OMNIBUS AGREEMENT among THE HERITAGE GROUP CALUMET GP, LLC CALUMET SPECIALTY PRODUCTS PARTNERS, L.P. CALUMET OPERATING, LLC CALUMET LP GP, LLC and CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP
EXHIBIT 10.1
THE HERITAGE GROUP
CALUMET GP, LLC
CALUMET OPERATING, LLC
CALUMET LP GP, LLC
and
CALUMET LUBRICANTS CO., LIMITED PARTNERSHIP
THIS OMNIBUS AGREEMENT (“Agreement”) is entered into on, and effective as of, the Closing Date
(as defined herein), and is by and among The Heritage Group, an Indiana general partnership
(“THG”), Calumet GP, LLC, a Delaware limited liability company (the “General Partner”), Calumet
Specialty Products Partners, L.P., a Delaware limited partnership (the “Partnership”), Calumet
Operating, LLC, a Delaware limited liability company (the “OLLC”), Calumet LP GP, LLC, a Delaware
limited liability company (“Calumet LP GP”), and Calumet Lubricants Co., Limited Partnership, an
Indiana limited partnership (“Calumet LP”). The above-named entities are sometimes referred to in
this Agreement each as a “Party” and collectively as the “Parties.”
R E C I T A L S:
The Parties desire by their execution of this Agreement to evidence their agreement, as more
fully set forth in Article II, with respect to those business opportunities that the THG Entities
(as defined herein) will not engage in during the term of this Agreement unless the Partnership
Entities have declined to engage in any such business opportunity for their own account.
In consideration of the premises and the covenants, conditions, and agreements contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto hereby agree as follows:
ARTICLE I
Definitions
Definitions
1.1 Definitions.
As used in this Agreement, the following terms shall have the respective meanings set
forth below:
“Affiliate” is defined in the Partnership Agreement.
“Closing Date” means the date of the closing of the Partnership’s initial public
offering of Common Units.
“Code” means Internal Revenue Code of 1986, as amended.
“Common Units” is defined in the Partnership Agreement.
“Conflicts Committee” is defined in the Partnership Agreement.
“Contribution Agreement” means that certain Contribution, Conveyance and Assumption
Agreement, dated as of the Closing Date, among THG, the General Partner, the Partnership,
the OLLC, Calumet LP GP, Calumet LP and certain other parties, together with the additional conveyance documents and instruments contemplated or
referenced thereunder.
“control” means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through ownership of
voting securities, by contract, or otherwise.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“General Partner” is defined in the introduction to this Agreement.
“Limited Partner” is defined in the Partnership Agreement.
“Offer” is defined in Section 2.3(a).
“Partnership Agreement” means the First Amended and Restated Agreement of Limited
Partnership of Calumet Specialty Products Partners, L.P., dated as of the Closing Date, as
such agreement is in effect on the Closing Date, to which reference is hereby made for all
purposes of this Agreement. No amendment or modification to the Partnership Agreement
subsequent to the Closing Date shall be given effect for the purposes of this Agreement
unless consented to in writing by each of the Parties to this Agreement.
“Partnership Entities” means the General Partner and each member of the Partnership
Group.
“Partnership Entity” means any of the Partnership Entities.
“Partnership Group” means the Partnership, the OLLC, Calumet LP GP, Calumet LP and any
Subsidiary of any such Person, treated as a single consolidated entity.
“Partnership Group Member” means any member of the Partnership Group.
“Party” and “Parties” are defined in the introduction to this Agreement.
“Person” means an individual or a corporation, limited liability company, partnership,
joint venture, trust, unincorporated organization, association, government agency or
political subdivision thereof or other entity.
“Restricted Businesses” is defined in Section 2.1.
“Retained Assets” means any assets and investments owned or operated by any of the THG
Entities as of the Closing Date that were not conveyed, contributed or otherwise transferred
to the Partnership Group prior to or on the Closing Date pursuant to the Contribution
Agreement or otherwise.
“Subject Assets” is defined in Section 2.2(e).
