Exhibit 10.1

 

AMENDMENT NO. 9 TO TERMINALING SERVICES AGREEMENT - SOUTHEAST AND COLLINS/PURVIS

 

THIS AMENDMENT NO. 9 TO TERMINALING SERVICES AGREEMENT — SOUTHEAST AND COLLINS/PURVIS (this “ Ninth Amendment ”) is made and entered into as of March 1, 2016 by and among TRANSMONTAIGNE PARTNERS L.P., a Delaware limited partnership, on behalf of itself and its Affiliates (“ Owner ”), and NGL ENERGY PARTNERS LP, a Delaware limited partnership (“ Customer ”). Owner and Customer are sometimes referred to herein collectively as the “Parties” and individually as a “Party.”

 

RECITALS

 

A.            Owner and Customer previously entered into the Terminaling Services Agreement - Southeast and Collins/Purvis, dated as of January 1, 2008, as amended by the First Amendment to Terminaling Services Agreement - Southeast and Collins/Purvis, effective January 1, 2008, the Second Amendment to Terminaling Services Agreement - Southeast and Collins/Purvis, effective June 1, 2009, the Third Amendment to Terminaling Services Agreement - Southeast and Collins/Purvis, effective December 22, 2009, the Fourth Amendment to Terminaling Services Agreement - Southeast and Collins/Purvis, dated as of April 14, 2010, the Fifth Amendment to Terminaling Services Agreement - Southeast and Collins/Purvis, dated as of March 15, 2012, the Sixth Amendment to Terminaling Services Agreement - Southeast and Collins/Purvis, dated as of July 16, 2013, the Seventh Amendment to Terminaling Services Agreement - Southeast and Collins/Purvis, dated as of December 20, 2013, and the Eighth Amendment to Terminaling Services Agreement - Southeast and Collins/Purvis, dated as of November 4, 2014  (collectively, the “ Original TSA ”); and

 

B.            Owner and Customer desire to amend the Original TSA in certain respects.

 

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:

 

1.               ARTICLE I: CONSTRUCTION

 

1.1.         Defined Terms . Capitalized terms and references used but not otherwise defined in this Ninth Amendment have the respective meanings given to such terms in the Original TSA.

 

1.2.         Headings . All headings herein are intended solely for convenience of reference and shall not affect the meaning or interpretation of the provisions of this Ninth Amendment.

 

1.3.         References . Each reference in the Original TSA to “this Agreement”, “herein” or words of like import referring to such Original TSA shall mean and be a reference to the Original TSA, as amended by this Ninth Amendment, and “thereunder”, “thereof’ or words of like import shall mean and be a reference to the Original TSA, as amended by this Ninth Amendment. Any notices, requests, certificates and other documents executed and delivered on or after the date hereof may refer to the Original TSA without making specific reference to this Ninth Amendment, but nevertheless all such references shall mean the Original TSA as amended by this Ninth Amendment.

 

 

2.               ARTICLE II: AMENDMENT TO AGREEMENT.

 

2.1.         Section 7 of Attachment “A” of the Original TSA shall be deleted in its entirety and replaced with the following:

 

7. TERM:              This Agreement shall commence on the Effective Date and shall continue in effect through February 1, 2023  (the “Initial Term”), after which this Agreement shall automatically continue (the “Renewal Term”) unless and until Customer provides Owner at least twenty-four (24) months’ prior notice of Customer’s intent to terminate this Agreement at the end of the Initial Term or at any time during the Renewal Term.  The Initial Term and the Renewal Term shall be deemed, collectively, the “Term” of this Agreement. Notwithstanding the foregoing: (i) this Agreement will terminate with respect to the Collins/Purvis Terminal on December 31, 2015, following which the Throughput Fees relating to the Collins Tankage and the Purvis Tankage set forth on Attachment “A-1” and the Tanks at the Collins/Purvis Terminal set forth on Attachment “A-3” shall be deemed deleted, and (ii) effective at any time from and after July 31, 2040, Owner may terminate this Agreement by providing Customer at least twenty-four (24) months’ prior notice of Owner’s intent to terminate this Agreement.”

 

2.2.         The following provisions shall be added as a new Section 12.4 of the Original TSA:

 

12.4  Permitted Subleases .  Notwithstanding anything in this Section 12 or the Agreement to the contrary, Customer shall be permitted to sublease, in one or more subleases, all or any portion of its Tanks under this Agreement to one or more other Persons without the consent of Owner.  No such sublease shall be a violation or breach of, or event of default under, this Agreement.  The terms and conditions of any such sublease shall be determined by Customer in its  sole discretion, provided that such terms and conditions (including the term of such sublease) do not conflict with the terms and conditions of this Agreement.

 

2.3.         The following provisions shall be added as a new Section 22.3 of the Original TSA:

 

22.3.  Southeast Terminals — Additional Customer Projects .

 

Generally .  Customer may, from time to time, propose to Owner improvements to Owner’s existing facilities that do not materially increase storage capacity and have a capital cost of $7,000,000 or less (each, a “ Customer Project ”) at various sites located at any of the Southeast Terminals, which proposal will also include Customer’s estimate of the volumes of Customer’s Product utilizing such improvements.  Within 120 days following Owner’s receipt of such a proposal, Owner shall prepare and deliver to Customer an authority for expenditure (a “ Project AFE ”) setting forth the estimated costs to design, engineer, construct, install, complete and place into service such Customer

 

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Project, the incremental operating costs that Owner expects to incur in connection with such Customer Project, and an estimate of the Additional Throughput Fee Amount payable upon the completion of the Customer Project as described below.  Within fifteen (15) days following its receipt of the Project AFE, Customer shall either accept or reject such Project AFE.  If Customer fails to deliver to Owner its acceptance or rejection of the Project AFE within such 15-day period, it will be deemed to have rejected the Project AFE.

