EXHIBIT 10.2
[FORM WITHOUT 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 "Employee"). 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 Employee of restricted
units of XXXXX ENERGY PARTNERS, L.P. (the "Partnership") as part of the
Employee'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 Employee,
in consideration of services rendered by the Employee, as follows:
1. Grant. The Company hereby grants to the Employee as of the Date of Grant
an award of _______ Partnership 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 Employee
in book entry form by the Partnership's transfer agent with a notation that the
Units are subject to restrictions. The Employee 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
Employee 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 Employee. Effective as of the Date of Grant, the Employee 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 Employee shall forfeit to the Company (i) all of the
Restricted Units immediately and without any payment to the Employee
whatsoever if the Employee'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 Employee'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 Employee'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 shall be
fully vested and nonforfeitable, and after ____, ___, two-thirds (2/3) of
the Restricted Units shall be fully vested and nonforfeitable, and after
____, ___, all Restricted Units shall be fully vested and nonforfeitable
("Vested Units").
(b) In the event of the Employee's (i) death, (ii) total and permanent
disability as determined by the Compensation Committee (the "Committee") in
its sole discretion, 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 Employee 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 _____ months
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 Employee or the Employee'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 Employee 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,
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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.
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
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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 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
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Employee'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
Employee 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 Employee's
employment.
(vii) "Cause" shall mean (A) an act or acts of dishonesty on
the part of the Employee 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
or willful and wanton negligence in the performance of the
Employee'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 Employee 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 Employee, or (D) a significant reduction in 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 Employee 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 Employee during his
life other than by will or pursuant to applicable laws of descent and
distribution. Any rights and privileges of the Employee in connection
herewith shall not be transferred, assigned, pledged or hypothecated by the
Employee 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
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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 Employee 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.
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 Employee 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 Employee 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 Employee
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 Employee 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 Employee shall authorize
the Company to withhold from monies owing by the Company to the Employee an
amount equal to the amount of federal, state or local taxes required to be
withheld. Authorization of the Employee 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 Employee has been fully
paid. In the event that the Employee 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 Employee under this
Agreement, the Company shall have the right to
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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 Employee
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 Employee 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.
13. No Right to Continued Employment. This Agreement shall not be construed
to confer upon the Employee any right to continue as an Employee of the Company
and shall not limit the right of the Company, in its sole discretion, to
terminate the service of the Employee 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 Employee. 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.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its officers thereunto duly authorized, and the Employee 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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Employee
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