Exhibit 10.13
AMENDMENT NO. 1 TO AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
This AMENDMENT (this “
Amendment ”) is entered into as of December 22,
2008 by and among Susser Holdings Corporation, a Delaware
corporation (the “ Company ”) and Rocky B.
Dewbre (the “ Executive ”). Any capitalized term
used but not defined herein shall have the meaning ascribed thereto
in the Employment Agreement (as hereinafter defined), except as
otherwise provided.
WHEREAS , the Company and the Executive entered into an
Amended and Restated Employment Agreement, dated as of
October 24, 2006 (as amended to the date hereof, the “
Employment Agreement ”);
WHEREAS , the parties hereby desire to make certain
additional amendments to the Employment Agreement to reflect the
issuance of final regulations under Section 409A of the
Internal Revenue Code of 1986, as amended (the “ Code
”);
WHEREAS , SSP Partners merged with Stripes LLC on
June 30, 2007, and Stripes is the successor entity to SSP
Partners; and
NOW, THEREFORE
, in consideration of the premises
and the mutual covenants contained herein, the parties hereto agree
as follows:
Amendment Replacing References to
SSP Partners
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1.
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All references
to SSP Partners in the Employment Agreement shall be replaced with
references to Stripes LLC.
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Amendment Adding Fringe Benefit
Anti-Abuse Language
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2.
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Section 5(c) of the Employment Agreement is
hereby amended to add the following language after the last
sentence as follows:
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Notwithstanding anything in the
Agreement to the contrary, any reimbursements by the Company to the
Executive of any eligible expenses under this Agreement, including,
without limitation any reimbursements pursuant to Section 5(c)
or Section 12, that are not excludable from Executive’s
income for federal income tax purposes (the “Taxable
Reimbursements”) shall be made by no later than the earlier
of the date on which they normally would be made pursuant to
Company policies or the last day of the taxable year of the
Executive following the year in which the expense was incurred. The
amount of any Taxable Reimbursements to be provided to the
Executive during any taxable year of the Executive shall not affect
the expenses eligible for reimbursement in any other taxable year
of the Executive. The right to any Taxable Reimbursement shall not
be subject to liquidation or exchange for another
benefit.
Amendments Clarifying Time of Payments of
Certain Separation Payments
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3.
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Section 8(a)(i) of the Employment Agreement
is hereby deleted in its entirety and replaced with the
following:
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(i) Stripes LLC shall pay
Executive’s beneficiary, in a lump sum as soon as practicable
following the Date of Termination, but in no event later than the
15th day of the third month of the year following the year in which
the Date of Termination occurs, (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;
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4.
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Section 8(b)(i) of the Employment Agreement
is hereby deleted in its entirety and replaced with the
following:
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(i) Stripes LLC shall pay Executive,
in a lump sum as soon as practicable following the Date of
Termination, but in no event later than the 15th day of the third
month of the year following the year in which the Date of
Termination occurs, (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
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5.
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Section 8(d)(i) of the Employment Agreement
is hereby deleted in its entirety and replaced with the
following:
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(i) Stripes LLC 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, but in no event later than the 15th day of
the third month of the year following the year in which the Date of
Termination occurs;
Amendments Designating Separation
Payments as “Separate Payments” and Specifying Fixed
Payment Dates .
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6.
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Section 8(c) of the Employment Agreement is
hereby deleted in its entirety and replaced with the
following:
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(c) Termination By Company
without Cause or By Executive for Good Reason . If
Executive’s employment is terminated by the Company without
Cause or by Executive for Good Reason, subject to
(i) Exec