 

If Customer accepts the Project AFE, then Owner shall utilize its commercially reasonable efforts to undertake, or cause to be undertaken, the design, engineering, construction, installation, completion and placing in service of the Customer Project.  Owner shall commence such Customer Project reasonably promptly following the acceptance of a Project AFE, and in any event within 60 days thereof.  Owner shall undertake and conduct, or cause to be undertaken and conducted, such construction, installation and completion in a workmanlike manner and in accordance with applicable industry standards and Applicable Law.  All improvements, alterations or additions to a Terminal made in connection with a Customer Project will be the property of Owner, and Customer will have no rights thereto upon termination of this Agreement.  Owner shall be responsible for obtaining all necessary consents and permits in connection therewith. After commencement of construction, Owner, no less than quarterly, shall provide Customer with a written construction/completion date report outlining construction progress to date, budget updates and such other information as Customer may reasonably request.

 

At such time as each Customer Project is completed and ready for service, Owner shall provide written notice thereof to Customer (the “ Completion Notice ”), which shall also set forth an incremental per barrel fee (“ Additional Per Barrel Throughput Fee ”) equal to an amount that will permit Owner to recover 115% of the costs incurred by it to complete the Customer Project (the “ Additional Throughput Fee Amount ”) over a two-year period based on the Minimum Annual Throughput Commitment at the Southeast Terminals; provided , that the Additional Throughput Fee Amount shall not include any costs, liabilities or damages to the extent that such costs, liabilities or damages (i) are incurred by Owner due to the failure of Owner or Owner’s agents, contractors or employees to comply with Applicable Law or (ii) arise due to the negligence or willful misconduct of Owner or Owner’s agents, contractors or employees.  Each Completion Notice shall also include invoices (or other similar supporting documentation) evidencing in reasonable detail all costs (including engineering, materials and construction costs) that comprise the Additional Throughput Fee Amount.

 

In addition to the Throughput Fees described in Section 3 of this Agreement, Customer shall pay to Owner the Additional Per Barrel Throughput Fees with respect to the volumes of Customer’s Product based upon the applicable Minimum Monthly Throughput Commitment at the Additional Per Barrel Throughput Fee during the two-year period commencing on the first day of the

 

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first month beginning after Customer’s receipt of the Completion Notice.    The Additional Per Barrel Throughput Fees will be invoiced and paid in conjunction with the invoicing and payment of the Throughput Fee.

 

2.4.         The following provisions shall be added as a new Section 22.4 of the Original TSA:

 

22.4  Additional Tankage at the Southeast Terminals .  During the Term of this Agreement, Customer shall have a right of first refusal with respect to the right to utilize any tanks that Owner may construct or refurbish and place into operation at the Southeast Terminals in addition to the tanks existing as of the date of this Agreement (“ Additional Tankage ”).  Such right of first refusal shall be governed by the provisions of this Section 22.4.

 

(a)           Notice of Terminaling Availability .  In the event that Owner, following construction and installation of any Additional Tankage, proposes to offer terminaling services with respect to such Additional Tankage to a third party, then Owner shall give written notice (the “ First Refusal Notice ”) to Customer at least 30 days prior to entry into any definitive agreement with such third party.  The First Refusal Notice shall set forth in reasonable detail the proposed terms of such terminaling services (including, without limitation, the throughput fees and minimum annual throughput commitment, as applicable) and the name and address of the prospective third-party customer (the “ Offered Agreement ”).

 

(b)           First Refusal Right .  During the period ending 30 days after the receipt of the First Refusal Notice by Customer, Customer shall have the absolute right to enter into an agreement with Owner on terms similar to the Offered Agreement in all material respects (a “ ROFR Agreement ”).  If in its sole discretion Customer elects to exercise such right, Customer shall deliver written notice of its election to enter into such ROFR Agreement.

 

(c)           Forfeiture of Rights .  Notwithstanding the foregoing, if Customer does not agree to enter into a particular ROFR Agreement within the time period set forth above, then Customer shall be deemed to have forfeited any right to enter into such ROFR Agreement with respect to that particular First Refusal Notice, and Owner shall be free to enter into the Offered Agreement at any time within 60 days after the date of the First Refusal Notice.  Any such Offered Agreement shall be entered into with the proposed customer described in the First Refusal Notice, at not less than the price and upon other terms and conditions, if any, not more favorable to the proposed customer than those specified in the First Refusal Notice.  Any Additional Tankage not bound by an Offered Agreement within such 60-day period shall continue to be subject to the requirements of a prior offer pursuant to this Section 22.4.

 

2.5.         Sections 21.1 and 21.2 of the Original Agreement are hereby deleted in their entirety and replaced with the following provisions.  In addition, the applicable provisions of the

 

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First Amendment through the Eighth Amendment relating to choice of law and jurisdiction are hereby deleted in their entirety and replaced with the following, mutatis mutandi , it being the intention of the Parties that the choice of law and jurisdiction provisions included in this Ninth Amendment shall control with respect to any matter arising out of or relating to the Original Agreement:

 

21.1        Choice of Law .  This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to the conflicts of law rules of such state.

 

21.2.       Jurisdiction .  The Parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought and determined exclusively in in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware), and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware, and each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.  Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.  Without limiting the foregoing, each Party agrees that service of process on such Party as provided in Section 13 shall be deemed effective service of process on such Party.”

