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EXHIBIT 10.3
SHAMROCK LOGISTICS GP, LLC
2000 LONG-TERM INCENTIVE PLAN
SECTION 1. Purpose of the Plan.
The Shamrock Logistics GP, LLC 2000 Long-Term Incentive Plan (the
"Plan") is intended to promote the interests of Shamrock Logistics,
L.P., a Delaware limited partnership (the "Partnership"), by providing
to employees and directors of Shamrock Logistics GP, LLC, a Delaware
limited liability company (the "Company") and its Affiliates who
perform services for the Partnership and its subsidiaries, incentive
awards for superior performance that are based on Units. The Plan is
also intended to enhance the Company's and its Affiliates' ability to
attract and retain employees whose services are key to the growth and
profitability of the Partnership, and to encourage them to devote their
best efforts to the business of the Partnership, thereby advancing the
Partnership's interests.
SECTION 2. Definitions.
As used in the Plan, the following terms shall have the meanings set
forth below:
2.1 "Affiliate" means, with respect to any Person, any other
Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common
control with, the Person in question. As used herein, the term
"control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
2.2 "Award" means a grant of one or more Options or Restricted
Units pursuant to the Plan, and shall include any tandem DERs
granted with respect to such Award.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Cause" means:
(i) fraud or embezzlement on the part of the
Participant;
(ii) conviction of or the entry of a plea of nolo
contendere by the Participant to any felony;
(iii) gross insubordination or a material breach of,
or the willful failure or refusal by the Participant to
perform and discharge his duties, responsibilities or
obligations (other than by reason of disability or death) that
is not corrected within thirty (30) days following written
notice thereof to the Participant, such notice to state with
specificity the nature of the breach, failure or refusal; or
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(iv) any act of willful misconduct by the Participant
which (a) is intended to result in substantial personal
enrichment of the Participant at the expense of the
Partnership, the Company or any of their Affiliates or (b) has
a material adverse impact on the business or reputation of the
Partnership, the Company or any of their Affiliates (such
determination to be made by the Partnership, the Company or
any of their Affiliates in the good faith exercise of their
reasonable judgment).
2.5 "Change of Control" means, and shall be deemed to have
occurred upon the occurrence of one or more of the following
events: (i) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all or
substantially all of the assets of the Company or the
Partnership to any Person or its Affiliates, unless
immediately following such sale, lease, exchange or other
transfer such assets are owned, directly or indirectly, by
Ultramar Diamond Shamrock Corporation and its Affiliates or
the Company; (ii) the consolidation or merger of the
Partnership or the Company with or into another Person
pursuant to a transaction in which the outstanding voting
interests of the Company is changed into or exchanged for
cash, securities or other property, other than any such
transaction where, in the case of the Company, (a) all
outstanding voting interest of the Company is changed into or
exchanged for voting stock or interests of the surviving
corporation or entity or its parent and (b) the holders of the
voting interests of the Company immediately prior to such
transaction own, directly or indirectly, not less than a
majority of the voting stock or interests of the surviving
corporation or entity or its parent immediately after such
transaction and, in the case of the Partnership, Ultramar
Diamond Shamrock retains operational control, whether by way
of holding a general partner interest, managing member
interest or a majority of the outstanding voting interests of
the surviving corporation or entity or its parent; or (iii) a
"person" or "group" (within the meaning of Sections 13(d) or
14(d)(2) of the Exchange Act) being or becoming the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act) of more than 50% of all voting interests of
the Company then outstanding, other than (a) in a merger or
consolidation which would not constitute a Change of Control
under clause (ii) above and (b) Ultramar Diamond Shamrock and
its Affiliates.
2.6 "Committee" means the Compensation Committee of the Board or
such other committee of the Board appointed to administer the
Plan.
2.7 "DER" means a contingent right, granted in tandem with a
specific Restricted Unit, to receive an amount in cash equal
to the cash distributions made by the Partnership with respect
to a Unit during the period such Restricted Unit is
outstanding.
2.8 "Director" means a "non-employee director" of the Company, as
defined in Rule 16b-3.
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2.9 "Employee" means any employee of the Company or an Affiliate,
as determined by the Committee.
2.10 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.11 "Fair Market Value" means the closing sales price of a Unit on
the applicable date (or if there is no trading in the Units on
such date, on the next preceding date on which there was
trading) as reported in The Wall Street Journal (or other
reporting service approved by the Committee). If Units are not
publicly traded at the time a determination of fair market
value is required to be made hereunder, the determination of
fair market value shall be made in good faith by the
Committee.
