EV Energy Partners, L.P. Long-Term Incentive Plan Grant of Incentive Units
Exhibit
10.1
Form
of Xxxxx
XX
Energy Partners, L.P.
Long-Term
Incentive Plan
Grant
of Incentive Units
Grantee
Grant
Date
1.
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Grant of
Incentive Units. EV Management, LLC (the “Company”)
hereby grants to you ____
Incentive Units under the EV Energy Partners, L.P. Long-Term
Incentive Plan (the “Plan”)
on the terms and conditions set forth herein and in the Plan, which is
incorporated herein by reference as a part of this Agreement. Each
Incentive Unit is comprised of three Units which shall be earned and vest
as set forth below. The Incentive Units granted hereunder expire five
years from the date of grant.
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2.
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Earning and
Vesting of Units. Subject to the terms of this Grant, you shall be
entitled to receive Units or a cash payment in lieu of Units upon each
Incentive Unit vesting and being earned as provided
herein.
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a.
Units
Earned. Except as otherwise provided in Paragraph 3 below, the
Incentive Units granted hereunder shall be earned as follows (with such
Units being earned under each Tranche only upon the first occurrence of
the achievement of the relevant closing price
threshold):
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Tranche A: For
each Incentive Unit granted, a Unit is earned if trading in the Units on
the Nasdaq Global Market or such other national securities exchange on
which the Units are then trading closes at greater than $20 per Unit for
three consecutive days; and
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Tranche B: For
each Incentive Unit granted, an additional Unit is earned if trading in
the Units on the Nasdaq Global Market or such other national securities
exchange on which the Units are then trading closes at greater than $30
per Unit for three consecutive days;
and
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Tranche C: For
each Incentive Unit granted, an additional Unit is earned if trading in
the Units on the Nasdaq Global Market or such other national securities
exchange on which the Units are then trading closes at greater than $40
per Unit for three consecutive
days.
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b.
Units
Vested. Except as otherwise provided in Paragraph 3
below, the Incentive Units granted hereunder shall vest as
follows:
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Vesting
Date
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Cumulative
Vested
Percentage
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January
15, 20__
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25
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% | ||||
January
15, 20__
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50
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% | ||||
January
15, 20__
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75
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% | ||||
January
15, 20__
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100
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% |
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c.
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Phantom
Units. Subject to Paragraph 3, to the extent any
Incentive Unit vests and then is earned as set forth in paragraph 3.a
above, you are deemed to have a vested Phantom Unit until the next
Designated Vesting Date whereupon such vested Phantom Unit shall be
automatically converted into a Unit. To the extent any Incentive Unit is
earned prior to vesting, you are deemed to have a Phantom Unit until such
Incentive Unit vests whereupon such Phantom Unit shall be automatically
converted into a Unit.
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d.
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Forfeiture
of Incentive Units Not Earned. To the extent Incentive Units are
not earned under Tranche A, Tranche B, or Tranche C as set forth in
paragraph (a) within the five year term of this Agreement, such unearned
Units will be forfeited even if they have vested at the end of such five
year term.
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3.
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Events
Occurring Prior to Regular
Vesting.
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a.
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Death or
Disability. If your employment with the Company
terminates as a result of your death or a Disability, all Incentive Units
then held by you that have been earned shall automatically become fully
vested on the Designated Vesting Date that coincides with or immediately
follows such termination and will be paid in accordance with Paragraph 4.
All Incentive Units then held by you but which have not been earned as of
your date of death or Disability shall be forfeited. Except as otherwise
provided by the Committee, you shall be considered to have a “Disability”
during the period in which you are unable, by reason of a medically
determinable physical or mental impairment, to engage in any substantial
gainful activity, which condition, in the opinion of a physician selected
by the Committee, is expected to have a duration of not less than 120
days.
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b.
