HOLLY LOGISTIC SERVICES, L.L.C. PERFORMANCE UNIT AGREEMENT
Exhibit 10.49
XXXXX LOGISTIC SERVICES, L.L.C.
PERFORMANCE UNIT AGREEMENT
PERFORMANCE UNIT AGREEMENT
This Performance Unit Agreement (the “Agreement”) is made and entered into by and between
XXXXX LOGISTIC SERVICES, L.L.C., a Delaware limited partnership (the “Company”), and
(the “Employee”). This Agreement is entered into as of the 3rd
day of March, 2009 (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, executives directors and consultants; and
WHEREAS, the Company believes that a grant to the Employee of performance units of Xxxxx
Energy Partners, L.P. (the “Partnership”) as part of the Employee’s compensation for services
provided to the Company and/or the Partnership is consistent with the stated purposes for which the
Plan was adopted.
NOW, THEREFORE, in consideration of the services rendered by the Employee, it is agreed by and
between the Company and the Employee, as follows:
1. Grant. The Company hereby grants to the Employee as of the Date of Grant an
Award of performance units (the “Performance Units”), subject to the terms and
conditions set forth in this Agreement. Depending on the performance of the Partnership,
the Employee may earn from fifty percent (50%) to one hundred fifty percent (150%) of the
Performance Units, based on the increase in the Partnership’s cash distributions on the
Common Units of the Partnership (“Common Units”).
2. Distribution Equivalent Rights. As long as the Employee holds the
Performance Units granted pursuant to this Agreement, the Employee shall be entitled to
receive distribution equivalent rights (“DERs’) in accordance with this Section 2. In the
event the Partnership makes a distribution in respect of outstanding Common Units and, on
the record date for such distribution, the Employee holds Performance Units that have not
yet become earned and payable under this Agreement, the Company shall pay the Employee an
amount in cash equal to the distribution amounts the Employee would have received if the
Employee were the holder of record, as of such record date, of a number of Common Units
equal to the number of such Performance Units that have not become earned and payable as of
such record date, such payment to be made on or promptly following the date that the
Partnership makes such distribution (however, in no event shall the DERs be paid later than
30 days following the date on which the Partnership makes such distribution to unitholders
generally).
3. Nature of Award. The Performance Units represent an Award for the
“Performance Period” which begins on January 1, 2009 and ends on December 31, 2011.
Following the completion of the Performance Period, the Employee shall be entitled to a
payment of Common Units as determined under this Section 3 and/or Section 4, as
applicable, and payable in Common Units at the time indicated in Section 5 or Section
4(b), as applicable.
(a) Performance Measure. The percentage of Performance Units earned
for the Performance Period is determined on the basis of the total increase in the
cash distribution per Common Unit during the Performance Period over an annualized
cash distribution of $3.06 per Common Unit.
(b) Common Units Payable. The number of Common Units payable is equal
to the result of multiplying Performance Units by the “Performance Percentage” set
forth below:
| 3-Year Total Increase in Cash | Performance Percentage (%) to | |||
| Distributions Per Common | be Multiplied by Performance | |||
| Unit over $3.06 | Units | |||
$0.000 |
50 | % | ||
$0.658 |
100 | % | ||
$1.346 |
150 | % | ||
The percentages above shall be interpolated between points.
4. Early Termination. In the event Employee ceases to provide services to the
Partnership and the Company prior to the end of the Performance Period on account of an
event described in this Section 4, the number of Performance Units with respect to which
payment at the end of the Performance Period is based shall be determined as follows:
(a) In the event that the Employee ceases to provide services to the
Partnership and the Company:
(i) for any reason other than voluntary separation, Cause (as defined
in Section 4(c)(vii)) or a Special Involuntary Separation (as defined in
Section 4(c)(vi)),
(ii) due to the Employee’s death,
(iii) due to the Employee’s total and permanent disability as
determined by the Compensation Committee of the Company’s Board of Directors
(the “Committee”) in its sole discretion, or
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(iv) due to the Employee’s retirement on or after attaining normal
retirement age of 62 or after attaining an earlier retirement age approved
by the Committee in its sole discretion,
the number of Performance Units that shall be earned by and paid to the Employee or
his beneficiary, in accordance with and at the time specified in Section 5, shall be
determined as follows: the Employee shall forfeit a percentage of the Performance
Units earned equal to the percentage that the number of full months following the
date of separation, death, disability or retirement to the end of the Performance
Period bears to thirty-six (36). The Committee shall determine the number of
Performance Units earned by the Employee or his beneficiary in accordance with
Section 3 for the entire Performance Period as soon as administratively practicable
after the end of the Performance Period. In its sole discretion, the Committee may
make a payment to the Employee assuming a Performance Percentage of up to one
hundred fifty percent (150%) of the Performance Units instead of the pro-rata number
of Performance Units as determined pursuant to this Section 4(a). Unless the
Committee determines otherwise, the Employee will have no right to any other
Performance Units and those other Performance Units granted under this Agreement
will be forfeited. If the Employee separates from employment prior to the end of
the Performance Period due to voluntary separation or on account of Cause, all
Performance Units hereunder will be forfeited.