 

3.                       ARTICLE III: MISCELLANEOUS PROVISIONS

 

3.1.         Effective Date .  This Ninth Amendment shall be effective as of the date hereof.

 

3.2.         Scope of Ninth Amendment . The Original TSA is amended only as expressly modified by this Ninth Amendment.  Except as expressly modified by this Ninth Amendment, the terms of the Original TSA remain unchanged, and the Original TSA is hereby ratified and confirmed by the Parties in all respects.  In the event of any inconsistency between the terms of the Original TSA and this Ninth Amendment, this Ninth Amendment shall prevail to the extent of such inconsistency.

 

3.3.         Representations and Warranties . Each Party represents and warrants that this Ninth Amendment has been duly authorized, executed and delivered by it and that each of this Ninth Amendment and the Original TSA constitutes its legal, valid, binding and enforceable obligation, enforceable against it in accordance with its terms, except to the extent such enforceability may be limited by the effect of any applicable bankruptcy, insolvency,

 

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reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity.

 

3.4.         No Waiver . Except as expressly provided herein, the execution and delivery of this Ninth Amendment shall not be deemed or construed to (i) constitute an extension, modification or waiver of any term or condition of the Original TSA, (ii) give rise to any obligation on the part of any Party to extend, modify or waive any term or condition of the Original TSA, or (iii) be a waiver by any Party of any of its rights under the Original TSA, at law or in equity.

 

3.5.         Reaffirmation . Each Party hereby reaffirms each and every representation, warranty, covenant, condition, obligation and provision set forth in the Original TSA, as modified hereby.

 

3.6.         Choice of Law .  This Ninth Amendment shall be governed by and construed in accordance with the law of the State of Delaware, without regard to the conflicts of law rules of such state.

 

3.7.         Jurisdiction .  The Parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Ninth Amendment or the transactions contemplated hereby shall be brought and determined exclusively in in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware), and that any cause of action arising out of this Ninth Amendment shall be deemed to have arisen from a transaction of business in the State of Delaware, and each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.  Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.

 

3.8.         Waiver of Jury Trial . Each Party further waives, to the fullest extent permitted by Applicable Law, any right it may have to a trial by jury in respect of any proceedings relating to this Ninth Amendment.

 

3.9.         Severability . If any Article, Section or provision of this Ninth Amendment shall be determined to be null and void, voidable or invalid by a court of competent jurisdiction, then for such period that the same is void or invalid, it shall be deemed to be deleted from this Ninth Amendment and the remaining portions of this Ninth Amendment shall remain in full force and effect.

 

3.10.       Counterparts: Facsimile Signatures . This Ninth Amendment may be executed by the Parties in separate counterparts and delivered by electronic or facsimile transmission or otherwise and all such counterparts shall together constitute one and the same instrument.

 

[signature page follows]

 

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IN WITNESS WHEREOF, the Parties have executed this Amendment No. 9 to Terminaling Services Agreement — Southeast and Collins/Purvis as of the date first written above.

 

	NGL ENERGY PARTNERS LP
	By: NGL Energy Holdings LLC, its general partner
	By:	/s/ H. Michael Krimbill
	Name:	H. Michael Krimbill
	Title:	CEO
	TRANSMONTAIGNE PARTNERS L.P.
	By: TransMontaigne GP L.L.C., its general partner
	By:	/s/ Frederick W. Boutin
	Name:	Frederick W. Boutin
	Title:	Chief Executive Officer

 

Exhibit 10.2

 

SECOND AMENDED AND RESTATED

 

OMNIBUS AGREEMENT

 

among

 

GULF TLP HOLDINGS, LLC

 

TRANSMONTAIGNE GP L.L.C.

 

TRANSMONTAIGNE PARTNERS L.P.

 

TRANSMONTAIGNE OPERATING GP L.L.C.

 

TRANSMONTAIGNE OPERATING COMPANY L.P.

 

and

 

TLP MANAGEMENT SERVICES LLC

 

 

SECOND AMENDED AND RESTATED OMNIBUS AGREEMENT

 

THIS SECOND AMENDED AND RESTATED OMNIBUS AGREEMENT (“ Restated Agreement ”) dated as of March 1, 2016, but effective for all purposes as of February 1, 2016 (the “ Effective Date ”), is entered into by and among Gulf TLP Holdings, LLC, a Delaware limited liability company (“ Gulf ”), TransMontaigne GP L.L.C., a Delaware limited liability company (the “ General Partner ”), TransMontaigne Partners L.P., a Delaware limited partnership (the “ Partnership ”), TransMontaigne Operating GP L.L.C., a Delaware limited liability company (the “ OLP GP ”), TransMontaigne Operating Company L.P., a Delaware limited partnership (the “ Operating Partnership ”), and TLP Management Services LLC, a Delaware limited liability company (“ TLP Management Services ”). The above-named entities are sometimes referred to in this Restated Agreement each as a “ Party ” and collectively as the “ Parties .”

 

R E C I T A L S:

 

A.                                     TransMontaigne LLC, a Delaware limited liability company and formerly known as TransMontaigne Inc., the General Partner, the Partnership, OLP GP and the Operating Partnership (the “ First A&R Omnibus Agreement Parties ”) have previously entered into an Amended and Restated Omnibus Agreement, dated as of December 31, 2007, but effective for all purposes as of January 1, 2008 (the “ First A&R Omnibus Agreement ”).