2.12 "Good Reason" means:
(i) a reduction in the Participant's annual base
salary;
(ii) failure to pay the Participant any compensation
due under an employment agreement, if any;
(iii) failure to continue to provide benefits
substantially similar to those then enjoyed by the Participant
unless the Partnership, the Company or their Affiliates
provide aggregate benefits equivalent to those then in effect;
or
(iv) failure to continue a compensation plan or to
continue the Participant's participation in a plan on a basis
not materially less favorable to the Participant, subject to
the power of the Partnership, the Company or their Affiliates
to amend such plans in their reasonable discretion;
(v) the Partnership, the Company or their Affiliates
purported termination of the Participant's employment for
Cause or disability not pursuant to a procedure indicating the
specific provision of the definition of Cause contained in
this Plan as the basis for such termination of employment;
The Participant may not terminate for Good Reason unless he
has given written notice delivered to the Partnership, the
Company or their Affiliates, as appropriate, of the action or
inaction giving rise to Good Reason, and if such action or
inaction is not corrected within thirty (30) days thereafter,
such notice to state with specificity the nature of the
breach, failure or refusal.
2.13 "Option" means on option to purchase Units granted under the
Plan.
2.14 "Participant" means any Employee or Director granted an Award
under the Plan.
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2.15 "Partnership Agreement" means the Second Amended and Restated
Agreement of Limited Partnership of the Partnership.
2.16 "Person" means an individual or a corporation, limited
liability company, partnership, joint venture, trust,
unincorporated organization, association, government agency or
political subdivision thereof or other entity.
2.17 "Restricted Period" means the period established by the
Committee with respect to an Award during which the Award
either remains subject to forfeiture or is not exercisable by
the Participant.
2.18 "Restricted Unit" means a phantom unit granted under the Plan
which is equivalent in value and in dividend and interest
rights to a Unit, and which upon or following vesting entitles
the Participant to receive a Unit or its Fair Market Value in
cash.
2.19 "Rule 16b-3" means Rule 16b-3 promulgated by the SEC under the
Exchange Act, or any successor rule or regulation thereto as
in effect from time to time.
2.20 "SEC" means the Securities and Exchange Commission, or any
successor thereto.
2.21 "Unit" means a Common Unit of the Partnership.
SECTION 3. Administration.
Annual grant levels for Participants will be recommended by the Chief
Executive Officer of the Company, subject to the review and approval of
the Committee. The Plan shall be administered by the Committee. A
majority of the Committee shall constitute a quorum, and the acts of
the members of the Committee who are present at any meeting thereof at
which a quorum is present, or acts unanimously approved by the members
of the Committee in writing, shall be the acts of the Committee.
Subject to the terms of the Plan and applicable law, and in addition to
other express powers and authorizations conferred on the Committee by
the Plan, the Committee shall have full power and authority to: (i)
designate Participants; (ii) determine the type or types of Awards to
be granted to a Participant; (iii) determine the number of Units to be
covered by Awards; (iv) determine the terms and conditions of any
Award; (v) determine whether, to what extent, and under what
circumstances Awards may be settled, exercised, canceled, or forfeited;
(vi) interpret and administer the Plan and any instrument or agreement
relating to an Award made under the Plan; (vii) establish, amend,
suspend, or waive such rules and regulations and appoint such agents as
it shall deem appropriate for the proper administration of the Plan;
and (viii) make any other determination and take any other action that
the Committee deems necessary or desirable for the administration of
the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions
under or with respect to the Plan or any Award shall be within the sole
discretion of the Committee, may be made at any time and shall be
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final, conclusive, and binding upon all Persons, including the Company,
the Partnership, any Affiliate, any Participant, and any beneficiary of
any Award.
SECTION 4. Units Available for Awards.
4.1 Units Available. Subject to adjustment as provided in Section
4.3, the number of Units with respect to which Awards may be
granted under the Plan is 250,000. If any Award is forfeited
or otherwise terminates or is canceled without the delivery of
Units, then the Units covered by such Award, to the extent of
such forfeiture, termination , or cancellation, shall again be
Units with respect to which Awards may be granted.
