EXHIBIT 10.2


 


WAIVER AGREEMENT 


 


 


WAIVER AGREEMENT (this “Waiver Agreement”), dated as of August 12,
2005, with respect to the AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”),
dated as of June 30, 2001 (the “Effective Date”), between Plains All American
GP LLC, a Delaware limited liability company (the “Company”), and Harry N.
Pefanis (the “Employee”).


 


RECITALS:


 


A.             Capitalized terms not
otherwise defined in this Waiver Agreement 
are used with the meanings ascribed to such terms in the Agreement.


 


B.               Section 8(d)(ii) of the
Agreement provides that if the Employee shall terminate his employment upon a
Change in Control of the Company pursuant to clause (D) of Section 7(d)(i),
then the Employee will be paid a lump sum amount.


 


C.               A transaction is
contemplated pursuant to which the membership interest in the Company currently
owned by Sable Investments, L.P. will be sold to the other owners of membership
interests in the Company.  Vulcan Energy
Corporation or a subsidiary thereof (as 
applicable, “Vulcan Energy”)  will
purchase all or a portion of the membership interests being sold (the “Vulcan
Purchase”).


 


D.              The Company and the Employee
wish to clarify and agree with respect to the effect of the Vulcan Purchase
under the Agreement.


 


WAIVER


 


In that regard, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Employee
hereby agree as follows:


 


 1.            Acknowledgement of Change in Control.  The Company and the Employee both acknowledge
that the proposed Vulcan Purchase would constitute a Change in Control as
defined in Section 7(d) of the Agreement, and that without this Waiver
Agreement Employee would have the power under Section 7(d) of the Agreement to
terminate his employment (the “Termination Power”) and, having done so, would
have the right to the lump sum payment contemplated by Section 8(d)(ii) of the
Agreement (the “Payment Right”).


 


 2.            Waiver. 
Subject to the terms and conditions contained herein, the Employee
waives his Termination Power and Payment Right, in each case only with respect
to the Vulcan Purchase (the “Waiver”). 
The Waiver shall not apply to any future purchases of membership
interests in the Company by Vulcan Energy.


 


 





















 


 3.            Excess Voting Rights Agreement.  The Waiver is contingent upon and will be
effective upon the execution by Vulcan Energy and the Company of an Excess
Voting Rights Agreement in the form of Exhibit A to this Waiver (the “Voting
Agreement”).   The Company will
immediately inform the Employee of any Notice (as defined in the Voting
Agreement) received from Vulcan Energy under the Voting Agreement.


 


 4.            Termination of Waiver.  The Waiver will terminate, and a Change in
Control will be deemed to have occurred coincident with, (a) any breach by
Vulcan Energy of the terms of the Voting Agreement, (b) any termination of the
Voting Agreement by Vulcan Energy or any notice of termination given by Vulcan
Energy, other than any termination (or notice thereof) pursuant to clause (a)
of Section 4 of the Voting Agreement, where Vulcan Energy is no longer a
Majority Holder (as defined in the Voting Agreement) due to any merger,
consolidation or similar transaction involving the Company or the Partnership;
provided, however; this provision shall not reduce or otherwise supercede the
Employee’s rights if any such merger, consolidation or similar transaction
involving the Company or the Partnership would otherwise have resulted in a
Change in Control, (c) during the two-year period following the execution of
this Agreement, the failure of at least two Designated Independent Directors to
be members of the Board of Directors of the Company, provided, that with
respect this clause (c) the Waiver will be deemed not to have terminated, and
no Change in Control will be deemed to have occurred unless the Employee
exercises the Termination Power within 180 days following the first day on
which there shall fail to be at least two Designated Independent Directors on
the Board of Directors of the Company, or (d) the provision of any economic
incentive or other consideration (including any concession or forbearance) by
Vulcan Energy directly or indirectly to any other member of the Company that
has the intent or effect of terminating, obviating or circumventing the Voting
Agreement; provided that for the avoidance of doubt, the foregoing clause (d)
shall not be deemed to include conversations with other members of the Company
regarding the Independent Directors or other matters where Vulcan Energy
attempts to persuade such other members to vote in a specified manner as long
as Vulcan Energy’s solicitations do not involve the direct or indirect
provision of any economic incentives or other consideration.  In addition, notwithstanding anything
contained herein to the contrary, if the Employee is terminated for any reason
other than for Cause within two years of the execution of this amendment, the
Waiver will be deemed to have terminated on the date immediately preceding such
termination or notice of such termination, a Change in Control will be deemed
to have occurred as of such date and the Employee will be paid the lump sum
payment contemplated by Section 8(d)(ii) of the Agreement as if the Employee
had terminated his employment for Good Reason following a Change in Control.  In addition, upon such termination without
Cause or for Good Reason, the Employee shall immediately vest in any and all
unvested long-term incentive arrangements outstanding under the 1998 Long-Term
Incentive Plan or the 2005 Long-Term Incentive Plan.  For purposes of this Agreement, “Designated
Independent Director” means each of the Independent Directors currently serving
on the Board of Directors of the Company and, in the event of the death or
disability of any such Independent Directors, any replacement director who is
nominated for election or elected or appointed to the Board with the approval
of  the remaining Designated Independent
Director or Directors.


 


 


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 5.            Limited Waiver. 
The Waiver is limited to the effects of the Vulcan Purchase under the
Agreement, and does not waive any other provisions of the Agreement nor the
effects of any past, present or future transaction constituting a Change in
Control (or any other Good Reason), including without limitation any other
direct or indirect purchase or sale by Vulcan Energy of any portion of the
membership interest in the Company.


 


6.  No other Changes to
Agreement.  Other than the Waiver as
described herein, the Agreement remains in full force and effect.


 


7.  Notice.  For the purpose of this Waiver Agreement,
notices and all other communications provided for in this Waiver Agreement must
be in writing and will be deemed to have been duly given when delivered or
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed to the parties at their addresses set forth below, or to
such other addresses as either party may have furnished to the other in writing
in accordance herewith except that notices of change of address will be effective
only upon receipt.


 


If to the Company:


 


Plains All American GP LLC


333 Clay Street


Houston, Texas  77002


Attention:  General Counsel


 


If to the Employee:


 


Harry N. Pefanis


4103 University Blvd.


Houston, TX  77005


 


8.  Miscellaneous.  No provisions of this Waiver Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing.  No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, 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.  The validity, interpretation, construction
and performance of this Waiver Agreement shall be governed by the laws of the
State of Texas.


 


14.  Entire Agreement.  This Waiver Agreement contains the entire
understanding of the parties in respect of its subject matter and supersedes
all prior oral and written agreements and understandings between the parties
with respect to such subject matter.


 


 


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IN WITNESS WHEREOF, the parties have executed this Waiver Agreement as
of the date first above written.


 


 


	
   

  	
  PLAINS ALL AMERICAN GP LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tim Moore

  
	
   

  	
   

  	
  Tim Moore

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HARRY N. PEFANIS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Harry N. Pefanis

  
	
   

  	
   

  	
  Employee

  



 


 


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