EXHIBIT 10.1
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EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of November 28, 2006 by and between
Susser Holdings Corporation, a Delaware corporation (the "Company"), and Xxxxxx
X. Xxxxx ("Executive").
NOW THEREFORE, in consideration of the premises and the mutual
covenants set forth below, the parties as follows:
1. Employment. Effective as of the date hereof (the
"Effective Date"), the Company hereby agrees to employ Executive as the
Executive Vice President and Chief Marketing Officer of the Company (the
"EVP/CMO"), and Executive hereby accepts such employment on the terms and
conditions hereinafter set forth. Subject to Sections 6 and 8, Executive's
employment with the Company is "at will" and the Company may terminate
Executive's employment, with or without Cause and Executive may terminate his
employment for any reason after providing any required notice.
2. Position and Duties. Executive shall serve as EVP/CMO
and shall have the duties as assigned by the CEO of the Company. Executive shall
devote his full working time, attention and energies (other than absences due to
illness or vacation) to the business and affairs of the Company and its
subsidiaries. Notwithstanding the above, Executive shall be permitted, to the
extent such activities do not interfere with the performance by Executive of his
duties and responsibilities hereunder to (i) manage Executive's personal,
financial and legal affairs and (ii) to serve on civic or charitable boards or
committees (it being expressly agreed that Executive may continue to serve on
the board and/or committees set forth on Exhibit A, and such service shall not
be deemed to interfere with the performance by Executive of his duties and
responsibilities under this Agreement).
3. Term. The term of employment of the Executive under this
Agreement (the "Term") shall commence on the Effective Date and shall continue
in full force and effect for two (2) years; provided, however, that unless the
CEO of the Company or the Executive provides the other with written notice of
termination of this Agreement at least thirty (30) days' prior to any date on
which this Agreement would otherwise expire, the term of employment hereunder
shall be automatically extended for one (1) year from each such date.
4. Place of Performance. The principal place of employment
of Executive shall be in Corpus Christi (or Houston), Texas.
5. Compensation and Related Matters.
(a) Base Salary. For performance of services under
this Agreement, Executive shall receive from SSP Partners, a Texas general
partnership, ("SSP Partners") a base salary of $300,000 per year ("Base
Salary"). Executive's Base Salary shall be paid in approximately equal
installments in accordance with SSP Partners' customary payroll practices. The
Compensation Committee of the Board of Directors of the Company ("Committee")
shall review Executive's Base Salary no less frequently than annually and
consistent with the compensation practices and guidelines of the Company and may
increase (but not decrease) such salary during the Term of this Agreement. If
Executive's Base Salary is increased, such increased Base Salary shall then
constitute the Base Salary for all purposes of this Agreement.
(b) Annual Bonus. In addition to Base Salary,
starting in Fiscal 2007, Executive will be eligible to receive from SSP Partners
an annual bonus with a target amount of 33% of Base Salary upon the achievement
of annually established performance targets. Such performance targets shall be
established by the Committee in consultation with the CEO of the Company.
Notwithstanding the foregoing, Executive shall be entitled to a guaranteed bonus
of $25,000.00 for fiscal year 2006 and $100,000.00 for fiscal year 2007, payable
in the ordinary course of business and at the same time other senior executives
are paid such bonus, provided Executive is employed at the time the bonus is
paid. The bonuses described in this Section shall be paid as soon as practicable
following the end of the fiscal year to which they relate, and in no event later
than the 15th day of the third month of such following fiscal year.
(c) Expenses. SSP Partners shall promptly, but no
later than 21 business days after the receipt of reasonably itemized statements,
reimburse Executive for all reasonable business expenses upon the presentation
of such statements of such expenses in accordance with the Company's or SSP
Partners' policies and procedures now in force or as such policies and
procedures may be modified with respect to all senior executive officers of the
Company.
(d) Benefit Plans and Perquisites. Executive (and
his spouse and dependents to the extent provided therein) shall be entitled to
participate in and be covered under all employee benefit plans or programs
maintained by SSP Partners or the Company from time to time for the benefit of
its senior executives including, without limitation, 401(k), deferred
compensation, vacation, all medical, hospitalization, dental, disability,
accidental death and dismemberment and travel accident insurance plans and
programs.
