Contract
Exhibit 10.48
THIS LLC UNIT AGREEMENT is made and entered into effective as of the 23rd day of January,
2009, by and between COFFEYVILLE ACQUISITION, LLC, a Delaware limited liability company
(“Acquisition LLC”), COFFEYVILLE ACQUISITION II, LLC, a Delaware limited liability company
(“Acquisition II LLC”), COFFEYVILLE ACQUISITION III, LLC, a Delaware limited liability company
(“Acquisition III LLC”) (Acquisition LLC, Acquisition II LLC and Acquisition III LLC each a Company
and collectively the “Companies”) and XXXXX X. XXXX (“Member”).
WHEREAS, Member is a Management Member of each of the Companies and in such capacity owns
Override Units of each of the Companies consisting of both Operating Units and Value Units in
Acquisition LLC and Acquisition II LLC, and consisting of “Immediately Vested Override Units” and
“Override Units Subject to Vesting” in Acquisition III LLC (for purposes of this LLC Unit
Agreement, both the “Immediately Vested Override Units” and the “Override Units Subject to Vesting”
in Acquisition III LLC shall be treated as Operating Units);
WHEREAS, on January 23rd, 2009, Member entered into a Separation Agreement with Companies’
affiliated entities, CVR Energy, Inc. (“CVR Energy”), a Delaware corporation, and Coffeyville
Resources, LLC (“Resources”), a Delaware limited liability company (the “Separation Agreement”),
pursuant to which the Member has agreed to continue to provide employment services to CVR Energy
for a limited term subject to the terms and conditions of the Separation Agreement; and
WHEREAS, a condition to Member’s execution of the Separation Agreement is that Companies enter
into this LLC Unit Agreement in order to modify the vesting schedule for Member’s Override Units.
NOW, THEREFORE, the parties hereto agree as follow:
1. Override Units. Notwithstanding anything to the contrary in the Third Amended and
Restated Limited Liability Company Agreement of Coffeyville Acquisition LLC, dated October 16,
2007, as amended by Amendment No. 1 to such Agreement dated October 24, 2007 (the “Acquisition LLC
Agreement”), the First Amended and Restated Limited Liability Company Agreement of Coffeyville
Acquisition II, LLC, dated October 16, 2007, as amended by Amendment No. 1 to such Agreement dated
October 24, 2007 (the “Acquisition II LLC Agreement”) and Amended and Restated Limited Liability
Company Agreement of Coffeyville Acquisition III, LLC, dated February 15, 2008 (the “Acquisition
III LLC Agreement” and collectively with Acquisition LLC Agreement and Acquisition II LLC
Agreement, the “Company Agreements”) or any further amendments to the Company Agreements, the
Override Units granted to Member pursuant to the applicable Company Agreement shall not be
forfeited upon Member’s termination of employment with CVR Energy, but shall rather become
partially vested upon such termination of employment as follows, subject to Section 1.c. hereof:
a. Operating Units. A number of Operating Units that have been granted to the
Member prior to the date on which Member’s employment with CVR Energy is terminated (the
“Termination Date”) shall become vested such that in the aggregate seventy-five percent
(75%) of such Operating Units shall be vested and non-forfeitable as of the
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Termination Date, subject to subsection c. below. With respect to such vested Operating
Units, Member shall be entitled to the same rights, privileges and benefits as all other
Members of applicable Company that own Operating Units prior to or following the Termination
Date and shall be treated indefinitely as if he were still an active employee of the
applicable Company. In the event that such Operating Units convert to Value Units in
accordance with the applicable Company Agreement, the converted Value Units shall remain
fully vested and non-forfeitable.
b. Value Units. A number of Value Units that have been granted to the Member
prior to the Termination Date shall become vested such that in the aggregate fifty percent
(50%) of such Value Units shall become vested and non-forfeitable for a period of
twenty-four (24) months following the Termination Date, subject to subsection c. below and
subject to the satisfaction of applicable performance conditions in the Company Agreements.