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Termination by the Company
other than for Cause. If your employment is terminated
by the Company for any reason other than “Cause,” as determined by the
Company in accordance with its employment policies, all Incentive Units
then held by you and earned shall automatically become fully vested on the
Designated Vesting Date that coincides with or immediately follows such
termination. All Incentive Units then held by you but not earned shall be
forfeited.
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c.
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Other
Terminations. Except as provided in Paragraph 2
hereof, if you terminate from the Company for any reason other than as
provided in Paragraphs 3.a and 3.b above, all Incentive Units then
held by you that are either unvested or unearned shall automatically be
forfeited without payment upon such
termination.
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d.
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Change of
Control. All outstanding Incentive Units held by you
shall become fully vested upon a Change of Control. If the price per Unit
in the Change of Control is greater than $20, the Units shall be
considered earned on the closing date at level A, B or C, depending on the
price. All Unites that are vested and earned as of the date of closing
shall be paid to you on such closing date. If the price per Unit in the
Change of Control is below $20, the Incentive Units are not considered
earned and you will not receive Units in the Change of Control
transaction. For purposes of determining the price per Unit received in
the Change of Control, where the consideration received is other than
cash, its value shall be determined in good faith by the Board of
Directors of the Company.
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e.
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Phantom
Units. Notwithstanding anything to the contrary in this
Paragraph 3, all vested Phantom Units held by you upon a termination from
employment for any reason shall not be forfeited and on the next
Designated Vesting Date shall automatically convert into the corresponding
number of Units.
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For
purposes of this Paragraph 3, “employment with the Company” shall include
being an employee of or a consultant to the Company or an
Affiliate.
4.
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Payment.
As soon as administratively practicable after any Designated Vesting Date
you shall be entitled to receive the applicable number of Units to which
you may be entitled as set forth in Paragraph 2 above; provided, however, the Company
has the right in its sole discretion, to pay you an amount of cash equal
to the Fair Market Value of the Units on the day immediately preceding the
vesting date (the “Cash-Out
Price”) in lieu of
issuing such Units to you (the “Cash-Out
Right”). In the event the
Company elects to exercise its Cash-Out right with respect to any of the
Incentive Units upon vesting, it shall notify you of its intent to do so
within five business days prior to the applicable vesting date and shall
pay the Cash-Out Price (less any amounts required by the Company or an
Affiliate to meet withholding obligations under applicable law) to you
within five business days following such vesting
date.
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5.
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Limitations
Upon Transfer. All rights under this Agreement shall belong to you
alone and may not be transferred, assigned, pledged, or hypothecated by
you in any way (whether by operation of law or otherwise), other than by
will or the laws of descent and distribution and shall not be subject to
execution, attachment, or similar process. Upon any attempt by
you to transfer, assign, pledge, hypothecate, or otherwise dispose of such
rights contrary to the provisions in this Agreement or the Plan, or upon
the levy of any attachment or similar process upon such rights, such
rights shall immediately become null and
void.
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6.
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Restrictions. By
accepting this grant, you agree that any Units or Phantom Units which you
may acquire pursuant to this award will not be sold or otherwise disposed
of in any manner which would constitute a violation of any applicable
federal or state securities laws. You also agree that (i) the
certificates representing the Units acquired under this award may bear
such legend or legends as the Committee deems appropriate in order to
assure compliance with applicable securities laws, (ii) the Company
may refuse to register the transfer of the Units acquired under this award
on the transfer records of the Partnership if such proposed transfer would
in the opinion of counsel satisfactory to the Partnership constitute a
violation of any applicable securities law, and (iii) the Partnership
may give related instructions to its transfer agent, if any, to stop
registration of the transfer of the Units to be acquired under this
award.
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7.