6. Termination. Executive's employment hereunder will
terminate upon the following events:
(a) Death. Executive's employment hereunder shall
terminate upon his death.
(b) Disability. Executive's employment may be
terminated by the Company if, as a result of Executive's incapacity due to
physical or mental illness, Executive is unable to perform his duties for six
(6) consecutives months and within thirty (30) days after a Notice of
Termination is given to Executive, Executive has not returned to work.
(c) Cause. The Company shall have the right to
terminate Executive's employment for Cause. Cause shall mean:
(i) Executive's conviction of, or plea of
guilty or nolo contendere to, a felony, or Executive's commission of an
act of fraud or embezzlement against the Company or any of its
subsidiaries or affiliates;
(ii) Executive's willful and material breach
of the Agreement by Executive which is economically harmful to the
Company or any of its subsidiaries;
(iii) Executive's willful misconduct that is
economically injurious to the Company or any of its subsidiaries; or
(iv) Executive's willful failure to follow
the lawful directives of the Board of Directors of the Company; or
(v) Executive's material failure or neglect
to carry out his job functions (other than by reason of a physical or
mental impairment), that continues after the Executive has been provided
with specific notice of such failure or neglect, and a reasonable
opportunity to correct the same.
(d) Good Reason. Executive may terminate his
employment for "Good Reason" within thirty (30) days after Executive has actual
knowledge of the occurrence without the written consent of Executive of the
acquisition by any strategic buyer of 51% or more of the outstanding equity
interests of the Company, provided, however, in such event, the Executive shall
negotiate with the Company to provide continued transition services for a
reasonable period, not to exceed 45 days from the sale. Executive's continued
employment shall not constitute consent to or a waiver of rights with respect
to, any event or condition constituting Good Reason.
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(e) Without Cause. The Company shall have the right
to terminate Executive's employment hereunder without Cause by providing
Executive with a Notice of Termination at least thirty (30) days prior to such
termination.
(f) Without Good Reason. Executive shall have the
right to terminate his employment hereunder Without Good Reason by providing the
Company with a Notice of Termination at least thirty (30) days prior to such
termination.
7. Termination Procedure.
(a) Notice of Termination. Any termination of
Executive's employment by the Company or by Executive (other than termination by
reason of death) shall be communicated by written Notice of Termination to the
other party hereto in accordance with Section 14. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated.
(b) Date of Termination. "Date of Termination" shall
mean (i) if Executive's employment is terminated by his death, the date of his
death, (ii) if Executive's employment is terminated pursuant to Section 6(b),
thirty (30) days after Notice of Termination, and (iii) if Executive's
employment is terminated for any other reason, the date on which a Notice of
Termination is given or any later date (within thirty (30) days after the giving
of such notice) set forth in such Notice of Termination.
8. Compensation Upon Termination. In the event Executive's
employment terminates due to death or disability or terminates during the Term
for reasons other than death or disability, SSP Partners or the Company, as
applicable, shall provide Executive with the payments and benefits set forth
below. Executive acknowledges and agrees that the payments set forth in this
Section 8 constitute liquidated damages for termination of his employment during
the Term.
(a) Termination upon Executive's death. If the
Executive's employment terminates during the Term due to the Executive's death,
then:
(i) SSP Partners shall pay Executive's
beneficiary, in a lump sum as soon as practicable following the Date of
Termination, (A) Executive's accrued but unpaid Base Salary and bonus
through the Date of Termination, (B) Executive's accrued vacation pay
through the Date of Termination and (C) a pro-rata portion of
Executive's target bonus for the year in which the termination of
employment occurs;
(ii) SSP Partners or the Company shall
provide Executive's spouse and dependents with continued health benefits
under the SSP Partners or Company benefit plans, as applicable, for a
period of one (1) year following the Date of Termination.