 

B.                                     The First A&R Omnibus Agreement Parties (and in the case of the Fourth Amendment, as defined below, Gulf) have previously amended the First A&R Omnibus Agreement by execution of the First Amendment to Amended and Restated Omnibus Agreement dated as of July 16, 2013 (the “ First Amendment ”), the Second Amendment to Amended and Restated Omnibus Agreement dated as of April 14, 2015 (the “ Second Amendment ”), the Third Amendment to Amended and Restated Omnibus Agreement dated as of June 16, 2015 (the “ Third Amendment ”), and the Assignment and Amendment No. 4 to Amended and Restated Omnibus Agreement dated as of February 1, 2016 (the “ Fourth Amendment ”; the First A&R Omnibus Agreement, as amended by the First Amendment, the Second Amendment and the Third Amendment, the “ Prior Agreement ”).

 

C.                                     Pursuant to the Prior Agreement, Gulf agreed to provide certain management, legal, accounting, tax, corporate staff and other support services to the Partnership from and after the effective date of the Prior Agreement, as well as provide personnel to operate certain assets.

 

D.                                     The Parties desire to hereby amend and restate the Prior Agreement in its entirety.

 

ARTICLE I

Definitions

 

1.1                                Definitions.

 

As used in this Restated Agreement, the following terms shall have the respective meanings set forth below:

 

“ Administrative Fee ” is defined in Section 2.1(a) .

 

 

“ Affiliate ” is defined in the Partnership Agreement.

 

“ Applicable Period ” is defined in Section 2.1(a) .

 

“ Assets ” means (a) all assets owned by the Partnership Group prior to or on the Purchase Agreement Closing Date and (b) all assets acquired or constructed by the Partnership Group during the Applicable Period from and after such time as Gulf and the General Partner, on behalf of the Partnership Group and TLP Management Services and with the concurrence of the Conflicts Committee, establish a revised Administrative Fee in accordance with Section 2.1(a)  hereof and revised Insurance Reimbursement in accordance with Section 2.1(c)  hereof.

 

“ Cause ” is defined in the Partnership Agreement.

 

“ Common Units ” is defined in the Partnership Agreement.

 

“ Conflicts Committee ” is defined in the Partnership Agreement.

 

“ control ” means the possession, directly or indirectly, 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.

 

“ Effective Date ” is defined in introductory paragraph of this Restated Agreement.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

“ First A&R Omnibus Agreement ” is defined in Recital A.

 

“ First A&R Omnibus Agreement Parties ” is defined in Recital A.

 

“ First Amendment ” is defined in Recital B.

 

“ Fourth Amendment ” is defined in Recital B.

 

“ General Partner ” is defined in the introductory paragraph of this Restated Agreement.

 

“ Gulf ” is defined in the introductory paragraph of this Restated Agreement.

 

“ Gulf Entities ” means Gulf and any Person controlled, directly or indirectly, by Gulf other than the Partnership Entities; and “ Gulf Entity ” means any of the Gulf Entities.

 

“ Insurance Reimbursement ” is defined in Section 2.1(c) .

 

“ Limited Partner ” is defined in the Partnership Agreement.

 

“ OLP GP ” is defined in the introductory paragraph of this Restated Agreement.

 

“ On-Site Employees ” is defined in Section 3.1(a) .

 

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“ Operating Partnership ” is defined in the introductory paragraph of this Restated Agreement.

 

“ Partnership ” is defined in the introductory paragraph of this Restated Agreement.

 

“ Partnership Agreement ” means the First Amended and Restated Agreement of Limited Partnership of TransMontaigne Partners L.P., dated as of May 27, 2005, as amended by the First Amendment thereto dated as of January 23, 2006, the Second Amendment thereto dated as of April 7, 2008 and the Third Amendment thereto dated as of May 5, 2015, and as may be further amended from time to time, to which reference is hereby made for all purposes of this Restated Agreement.

 

“ Partnership Entities ” means the General Partner and each member of the Partnership Group; and “ Partnership Entity ” means any of the Partnership Entities.

 

“ Partnership Group ” means the Partnership, OLP GP, the Operating Partnership and any of their respective Subsidiaries, treated as a single consolidated entity; and

 

“ Partnership Group Member ” means any member of the Partnership Group.

 

“ Party ” and “ Parties ” are defined in the introductory paragraph of this Restated Agreement.

 

“ 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.

 

“ Plan ” is defined in Section 2.1(b) .

 

“ Prior Agreement ” is defined in Recital B.

 

“ Purchase Agreement Closing Date ” means February 1, 2016.

 

“ Restated Agreement ” is defined in the introductory paragraph hereof.

 

“ Second Amendment ” is defined in Recital B.

 

“ Services ” is defined in Section 2.1(a) .

 

“ Subsidiary ” means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but only if more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such

 

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Person, or a combination thereof, or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.

 

“ Third Amendment ” is defined in Recital B.

 

“ TLP Management Services ” is defined in the introductory paragraph of this Restated Agreement.

 

“ Units ” is defined in the Partnership Agreement.

