EXHIBIT 10.2
FOURTH AMENDED AND RESTATED INCENTIVE COMPENSATION AGREEMENT
This Fourth Amended and Restated Incentive Compensation Agreement, dated
as of December 15, 2004 (this "Agreement"), is entered into between MainLine Sub
LLC, a Delaware limited liability company ("Holdco"), and BUCKEYE PARTNERS,
L.P., a Delaware limited partnership (the "Partnership").
WHEREAS, Buckeye Pipe Line Company LLC, a Delaware limited liability
company (the "Former GP"), and the Partnership entered into a Third Amended and
Restated Incentive Compensation Agreement dated May 4, 2004 (the "Prior
Agreement");
WHEREAS, the Former GP was the general partner of the Partnership, and
pursuant to a Contribution, Assignment and Assumption Agreement dated as of the
date hereof, assigned and transferred substantially all of its assets and
liabilities, including its general partner interests in the Partnership and the
Partnership's operating partnerships, but excluding the Prior Agreement, to the
General Partner (as defined below);
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of the date
hereof, the Former GP, along with Buckeye Management Company LLC, has merged
with and into Glenmoor LLC, and Glenmoor LLC has changed its name to MainLine
Sub LLC LLC;
WHEREAS, Holdco, as successor by merger to the Former GP, is the sole
member of Buckeye GP LLC, a Delaware limited liability company (the "General
Partner");
WHEREAS, the parties hereto desire to amend and restate the Prior
Agreement in its entirety to better reflect the organizational changes recited
herein;
WHEREAS, Section 3.6 of the Prior Agreement provides that the Prior
Agreement may be amended only after complying with Section 17.2(a) of the
Amended and Restated Agreement of Limited Partnership dated as of December 15,
1986, as amended prior to the date hereof (the "Partnership Agreement"), which
provides that, without the prior approval of a two-thirds interest of the
limited partners of the Partnership, the General Partner shall not amend the
Prior Agreement unless such amendment does not, in the good faith opinion of the
General Partner, adversely affect the limited partners of the Partnership (the
"Limited Partners") in any material respect; and
WHEREAS, the Board of Directors of the General Partner has approved the
amendment and restatement of the Prior Agreement in the form set out in this
Agreement and has further determined that, in its good faith opinion, this
amendment and restatement of the Prior Agreement does not adversely affect the
Limited Partners in any material respect.
1
NOW THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Set forth below are definitions of certain capitalized terms used in this
Agreement. All capitalized terms used herein and not otherwise defined herein
shall have the meanings provided therefor in the Partnership Agreement.
1.1 "Aggregate Target Quarterly Amount" means the Target Quarterly Amount
per LP Unit times the number of Units, other than ESOP LP Units, outstanding.
1.2 "Aggregate Target Special Distribution Amount" means the Target
Special Distribution Amount times the number of Units outstanding.
1.3 "Available Cash" for any quarter means the Partnership's consolidated
cash receipts during such quarter (including, for this purpose, amounts retained
as described in clause (b) below during prior quarters and determined by the
General Partner, in its sole discretion, to no longer be required to be so
retained) less (a) its consolidated cash expenditures during such quarter (other
than distributions of Available Cash for the prior quarter and expenditures of
amounts received in prior quarters) and (b) such retentions for working capital,
anticipated cash expenditures (including capital expenditures and debt service)
and contingencies as the General Partner, in its sole discretion, deems
appropriate.
1.4 "ESOP LP Units" means the 2,573,146 LP Units issued to Buckeye Pipe
Line Services Company in connection with the transactions contemplated by the
Exchange Agreement, regardless of whether such LP Units continue to be held by
Buckeye Pipe Line Services Company.
1.5 "IPO Price" is $10.00 per LP Unit.
1.6 "Pipeline Partnership" means the limited partnership subsidiaries and
the other subsidiaries of the Partnership, collectively.
1.7 "Quarterly Cash To Be Distributed" for any quarter means the Available
Cash for such quarter (excluding cash to be distributed in a Special
Distribution) less retentions of Available Cash necessary to pay Holdco
incentive compensation pursuant to this Agreement and less cash distributed by
the Partnership to the holders of the ESOP LP Units or the GP Units.
1.8 "Special Cash To Be Distributed" means the cash or fair market value
of securities to be distributed in a Special Distribution, less the cash or fair
market value of securities distributed by the Partnership to the holders of ESOP
LP Units or the GP Units.
2
1.9 "Special Distribution" means any special cash distribution to
Unitholders in excess of $10 million from the proceeds of a financing, sale of
assets or disposition (or a series of related financings, sales of assets or
dispositions) or a special distribution of marketable securities with a fair
market value in excess of $10 million; provided, however, that no special
distribution from the proceeds of a financing shall be made without the approval
of the disinterested directors of the Board of Directors of the General Partner
or a committee thereof.
1.10 "Target Quarterly Amount" is $.325 per quarter.