(b) Termination upon Executive's disability. If
Executive's employment is terminated by reason of disability, then SSP Partners
shall pay Executive, in a lump sum as soon as practicable following the Date of
Termination, (A) his accrued but unpaid Base Salary and bonus through the Date
of Termination, (B) accrued vacation pay through the Date of Termination and (C)
a pro-rata portion of his target bonus for the year in which the termination of
employment occurs; and
(c) Termination By Executive for Good Reason. If
Executive's employment is terminated by the Executive for Good Reason and
subject to Executive's execution and effectiveness of a General Release of
Claims in the form attached hereto as Exhibit B (the "Release") and his
compliance with Section 10, then:
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(i) SSP Partners shall, if such termination
is within two (2) years from the date hereof, pay Executive, in five (5)
cash installments, an amount equal to 200% of the then current base
salary as follows: a first installment of 100% of the then current base
salary paid within five (5) business days following his termination of
employment, the second (2nd) through fifth (5th) installments in equal
amounts of 25% of the then current base salary, with the second
installment payable on the first anniversary of the date of termination
and third (3rd) through fifth (5th) installments payable in 4 month
intervals thereafter ending on the second anniversary of the date of
termination; provided, however, if Executive is a "specified employee"
as defined in Section 409A of the Internal Revenue Code of 1986, as
amended ("Section 409A"), and the payments do not satisfy any applicable
exemptions, the first installment payment described above shall not be
paid prior to the first day following the six-month period beginning on
the date of termination of employment if such payment would otherwise
violate Code Section 409A, Department of Treasury regulations and other
interpretive guidance issued thereunder, including without limitation
any such regulations or other guidance that may be issued after the
Effective Date. The second through fifth installments shall continue to
be paid in accordance with the schedule set forth in this Section
8(c)(i) of the Agreement;
(ii) Executive, his spouse and his dependents
shall be eligible for continued health insurance benefits for a period
of twenty-four (24) months following the Date of Termination; provided
that such continuation of health insurance benefits shall be in addition
to and not concurrent with any health continuation rights required by
Section 4980B of the Code;
(iii) SSP Partners shall reimburse Executive
pursuant to Section 5 for reasonable expenses incurred, but not paid
prior to such termination of employment;
(iv) Executive shall be entitled to any other
rights, compensation and/or benefits as may be due to Executive in
accordance with the terms and provisions of any agreements, plans or
programs of SSP Partners or the Company, excluding, however, any
benefits under any severance plan maintained by SSP Partners or the
Company.
(v) Any restricted stock or stock options
held by Executive immediately prior to the Date of Termination shall
vest; and
(vi) SSP Partners shall pay in a lump sum
within five (5) business days following his termination (A) any earned
and accrued but unpaid bonus, and (B) any accrued vacation pay through
the Date of Termination.
(d) Termination By Company For Cause or By Executive
Without Good Reason. If Executive's employment is terminated by the Company for
Cause or by Executive other than Good Reason then:
(i) SSP Partners shall pay Executive his
accrued but unpaid Base Salary and to the extent permitted by the
Company's vacation policy, his accrued vacation pay through the Date of
Termination, as soon as practicable following the Date of Termination;
(ii) SSP Partners shall reimburse Executive
pursuant to Section 5 for reasonable expenses incurred, but not paid
prior to such termination of employment; and
(iii) Executive shall be entitled to any other
rights, compensation and/or benefits as may be due to Executive in
accordance with the terms and provisions of any agreements, plans or
programs of SSP Partners or the Company.
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(e) Additional Payments.
(i) Anything in this Agreement to the
contrary notwithstanding, in the event it shall be determined that any
payment, award, benefit or distribution (or any acceleration of any
payment, award, benefit or distribution) to or for the benefit of
Executive (the "Payments") would be subject to the excise tax imposed by
Section 4999 of the Code, or any interest or penalties are incurred by
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 SSP Partners shall pay to
Executive an additional payment (a "Gross-Up Payment") in an amount such
that after payment by Executive of all taxes (including any Excise Tax)
imposed upon the Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the
Payments and (y) the product of any deductions disallowed because of the
inclusion of the Gross-Up Payment in Executive's adjusted gross income
and the highest applicable marginal rate of federal income taxation for
the calendar year in which the Gross-Up Payment is to be made. For
purposes of determining the amount of the Gross-Up Payment, Executive
shall be deemed to (A) pay federal income taxes at the highest marginal
rates of federal income taxes at the highest marginal rate of taxation
for the calendar year in which the Gross-Up Payment is to be made, (B)
pay applicable state and local income taxes at the highest marginal rate
of taxation for the calendar year in which the Gross-Up Payment is to be
made, net of the maximum reduction in federal income taxes which could
be obtained from deduction of such state and local taxes, and (C) have
otherwise allowable deductions for federal income tax purposes at least
equal to those which could be disallowed because of the inclusion of the
Gross-Up Payment in Executive's adjusted gross income.
