EXHIBIT 10.1
[FORM WITH PERFORMANCE VESTING]
XXXXX LOGISTIC SERVICES, L.L.C.
RESTRICTED UNIT AGREEMENT
UNDER THE XXXXX ENERGY PARTNERS, L.P
LONG-TERM INCENTIVE PLAN
This Restricted Unit Agreement (the "Agreement") is made and entered
into by and between XXXXX LOGISTIC SERVICES, L.L.C. (the "Company"), and (the
"Executive"). This Agreement is entered into as of the ____ day of_____, ______
(the "Date of Grant").
W I T N E S S E T H:
WHEREAS, the Company has adopted the XXXXX ENERGY PARTNERS, L.P.
LONG-TERM INCENTIVE PLAN (the "Plan") to attract, retain and motivate employees,
directors and consultants; and
WHEREAS, the Company believes that a grant to the Executive of
restricted units of Xxxxx Energy Partners, L.P. (the "Partnership") as part of
the Executive's compensation for services provided to the Company is consistent
with the stated purposes for which the Plan was adopted.
NOW, THEREFORE, it is agreed by and between the Company and the
Executive, in consideration of services rendered by the Executive, as follows:
1. Grant. The Company hereby grants to the Executive as of the Date of
Grant an award of _______ Xxxxx Energy Partners, L.P. Units (as defined in the
Plan), subject to the terms and conditions set forth in this Agreement,
including, without limitation, those described in Section 5 (the "Restricted
Units").
2. Restricted Units. The Company shall obtain the Units (as defined in
the Plan) subject to this Agreement and cause such Units to be held for the
Executive in book entry form by the Partnership's transfer agent with a notation
that the Units are subject to restrictions. The Executive hereby agrees that the
Restricted Units shall be held subject to restrictions as provided in the
Agreement until the restrictions on such Restricted Units expire or the
Restricted Units are forfeited as provided in Section 4 of this Agreement. The
Executive hereby agrees that if part or all of the Restricted Units are
forfeited pursuant to this Agreement, the Company shall have the right to direct
the Partnership's transfer agent to cancel such forfeited Restricted Units or,
at the Company's election, transfer such Restricted Units to the Company or to
any designee of the Company.
3. Rights of Executive. Effective as of the Date of Grant, the
Executive is a unitholder with respect to all of the Restricted Units granted to
him pursuant to Section 1 and has all of the rights of a unitholder with respect
to all such Restricted Units, including the right to receive all distributions
paid with respect to such Restricted Units and any right to vote with
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respect to such Restricted Units; provided, however, that such Restricted Units
shall be subject to the restrictions hereinafter described, including, without
limitation, those described in Section 5.
4. Forfeiture and Expiration of Restrictions.
(a) The Executive shall forfeit to the Company (i) all of the
Restricted Units immediately and without any payment to the Executive
whatsoever if the Executive's employment with the Company or a
subsidiary of the Company is terminated before ___ for any reason other
than death, total and permanent disability, or retirement, as provided
in Section 4(b) below, and (ii) two-thirds (2/3) of the Restricted
Units if the Executive's employment with the Company or a subsidiary of
the Company is so terminated after ___ and before ___, and (iii)
one-third (1/3) of the Restricted Units if the Executive's employment
with the Company or a subsidiary of the Company is so terminated after
___ and before ___. After ___, one-third (1/3) of the Restricted Units
(the "___ Units") will be fully vested if (A) the Executive meets the
Employment Requirement (as defined below) on ___ and (B) the Company
achieves the Performance Standard (as defined below) for a quarter in
the period beginning ___ and ending ___. If the Performance Standard is
not achieved for a quarter in the period ___ and ending ___, the ___
Units shall be forfeited. One-third of the Restricted Units (the "___
Units") will be fully vested if (A) the Executive meets the Employment
Requirement on ___ and (B) the Company achieves the Performance
Standard for a quarter in the period beginning ___ and ending ___. If
the Performance Standard is not achieved for a quarter in the period
beginning ___ and ending ___, the ___ Units shall be forfeited.