 

ARTICLE II

Services

 

2.1                                General.

 

(a)                                  During the period commencing on the Effective Date and terminating on the earlier to occur of the Gulf Entities ceasing to control the General Partner or, at the election of either the Partnership or Gulf following prior written notice to the other Parties at least two (2) years prior to the effective date of such termination (the “ Applicable Period ”), the Partnership shall pay the Gulf Entities an administrative fee (the “ Administrative Fee ”) of $11,365,983 per year, payable in arrears in equal monthly installments on the third business day of each month, beginning in March 2016, for the provision by the Gulf Entities for the Partnership Group’s benefit of certain management, legal, accounting, tax, engineering, corporate staff and other support services during the Applicable Period (the “ Services ”). The Services will be substantially identical in nature and quality to the services of such type previously provided by pursuant to the Prior Agreement. During the Applicable Period, the Partnership Group will satisfy all of its needs for Services through the Gulf Entities. Gulf may increase the Administrative Fee each calendar year effective commencing on January 1, 2017 by an amount up to the product of the then-current Administrative Fee multiplied by the percentage increase, if any, from the immediately preceding year in the Consumer Price Index - All Urban Consumers, U.S. City Average, Not Seasonally Adjusted. If the Partnership or any other Partnership Group Member acquires or constructs additional assets during the Applicable Period, then Gulf shall propose a revised Administrative Fee covering the provision of Services for such additional assets. If the General Partner, on behalf of the Partnership Group and with the concurrence of the Conflicts Committee, agrees to such revised Administrative Fee, then the Gulf Entities, as applicable, shall provide Services for the additional assets pursuant to the terms set forth herein. Notwithstanding the foregoing, the Services shall not include any services that are outsourced by the Gulf Entities to third parties.

 

(b)                                  During the Applicable Period, the Compensation Committee and Conflicts Committee of the General Partner shall approve the annual awards granted under the , TLP Management Services LLC Savings and Retention Plan or any similar successor plan (the “ Plan ”) to employees performing Services to or for the benefit of the Partnership Group. The aggregate amount of such awards shall be no less than $1.5 million per year. As awards are

 

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payable in accordance with the vesting and payment schedule provided in the Plan, the Partnership shall have the option of paying the awards either in cash or in the Common Units. Payments in cash or in the Common Units may be made to TLP Management Services LLC, as the Plan administrator, for the benefit of the plan participants or, alternatively, directly to the plan participants.

 

(c)                                   (i) During the Applicable Period, if a Gulf Entity procures insurance with respect to the Partnership Group, the Assets or operations thereof, then the Partnership shall pay the Gulf Entities or any applicable Affiliate of the Gulf Entities an insurance reimbursement (the “ Insurance Reimbursement ”) equal to the amount of any premiums and fees payable under the applicable insurance policies, payable in arrears in equal monthly installments beginning in March 2016. If at any time the Gulf Entities propose to renew or replace any insurance policy with respect to which a Partnership Entity currently has procured insurance, then such Gulf Entity shall propose the procurement of such insurance policy to the General Partner, and such insurance policy shall be procured by such Gulf Entity, subject to the reasonable approval of the General Partner, on behalf of the Partnership Group and with the concurrence of the Conflicts Committee.  The Gulf Entities or their respective Affiliates may increase the Insurance Reimbursement at any time in accordance with increases in the premiums or fees payable under the applicable insurance policies.

 

(ii)                                   If, during any calendar year, any Partnership Entity proposes to increase the insurance coverage of any Partnership Entity or the Assets thereof such that the increase, together with any other increases in such calendar year, would result in the aggregate premiums and fees of the Partnership Group (on an annualized basis) being greater than the amount presented to the Board with respect to such calendar year in the annual budget for the procurement of insurance by at least 10%, such Partnership Entity shall, 15 days prior to the procurement of such insurance, propose to Gulf in writing either (1) a plan to procure an insurance policy, in which case Gulf may accept or reject such plan or propose to procure such insurance coverage or (2) that Gulf procure such insurance coverage.  If a Gulf Entity procures insurance coverage, then such coverage shall be subject to the approval of the General Partner, on behalf of the Partnership Group and with the concurrence of the Conflicts Committee and, upon approval by the General Partner, the Insurance Reimbursement shall be increased by the amount of any premiums and fees under such insurance policy.

 

(d)                                  On each anniversary of the Effective Date during the Applicable Period, the Partnership will have the right to submit to Gulf a proposal to reduce the amount of the Administrative Fee for that year if the Partnership believes, in good faith, that the Services performed by the Gulf Entities for the year in question do not justify payment of the full Administrative Fee for that year. If the Partnership submits such a proposal to Gulf, then Gulf agrees that it will negotiate in good faith with the Partnership to determine if the Administrative Fee for that year should be reduced and, if so, by how much.

 

(e)                                   Following the expiration of the Applicable Period, the General Partner will determine the amount of Services expenses and insurance premium expenses that are properly allocable to the Partnership Group in accordance with the terms of the Partnership Agreement.

 

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(f)                                    Employees of the Gulf Entities performing Services to or for the benefit of the Partnership Group during the Applicable Period shall work solely under the direction, supervision, management and control of the Partnership with respect to the time spent in providing such Services; however, at all times such employees shall remain employees of the applicable Gulf Entity.  For the avoidance of doubt, during the Applicable Period in which employees of the Gulf Entities are performing Services to or for the benefit of the Partnership Group, the Partnership Group shall be ultimately and fully responsible for the daily work assignments of such employees, including supervision of their day-to-day work activities, training schedules and performance consistent with the purposes stated in Section 2.1(a) .

 

(g)                                   The Administrative Fee shall not include and the Partnership Group shall reimburse the Gulf Entities for:

 

(i)                                      wages and salaries of employees of any Gulf Entity, to the extent, but only to the extent, such employees perform Services for the Partnership Group on-site at any Asset;

 

(ii)                                   the cost of employee benefits relating to employees of any Gulf Entity, such as 401(k), pension, and health insurance benefits, to the extent, but only to the extent, such employees perform services for the Partnership Group on-site at any Asset;

 

(iii)                                out-of-pocket costs and expenses incurred by the Gulf Entities on behalf of the Partnership Group, including the incremental general and administrative expenses of the Partnership’s status as a public company, such as K-1 preparation, external audit, internal audit, transfer agent and registrar, legal, printing, unitholder reports, and other costs and expenses;

 

(iv)                               all sales, use, excise, value added or similar taxes, other than taxes measured by income, if any, that may be applicable from time to time in respect of the Services; and

 

(v)                                  any services (including with respect to the forgoing clauses (i)-(iv)) that are outsourced by the Gulf Entities to third parties with the concurrence of the Conflicts Committee.