With respect to such vested Value Units, for such twenty-four (24) month period Member shall
be entitled to the same rights, privileges and benefits as all other Members of applicable
Company (other than Acquisition III LLC) that own Value Units prior to or following the
Termination Date. Upon the completion of such twenty-four (24) month period, in the event
that (i) an Exit Event has not yet occurred, and (ii) no definitive agreement shall be in
effect regarding a transaction, which, if consummated, would result in an Exit Event, then
all Value Units granted to Member shall be forfeited and of no further benefit to Member (it
being understood that in the event that such forfeiture does not occur as a result of the
operation of clause (ii) of this Section 1(b) but the definitive agreement referred to in
such clause (ii) subsequently terminates without consummation of an Exit Event, then the
forfeiture of all of the Value Units shall thereupon occur).
c. In the event that the Member breaches any provision of the Separation Agreement
(including, for the avoidance of doubt, the provisions of the Amended and Restated
Employment Agreement between the Member and CVR Energy, dated December 29, 2007 that survive
the execution of the Separation Agreement), all Operating Units and Value Units that have
been granted to the Member shall be forfeited as of the date of such breach.
2. Capitalized Terms. Any capitalized term used herein which is not defined herein
shall be ascribed the meaning given to such term in the applicable Company Agreement.
3. Controlling Agreement; Other Provisions to Remain in Effect. To the extent of any
conflict between this LLC Unit Agreement and the Company Agreements or any other agreement between
the parties hereto, the terms and conditions of this LLC Unit Agreement shall control. Except to
the extent modified by this LLC Unit Agreement, the Company Agreements are not affected hereby and
continue in full force and effect in accordance with their original terms.
4. Authority. Each party hereby represents and warrants to the other party that: (a)
it has the power, legal capacity, and authority to enter into and perform its obligations under
this LLC Unit Agreement, and no approvals or consents of any persons are necessary in connection
therewith; and (b) the execution and delivery of this LLC Unit Agreement has been duly authorized
by its respective directors, managers or other governing body in full compliance with its
organizational and governing documents. Each of the individuals executing this LLC Unit Agreement
on behalf of the parties hereby represents and warrants to the other party that such
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individual has been duly authorized and has full authority to execute this LLC Unit Agreement
for the party on whose behalf such individual is signing.
5. Governing Law; Venue. This LLC Unit Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Delaware, without giving effect to its
conflicts of law principles. Each of the parties hereto irrevocably and unconditionally consents
to submit to the exclusive jurisdiction of the courts of Kansas (collectively the “Selected
Courts”) for any action or proceeding relating to this LLC Unit Agreement, agrees not to commence
any action or proceeding relating thereto except in the Selected Courts, and waives any forum or
venue objections to the Selected Courts.
6. Severability. In the event any provision herein is held by a court of competent
jurisdiction to be invalid or unenforceable, then such invalid or unenforceable provision shall be
reformed to the least extent possible to make the same valid and enforceable or, if no such
reformation is possible, then such invalid or unenforceable provision shall be stricken from this
LLC Unit Agreement without affecting the validity or enforceability of the remainder of this LLC
Unit Agreement.
7. Notices. Any notice which is necessary, required or desired to be given hereunder
shall be in writing and shall be given in accordance with the notice provisions set forth in the
Company Agreements.
8. Successors and Assigns. This LLC Unit Agreement shall be binding on, and shall
inure to the benefit of, the parties and their respective heirs, legal representatives, successors
and assigns.
9. Multiple Counterparts. This LLC Unit Agreement may be executed in any number of
separate counterparts, each of which will be deemed to be an original, but which together will
constitute one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, each party hereto has caused this LLC Unit Agreement to be duly executed
as of the effective date written above.
| “Member” | COFFEYVILLE ACQUISITION, LLC | |||||
/s/ Xxxxx X. Xxxx |
By: | /s/ Xxxx X. Xxxxxxxx | ||||
| XXXXX X. XXXX | Authorized Signatory | |||||
| Xxxx X. Xxxxxxxx | ||||||
| Printed Name | ||||||
| CEO | ||||||
| Title | ||||||
| COFFEYVILLE ACQUISITION II, LLC | ||||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||||
| Authorized Signatory | ||||||
| Xxxx X. Xxxxxxxx | ||||||
| Printed Name | ||||||
| CEO | ||||||
| Title | ||||||
| COFFEYVILLE ACQUISITION III, LLC | ||||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||||
| Authorized Signatory | ||||||
| Xxxx X. Xxxxxxxx | ||||||
| Printed Name | ||||||
| CEO | ||||||
| Title | ||||||