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“Subsidiary” means, with respect to any Person, (a) a corporation of which more than
50% of the voting power of shares entitled (without regard to the occurrence of any
contingency) to vote in the election of directors or other governing body of such
corporation is owned, directly or indirectly, at the date of determination, by such Person,
by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership
(whether general or limited) in which such Person or a Subsidiary of such Person is, at the
date of determination, a general or limited partner of such partnership, but only if more
than 50% of the partnership interests of such partnership (considering all of the
partnership interests of the partnership as a single class) is owned, directly or
indirectly, at the date of determination, by such Person, by one or more Subsidiaries of
such Person, or a combination thereof, or (c) any other Person (other than a corporation or
a partnership) in which such Person, one or more Subsidiaries of such Person, or a
combination thereof, directly or indirectly, at the date of determination, has (i) at least
a majority ownership interest or (ii) the power to elect or direct the election of a
majority of the directors or other governing body of such Person.
“THG Entities” means THG and any Person controlled, directly or indirectly, by THG
other than the Partnership Entities.
“THG Entity” means any of the THG Entities.
“transfer” including the correlative terms “transferring” or “transferred” means any
direct or indirect transfer, assignment, sale, gift, pledge, hypothecation or other
encumbrance, or any other disposition (whether voluntary, involuntary or by operation of
law) of any assets, properties or rights.
“Units” is defined in the Partnership Agreement.
ARTICLE II
Business Opportunities
Business Opportunities
2.1 Restricted Businesses. For so long as a THG Entity controls the Partnership, and except as
permitted by Section 2.2, each of the THG Entities shall be prohibited from engaging in, whether by
acquisition, construction, investment in debt or equity securities of any Person or otherwise, any
business having assets engaged in the following businesses (the “Restricted Businesses”): the
refining or marketing of specialty lubricating oils, solvents, wax products, gasoline, diesel or
jet fuel products in the continental United States.
2.2 Permitted Exceptions. Notwithstanding any provision of Section 2.1 to the contrary, the THG
Entities may engage in the following activities under the following circumstances:
(a) the ownership and/or operation of any of the Retained Assets (including
replacements and natural extensions of the Retained Assets);
(b) the refining and/or marketing of asphalt and asphalt-related products and related
product development activities;
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(c) the refining and/or marketing of products that do not produce “qualifying income”
as defined in the Code;
(d) the purchase and ownership of up to 9.9% of any class of securities of any entity
engaged in any Restricted Business;
(e) the acquisition of, construction of or investment in any Restricted
Business or any asset or group of related assets used in any Restricted Business by a THG
Entity after the Closing Date (the “Subject Assets”) if, in the case of an acquisition, the
fair market value of the Subject Assets, or, in the case of an investment, the amount of the
investment, or in the case of construction, the estimated construction cost of the Subject
Assets, is less than $5 million at the time of such acquisition, investment or construction,
as the case may be;
(f) the acquisition of, construction of or investment in any Subject Assets involving a
fair market value, investment or construction cost, as the case may be, greater than that
permitted by Section 2.2(d) or Section 2.2(e); provided the Partnership Group has been
offered the opportunity to acquire, construct or invest in such Subject Assets in accordance
with Section 2.3 and the General Partner (with the approval of the Conflicts Committee) has
elected not to purchase such Subject Assets; and
(g) any Restricted Business conducted by a THG Entity with the approval of the
Conflicts Committee.