4.2 Sources of Units Deliverable Under Awards. Any Units delivered
pursuant to an Award shall consist, in whole or in part, of
Units acquired in the open market, from any Affiliate, the
Partnership or any other Person, or any combination of the
foregoing, as determined by the Committee in its discretion.
4.3 Adjustments. If the Committee determines that any distribution
(whether in the form of cash, Units, other securities, or
other property), recapitalization, split, reverse split,
reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase, or exchange of Units or other
securities of the Partnership, issuance of warrants or other
rights to purchase Units or other securities of the
Partnership, or other similar transaction or event affects the
Units such that an adjustment is determined by the Committee
to be appropriate in order to prevent dilution or enlargement
of the benefits or potential benefits intended to be made
available under the Plan, then the Committee shall, in such
manner as it may deem equitable, adjust any or all of (i) the
number and type of Units (or other securities or property)
with respect to which Awards may be granted, (ii) the number
and type of Units (or other securities or property) subject to
outstanding Awards, and (iii) if deemed appropriate, make
provision for a cash payment to the holder of an outstanding
Award; provided, that the number of Units subject to any Award
shall always be a whole number.
SECTION 5. Eligibility.
Any Employee and Director shall be eligible to be designated a
Participant.
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SECTION 6. Awards.
6.1 Options. The Committee shall have the authority to determine
the Employees and Directors to whom Options shall be granted,
the number of Units to be covered by each Option, the purchase
price therefor and the conditions and limitations applicable
to the exercise of the Option, including the following terms
and conditions and such additional terms and conditions, as
the Committee shall determine, that are not inconsistent with
the provisions of the Plan.
(i) Exercise Price. The purchase price per Unit
purchasable under an Option shall be determined by
the Committee at the time the Option is granted but
shall not be less than its Fair Market Value as of
the date of grant.
(ii) Time and Method of Exercise. The Committee shall
determine the Restricted Period, i.e., the time or
times at which an Option may be exercised in whole or
in part, and the method or methods by which payment
of the exercise price with respect thereto may be
made or deemed to have been made which may include,
without limitation, cash, check acceptable to the
Company, a "cashless-broker" exercise (through
procedures approved by the Company), other securities
or other property, a note from the Participant (in a
form acceptable to the Company), or any combination
thereof, having a Fair Market Value on the exercise
date equal to the relevant exercise price.
(iii) Term. Subject to earlier termination as
provided in the grant agreement or the Plan, each
Option shall expire on the 10th anniversary of its
date of grant.
(iv) Forfeiture. Except as otherwise provide in the
terms of the Option grant, upon termination of a
Participant's employment with the Company and its
Affiliates or membership on the Board, whichever is
applicable, for any reason during the applicable
Restricted Period, all Options shall be forfeited by
the Participant, unless otherwise provided in a
written employment agreement (if any) between the
Participant and the Company or one or more of its
Affiliates. The Committee may, in its discretion,
waive in whole or in part such forfeiture with
respect to a Participant's Options.
6.2 Restricted Units. The Committee shall have the authority to
determine the Employees and Directors to whom Restricted Units
shall be granted, the number of Restricted Units to be granted
to each such Participant, the duration of the Restricted
Period (if any), the conditions under which the Restricted
Units may become vested (which may be immediate upon grant) or
forfeited, and such other terms and conditions as the
Committee may establish respecting such Awards, including
whether DERs are granted with respect to such Restricted
Units.
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(i) DERs. To the extent provided by the Committee, in
its discretion, a grant of Restricted Units may
include a tandem DER grant, which may provided that
such DERs shall be paid directly to the Participant,
be credited to a bookkeeping account (with or without
interest in the discretion of the Committee) subject
to the same restrictions as the tandem Award, or be
subject to such other provisions or restrictions as
determined by the Committee in its discretion.
(ii) Forfeiture. Except as otherwise provided in the
terms of the Award agreement, upon termination of a
Participant's employment with the Company and its
Affiliates or membership on the Board, whichever is
applicable, for any reason during the applicable
Restricted Period, all Restricted Units shall be
forfeited by the Participant, unless otherwise
provided in a written employment agreement (if any)
between the Participant and the Company or one or
more of its Affiliates. The Committee may, in its
discretion, waive in whole or in part such forfeiture
with respect to a Participant's Restricted Units.
(iii) Lapse of Restrictions. Upon the vesting of each
Restricted Unit, the Participant shall be entitled to
receive from the Company one Unit or its Fair Market
Value, as determined by the Committee, subject to the
provisions of Section 8.2.