One-third of the Restricted Units (the "___ Units") will be fully
vested if (A) the Executive meets the Employment Requirement on
__________, ___ and (B) the Company achieves the Performance Standard
for a quarter in the period beginning ___ and ending ___. If the
Performance Standard is not achieved for a quarter in the period
beginning ___ and ending ___, the ___ Units shall be forfeited. If the
Executive meets the applicable Employment Requirement, the ___ Units,
the ___ Units and/or the ___ Units as the case may be will become
vested on the date, if any, that the Compensation Committee (the
"Committee") certifies that the Partnership has met the Performance
Standard applicable for the ___ Units, the ___ Units and/or the ___
Units as the case may be. For purposes of this Agreement, the
Employment Requirement means employment of the Executive by the Company
or a subsidiary in the business of the Partnership at the date
specified. For purposes of this Agreement, the Performance Standard for
any quarter is average Quarterly Adjusted Net Income (as defined below)
per diluted Unit of not less than $___ for the period that began on ___
and ends at the end of the quarter considered, calculated as a simple
average of the Quarterly Adjusted Net Income per diluted Unit computed
for each quarter in such period. Quarterly Adjusted Net Income means
net income for a quarter, as reported by the Partnership in its filings
with the Securities and Exchange Commission, adjusted to exclude the
effects of recoveries or liabilities resulting from litigation and
administrative proceedings involving the Partnership and its
subsidiaries. Restricted Units that become vested as provided above are
hereafter referred to as "Vested Units."
(b) In the event of the Executive's (i) death, (ii) total and
permanent disability as determined by the Compensation Committee (the
"Committee") in its sole discretion,
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or (iii)retirement after attaining the normal retirement age of 62 or
retirement after attaining an earlier retirement age approved by the
Committee, in its sole discretion, before lapse of all restrictions
pursuant to Section 4(a) above, the Executive shall forfeit a number of
Restricted Units equal to the number of Restricted Units specified in
Section 1 times the percentage that the period of full months beginning
on the first day of the calendar month following the date of death,
disability or retirement and ending on _______bears to _____ days and
any remaining Restricted Units that are not vested shall become Vested
Units; provided, however, that any fractional units will be forfeited
to the Company. In its sole discretion, the Committee may decide to
vest all of the Restricted Units in-lieu of the prorated number of
Restricted Units as provided in this Section 4(b). Unless the Committee
determines otherwise, in its sole discretion, the Executive or the
Executive's beneficiary or estate will have no right to any Restricted
Units that remain subject to restrictions, and those Restricted Units
will be forfeited.
(c) In the event of a "Special Involuntary Termination" as
defined in Section 4(d)(vi) before lapse of all restrictions pursuant
to Section 4(a) above, all restrictions described in Section 5 shall
lapse and the Restricted Units will become Vested Units and the Company
shall deliver the Vested Units to the Executive as soon as practicable
thereafter.
(d) Definitions. For purposes of Section 4(c) above,
(i) "Change in Control" shall mean:
A. Any "Person" (as defined in Section
4(d)(ii) below), other than Xxxxx Corporation
("Xxxxx") or any of its wholly-owned subsidiaries,
HEP Logistics Holdings, L.P. (the "General Partner"),
the Partnership, the Company, or any of their
subsidiaries, a trustee or other fiduciary holding
securities under an employee benefit plan of Xxxxx,
the Partnership, the Company or any of their
"Affiliates" (as defined in Section 4(d)(v) below),
an underwriter temporarily holding securities
pursuant to an offering of such securities, or an
entity owned, directly or indirectly, by the holders
of the voting securities of Xxxxx, the Company, the
General Partner or the Partnership in substantially
the same proportions as their ownership in Xxxxx, the
Company, the General Partner or the Partnership,
respectively, is or becomes the "Beneficial Owner"
(as defined in Section 4(d)(iii) below), directly or
indirectly, of securities of Xxxxx, the Company, the
General Partner or the Partnership (not including in
the securities beneficially owned by such person any
securities acquired directly from Xxxxx, the General
Partner, the Partnership, the Company or their
Affiliates) representing more than forty percent
(40%) of the combined voting power of Holly's, the
Company's, the General Partner's or the Partnership's
then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a
transaction described in Section 4(d)(i)(C)(1) below.