2.3 Procedures.
(a) In the event that a THG Entity becomes aware of an opportunity to acquire,
construct or invest in Subject Assets described in Section 2.2(f), then, subject to Section
2.3(b), as soon as practicable, such THG Entity shall notify the General Partner in writing
of such opportunity and deliver to the General Partner all information in the possession of
any THG Entity relating to the Subject Assets and such potential transaction. As soon as
practicable but in any event within 30 days after receipt of such notification and
information, the General Partner, on behalf of the Partnership, shall notify the THG Entity
in writing that either (i) the General Partner, on behalf of the Partnership, has elected
(with the concurrence of the Conflicts Committee) not to cause a member of the Partnership
Group to pursue the opportunity to acquire, construct or invest in the Subject Assets, in
which case the THG Entities may acquire, construct or invest in such Subject Assets without
any further obligation to offer such opportunity to the Partnership, or (ii) the General
Partner, on behalf of the Partnership, has elected (with the concurrence of the Conflicts
Committee) to cause a member of the Partnership Group to pursue the opportunity to acquire,
construct or invest in the Subject Assets. Failure by the General Partner to provide such
notice within such 30-day period shall be deemed to constitute a decision not to pursue such
opportunity. If, at any time, the General Partner abandons such opportunity with the
approval of the Conflicts Committee (as evidenced in writing by the General Partner
following the request of the THG Entity), the THG Entity may pursue such opportunity. Any
Subject Assets which are permitted to be acquired, constructed or invested in by a THG
Entity must be so acquired, constructed or invested
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in (i) within 12 months of the later to occur of (A) the date that the THG Entity is
permitted pursuant to this Section 2.3(a) to pursue such acquisition, construction project
or investment and (B) the date upon which all required governmental approvals to consummate
such acquisition, construction project or investment have been obtained, and (ii) on terms
not materially more favorable to the THG Entity than were offered to the Partnership. If
either of these conditions are not satisfied, such opportunity must be reoffered to the
Partnership in accordance with this Section 2.3(a).
(b) Notwithstanding Section 2.3(a), in the event that a THG Entity becomes aware of an
opportunity to make an acquisition or investment that includes both Subject Assets and
assets that are not Subject Assets and such Subject Assets have a fair market value (as
determined in good faith by the Board of Trustees of THG) equal to or greater than $5
million but comprise less than half of the fair market value (as determined in good faith by
the Board of Trustees of THG) of the total assets being considered for acquisition or
investment, then the THG Entity may make such acquisition or investment without first
offering the opportunity to the Partnership or notifying the General Partner provided that
the THG Entities comply with the following procedures:
(i) Within 90 days after the consummation of the acquisition or investment, as
the case may be, by a THG Entity of the Subject Assets, as the case may be, the THG
Entity shall notify the General Partner in writing of such acquisition or investment
and offer the Partnership Group the opportunity to purchase such Subject Assets in
accordance with this Section 2.3(b) (the “Offer”). The Offer shall set forth the
proposed terms by which a Partnership Group Member may purchase the Subject Assets
and, if any THG Entity desires to utilize the Subject Assets, the proposed
commercially reasonable terms on which the Partnership Group will enable the THG
Entity to utilize the Subject Assets. As soon as practicable, but in any event
within 30 days after receipt of such written notification, the General Partner shall
notify the THG Entity in writing that either (x) the General Partner has elected
(with the concurrence of the Conflicts Committee) not to cause any Partnership Group
Member to purchase the Subject Assets, in which event the THG Entity shall be
forever free to continue to own or operate such Subject Assets, or (y) the General
Partner has elected (with the concurrence of the Conflicts Committee) to cause a
Partnership Group Member to purchase the Subject Assets, in which event the
following procedures in subsections (ii) and (iii) shall apply.
(ii) If the THG Entity and the General Partner (with the approval of the
Conflicts Committee) are able, within 60 days after receipt by the General Partner
of the Offer, to agree on the fair market value of the Subject Assets that are
subject to the Offer and any other terms of the Offer including, without limitation,
the terms, if any, on which the Partnership Group will enable the THG Entity to
utilize the Subject Assets, a Partnership Group Member shall purchase the Subject
Assets for the agreed upon fair market value as soon as commercially practicable
after such agreement has been reached and, if applicable, enter into an agreement
with the THG Entity to provide services in a manner consistent with the Offer.