6.3 General.
(i) Awards May Be Granted Separately or Together. Awards may,
in the discretion of the Committee, be granted either alone or
in addition to, in tandem with, or in substitution for any
other Award granted under the Plan or any award granted under
any other plan of the Company or any Affiliate, including the
Annual Incentive Plan or the Intermediate Incentive
Compensation Plan. Awards granted in addition to or in tandem
with other Awards or awards granted under any other plan of
the Company or any Affiliate may be granted either at the same
time as or at a different time from the grant of such other
Awards or awards.
(ii) Limits on Transfer of Awards. No Award and no right under
any such Award may be assigned, alienated, pledged, attached,
sold or otherwise transferred or encumbered by a Participant
otherwise than by will or by the laws of descent and
distribution and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be
void and unenforceable against the Company or any Affiliate.
(iii) Term of Awards. The term of each Award shall be for such
period as may be determined by the Committee.
(iv) Unit Certificates. All certificates for Units or other
securities of the Partnership delivered under the Plan
pursuant to any Award or the exercise thereof shall be subject
to such stop transfer orders and other restrictions as the
Committee
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may deem advisable under the Plan or the rules, regulations,
and other requirements of the SEC, any stock exchange upon
which such Units or other securities are then listed, and any
applicable federal or state laws, and the Committee may cause
a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions.
(v) Consideration for Grants. Awards may be granted for no
cash consideration or for such consideration as the Committee
determines including, without limitation, such minimal cash
consideration as may be required by applicable law.
(vi) Delivery of Units or other Securities and Payment by
Participant of Consideration. Notwithstanding anything in the
Plan or any grant agreement to the contrary, delivery of Units
pursuant to the exercise or vesting of an Award may be
deferred for any period during which, in the good faith
determination of the Committee, the Company is not reasonably
able to obtain Units to deliver pursuant to such Award without
violating the rules or regulations of any applicable law or
securities exchange. No Units or other securities shall be
delivered pursuant to any Award until payment in full of any
amount required to be paid pursuant to the Plan or the
applicable Award agreement (including, without limitation, any
exercise price or any tax withholding) is received by the
Company. Such payment may be made by such method or methods
and in such form or forms as the Committee shall determine,
including, without limitation, cash, other Awards, withholding
of Units, or any combination thereof; provided that the
combined value, as determined by the Committee, of all cash
and cash equivalents and the Fair Market Value of any such
Units or other property so tendered to the Company, as of the
date of such tender, is at least equal to the full amount
required to be paid to the Company pursuant to the Plan or the
applicable Award agreement.
(vii) Change of Control. Upon a Change of Control, all Awards
shall automatically vest and become payable or exercisable, as
the case may be, in full. In this regard, all Restricted
Periods shall terminate and all performance criteria, if any,
shall be deemed to have been achieved at the maximum level.
(viii) Sale of Significant Assets. In the event the Company or
the Partnership sells or otherwise disposes of a significant
portion of the assets under its control, (such significance to
be determined by action of the Board of the Company in its
sole discretion) and as a consequence of such disposition (a)
a Participant's employment is terminated by the Partnership,
the Company or their affiliates without Cause or by the
Participant for Good Reason or (b) as a result of such sale or
disposition, the Participant's employer shall no longer be the
Partnership, the Company or one of their Affiliates, then all
of such Participant's Awards shall automatically vest and
become payable or exercisable, as the case may be, in full. In
this regard, all Restricted Periods shall terminate and all
performance criteria, if any, shall be deemed to have been
achieved at the maximum level.
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SECTION 7. Amendment and Termination.
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award agreement or in the Plan:
(i) Amendments to the Plan. Except as required by applicable law or the
rules of the principal securities exchange on which the Units are
traded and subject to Section 7(ii) below, the Board or the Committee
may amend, alter, suspend, discontinue, or terminate the Plan in any
manner, including increasing the number of Units available for Awards
under the Plan, without the consent of any partner, Participant, other
holder or beneficiary of an Award, or other Person.
(ii) Amendments to Awards. The Committee may waive any conditions or
rights under, amend any terms of, or alter any Award theretofore
granted, provided no change, other than pursuant to Section 7(iii), in
any Award shall materially reduce the benefit to Participant without
the consent of such Participant.