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B. The individuals who as of the Date of
Grant constitute the Board of Directors of Xxxxx (the
"Xxxxx Board") and any "New Director" (as defined in
Section 4(d)(iv) below) cease for any reason to
constitute a majority of the Xxxxx Board.
C. There is consummated a merger or
consolidation of Xxxxx, the Company, the General
Partner or the Partnership with any other entity,
except if:
(1) the merger or consolidation
results in the voting securities of Xxxxx,
the Company, the General Partner or the
Partnership outstanding immediately prior
thereto continuing to represent (either by
remaining outstanding or by being converted
into voting securities of the surviving
entity or any parent thereof) at least sixty
percent (60%) of the combined voting power
of the voting securities of Xxxxx, the
Company, the General Partner or the
Partnership, as applicable, or such
surviving entity or any parent thereof
outstanding immediately after such merger or
consolidation; or
(2) the merger or consolidation is
effected to implement a recapitalization of
Xxxxx, the Company, the General Partner or
the Partnership (or similar transaction) in
which no Person is or becomes the Beneficial
Owner, directly, or indirectly, of
securities of Xxxxx, the Company, the
General Partner or the Partnership, as
applicable, (not including in the securities
beneficially owned by such Person any
securities acquired directly from Xxxxx, the
Company, the General Partner or the
Partnership or their Affiliates other than
in connection with the acquisition by Xxxxx,
the Company, the General Partner or the
Partnership or its Affiliates of a business)
representing more than forty percent (40%)
of the combined voting power of Holly's, the
Company's, the General Partner's or the
Partnership's, as applicable, then
outstanding securities.
D. The holders of the voting securities of
Xxxxx, the Company, the General Partner or the
Partnership approve a plan of complete liquidation or
dissolution of Xxxxx, the Company, the General
Partner or the Partnership, as applicable, or an
agreement for the sale or disposition by Xxxxx, the
Company, the General Partner or the Partnership of
all or substantially all of Holly's, the Company's,
the General Partner's or the Partnership's assets, as
applicable, other than a sale or disposition by
Xxxxx, the Company, the General Partner or the
Partnership of all or substantially all of Holly's,
the Company's, the General Partner's, or the
Partnership's assets, as applicable, to an entity at
least sixty percent (60%) of the combined voting
power of the voting securities of which is owned by
the direct or indirect holders of the voting
securities of Xxxxx, the
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Company, the General Partner or the Partnership, as
applicable, in substantially the same proportions as
their ownership of Xxxxx, the Company, the General
Partner or the Partnership, as applicable,
immediately prior to such sale.
(ii) "Person" shall have the meaning given in section
3(a)(9) of the Securities Exchange Act of 1934 (the "1934
Act") as modified and used in sections 13(d) and 14(d) of the
1934 Act.
(iii) "Beneficial Owner" shall have the meaning
provided in Rule 13d-3 under the 0000 Xxx.
(iv) "New Director" shall mean an individual whose
election by the Xxxxx Board, or nomination for election by
holders of the voting securities of Xxxxx, was approved by a
vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the Date of Grant or
whose election or nomination for election was previously so
approved or recommended. However, "New Director" shall not
include a director whose initial assumption of office is in
connection with an actual or threatened election contest,
including but not limited to a consent solicitation relating
to the election of directors of Xxxxx.
(v) "Affiliate" shall have the meaning set forth in
Rule 12b-2 promulgated under section 12 of the 1934 Act.
(vi) "Special Involuntary Termination" shall mean the
occurrence of (1) or (2) below within sixty (60) days prior
to, or at any time after, a "Change in Control" (as defined in
Section 4(d)(i)), where (1) is termination of the Executive's
employment with the Company (including subsidiaries of the
Company) by the Company for any reason other than "Cause" (as
defined in Section 4(d)(vii)) and (2) is a resignation by the
Executive from employment with the Company (including
subsidiaries of the Company) within ninety (90) days after an
"Adverse Change" (as defined in Section 4(d)(viii)) by the
Company (including subsidiaries of the Company) in the terms
of the Executive's employment.