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(iii) If the THG Entity and the General Partner (with the concurrence of the
Conflicts Committee) are unable, within 60 days after receipt by the General Partner
of the Offer, to agree on the fair market value of the Subject Assets that are
subject to the Offer or the other terms of the Offer including, if applicable, the
terms on which the Partnership Group will enable the THG Entity to utilize the
Subject Assets, the THG Entity and the General Partner will engage a mutually agreed
upon investment banking firm to determine the fair market value of the Subject
Assets and/or the other terms on which the Partnership Group and the THG Entity are
unable to agree. Such investment banking firm will determine the fair market value
of the Subject Assets and/or the other terms on which the Partnership Group and the
THG Entity are unable to agree within 30 days of its engagement and furnish the THG
Entity and the General Partner its determination. The fees of the investment
banking firm will be split equally between the THG Entity and the Partnership Group.
Once the investment banking firm has submitted its determination of the fair market
value of the Subject Assets and/or the other terms on which the Partnership Group
and the THG Entity are unable to agree, the General Partner will have the right, but
not the obligation, subject to the approval of the Conflicts Committee, to cause a
Partnership Group Member to purchase the Subject Assets pursuant to the Offer as
modified by the determination of the investment banking firm. The Partnership Group
will provide written notice of its decision to the THG Entity within 30 days after
the investment banking firm has submitted its determination. Failure to provide
such notice within such 30-day period shall be deemed to constitute a decision not
to purchase the Subject Assets. If the General Partner elects to cause a
Partnership Group Member to purchase the Subject Assets, then the Partnership Group
Member shall purchase the Subject Assets pursuant to the Offer as modified by the
determination of the investment banking firm as soon as commercially practicable
after such determination and, if applicable, enter into an agreement with the THG
Entity to provide services in a manner consistent with the Offer, as modified by the
determination of the investment banking firm, if applicable.
2.4 Scope of Prohibition. Except as provided in this Article II and the Partnership Agreement,
each THG Entity shall be free to engage in any business activity, including those that may be in
direct competition with any Partnership Group Member.
2.5 Enforcement. The THG Entities agree and acknowledge that the Partnership Group does not have
an adequate remedy at law for the breach by any THG Entity of the covenants and agreements set
forth in this Article II, and that any breach by any THG Entity of the covenants and agreements set
forth in this Article II would result in irreparable injury to the Partnership Group. The THG
Entities further agree and acknowledge that any Partnership Group Member may, in addition to the
other remedies which may be available to the Partnership Group, file a suit in equity to enjoin the
THG Entities from such breach, and consent to the issuance of injunctive relief relating to this
Agreement. No Person, directly or indirectly controlled thereby shall be liable for the failure of
any other Person, directly or indirectly, controlled thereby to comply with this Article II.
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ARTICLE III
Miscellaneous
3.1 Choice of Law; Submission to Jurisdiction. This Agreement shall be subject to and governed by
the laws of the State of Delaware, excluding any conflicts-of-law rule or principle that might
refer the construction or interpretation of this Agreement to the laws of another state. Each
Party hereby submits to the jurisdiction of the state and federal courts in the State of Indiana
and to venue in Indianapolis, Indiana.
3.2 Notice. All notices or other communications required or permitted under, or otherwise in
connection with, this Agreement must be in writing and must be given by depositing same in the U.S.
mail, addressed to the Person to be notified, postpaid and registered or certified with return
receipt requested or by transmitting by national overnight courier or by delivering such notice in
person or by facsimile to such Party. Notice given by mail, national overnight courier or personal
delivery shall be effective upon actual receipt. Notice given by facsimile shall be effective upon
confirmation of receipt when transmitted by facsimile if transmitted during the recipient’s normal
business hours or at the beginning of the recipient’s next business day after receipt if not
transmitted during the recipient’s normal business hours. All notices to be sent to a Party
pursuant to this Agreement shall be sent to or made at the address set forth below or at such other
address as such Party may stipulate to all other Parties in the manner provided in this Section
3.2.
if to the THG Entities:
The Heritage Group
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx, Xx.
