executive agree as follows:
ARTICLE 1
DEFINITIONS
Wherever
used in this Agreement, including the Recitals and this ARTICLE 1,
the following terms shall have the meanings set forth below (unless
otherwise indicated by the context):
1.1
“Hourly
Compensation” means the hourly compensation payable to
the Executive for hours worked as provided in Section 5.1. The
Hourly Compensation shall be calculated by prorating a base annual
salary of $600,000.00 for actual hours worked.
1.2
"Board" means the
Board of Directors of FGI.
1.3
“Business” means any business, service or
product engaged in, provided or produced by the Companies,
including, but not limited to, the retail sale and wholesale of
propane, the propane cylinder exchange business, the manufacturing
or sale of any product lines from the Blue Rhino division of
Ferrellgas (the “Blue Rhino Division”), including,
mosquito extermination devices, propane powered heat lamps, and gas
grills, and any other business in which the Blue Rhino Division
engages.
1.4
“Companies” means collectively Ferrellgas, Inc.
(“FGI”), a Delaware corporation, and Ferrell Companies,
Inc. (“FCI”), a Kansas corporation.
“Company” means each of FGI and FCI
individually.
1.5
“Confidential
Information” means all information, observations and data
(whether in human or machine readable form) obtained by the
Executive while employed by the Companies concerning the business
or affairs of the Companies, a Partnership, or any other affiliate,
including any information pertaining to the Business which is not
generally known in the propane industry, including, but not limited
to, trade secrets, internal processes, designs, design information,
products, inventions, innovations, improvements, developments,
methods, designs, analyses, drawings, reports, and all similar or
related information which related or relates to the
Companies’ actual or anticipated business, research and
development or existing or future products or services and which
are conceived, developed or made by the Executive, whether prior to
or during the Term, data, research and development plans and
activities, equipment modifications, techniques, software and
computer programs and derivative works, business and marketing
plans, projections, sales data and reports, confidential
evaluations, compilations and/or analyses of technical or business
information, profit margins, customer requirements, costs,
profitability, sales and marketing strategies, pricing policies,
strategic plans, training materials, internal financial
information, operating and financial data and projections, names
and addresses of customers, inventory lists, sources of supplies,
supply lists, employee lists, mailing lists, and information
concerning relationships between any Company or Partnership and
their employees or customers which gives or may give the Companies
or the Partnerships an advantage over competitors, and all other
information owned by the Companies which is not public
information.
1.6
“Customers” means and includes any and all
Persons who are customers, patrons or distribution partners of the
Companies or the Partnerships with respect to the
Business.
1.7
“Person” means any individual, partnership,
joint venture, corporation, company, firm, group or other
entity.
1.8
“Products” means propane gas cylinders and any
other products of the Companies and the Blue Rhino Division,
including mosquito extermination devices, propane powered heat
lamps, and gas grills.
1.9
"Term" means the
term of the Executive's employment under this Agreement as provided
in Section 4.1.
1.10
"Termination
Date" means the date the Term expires pursuant to the
provisions of ARTICLE 4.
1.11
"Time Period"
means the Term and the thirty-six-month period next following the
expiration of the Term.
1.12
“Total
Disability” means and occurs as of the date the Board has
determined that the Executive is unable to perform the essential
functions of his duties, even with reasonable accommodation, due to
a mental or physical illness or incapacity for a period of more
than (i) twelve (12) consecutive weeks or (ii) 75% of the business
days in any 120-day period.
1.13
“Trade
Area” means the United States of America or any other
country in which the Companies conduct or have made any material
investment in plans to conduct the Business on the date of the
Executive’s termination.
ARTICLE 2
EMPLOYMENT OF EXECUTIVE
Subject
to the terms and conditions set forth in this Agreement, the
Companies hereby employ the Executive and the Executive hereby
accepts such employment for the period stated in ARTICLE 4 of this
Agreement, under these amended and restated terms.
ARTICLE 3
POSITION, RESPONSIBILITIES AND
DUTIES
3.1
Position and
Responsibilities. During the Term (as defined in Sections 1.9
and 4.1), the Executive shall serve as Executive Vice President of
FGI and as the Chief Executive Officer of the Blue Rhino Division
of Ferrellgas on the conditions herein provided. The Executive
shall provide executive services in the general management and
operation of the Company’s Business assigned to him from time
to time by the FGI Chief Executive Officer, but shall not be
obligated to any specific hour requirement during any given
workweek.
3.2
Location of Blue
Rhino Division. The parties agree that the Blue Rhino Division
shall at all times be based in Winston-Salem, North
Carolina.