(vii) "Cause" shall mean (A) an act or acts of
dishonesty on the part of the Executive constituting a felony
or serious misdemeanor and resulting or intended to result
directly in gain or personal enrichment at the expense of the
Company; (B) gross willful and wanton negligence in the
performance of the Executive's material and substantial duties
of employment with the Company; or (C) conviction of a felony
involving moral turpitude. The existence of Cause shall be
determined by the Committee, in its sole and absolute
discretion.
(viii) "Adverse Change" shall mean (A) a change in
the city in which the Executive is required to work regularly,
(B) a substantial increase in travel requirements of
employment, (C) a substantial reduction in duties of the type
previously performed by the Executive, or (D) a significant
reduction in
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compensation or benefits (other than bonuses and other
discretionary items of compensation) that does not apply
generally to executives of the Company or its successor.
5. Limitations on Transfer. The Executive agrees that he shall not
dispose of (meaning, without limitation, sell, transfer, pledge, exchange,
hypothecate or otherwise dispose of) any Restricted Units hereby acquired prior
to the expiration of the relevant restrictions imposed by this Section 5 which
expiration shall be determined pursuant to Section 4 of this Agreement. Any
attempted disposition of the Restricted Units in violation of the preceding
sentence shall be null and void, and the Company shall not recognize or give
effect to such transfer on its books and records or recognize the person or
persons to whom such proposed transfer has been made as the legal or beneficial
holder thereof. Notwithstanding the foregoing, part or all of the Restricted
Units or rights under this Agreement may be transferred to a spouse pursuant to
a domestic relations order issued by a court of competent jurisdiction;
provided, however, such Restricted Units shall continue to be held pursuant to
Section 2 of this Agreement, and the transferee under the domestic relations
order shall agree that the Restricted Units so transferred shall continue to be
subject to the terms of this Agreement, including forfeiture in accordance with
Section 4(a) of this Agreement and pro rata forfeiture in accordance with
Sections 4(a) and (b) of this Agreement.
6. Nontransferability of Agreement. This Agreement and all rights under
this Agreement shall not be transferable by the Executive during his life other
than by will or pursuant to applicable laws of descent and distribution. Any
rights and privileges of the Executive in connection herewith shall not be
transferred, assigned, pledged or hypothecated by the Executive or by any other
person or persons, in any way, whether by operation of law, or otherwise, and
shall not be subject to execution, attachment, garnishment or similar process.
In the event of any such occurrence, this Agreement shall automatically be
terminated and shall thereafter be null and void. Notwithstanding the foregoing,
all or some of the Restricted Units or rights under this Agreement may be
transferred to a spouse pursuant to a domestic relations order issued by a court
of competent jurisdiction, subject to the limitations on such transfer described
in Section 5.
7. Adjustment of Restricted Units. The number of Restricted Units
granted to the Executive pursuant to this Agreement shall be adjusted to reflect
distributions of the Partnership paid in units, unit splits or other changes in
the capital structure of the Partnership, all in accordance with the Plan. All
provisions of this Agreement shall be applicable to such new or additional or
different units or securities distributed or issued pursuant to the Plan to the
same extent that such provisions are applicable to the units with respect to
which they were distributed or issued. In the event that the outstanding Units
(as defined in the Plan) of the Partnership are exchanged for a different number
or kind of units or other securities, or if additional, new or different units
are distributed with respect to the Units (as defined in the Plan) through
merger, consolidation, or sale of all or substantially all of the assets of the
Partnership, each remaining unit subject to this Agreement shall have
substituted for it a like number and kind of units or shares of new or
replacement securities as determined in the sole discretion of the Committee,
subject to the terms and provisions of the Plan.
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8. Delivery of Vested Units. No Vested Units shall be delivered
pursuant to this Agreement until the approval of any governmental authority
required in connection with this Agreement, or the issuance of Vested Units
hereunder, has been received by the Company.