Fax: 000-000-0000
Fax: 000-000-0000
with a copy to:
The Heritage Group
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxx
Fax: 000-000-0000
Fax: 000-000-0000
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if to the Partnership Entities
Calumet Specialty Products Partners, L.P.
0000 Xxxxxxxxxx Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
0000 Xxxxxxxxxx Xxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: R. Xxxxxxx Xxxxxx, II
Fax: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Fax: 000-000-0000
Fax: 000-000-0000
3.3 Entire Agreement. This Agreement constitutes the entire agreement of the Parties relating to
the matters contained herein, superseding all prior contracts or agreements, whether oral or
written, relating to the matters contained herein.
3.4 Amendment or Modification. This Agreement may be amended or modified from time to time only by
the written agreement of all the Parties hereto; provided, however, that the Partnership may not,
without the prior approval of the Conflicts Committee, agree to any amendment or modification of
this Agreement that the General Partner determines will adversely affect the holders of Common
Units. Each such instrument shall be reduced to writing and shall be designated on its face an
“Amendment” or an “Addendum” to this Agreement.
3.5 Assignment. No Party shall have the right to assign any of its rights or obligations under
this Agreement without the consent of the other Parties hereto.
3.6 Counterparts. This Agreement may be executed in any number of counterparts with the same
effect as if all signatory parties had signed the same document. All counterparts shall be
construed together and shall constitute one and the same instrument.
3.7 Severability. If any provision of this Agreement shall be held invalid or unenforceable by a
court or regulatory body of competent jurisdiction, the remainder of this Agreement shall remain in
full force and effect.
3.8 Further Assurances. In connection with this Agreement and all transactions contemplated by
this Agreement, each signatory party hereto agrees to execute and deliver such additional documents
and instruments and to perform such additional acts as may be necessary or appropriate to
effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and
all such transactions.
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3.9 Rights of Limited Partners. The provisions of this Agreement are enforceable solely by the
Parties to this Agreement, and no Limited Partner of the Partnership shall have the right, separate
and apart from the Partnership, to enforce any provision of this Agreement or to compel any Party
to this Agreement to comply with the terms of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of, the
Closing Date.
| THE HERITAGE GROUP | ||||||
| By: | /s/ Xxxx X. Xxxxxxxxxx, Xx. | |||||
| Xxxx X. Xxxxxxxxxx, Xx. | ||||||
| Chief Executive Officer | ||||||
| CALUMET GP, LLC | ||||||
| By: | /s/ R. Xxxxxxx Xxxxxx, II | |||||
| R. Xxxxxxx Xxxxxx, II | ||||||
| Vice President and Chief Financial Officer | ||||||
| CALUMET SPECIALTY PRODUCTS | ||||||
| PARTNERS, L.P. | ||||||
| By: | CALUMET GP, LLC, its general partner | |||||
| By: | /s/ R. Xxxxxxx Xxxxxx, II | |||||
| R. Xxxxxxx Xxxxxx, II | ||||||
| Vice President and Chief Financial Officer | ||||||
| CALUMET OPERATING, LLC | ||||||
| By: | Calumet Specialty Products Partners, L.P., | |||||
| its sole member | ||||||
| By: | Calumet GP, LLC, | |||||
| its general partner | ||||||
| By: | /s/ R. Xxxxxxx Xxxxxx, II | |||||
| R. Xxxxxxx Xxxxxx, II | ||||||
| Vice President and Chief Financial Officer | ||||||
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| CALUMET LP GP, LLC | ||||||
| By: | /s/ R. Xxxxxxx Xxxxxx, II | |||||
| R. Xxxxxxx Xxxxxx, II | ||||||
| Vice President and Chief Financial Officer | ||||||
| CALUMET LUBRICANTS CO., LIMITED | ||||||
| PARTNERSHIP | ||||||
| By: | CALUMET LP GP, LLC, its general partner | |||||
| By: | /s/ R. Xxxxxxx Xxxxxx, II | |||||
| R. Xxxxxxx Xxxxxx, II | ||||||
| Vice President and Chief Financial Officer | ||||||
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