Exhibit 10.2
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(“Agreement”), made and entered into this 10
th day of August, 2009 (the “Effective
Date”), by and between Ferrellgas, Inc. (the
“Company”) and James R. VanWinkle (the
“Executive”);
WITNESSETH THAT
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WHEREAS, the Company wishes to
continue to assure itself of the continuity of the
Executive’s services; and
WHEREAS, the Company and the
Executive now desire to enter into this Agreement relating to the
Executive’s continued employment with the Company;
NOW, THEREFORE, in consideration of
the premises and mutual covenants set forth herein, IT IS HEREBY
AGREED by and between the parties as follows:
1. Certain Definitions .
In addition to terms otherwise defined herein, the following
capitalized terms used in this Agreement shall have the meanings
specified:
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(a)
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Board . The term “Board”
means the Board of Directors of the Company.
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(b)
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Cause . The term “Cause”
means:
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(i)
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the willful and continued failure by the
Executive to substantially perform his duties for the Company
(other than any such failure resulting from the Executive’s
being disabled) within a reasonable period of time after a written
demand for substantial performance is delivered to the Executive by
the Board, which demand specifically identifies the manner in which
the Board believes that the Executive has not substantially
performed his duties;
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(ii)
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the willful engaging by the Executive in
conduct which is demonstrably and materially injurious to the
Company, monetarily or otherwise;
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(iii)
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the engaging by the Executive in egregious
misconduct involving serious moral turpitude to the extent that, in
the reasonable judgment of the Board, the Executive’s
credibility and reputation no longer conform to the standard of the
Company’s executives; or
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(iv)
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the Executive’s material breach of a
material term of this Agreement.
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For purposes of this Agreement, no
act, or failure to act, on the Executive’s part 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.
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(c)
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Change in Control . The term
“Change in Control” means the first to occur of any of
the following that occurs after the Effective Date:
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(i)
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any merger or consolidation of the Company in
which the Company is not the survivor;
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(ii)
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any sale of all or substantially all of the
common stock of Ferrell Companies, Inc. by the Ferrell Companies,
Inc. Employee Stock Ownership Trust;
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(iii)
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a sale of all or substantially all of the
common stock of the Company;
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(iv)
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a replacement of the Company as the General
Partner of Ferrellgas Partners, L.P.;
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(v)
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a public sale of at least 51 percent of
the equity of Ferrell Companies, Inc.; or
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(vi)
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such other transaction designated as a Change
in Control by the Board.
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(d)
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Confidential Information . For purposes
of this Agreement, the term “Confidential Information”
shall include (i) all non-public information (including,
without limitation, information regarding litigation and pending
litigation) concerning the Company and the affiliates which is
acquired by or disclosed to the Executive during the course of his
employment with the Company and (ii) all non-public
information concerning any other person or company that was shared
with the Company or an affiliate of the Company that is subject to
an agreement to maintain the confidentiality of such
information.
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(e)
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COBRA . The term “COBRA”
means continuing group health coverage required by section 4980B of
the Code or sections 601 et . seq . of the Employee
Retirement Income Security Act of 1974, as amended.
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(f)
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Code . The term “Code”
means the Internal Revenue Code of 1986, as amended.
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(g)
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Good Reason . The term “Good
Reason” means any of the following which occur after the
Effective Date without the consent of the Executive:
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(a)
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A reduction in excess of 10% in the
Executive’s Salary (as defined in paragraph 4(a)) or target
incentive potential as in effect as of the Effective Date, as the
same may be modified from time to time in accordance with this
Agreement;
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(b)
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A material diminution in the Executive’s
authority, duties or responsibilities as in effect as of the
Effective Date, as the same may be modified from time to time in
accordance with this Agreement;
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(c)
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The relocation of the Executive’s
principal office location to a location which is more than 50
highway miles from the location of the Executive’s principal
office location as in effect on the Effective Date (or such
subsequent principal location agreed to by the Executive); or
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(d)
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The Company’s material breach of any
material term of this Agreement.
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Notwithstanding any other provision
of this Agreement to the contrary, the Executive’s
Termination Date shall not be considered to be on account of Good
Reason unless the Executive provides notice of the event or
condition that the Executive believes to constitute Good Reason
within 180 days after the date on which the event first occurs
or the condition first exists, the Company does not cure such event
or condition within 30 days following the date the Executive
provides notice and the Executive resigns his employment with the
Company and its affiliates for Good Reason within the Agreement
Term.
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(h)
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Termination Date . The term
“Termination Date” with respect to the Executive means
the date on which the Executive’s employment with the Company
and its affiliates terminates for any reason, including voluntary
resignation. If the Executive becomes employed by the entity into
which the Company is merged, or the purchaser of substantially all
of the assets of the Company, or a successor to such entity or
purchaser, the Executive’s Termination Date shall not be
treated as having occurred for purposes of this Agreement until
such time as the Executive terminates employment with the successor
and its affiliates (including, without limitation, the merged
entity or purchaser). If the Executive is transferred to employment
with an affiliate (including a successor to the Company, and
regardless of whether before, on, or after a Change in Control),
such transfer shall not constitute the Executive’s
Termination Date for purposes of this Agreement. To the extent that
any payments or benefits under the Agreement are subject to section
409A of the Code and are paid or provided on account of the
Executive’s Termination Date, the determination as to whether
the Executive has had a Termination Date (or other termination of
employment or separation from service) shall be made in accordance
with section 409A of the Code and the guidance issued
thereunder.
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2. Agreement Term .