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Withholding
of Tax. To the extent that the grant, earning, vesting
or payment of an Incentive Unit results in the receipt of compensation by
you with respect to which the Company or an Affiliate has a tax
withholding obligation pursuant to applicable law, unless other
arrangements have been made by you that are acceptable to the Company or
such Affiliate, you shall deliver to the Company or the Affiliate such
amount of money as the Company or the Affiliate may require to meet its
withholding obligations under such applicable law. No issuance
of an unrestricted Unit shall be made pursuant to this Agreement until you
have paid or made arrangements approved by the Company or the Affiliate to
satisfy in full the applicable tax withholding requirements of the Company
or Affiliate with respect to such event. You may elect to satisfy in
advance any anticipated tax payments in connection with this Grant by
authorizing the Company to withhold from the Units otherwise to be
delivered pursuant to the Award, a number of Units having a Fair Market
Value, determined as of the Designated Vesting Date, equal to or less than
such anticipated tax payments. To the extent any Incentive Unit
vests and then is earned as set forth in paragraph 3.a above, and you are
deemed to have a vested Phantom Unit, you may elect to satisfy in advance
any anticipated tax payment by authorizing the Company to withhold from
the Phantom Units otherwise attributable to you, a number of Phantom Units
having a Fair Market Value determined as of the date such Phantom Units
are earned, equal to or less than such anticipated tax payments, and to
pay such amount to you.
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8.
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Change of
Control. Change of Control means (i) a merger of the
Partnership in which the Partnership is not the surviving entity, (ii)
upon the sale of all or substantially all of the assets of the Partnership
and its consolidated subsidiaries (taken as one entity) in one transaction
or a series of related transactions; (iii) a corporation, person, or group
acting in concert (other than the Company, or any savings, pension, or
other benefit for the benefit of employees of the Company, or
the subsidiaries thereof) (a “Person”)
as described in Section 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the “Exchange
Act”), other than the current beneficial owners (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of and equity interest
in the profits and losses of EnerVest Management Partners, Ltd., a Texas
limited partnership, acquires, directly or indirectly, beneficial
ownership (within the meaning of such Rule 13d-3) of more than 50% of the
equity interests in the Company then entitled to vote generally in the
election of the Board of Directors; or (iv) the withdrawal, removal or
resignation of the Company as the general partner of EV Energy GP. L.P., a
Delaware limited partnership, or the withdrawal, removal or resignation of
EV Energy GP, L.P. as the general partner of EV Energy Partners, L.P., a
Delaware limited partnership.
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9.
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Designated
Vesting Dates. For purposes of this Agreement the
“Designated Vesting Dates” shall be each January 15th
as set forth in Paragraph 2.b.
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10.
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Rights as
Unitholder. You, or your executor, administrator, heirs,
or legatees shall have the right to vote and receive distributions on
Units and all the other privileges of a unitholder of the Partnership only
from the date of issuance of a Unit certificate in your
name.
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11.
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Binding
Effect. This Agreement shall be binding upon and inure
to the benefit of any successor or successors of the Company and upon any
person lawfully claiming under you.
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12.
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Modifications. Except
as provided below, any modification of this Agreement shall be effective
only if it is in writing and signed by both you and an authorized officer
of the Company. Notwithstanding anything in the Plan or this
Agreement to the contrary, (a) if the Committee determines that the terms
of this grant do not, in whole or in part, satisfy the requirements of new
Section 409A of the Internal Revenue Code, the Committee, in its sole
discretion, may unilaterally modify this Agreement in such manner as it
deems appropriate to comply with such section and any regulations or
guidance issued thereunder, and (b) the Committee, in its sole discretion,
may unilaterally modify this Agreement in any manner that does not
materially reduce your benefit.
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13.
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Plan
Governs. Notwithstanding anything in this Agreement to
the contrary, the terms of this Agreement shall be subject to the terms of
the Plan, a copy of which may be obtained by you from the office of the
Secretary of the Company. Except where the context clearly implies or
indicates the contrary, capitalized words used herein are as defined in
the Plan.
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14.
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Governing
Law. This grant shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to
conflicts of laws principles
thereof.
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EV Management, LLC | |||
By:
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Name: | |||
Title: | |||