(ii) Subject to the provisions of Section
8(e)(i), all determinations required to be made under this Section 8(e),
including whether and when a Gross-Up Payment is required, the amount of
such Gross-Up Payment, and the assumptions to be utilized in arriving at
such determinations, shall be made by a nationally recognized public
accounting firm that is retained by the Company (the "Accounting Firm").
In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the change in
ownership or control giving rise to the Excise Tax, Executive may
appoint another nationally recognized public accounting firm to make the
determinations required hereunder (which accounting firm shall then be
referred to as the Accounting Firm hereunder). The Accounting Firm shall
provide detailed supporting calculations both to the Company and
Executive within fifteen (15) business days of the receipt of notice
from the Company or the Executive that there has been a Payment, or such
earlier time as is requested by the Company (collectively, the
"Determination"). All fees and expenses of the Accounting Firm shall be
borne solely by SSP Partners or the Company and the Company shall enter
into any agreement requested by the Accounting Firm in connection with
the performance of the services hereunder. The Gross-up Payment under
this Section 8(e) with respect to any Payments shall be made no later
than thirty (30) days following such Payment. If the Accounting Firm
determines that no Excise Tax is payable by Executive, it shall furnish
Executive with a written opinion to such effect.
(iii) As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the
Determination, it is possible that Gross-Up Payments which will not have
been made by SSP Partners should have been made ("Underpayment") or
Gross-Up Payments are made by SSP Partners which should not have been
made ("Overpayment"), consistent with the calculations required to be
made hereunder. In the event that the Executive thereafter is required
to make payment of any Excise Tax or additional Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by
SSP Partners to or for the benefit of Executive. In the event the amount
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of the Gross-up Payment exceeds the amount necessary to reimburse the
Executive for his Excise Tax, the Accounting Firm shall determine the
amount of the Overpayment that has been made and any such Overpayment
(together with interest at the rate provided in Section 1274(b)(2) of
the Code) shall be promptly paid by Executive to or for the benefit of
the Company. Executive shall cooperate, to the extent his expenses are
reimbursed by SSP Partners, with any reasonable requests by SSP Partners
or the Company in connection with any contests or disputes with the
Internal Revenue Service in connection with the Excise Tax.
(iv) This section 8(e) will apply only in the
event that, immediately prior to the change in ownership or control
giving rise to Excise Tax, the Company has stock that is "readily
tradeable on an established securities market" as defined in regulations
issues under Section 280G of the Code.
9. Mitigation. Executive shall not be required to mitigate
amounts payable under this Agreement by seeking other employment or otherwise,
and there shall be no offset against amounts due Executive under this Agreement
on account of subsequent employment except as specifically provided herein.
Additionally, amounts owed to Executive under this Agreement shall not be offset
by any claims the Company may have against the Executive
10. Restrictive Covenants.
(a) Non-Competition. Executive hereby agrees, in
consideration of his employment hereunder and in view of the confidential
position to be held by Executive hereunder, he will not, except as a passive
investor owning less than a 2% interest in a publicly held company, at any time
during the Restricted Period, acting alone or in conjunction with others,
directly or indirectly engage in, or own or control any interest in, or act as a
director, officer or employee of, or consultant to, or otherwise be employed by
any business engaged in the operation of convenience stores, wholesale fuel
distribution or any other business conducted by the Company or any of its
subsidiaries or affiliates (other than any business involving the financial
industry business) in any county in which the Company operates as of the date of
Executive's termination of employment. This non-competition provision excludes
the passive ownership by Executive of real estate properties that may be leased
to convenience store operators and ownership in the Company after termination.
For purposes hereof, the "Restricted Period" means the period from the Effective
Date through the second anniversary of the Executive's termination of employment
with the Company for any reason.