(iii) Adjustment of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. The Committee is hereby authorized to make
adjustments in the terms and conditions of, and the criteria included
in, Awards in recognition of unusual or nonrecurring events (including,
without limitation, the events described in Section 4.3 of the Plan)
affecting the Partnership or the financial statements of the
Partnership, or of changes in applicable laws, regulations, or
accounting principles, whenever the Committee determines that such
adjustments are appropriate in order to prevent dilution or enlargement
of the benefits or potential benefits intended to be made available
under the Plan.
SECTION 8. General Provisions.
8.1 No Rights to Awards. No Person shall have any claim to be
granted any Award, and there is no obligation for uniformity
of treatment of Participants. The terms and conditions of
Awards need not be the same with respect to each Participant.
8.2 Withholding. The Company or any Affiliate is authorized to
withhold from any Award, from any payment due or transfer made
under any Award or from any compensation or other amount owing
to a Participant the amount (in cash, Units, other securities,
Units that would otherwise be issued pursuant to such Award or
other property) of any applicable taxes payable in respect of
the grant of an Award, the lapse of restrictions thereon, or
any payment or transfer under an Award or under the Plan and
to take such other action as may be necessary in the opinion
of the Company to satisfy all obligations for the payment of
such taxes.
8.3 No Right to Employment. The grant of an Award shall not be
construed as giving a Participant the right to be retained in
the employ of the Company or any Affiliate or to remain on the
Board, as applicable. Further, the Company or an Affiliate may
at any time dismiss a Participant from employment, free from
any liability or any
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claim under the Plan, unless otherwise expressly provided in
the Plan or in any Award agreement.
8.4 Governing Law. The validity, construction, and effect of the
Plan and any rules and regulations relating to the Plan shall
be determined in accordance with the laws of the State of
Delaware and applicable federal law.
8.5 Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable
in any jurisdiction or as to any Person or Award, or would
disqualify the Plan or any Award under any law deemed
applicable by the Committee, such provision shall be construed
or deemed amended to conform to the applicable laws, or if it
cannot be construed or deemed amended without, in the
determination of the Committee, materially altering the intent
of the Plan or the Award, such provision shall be stricken as
to such jurisdiction, Person or Award and the remainder of the
Plan and any such Award shall remain in full force and effect.
8.6 Other Laws. The Committee may refuse to issue or transfer any
Units or other consideration under an Award if, in its sole
discretion, it determines that the issuance or transfer of
such Units or such other consideration might violate any
applicable law or regulation, the rules of the principal
securities exchange on which the Units are then traded, or
entitle the Partnership or an Affiliate to recover the entire
then Fair Market Value thereof under Section 16(b) of the
Exchange Act, and any payment tendered to the Company by a
Participant, other holder or beneficiary in connection with
the exercise of such Award shall be promptly refunded to the
relevant Participant, holder or beneficiary.
8.7 No Trust or Fund Created. Neither the Plan nor the Award shall
create or be construed to create a trust or separate fund of
any kind or a fiduciary relationship between the Company or
any Affiliate and a Participant or any other Person. To the
extent that any Person acquires a right to receive payments
from the Company or any Affiliate pursuant to an Award, such
right shall be no greater than the right of any general
unsecured creditor of the Company or any Affiliate.
8.8 No Fractional Units. No fractional Units shall be issued or
delivered pursuant to the Plan or any Award, and the Committee
shall determine whether cash, other securities, or other
property shall be paid or transferred in lieu of any
fractional Units or whether such fractional Units or any
rights thereto shall be canceled, terminated, or otherwise
eliminated.
8.9 Headings. Headings are given to the Sections and subsections
of the Plan solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or
any provision thereof.
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8.10 Gender and Number. Words in the masculine gender shall include
the feminine gender, the plural shall include the singular and
the singular shall include the plural.
SECTION 9. Term of the Plan.
The Plan shall be effective on the date of its approval by the Board
and shall continue until the date terminated by the Board or Units are no longer
available for grants of Awards under the Plan, whichever occurs first; provided,
however, that notwithstanding the foregoing, no Award shall be made under the
Plan after the tenth anniversary of the Effective Date. However, unless
otherwise expressly provided in the Plan or in an applicable Award Agreement,
any Award granted prior to such termination, and the authority of the Board or
the Committee to amend, alter, adjust, suspend, discontinue, or terminate any
such Award or to waive any conditions or rights under such Award, shall extend
beyond such termination date.