Subject to the terms and conditions of this Agreement, the Company
hereby agrees to employ the Executive during the Agreement Term (as
defined below) and the Executive hereby agrees to remain in the
employ of the Company and to provide services during the Agreement
Term in accordance with this Agreement. Unless terminated sooner in
accordance with this Agreement, the “Agreement Term”
shall be the period beginning on the Effective Date and ending on
December 31, 2012 and, thereafter, the Agreement Term will be
automatically extended for successive 12-month periods, unless one
party to this Agreement provides notice of non-renewal to the other
at least 180 days before the last day of then current
Agreement Term. Notwithstanding the foregoing, if a Change in
Control occurs during the Agreement Term (as it may be extended
from time to time), the Agreement Term shall continue for a period
of twenty-four calendar months beyond the calendar month in which
such Change in Control occurs and, following an extension in
accordance with this sentence, the Agreement Term shall expire
without further action by any party. Notwithstanding the foregoing,
in all cases, the Agreement Term shall terminate on the
Executive’s Termination Date.
3. Performance of Duties
. The Executive agrees that during the Agreement Term from and
after the Effective Date, while the Executive is employed by the
Company, the Executive will devote the Executive’s full
business time, energies and talents to serving the Company, at the
direction of the Board. The Executive shall have such duties and
responsibilities as may be assigned to the Executive from time to
time by the Board, shall perform all duties assigned to the
Executive faithfully and efficiently, subject to the direction of
the Board, and shall have such authorities and powers as are
inherent to the undertakings applicable to the Executive’s
position and necessary to carry out the responsibilities and duties
required of the Executive hereunder. The Executive will perform the
duties required by this Agreement at the Company’s principal
place of business unless the nature of such duties requires
otherwise. Notwithstanding the foregoing, during the Agreement
Term, the Executive may devote reasonable time to activities other
than those required under this Agreement, including activities of a
charitable, educational, religious or similar nature (including
professional associations) to the extent such activities do not, in
the reasonable judgment of the Board, inhibit, prohibit, interfere
with or conflict with the Executive’s duties under this
Agreement or conflict in any material way with the business of the
Company and its affiliates; provided, however, that the Executive
shall not serve on the board of directors of any business (other
than the Company or its affiliates) or hold any other position with
any business without receiving the prior written consent of the
Board.
4. Compensation . During
the Agreement Term, while the Executive is employed by the Company,
the Executive shall be compensated for the Executive’s
services as follows:
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(a)
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The Executive shall receive, for each
12-consecutive month period beginning on November 1, 2009 and
each anniversary thereof, a base annual salary
(“Salary”) at the rate of $350,000. The Salary shall be
payable in accordance with the regular payroll practices of the
Company. The Executive’s rate of Salary shall be reviewed
annually by the Board; provided that the Executive’s rate of
Salary will not be reduced.
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(b)
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The Executive shall be eligible to participate
in employee benefit plans and programs maintained from time to time
by the Company for the benefit of similarly situated senior
management employees, subject to the terms and conditions of such
plans.
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(c)
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The Executive shall be entitled to bonuses
from the Company as determined in the sole discretion of by the
Board.
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(d)
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The Executive shall be reimbursed by the
Company, on terms and conditions that are substantially similar to
those that apply to other similarly situated senior management
employees of the Company and in accordance with the Company’s
expense reimbursement policy, for reasonable out-of-pocket expenses
for entertainment, travel, meals, lodging and similar items which
are consistent with the Company’s expense reimbursement
policy and actually incurred by the Executive in the promotion of
the Company’s business; provided, however, that, the
reimbursement of any such expenses that are taxable to the
Executive shall be made on or before the last day of the year
following the year in which the expense was incurred and the amount
of the expenses eligible for reimbursement during one year will not
affect the amount of expenses eligible for reimbursement in any
other year, and the right to reimbursement shall not be subject to
liquidation or exchange for any other benefit.
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5. Rights and Payments Upon
Termination . The Executive’s right to benefits and
payments, if any, for periods after the Executive’s
Termination Date shall be determined in accordance with this
Section 5. Additionally, a signed Agreement and Release will
be required of the Executive before payments will be made to the
Executive under this agreement.
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(a)
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Minimum Payments. If the Executive’s
Termination Date occurs during the Agreement Term for any reason,
the Executive shall be entitled to the following payments, in
addition to any payments or benefits to which the Executive may be
entitled under the following provisions of this Section 5
(other than this paragraph 5(a)) or the express terms of any
employee benefit plan or as required by law:
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(i)
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the Executive’s earned but unpaid Salary
for the period ending on the Executive’s Termination
Date;
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(ii)
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the Executive’s accrued but unpaid
vacation pay for the period ending with the Executive’s
Termination Date, as determined in accordance with the
Company’s policy as in effect from time to time, and all
other amounts earned and owed to the Executive through and
including the Termination Date;
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(iii)
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the Executive’s unreimbursed business
expenses; and
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(iv)
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any amounts payable to the Executive under the
terms of any employee benefit plan.
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Payments to be made to the Executive
pursuant to subparagraphs 5(a)(i) and (ii) shall be made within
30 days after the Executive’s Termination Date in a lump
sum, payments to be made pursuant to subparagraph 5(a)(iii) shall
be paid in accordance with paragraph 4(d) and amounts payable
pursuant to subparagraph 5(a)(iv) shall be paid in accordance with
the terms of the applicable employee benefit plan. Except as may be
otherwise expressly provided to the contrary in this Agreement or
as otherwise provided by law, nothing in this Agreement shall be
construed as requiring the