(b) Non-Solicitation. Without the consent in writing
of the Board of Directors of the Company, Executive will not, at any time during
the Restricted Period, acting alone or in conjunction with others, directly or
indirectly induce, or attempt to influence, any employee of the Company or any
of its affiliates to terminate employment.
(c) Non-Disclosure; Ownership of Work. Executive
shall not, at any time during the Term and thereafter (including following
Executive's termination of employment for any reason), disclose, use, transfer,
or sell, except in the course of employment with or other service to the
Company, any proprietary information, secrets, organizational or employee
information, or other confidential information belonging or relating to the
Company and its affiliates and customers so long as such information has not
otherwise been disclosed or is not otherwise in the public domain, except as
required by law or with the Company's consent. In addition, upon termination of
employment for any reason, Executive will return to the Company or its
affiliates all documents and other media containing information belonging or
relating to the Company or its affiliates. Executive will promptly disclose in
writing to the Company all inventions, discoveries, developments, improvements
and innovations (collectively referred to as "Inventions") that Executive has
conceived or made during the Term; provided, however, that in this context
"Inventions" are limited to those which (i) relate in any manner to the existing
or contemplated business or research activities of the Company and its
affiliates; (ii) are suggested by or result from Executive's work at the
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Company; or (iii) result from the use of the time, materials or facilities of
the Company and its affiliates. All Inventions will be the Company's property
rather than Executive's. Should the Company request it, Executive agrees to sign
any document that the Company may reasonably require to establish ownership in
any Invention.
(d) Blue Pencil. The parties hereby acknowledge that
the restrictions in this Section 10 have been specifically negotiated and agreed
to by the parties hereto and are limited only to those restrictions necessary to
protect the Company and its subsidiaries from unfair competition. The parties
hereby agree that if the scope or enforceability of any provision, paragraph or
subparagraph of this Section 10 is in any way disputed at any time, and should a
court find that such restrictions are overly broad, the court may modify and
enforce the covenant to the extent that it believes to be reasonable under the
circumstances. Each provision, paragraph and subparagraph of this Section 10 is
separable from every other provision, paragraph, and subparagraph and
constitutes a separate and distinct covenant.
(e) Remedies. Executive hereby expressly
acknowledges that any breach or threatened breach by Executive of any of the
terms set forth in Section 10 of this Agreement may result in significant and
continuing injury to the Company, the monetary value of which would be
impossible to establish. Therefore, Executive agrees that the Company shall be
entitled to apply for injunctive relief in a court of appropriate jurisdiction.
(f) Survival. The provisions of this Section 10
shall survive expiration of the Term.
11. Indemnification. Executive shall be entitled to such
indemnification under the terms of the Company's charter documents and such
other liability insurance as the Company may purchase for its Board of Directors
members and senior officers from time to time.
12. Arbitration; Expenses; Legal Fees.
(a) Except as provided for in Section 10 of this
Agreement, if any contest or dispute arises between the parties with respect to
this Agreement, such contest or dispute shall be submitted to binding
arbitration for resolution in Dallas, Texas in accordance with the rules and
procedures of the Employment Dispute Resolution Rules of the American
Arbitration Association then in effect. The decision of the arbitrator shall be
final and binding on both parties, and any court of competent jurisdiction may
enter judgment upon the award.
(b) If the Arbitrator determines that the Executive
is the prevailing party with respect to a majority of his material claims to
enforce the terms of this Agreement (after exhaustion of all available judicial
remedies), then SSP Partners shall reimburse the Executive for his reasonable
legal or other fees and expenses incurred in such arbitration subject to and
within ten days after his request for reimbursement accompanied by evidence that
the fees and expenses were incurred.
13. Successors; Binding Agreement.
(a) Company's Successors. The Company will require
any successor (whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to the business or assets of the Company, to assume
and agree to perform this Agreement in the same manner and to the same extent
the Company would be required to perform if no such succession had taken place;
provided that no such express agreement should be required to the extent such
obligation continues with the Company or its successor by operation of law.