9. Securities Act. The Company shall have the right, but not the
obligation, to cause the Restricted Units to be registered under the appropriate
rules and regulations of the Securities and Exchange Commission. The Company
shall not be required to deliver any Vested Units hereunder if, in the opinion
of counsel for the Company, such delivery would violate the Securities Act of
1933 or any other applicable federal or state securities laws or regulations.
10. Federal and State Taxes. The Executive may incur certain
liabilities for Federal, state or local taxes and the Company may be required by
law to withhold such taxes for payment to taxing authorities. If the Executive
makes the election permitted by section 83(b) of the Internal Revenue Code, the
taxes shall be due and payable for the year in which this Agreement is executed.
If the Executive does not make such election, the taxes shall be payable for the
year in which the restrictions lapse pursuant to Section 4. Upon determination
of the year in which such taxes are due and the determination by the Company of
the amount of taxes required to be withheld, if any, the Executive shall either
pay to the Company, in cash or by certified or cashier's check, an amount equal
to the taxes required to be paid on such transaction, or the Executive shall
authorize the Company to withhold from monies owing by the Company to the
Executive an amount equal to the amount of federal, state or local taxes
required to be withheld. Authorization of the Executive to the Company to
withhold taxes pursuant to this Section 10 shall be in form and content
acceptable to the Committee. An authorization to withhold taxes pursuant to this
provision shall be irrevocable unless and until the tax liability of the
Executive has been fully paid. In the event that the Executive fails to make
arrangements that are acceptable to the Committee for providing to the Company,
at the time or times required, the amounts of federal, state and local taxes
required to be withheld with respect to the Restricted Units granted to the
Executive under this Agreement, the Company shall have the right to purchase at
current market price as determined by the Committee and/or to sell to one or
more third parties in either market or private transactions sufficient Vested
Units to provide the funds needed for the Company to make the required tax
payment or payments.
11. Definitions; Copy of Plan. To the extent not specifically provided
herein, all terms used in this Agreement shall have the same meanings ascribed
to them in the Plan. By the execution of this Agreement, the Executive
acknowledges receipt of a copy of the Plan. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any applicable law, then
such provision will be deemed to be modified to the minimum extent necessary to
render it legal, valid and enforceable; and if such provision cannot be so
modified, then this Agreement will be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties will
be construed and enforced accordingly.
12. Administration. This Agreement shall at all times be subject to the
terms and conditions of the Plan. The Committee shall have sole and complete
discretion with respect to all matters reserved to it by the Plan and decisions
of a majority of the Committee with respect thereto and this Agreement shall be
final and binding upon the Executive and the Company. In the event of any
conflict between the terms and conditions of this Agreement and the Plan, the
provisions of the Plan shall control.
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13. No Right to Continued Employment. This Agreement shall not be
construed to confer upon the Executive any right to continue as an Executive of
the Company and shall not limit the right of the Company, in its sole
discretion, to terminate the service of the Executive at any time.
14. Governing Law. This Agreement shall be interpreted and administered
under the laws of the State of Texas, without giving effect to any conflict of
laws provisions.
15. Amendments. This Agreement may be amended only by a written
agreement executed by the Company and the Executive. Any such amendment shall be
made only upon the mutual consent of the parties, which consent (of either
party) may be withheld for any reason.
16. No Liability for Good Faith Determinations. The General Partner,
the Partnership, the Company, Xxxxx and the members of the Committee, the Board
and the Xxxxx Board shall not be liable for any act, omission or determination
taken or made in good faith with respect to this Agreement or the Restricted
Units granted hereunder.
17. No Guarantee of Interests. The Board, the Xxxxx Board, the General
Partner, the Partnership, Xxxxx and the Company do not guarantee the Units (as
defined in the Plan) from loss or depreciation.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officers thereunto duly authorized, and the Executive has set
his hand effective as of the date and year first above written.
XXXXX LOGISTIC SERVICES, L.L.C.
By:
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Executive
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