 

ARTICLE III

 

3.1                                Operational Services

 

(a)                                  During the Applicable Period, the Gulf Entities, acting on behalf of the Partnership, shall make available such employees as may reasonably be required for the conduct by the Partnership Group of its operations, including the employees described in Section 2.1(g)(i)  and 2.1(g)(ii)  with respect to Services for the Partnership Group performed on-site at any Asset (the “ On-Site Employees ”).

 

(b)                                  With respect to the On-Site Employees, the Gulf Entities shall be reimbursed on a biweekly basis for (a) all direct and indirect expenses incurred, or payments

 

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made, on behalf of the Partnership Group (including salary, bonus, incentive compensation and all other amounts paid to any persons who assist in the conduct of the Partnership Group operations) and (b) all other necessary or appropriate expenses allocable to the Partnership Group (including expenses allocated to the Gulf Entities by any of their respective Affiliates).  The Gulf Entities shall determine the expenses that are allocable to the Partnership Group in any reasonable manner determined by the Gulf Entities in their sole discretion.

 

(c)                                   On-Site Employees performing services described in Section 3.1(a)  to or for the benefit of the Partnership Group during the Applicable Period shall work solely under the direction, supervision, management and control of the Partnership with respect to the time spent in providing such services; however, at all times such On-Site Employees shall remain employees of the applicable Gulf Entity.  For the avoidance of doubt, during the Applicable Period in which On-Site Employees of the Gulf Entities are performing services to or for the benefit of the Partnership Group, the Partnership Group shall be ultimately and fully responsible for the daily work assignments of such On-Site Employees, including supervision of their day-to-day work activities, training schedules and performance consistent with the purposes stated in Section 3.1(a) .

 

ARTICLE IV

Miscellaneous

 

4.1                                Choice of Law; Jurisdiction.

 

(a)                                  This Restated Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to the conflicts of law rules of such state.

 

(b)                                  The Parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Restated Agreement or the transactions contemplated hereby shall be brought and determined exclusively in in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware), and that any cause of action arising out of this Restated Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware, and each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each Party agrees that service of process on such Party as provided in Section 4.2 shall be deemed effective service of process on such Party.

 

4.2                                Notice . All notices or requests or consents provided for by, or permitted to be given pursuant to, this Restated Agreement must be in writing and must be given by depositing same in the United States mail, addressed to the Person to be notified, postpaid, and registered or

 

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certified with return receipt requested or by delivering such notice in person or by telecopier or telegram to such Party. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by telegram or telecopier shall be effective upon actual receipt if received during the recipient’s normal business hours or at the beginning of the recipient’s next business day after receipt if not received during the recipient’s normal business hours. All notices to be sent to a Party pursuant to this Restated Agreement shall be sent to or made at the address set forth below such Party’s signature to this Restated Agreement or at such other address as such Party may stipulate to the other Parties in the manner provided in this Section 4.2 .

 

if to the Partnership Entities:

 

TransMontaigne Partners L.P.

c/o TransMontaigne GP L.L.C.

1670 Broadway

Suite 3100

Denver, Colorado 80202

Attention: President

Fax: 303-626-8228

 

if to the Gulf Entities:

 

Gulf TLP Holdings, LLC

c/o ArcLight Capital Partners, LLC

200 Clarendon Street, 55th Floor

Attention: General Counsel

Fax: 617-867-4698

E-mail: tburke@arclightcapital.com

 

4.3                                Entire Agreement . This Restated Agreement constitutes the entire agreement of the Parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.

 

4.4                                Termination . Notwithstanding any other provision of this Restated Agreement, if the General Partner is removed as general partner of the Partnership under circumstances where Cause does not exist and Units held by the General Partner and its Affiliates are not voted in favor of such removal, then this Restated Agreement may immediately thereupon be terminated by Gulf.

 

4.5                                Amendment or Modification . This Restated Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto; provided, however, that the Partnership may not, without the prior approval of the Conflicts Committee, agree to any amendment or modification of this Restated Agreement that the General Partner determines will adversely affect the holders of Common Units. Each such instrument shall be reduced to writing and shall be designated on its face an “Amendment” or an “Addendum” to this Restated Agreement.

 

4.6                                Assignment . No Party shall have the right to assign any of its rights or obligations under this Restated Agreement without the consent of the other Parties hereto.

 

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4.7                                Counterparts . This Restated Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.

 

4.8                                Severability . If any provision of this Restated Agreement shall be held invalid or unenforceable by a court or regulatory body of competent jurisdiction, then the remainder of this Restated Agreement shall remain in full force and effect.

 

4.9                                Further Assurances . In connection with this Restated Agreement and all transactions contemplated by this Restated Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Restated Agreement and all such transactions.

 

4.10                         Representations and Warranties . Each Party represents and warrants that this Restated Agreement has been duly authorized, executed and delivered by it and that this Restated Agreement constitutes its legal, valid, binding and enforceable obligation, enforceable against it in accordance with its terms, except to the extent such enforceability may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity.

 

4.11                         Rights of Limited Partners . The provisions of this Restated Agreement are enforceable solely by the Parties to this Restated Agreement, and no Limited Partner of the Partnership shall have the right, separate and apart from the Partnership, to enforce any provision of this Restated Agreement or to compel any Party to this Restated Agreement to comply with the terms of this Restated Agreement.