1.11 "Target Special Distribution Amount" means the amount which, together
with all amounts distributed per LP Unit prior to the Special Distribution
compounded quarterly from the respective dates of distribution to the date of
such Special Distribution at the Target Rate, would equal the IPO Price
compounded quarterly at the Target Rate from December 23, 1986 to the date of
such Special Distribution.
1.12 "Target Rate" is 13% per annum.
1.13 "Unitholders" means the holders of record collectively of the LP
Units and the GP Units.
ARTICLE II
INCENTIVE COMPENSATION AGREEMENT
2.1 Quarterly Incentive Compensation. If Quarterly Cash To Be Distributed
for any calendar quarter exceeds the Aggregate Target Quarterly Amount and such
Quarterly Cash To Be Distributed is distributed to the Limited Partners as
provided in the Partnership Agreement, the Partnership shall pay to Holdco
incentive compensation equal to the sum of (a) 15% of the portion of the
Quarterly Cash To Be Distributed which (i) exceeds $.325 per LP Unit and (ii)
does not exceed $.35 per LP Unit; (b) 25% of the portion of the Quarterly Cash
To Be Distributed which (i) exceeds $.35 per LP Unit and (ii) does not exceed
$.375 per LP Unit; (c) 30% of the portion of the Quarterly Cash To Be
Distributed which (i) exceeds $.375 per LP Unit and (ii) does not exceed $.40
per LP Unit; (d) 35% of the portion of the Quarterly Cash To Be Distributed
which (i) exceeds $.40 per LP Unit and (ii) does not exceed $.425 per LP Unit;
(e) 40% of the portion of the Quarterly Cash To Be Distributed which (i) exceeds
$.425 per LP Unit and (ii) does not exceed $.525 per LP Unit; and (f) 45% of the
portion of the Quarterly Cash To Be Distributed which exceeds $.525 per LP Unit.
For purposes of this Section 2.1, "LP Units" shall not include ESOP LP Units.
2.2 Special Distribution Incentive Compensation. If the Special Cash To Be
Distributed in a Special Distribution exceeds the Aggregate Target Special
Distribution Amount for such Special Distribution and such Special Cash To Be
Distributed is distributed to the
3
Limited Partners as provided in the Partnership Agreement, the Partnership
shall, subject to Section 2.3, pay to Holdco, out of Special Cash To Be
Distributed, incentive compensation equal to (a) 15% of the portion of the
Special Cash To Be Distributed which (i) exceeds 100% of the Aggregate Target
Special Distribution Amount and (ii) is not more than 115% of the Aggregate
Target Special Distribution Amount, plus (b) 25% of the amount (if any) by which
the Special Cash To Be Distributed exceeds 115% of the Aggregate Target Special
Distribution Amount.
2.3 Termination Upon Removal of General Partner. The agreement contained
in this Article II shall terminate if the General Partner is removed as general
partner of the Partnership pursuant to the Partnership Agreement, effective upon
the date of such removal. However, the value of the right to receive incentive
compensation as provided in this Article II shall be included in determining the
fair market value of the GP Units pursuant to Section 13.2 of the Partnership
Agreement.
2.4 Certain Events. If there is a change in the LP Units to divide the
outstanding LP Units into a greater number of LP Units or to combine outstanding
LP Units into a smaller number of LP Units, in each case in accordance with the
terms and conditions of the Partnership Agreement, the amounts reflected in
Sections 1.5, 1.10 and 2.1 hereof shall be adjusted automatically to reflect
such division or combination and shall apply to all subsequent calculations of
incentive compensation payable to Holdco hereunder.
ARTICLE III
MISCELLANEOUS
3.1 Headings. All article or section headings in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any of the provisions hereof.
3.2 Binding Effect; Benefit of Agreement; Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Absent the written consent of each party
hereto and, this Agreement may not be assigned by either party. Notwithstanding
the foregoing, Holdco may assign this agreement to (i) an entity which, directly
or indirectly, wholly owns or is wholly owned by Holdco, (ii) any entity wholly
owned by any entity which wholly owns Holdco or (iii) a transferee of the GP
Units under Section 11.1 of the Partnership Agreement. For so long as the
Executive Employment Agreement, dated as of December 15, 2004, between the
General Partner, Holdco and Buckeye Pipe Line Services Company is in effect,
Holdco may not assign this Agreement without the prior written consent of the
Trustee of the ESOP, which consent will not be unreasonably withheld.
3.3 Integration. This Agreement constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
4
3.4 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
3.5 Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
3.6 Amendment. This Agreement may be amended only after complying with
Section 17.2(a) of the Partnership Agreement.
5
IN WITNESS WHEREOF, this Fourth Amended and Restated Incentive
Compensation Agreement has been duly executed by the parties hereto as of the
date first above written.
MainLine Sub LLC
By: /s/ Xxxxxxx X. Xxxxxx
____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President-Administration,
General Counsel and Secretary
BUCKEYE PARTNERS, L.P.
By: BUCKEYE GP LLC,
as General Partner
By: /s/ Xxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President-Finance
and Chief Financial Officer
[Fourth Amended and Restated Incentive Compensation Agreement]