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(b) As used in this Agreement, "Company" shall mean
the Company as herein before defined and any successor to its business and/or
assets (by merger, purchase or otherwise) or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
(c) Executive's Successors. No rights or obligations
of Executive under this Agreement may be assigned or transferred by Executive
other than his rights to payments or benefits hereunder, which may be
transferred only by will or the laws of descent and distribution. Upon
Executive's death, this Agreement and all rights of Executive hereunder shall
inure to the benefit of and be enforceable by Executive's beneficiary or
beneficiaries, personal or legal representatives, or estate, to the extent any
such person succeeds to Executive's interests under this Agreement. Executive
shall be entitled to select and change a beneficiary or beneficiaries to receive
any benefit or compensation payable hereunder following Executive's death by
giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary(ies),
estate or other legal representative(s). If Executive should die following his
Date of Termination while any amounts would still be payable to him hereunder if
he had continued to live, all such amounts unless otherwise provided herein
shall be paid in accordance with the terms of this Agreement to such person or
persons so appointed in writing by Executive, or otherwise to his legal
representatives or estate.
14. Notice. For the purposes of this Agreement, notices,
demands and all other communications provided for in this Agreement shall be in
writing and shall be deemed to have been duly given when delivered either
personally or by United States certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to Executive:
Xx. Xxxxxx X. Xxxxx
5150 Auden
Xxxxxxx, Xxxxx 00000
If to the Company:
Susser Holdings Corporation
Attn: CEO
0000 Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
With a copy to:
Susser Holdings Corporation
Attn: General Counsel
0000 Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
15. Miscellaneous. No provisions of this Agreement may be
amended, modified, or waived unless such amendment or modification is agreed to
in writing signed by Executive and by a duly authorized officer of the Company,
and such waiver is set forth in writing and signed by the party to be charged.
No waiver by either party hereto at any time of any breach by the other party
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hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement. The respective rights and obligations of the
parties hereunder of this Agreement shall survive Executive's termination of
employment and the termination of this Agreement to the extent necessary for the
intended preservation of such rights and obligations. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Texas without regard to its conflicts of law
principles.
16. 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.
17. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
18. Entire Agreement. Except as otherwise provided herein
and as further set forth in the grant agreement of any equity awards, this
Agreement sets forth the entire agreement of the parties hereto in respect of
the subject matter contained herein and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto in respect of such subject matter.
19. Noncontravention. The Company represents that the
Company is not prevented from entering into, or performing this Agreement by the
terms of any law, order, rule or regulation, its by-laws or declaration of
trust, or any agreement to which it is a party, other than which would not have
a material adverse effect on the Company's ability to enter into or perform this
Agreement.
20. Section Headings. The section headings in this Agreement
are for convenience of reference only, and they form no part of this Agreement
and shall not affect its interpretation.
21. Section 409A Compliance. To the extent applicable, this
Agreement shall be interpreted in accordance with Section 409A and Department of
Treasury regulations and other interpretive guidance issued thereunder,
including without limitation any such regulations or other guidance that may be
issued after the date hereof ("409A Guidance"). Notwithstanding any provision of
the Agreement to the contrary, (i) if, at the time of Executive's termination of
employment with the Company, Executive is a "specified employee" as defined in
409A Guidance and the deferral of the commencement of any payments or benefits
otherwise payable hereunder as a result of such termination of employment is
necessary in order to prevent any accelerated or additional tax under 409A
Guidance, then the Company will defer the commencement of the payment of any
such payments or benefits hereunder (without any reduction in such payments or
benefits ultimately paid or provided to Executive) until the date that is six
months following Executive's termination of employment with the Company (or the
earliest date as is permitted under Section 409A) and (ii) if any other payments
of money or other benefits due to Executive hereunder could cause the
application of an accelerated or additional tax under Section 409A, the Company
may (a) adopt such amendments to the Agreement, including amendments with
retroactive effect, that the Company determines necessary or appropriate to
preserve the intended tax treatment of the benefits provided by the Agreement
and/or (b) take such other actions as the Company determines necessary or
appropriate to comply with the requirements of 409A Guidance. The Company shall
consult with Executive in good faith regarding the implementation of this
Section 21; provided that none of the Company, any of its affiliates, or any of
its employees or representatives shall have any liability to Executive with
respect thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
SUSSER HOLDINGS CORPORATION EXECUTIVE
By: /s/ Xxx X. Xxxxxx /s/ Xxxxxx X. Xxxxx
--------------------------- ---------------------------
Name: Xxx X. Xxxxxx Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
For Purposes of Sections 5, 8, 12 and 19 of this Agreement only:
SSP PARTNERS
By: /s/ Xxx X. Xxxxxx
---------------------------
Name: Xxx X. Xxxxxx
Title: Chief Executive Officer
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EXHIBIT A
List of current Boards and Committees
Cardtronics Board Member
Cardtronics Audit Committee Member
Fotofest Marketing Committee
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EXHIBIT B
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GENERAL RELEASE OF CLAIMS
A general release is required as a condition for receiving the
severance benefits described in Section 8(c) of the Employment Agreement dated
[________], 2006, (the "Employment Agreement"), Thus, by executing this "General
Release" ("General Release"), you have advised us that you hold no claims
against Susser Holdings Corporation ("Company"), or its subsidiaries or any of
their predecessors, successors or assigns, affiliates, shareholders or members
and their respective officers, directors, agents and employees (collectively,
the "Releasees"), and by execution of this General Release you agree to waive
and release any such claims, except relating to any compensation, severance pay
and benefits described in the Employment Agreement.