 

4.12                         Waiver of Jury Trial . Each Party hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any proceedings relating to this Restated Agreement.

 

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IN WITNESS WHEREOF, the Parties have executed this Restated Agreement effective as of the date first written above.

 

	GULF TLP HOLDINGS, LLC
	By:	/s/ Daniel R. Revers
		Name: Daniel R. Revers
		Title: President
	TRANSMONTAIGNE GP L.L.C.
	By:	/s/ Frederick W. Boutin
		Name: Frederick W. Boutin
		Title: Chief Executive Officer
	TRANSMONTAIGNE PARTNERS L.P.
	By TransMontaigne GP L.L.C., its General Partner
	By:	/s/ Frederick W. Boutin
		Name: Frederick W. Boutin
		Title: Chief Executive Officer
	TRANSMONTAIGNE OPERATING GP L.L.C.
	By:	/s/ Frederick W. Boutin
		Name: Frederick W. Boutin
		Title: Chief Executive Officer
	TRANSMONTAIGNE OPERATING COMPANY L.P.
	By TransMontaigne Operating GP L.L.C., its General Partner
	By:	/s/ Frederick W. Boutin
		Name: Frederick W. Boutin
		Title: Chief Executive Officer
	TLP MANAGEMENT SERVICES LLC
	By:	/s/ Frederick W. Boutin
		Name: Frederick W. Boutin
		Title: Chief Executive Officer

 

Second Amended and Restated Omnibus Agreement

 

Exhibit 10.3

 

2016 LONG-TERM INCENTIVE PLAN

 

SECTION 1.                             Purpose of the Plan .

 

This 2016 Long-Term Incentive Plan (the “ Plan ”) has been adopted by TLP Management Services LLC, a Delaware limited liability company (the “ Company ”).  The Plan is intended to promote the interests of TransMontaigne Partners L.P., a Delaware limited partnership (the “ Partnership ”), TransMontaigne GP L.L.C., a Delaware limited liability company and the general partner of the Partnership (the “ General Partner ”) and the Company by providing incentive compensation awards denominated in or based on Units to Employees, Consultants and Directors to encourage superior performance.  The Plan is also intended to enhance the ability of the Partnership, the General Partner, the Company and their Affiliates to attract and retain the services of individuals who are essential for the growth and profitability of the Partnership, the General Partner, the Company and their Affiliates and to encourage them to devote their best efforts to advancing the business of the Partnership, the General Partner, the Company and their Affiliates.

 

SECTION 2.                             Definitions .

 

As used in the Plan, the following terms shall have the meanings set forth below:

 

“ 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.

 

“ ASC Topic 718 ” means Accounting Standards Codification Topic 718, Compensation — Stock Compensation , or any successor accounting standard.

 

“ Award ” means an Option, Restricted Unit, Phantom Unit, DER, Substitute Award, Unit Appreciation Right, Unit Award, Profits Interest Unit, or Other Unit-Based Award granted under the Plan.

 

“ Award Agreement ” means the written or electronic agreement by which an Award shall be evidenced and which agreement may include a separate plan, policy, agreement or other written document.

 

“ Board ” means the board of directors of the General Partner.

 

“ Cause ” means the Participant (a) is convicted of a felony involving theft, fraud, moral depravity or any other conduct that the Committee determines materially injures the Company’s business or reputation, (b) willfully engages in misfeasance or malfeasance demonstrated by a pattern of failure to perform job duties for the Company diligently and professionally, which remains uncured for a period of thirty (30) days after Participant’s receipt of written notice by the Company, (c) commits any act or omission which causes or constitutes the need for a material restatement of the financial results of the Partnership; or (d) commits a material violation of any securities, commodities or banking law, any rules or regulations issued pursuant to such laws, or

 

 

rules and regulations of any securities or commodities exchange or association of which the Company, the Partnership or the General Partner is a member or of any policy of the Company, the Partnership or the General Partner relating to compliance with any of the foregoing.

 

“ Change in Control ” means, and shall be deemed to have occurred upon one or more of the following events:

 

(i)                                      any “person” or “group” within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act, other than the Company or an Affiliate of the Company (as determined immediately prior to such event), shall become the beneficial owner, by way of merger, acquisition, consolidation, recapitalization, reorganization or otherwise, of 50% or more of the combined voting power of the equity interests in the Company, the General Partner, the Partnership or Gulf TLP Holdings, LLC, a Delaware limited liability company;

 

(ii)                                   the limited partners of the Partnership approve, in one or a series of transactions, a plan of complete liquidation of the Partnership;

 

(iii)                                the sale or other disposition by any of the Company, the General Partner or the Partnership of all or substantially all of the Company’s, the General Partner’s or the Partnership’s assets, respectively, in one or more transactions to any Person other than the Company, the Partnership, the General Partner or any of their Affiliates; or

 

(iv)                               a transaction resulting in a Person other than the General Partner or an Affiliate of the General Partner (as determined immediately prior to such event) being the sole general partner of the Partnership.

 

Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any Award which provides for the deferral of compensation subject to Section 409A or such compensation otherwise would be subject to Section 409A, the transaction or event described in subsection (i), (ii), (iii) or (iv) above with respect to such Award must also constitute a “change in control event,” as defined in Treasury Regulation §1.409A-3(i)(5), and as relates to the holder of such Award, to the extent required to comply with Section 409A.  In addition, the Committee may designate an alternate definition of Change in Control to apply with respect to any particular Award or a portion thereof.