ARTICLE 4
TERM
4.1
Term of
Employment. The Term shall commence as of November 1, 2004 and
shall continue until: (i) February 7, 2007; (ii) the date
of death of the Executive; (iii) the specified date of
termination under the Notice Exception (as defined in Section 4.2);
or (iv) the date of termination as a result of the
Executive’s Total Disability, whichever is
earlier.
4.2
Termination by Giving
Notice. If the Executive or the Companies desires to terminate
Executive’s employment prior to the expiration of the Term,
they shall give not less than sixty (60) days written notice of
such desire to the other specifying the date of termination (the
“Notice Exception”).
4.3
Death or Total
Disability. This Agreement will be immediately terminated upon
the death or Total Disability of the Executive.
4.4
Notice of
Termination. Any termination by the Companies or by the
Executive shall be communicated by Notice of Termination to the
other party hereto. For purposes of this section, a “Notice
of Termination” means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and circumstances
providing a basis for termination of the Executive’s
employment under the provision so indicated; and (iii) if the
termination date is other than the date of receipt of such notice,
specifies the effective date of termination.
ARTICLE 5
COMPENSATION
For
all services rendered by the Executive during the Term, including
without limitation, services as an executive, officer, director
(except fees and reimbursements to which all members of the Board,
or a subsidiary or affiliate of the Companies, are generally
entitled) or member of any committee of the Companies or of any
subsidiary, affiliate, or division thereof, the Companies shall pay
the Executive as compensation the following:
5.1
Hourly
Compensation. The Executive shall be paid the Hourly
Compensation for his services during the Term. The Hourly
Compensation shall be paid for any hours worked by the Executive
and reported by the Executive to the FGI Chief Executive Officer.
Executive is obligated to report any hours worked during any month
by the fifteenth (15 th ) day of the following
month.
5.2
Incentive
Compensation Plan. In addition to the Hourly Compensation
provided for in Section 5.1, the Executive shall be entitled to
participate in the Company’s 1998 Incentive Compensation Plan
(the “ICP”) and receive such awards as may be granted
to the Executive from time to time under the ICP. Any such awards
shall be granted in the manner specified in the ICP. Subject to
approval by the Board, the Executive shall be eligible to receive,
in accordance with the terms of the ICP (subject to adjustment for
stock splits and the like) stock options to purchase a number of
shares of FCI, commensurate with his responsibilities, on a 12-year
vesting schedule and at an exercise price to be determined by the
Board.
ARTICLE 6
REIMBURSEMENT OF EXPENSES,
OFFICE AND SECRETARIAL ASSISTANCE
The
Companies recognize that the Executive will incur, from time to
time, expenses for the benefit of the Companies and in furtherance
of the Companies’ business, including, but not limited to,
expenses for entertainment, travel and other business expenses
consistent with the Companies’ past practices. During the
Term, the Executive will be reimbursed for his reasonable expenses
incurred for the benefit of the Companies, so long as such expenses
are approved by the FGI Chief Executive Officer. To receive such
reimbursement, the Executive must present to the FGI Chief
Executive Officer an itemized accounting, in such detail as the FGI
Chief Executive Officer may reasonably request, of such
expenditures. Executive is obligated to provide such itemized
accounting of such expenses incurred during any month by the
fifteenth (15 th ) day of the following month. In the
event of the termination of the Executive’s employment for
any reason, the Companies shall reimburse the Executive (or in the
event of death, his personal representative) for expenses incurred
by the Executive on behalf of the Companies prior to the
Termination Date to the extent such expenses have not been
previously reimbursed by the Companies.
ARTICLE 7
OTHER EMPLOYEE BENEFITS
The
Executive shall be entitled to participate in any and all
retirement, health, disability, life insurance, long-term
disability insurance, nonqualified deferred compensation and
tax-qualified retirement plans or any other plans or benefits
offered by the Company to its senior executives generally, if and
to the extent the Executive is eligible to participate in
accordance with the terms and provisions of any such plan or
benefit program, except that Executive will be deemed eligible to
participate in the Companies’ health plan regardless of the
number of hours he works in any given year during the Term. Nothing
in this ARTICLE 7 is intended, or shall be construed, to
require the Company to institute or maintain any particular plan,
program or benefit. Benefits payable pursuant to this Agreement
shall be in addition to benefits payable to the Executive under all
other employee benefit plans or programs of the Company.
ARTICLE 8
SPECIAL PROVISIONS RELATING TO STOCK
OPTIONS
8.1
Non-Vested Options
Blue Rhino Options Granted Prior to April 20, 2004 . On April
20, 2007, the Executive shall be entitled to receive from the
Company payment in the amount of Nine Hundred Sixty-Seven Thousand
Six Hundred Thirty and No/100 Dollars ($967,630.00), in full
payment for Non-V