(b) In the event of a Special Involuntary Termination, as defined in Section
4(c)(vi), before the end of the Performance Period, no Performance Units shall be
forfeited, and payment with respect to one hundred fifty percent (150%) of the
Performance Units shall be made as soon as administratively practicable following
the Special Involuntary Termination, but in no event later than two and one-half
months after the end of the calendar year in which the Special Involuntary
Termination occurs. Payment pursuant to this Section 4(b) is in lieu of payment
pursuant to Section 4(a) and if the Employee receives payment pursuant to this
Section 4(b) the Employee will not be entitled to any payment pursuant to Section
4(a).
(c) Definitions. For purposes of this Section 4,
(i) “Change in Control” shall mean:
A. Any Person (as defined in Section 4(c)(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(c)(v) below), an underwriter
temporarily holding securities pursuant to an offering of such
securities, or 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
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Beneficial Owner (as defined in Section 4(c)(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(c)(i)(C)(I)
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(c)(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, 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.
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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 or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company’s assets, other than a sale or disposition by holders of the
voting securities of 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 and
indirect holders of the voting securities of Xxxxx, the Company, the
General Partner or the Partnership in substantially the same
proportions as their ownership of the voting securities 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 1934 Act.
(iv) “New Director” shall mean an individual whose election by Holly’s
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 the 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) within sixty (60) days prior to, or at any time after, a Change in
Control (as defined in Section 4(c)(i)), where (1) is termination by the
Company of the Employee’s (a) employment with the Company (including
subsidiaries of the Company) or (b) provision of executive services to the
Partnership and the Company, for any reason other than Cause (as defined in
Section 4(c)(vii)) and (2) is a resignation by the Employee from employment
or service with the Company (including subsidiaries of the Company) within
ninety (90) days after an
Adverse Change (as defined in Section 4(c)(viii)) in the terms of the
Employee’s employment.
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(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;
X. Xxxxx 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, without the express written consent
of the Employee, (A) a change in the Employee’s principal office to a
location more than 25 miles from the Employee’s work address as of the Date
of Grant, (B) a material increase (without adequate consideration) or a
material reduction in duties of the type previously performed by the
Employee, or (C) a material reduction in the Employee’s base compensation
(other than bonuses and other discretionary items of compensation) that does
not apply generally to employees of the Company or its successor. Employee
shall provide notice to the Company of the event alleged to constitute an
Adverse Change within ninety (90) days of the occurrence of such event and
the Company shall be given the opportunity to remedy the alleged Adverse
Change and/or to contest Employee’s assertion that an Adverse Change event
has occurred within thirty (30) days from receipt of such notice.
5. Payment of Performance Units. The number of Common Units payable at the end
of the Performance Period (or such earlier time as specified under Section 4(b)) shall be
payable as soon as reasonably practicable following the close of the Performance Period, but
in no event later than two and one-half months after the end of the calendar year in which
the Performance Period closes (or such earlier time as specified under Section 4(b)), in the
amount determined in accordance with Section 3, as adjusted by Section 4, if applicable.
Such payment will be subject to withholding for taxes and other applicable payroll
adjustments. The Committee’s determination of the amount payable shall be binding upon the
Employee and his beneficiary or estate.
6. Adjustment in Number of Performance Units. Except as provided below, in the
event that the outstanding Common Units are increased, decreased or exchanged for a
different number or kind of units or other securities, or if additional, new or different
units or securities are distributed with respect to the Units through merger,
consolidation, sale of all or substantially all of the assets of the Partnership,
reorganization, recapitalization, unit dividend, unit split, reverse unit split or other
distribution with respect to such Common Units, there shall be substituted for the Common
Units under the Performance Units subject to this Agreement the appropriate number and kind
of Common Units or new or replacement securities as determined in the sole discretion of the
Committee.
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7. Delivery of Common Units. No Common 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 Common Units hereunder, has been received by the Company.
8. Securities Act. The Company shall have the right, but not the obligation,
to cause the Common Units payable under this Agreement to be registered under the
appropriate rules and regulations of the Securities and Exchange Commission. The Company
shall not be required to deliver any Common 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.
9. 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. Upon 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 withheld, or
the Employee shall authorize the Company to withhold from the Common Units payable to the
Employee an amount necessary to satisfy the Federal, state or local taxes required to be
withheld. Authorization of the Employee to the Company to withhold taxes pursuant to this
Section 9 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 discretion of the Committee, the
required taxes may be withheld in kind from Common Units payable under this Agreement. 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 Common Units payable to the
Employee 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 Common Units payable under this Agreement
to provide the funds needed for the Company to make the required tax payment or payments.
10. 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.
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11. 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 the 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.
12. 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.
13. 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.
14. 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.
15. No Liability for Good Faith Determinations. The Company and the members of
the Committee and the Board shall not be liable for any act, omission or determination taken
or made in good faith with respect to this Agreement or the Performance Units granted
hereunder.
16. No Guarantee of Interests. The Board and the Company do not guarantee the
Common Units from loss or depreciation.
17. 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 thereafter be null and void. Notwithstanding the foregoing, all or some
of the 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.
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17. Compliance with Section 409A of the Code. This Agreement is intended to
comply and shall be administered in a manner that is intended to comply with section 409A of
the Code and shall be construed and interpreted in accordance with such intent. Payment
under this Agreement shall be made in a manner that will comply with section
409A of the Code, including regulations or other guidance issued with respect thereto,
except as otherwise determined by the Committee. The applicable provisions of section 409A
of the Code are hereby incorporated by reference and shall control over any contrary
provisions herein that conflict therewith.
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: | ||||||
| Title | ||||||
| Employee | ||||||
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