EXHIBIT 10.(c)
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SECOND AMENDMENT
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The Employment Agreement dated March 5, 1996, and the First Amendment thereto
dated October 23, 1997, between Xxxx X. Xxxxxxxxx (the "Executive") and Suburban
Propane, L.P. (the "Partnership") (collectively the "Employment Agreement") are
hereby modified and amended this 14th day of April, 1999, as follows:
RECITALS
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WHEREAS, Suburban Propane Partners, L.P., the sole limited partner of
the Partnership ("Suburban"), has entered into an Amended and
Restated Recapitalization Agreement dated as of March 15, 1999
(the "Recapitalization Agreement") with the Partnership, the
general partner of the Partnership and of Suburban (the
"General Partner"), the General Partner's parent and Suburban
Energy Services Group LLC, a new entity in which the Executive
will hold equity interests (the "LLC"); and
WHEREAS, pursuant to the Recapitalization Agreement, among other
things, the LLC will purchase from the General Partner all of
the general partner interests held by the General Partner in
the Partnership and Suburban and the LLC will become the new
general partner of Suburban (the "Substitution Transaction");
and
WHEREAS, the Substitution Transaction constitutes a "Change of Control"
for purposes of section 6.1 of the Employment Agreement; and
WHEREAS, the Executive entered into a letter agreement dated December
18, 1998 (the "Letter Agreement") under which the Executive
agreed (i) to waive certain rights under the Employment
Agreement that would become exercisable upon the consummation
of the Substitution Transaction insofar as it constitutes a
"Change of Control" and (ii) to modify the definition of
"Change of Control" in the Employment Agreement to exclude
therefrom any sale or transfer of the General Partner interest
that might occur after the consummation of the Substitution
Transaction; and
WHEREAS, the Partnership and the Executive wish to enter into this
Second Amendment to amend the Employment Agreement as provided
in the Letter Agreement and to replace and supersede the
Letter Agreement in all respects, upon the terms and subject
to the conditions herein.
NOW THEREFORE, In consideration of foregoing recitals, the terms and conditions
of this Second Amendment, the Partnership's payment of one dollar ($1) to the
Executive, and other valuable consideration, receipt of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
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1. RECITALS. The foregoing recitals are incorporated into this Amendment
by reference, as if fully set forth herein at length, and shall be
considered terms of the Amendment.
2. WAIVER OF RIGHTS EXERCISED ON SUBSTITUTION TRANSACTION. The Executive
hereby waives his right to receive any payments described in section
6.1(a) of the Employment Agreement that would otherwise become payable
if he were to terminate his employment under such section other than
with "Good Reason" (as defined in the Employment Agreement) during the
six-month period commencing on the six-month anniversary of the date of
the Substitution Transaction. Nothing in this section 2 is intended or
shall be construed to limit in any manner the right of the Executive to
terminate his employment other than with Good Reason during such
six-month period and any other right that the Executive may have with
respect to a termination of his employment under such section 6.1(a) by
the Partnership without Cause or by the Executive with Good Reason
following the consummation of the Substitution Transaction.
3. AMENDMENT OF DEFINITION OF CHANGE OF CONTROL. The parties agree that
upon the completion of the Recapitalization, the definition of "Change
of Control" set forth in section 6.5(c) of the Employment Agreement
shall be amended and restated in its entirety as follows:
"CHANGE OF CONTROL" means the occurrence during the Employment
Term of:
(i) an acquisition (other than directly from the MLP) of
Common Units or voting equity interests of the MLP
("VOTING SECURITIES") by any "PERSON" (as the term is
used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")), other than the MLP, Suburban Energy
Services Group LLC or any of their affiliates,
immediately after which such Person has "BENEFICIAL
OWNERSHIP" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of more than
twenty five percent (25%) of the combined voting
power of the MLP's then outstanding Units; PROVIDED,
HOWEVER, that in determining whether a Change of
Control has occurred, Units which are acquired in a
`Non-Control Acquisition' (as hereinafter defined)
shall not constitute an acquisition which would cause
a Change of Control. A "NON-CONTROL ACQUISITION"
shall mean an acquisition by (i) an employee benefit
plan (or a trust forming a part thereof) maintained
by (A) the MLP or the Partnership or (B) any
corporation, partnership or other Person of which a
majority of its voting power or its voting equity
securities or equity interest is owned, directly or
indirectly, by the MLP (for the purposes of this
definition, a "SUBSIDIARY"), (ii) the MLP or its
Subsidiaries, or (iii) any Person in connection with
a "NON-CONTROL TRANSACTION" (as hereinafter defined);
or
(ii) approval by the partners of the MLP of (A) a merger,
consolidation or reorganization involving the MLP,
unless (x) the holders of Units immediately before
such merger, consolidation or reorganization own,
directly or indirectly immediately following such
merger, consolidation or reorganization, at least
sixty percent (60%) of the combined voting power of
the outstanding Units of the entity resulting from
such merger, consolidation or reorganization (the
"SURVIVING ENTITY") in substantially the same
proportion as their ownership of the Units
immediately before such merger, consolidation or
reorganization, and (y) no person or entity (other
than the MLP, any Subsidiary, any employee benefit
plan (or any trust forming a part thereof) maintained
by the MLP, the Partnership, the Surviving Entity, or
any Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial
Ownership of more than twenty five percent (25%) of
the then outstanding Units), has Beneficial Ownership
of more than twenty five percent (25%) of the
combined voting power of the Surviving Entity's then
outstanding voting securities; (B) a complete
liquidation or dissolution of the MLP; or (C) the
sale or other disposition of fifty percent (50%) or
more of the net assets of the MLP to any Person
(other than a transfer to a Subsidiary). A
transaction described in clause (x) or (y) of
subsection (a) hereof shall be referred to as a
"NON-CONTROL TRANSACTION".
Notwithstanding the foregoing, a Change of Control
shall not be deemed to occur solely because any
Person (the "SUBJECT PERSON") acquired Beneficial
Ownership of more than the permitted amount of the
outstanding Voting Securities as a result of the
acquisition of Voting Securities by the MLP which, by
reducing the number of Voting Securities outstanding,
increases the proportional number of units
Beneficially Owned by the Subject Person, provided
that if a Change of Control would occur (but for the
operation of this sentence) as a result of the
acquisition of the Voting Securities by the MLP, and
after such acquisition of Voting Securities by the
MLP, the Subject Person becomes the Beneficial Owner
of any additional Voting Securities which increases
the percentage of the then outstanding Voting
Securities Beneficially Owned by the Subject Person,
than a Change of Control shall occur.
4. CONTINUED FORCE AND EFFECT OF EMPLOYMENT AGREEMENT. The Parties agree
that the terms and conditions of the Employment Agreement remain in
full force and effect except as amended herein.
5. SECTION HEADINGS. The section headings utilized in this Amendment are
only to be used for reference and organization. The headings are not to
be considered terms of this Amendment nor should they be utilized when
interpreting the terms and conditions of this Amendment.
IN WITNESS WHEREOF, the Parties hereto have caused this three (3) page
Amendment, inclusive of this signature page, to be duly executed as of the
effective date noted above.
Xxxx X. Xxxxxxxxx Suburban Propane, L.P.
(Executive) (Partnership)
By: By:
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Title:
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