You understand and agree that this General Release will extend to all
claims, demands, liabilities and causes of action of every kind, nature and
description whatsoever, whether known, unknown or suspected to exist, which you
ever had or may now have against the Releasees, including, without limitation,
any claims, demands, liabilities and causes of action arising from your
employment with the Releasees and the termination of that employment, including
any claims for severance or vacation pay, business expenses, and/or pursuant to
any federal, state, county, or local employment laws, regulations, executive
orders, or other requirements, including, but not limited to, Title VII of the
1964 Civil Rights Act, the 1866 Civil Rights Act, the Age Discrimination in
Employment Act as amended by the Older Workers Benefit Protection Act, the
Americans with Disabilities Act, the Civil Rights Act of 1991, the Workers
Adjustment and Retraining Notification Act and any other local, state or federal
fair employment laws, and any contract or tort claims.
It is further understood and agreed that you are waiving any right to
initiate an action in state or federal court by you or on your behalf alleging
discrimination on the basis of race, sex, religion, national origin, age,
disability, marital status, or any other protected status or involving any
contract or tort claims based on your termination from the Company. It is also
acknowledged that your termination is not in any way related to any work related
injury.
Based on executing this General Release, it is further understood and
agreed that you covenant not to xxx to challenge the enforceability of this
General Release. It also is understood and agreed that the remedy at law for
breach of the Employment Agreement and/or General Release shall be inadequate,
and the Company shall be entitled to injunctive relief.
The ability to receive compensation and benefits under the terms of the
Employment Agreement will remain open for a forty-five (45) (45 days if part of
a layoff of two or more individuals) or twenty-one (21) (21 days if a single
termination) day period after your termination of employment with the Company to
give you an opportunity to consider the effect of this General Release. At your
option, you may elect to execute this General Release on an earlier date.
Additionally, you have seven (7) days after the date you execute this General
Release to revoke it. As a result, this General Release will not be effective
until eight (8) days
after you execute it. We also want to advise you of your right to consult with
legal counsel prior to executing a copy of this General Release.
Finally, this is to expressly acknowledge:
o You have received a list of the ages and job
descriptions of the individuals who are eligible to
receive severance payments conditioned upon the signing
of a similar General Release. (This bullet point only
applies if the termination is part of a termination of
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layoff of a group. Otherwise the Company is not required
to give a list of such ages and job descriptions.)
o You understand that you are not waiving any claims or
rights that may arise after the date you execute this
General Release.
o You understand and agree that the compensation and
benefits described in the Employment Agreement offer you
consideration greater than that to which you would
otherwise be entitled.
I hereby state that I have carefully read this General Release and that
I am signing this General Release knowingly and voluntarily with the full intent
of releasing the Releasees from any and all claims, except as set forth herein.
Further, if signed prior to the completion of the forty-five (45) or twenty-one
(21) day review period, this is to acknowledge that I knowingly and voluntarily
signed this General Release on an earlier date.
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Date Name
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