 

“ Code ” means the Internal Revenue Code of 1986, as amended.

 

“ Committee ” means the Board, except that it shall mean such committee of the Board or of the board of directors or board of managers, as the case may be, of the Company or any other committee or individual as may be appointed by the Board to administer the Plan, or as necessary to comply with applicable legal requirements or listing standards.

 

“ Consultant ” means an individual who provides consulting services with respect to the Partnership Group and who qualifies as a consultant with respect to the Partnership Group under the applicable rules of the SEC for registration of shares on a Form S-8 Registration Statement.

 

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“ DER ” means a distribution equivalent right, representing a contingent right to receive an amount in cash, Units, Restricted Units and/or Phantom Units equal in value to the distributions made by the Partnership with respect to a Unit during the period such Award is outstanding.

 

“ Director ” means a member of the board of directors or board of managers, as the case may be, of any member of the Partnership Group who is not an Employee or a Consultant (other than in that individual’s capacity as a Director).

 

“ Disability ” means, unless otherwise set forth in an Award Agreement or other written agreement between the Company, the Partnership, the General Partner or one of their Affiliates and the applicable Participant, as determined by the Committee in its discretion exercised in good faith, a physical or mental condition of a Participant that would entitle him or her to payment of disability income payments under the Company’s, the Partnership’s, the General Partner’s or one of their Affiliates’ long-term disability insurance policy or plan, as applicable, for employees as then in effect; or in the event that a Participant is not covered, for whatever reason, under any such long-term disability insurance policy or plan for employees of the Company, the Partnership, the General Partner or one of their Affiliates or the Company, the Partnership, the General Partner or one of their Affiliates does not maintain such a long-term disability insurance policy, “Disability” means a total and permanent disability within the meaning of Section 22(e)(3) of the Code; provided, however, that if a Disability constitutes a payment event with respect to any Award which provides for the deferral of compensation subject to Section 409A or such compensation otherwise would be subject to Section 409A, then, to the extent required to comply with Section 409A, the Participant must also be considered “disabled” within the meaning of Section 409A(a)(2)(C) of the Code.  A determination of Disability may be made by a physician selected or approved by the Committee and, in this respect, Participants shall submit to an examination by such physician upon request by the Committee.

 

“ Employee ” means an employee who provides services with respect to the Partnership Group and who qualifies as an employee with respect to the Partnership Group under the applicable rules of the SEC for registration of shares on a Form S-8 Registration Statement.

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

“ Fair Market Value ” means, as of any given date, the closing sales price on such date during normal trading hours (or, if there are no reported sales on such date, on the last date prior to such date on which there were sales) of the Units on the New York Stock Exchange or, if not listed on such exchange, on any other national securities exchange on which the Units are listed or on an inter-dealer quotation system, in any case, as reported in such source as the Committee shall select.  If there is no regular public trading market for the Units, the Fair Market Value of the Units shall be determined by the Committee in good faith and, to the extent applicable, in compliance with the requirements of Section 409A.

 

“ Option ” means an option to purchase Units granted pursuant to Section 6(a) of the Plan.

 

“ Other Unit-Based Award ” means an award granted pursuant to Section 6(f) of the Plan.

 

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“ Participant ” means an Employee, Consultant or Director granted an Award under the Plan and any authorized transferee of such individual and who, in either case, holds an outstanding Award.

 

“ Partnership Agreement ” means the Agreement of Limited Partnership of the Partnership, as it may be amended or amended and restated from time to time.

 

“ Partnership Group ” means, collectively, the General Partner, the Partnership and the Partnership’s direct and indirect subsidiaries.

 

“ Person ” shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as defined in Section 13(d) thereof.

 

“ Phantom Unit ” means a notional interest granted under the Plan that, to the extent vested, entitles the Participant to receive a Unit or an amount of cash equal to the Fair Market Value of a Unit, as determined by the Committee in its discretion.

 

“ Profits Interest Unit ” means to the extent authorized by the Partnership Agreement, an interest in the Partnership that is intended to constitute a “profits interest” within the meaning of the Code, Treasury Regulations promulgated thereunder, and any published guidance by the Internal Revenue Service with respect thereto.

 

“ Program ” shall mean any program adopted by the Committee pursuant to the Plan containing the terms and conditions intended to govern a specified type of Award granted under the Plan and pursuant to which such type of Award may be granted under the Plan.

 

“ Restricted Period ” means the period established by the Committee with respect to an Award during which the Award remains subject to forfeiture and is either not exercisable by or payable to the Participant, as the case may be.

 

“ Restricted Unit ” means a Unit granted pursuant to Section 6(b) of the Plan that is subject to a Restricted Period.

 

“ SEC ” means the Securities and Exchange Commission, or any successor thereto.

 

“ Securities Act ” means the Securities Act of 1933, as amended.

 

“ Section 409A ” means Section 409A of the Code and the Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be amended or issued after the Effective Date (as defined in Section 8 below).

 

“ Service ” means service as an Employee, Consultant or Director.  The Committee, in its sole discretion, shall determine the effect of all matters and questions relating to terminations of Service, including, without limitation, the questions of whether and when a termination of Service occurred and/or resulted from a discharge for C ause, and all questions of whether

 

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particular changes in status or leaves of absence constitute a termination of Service.  The Committee, in its sole discretion, subject to the terms of any applicable Award Agreement, may determine that a termination of Service has not occurred in the event of (a) a termination where there is simultaneous commencement by the Participant of a relationship with the Partnership, the Company, the General Partner or any of their Affiliates as an Employee, Director or Consultant or (b) a termination which results in a temporary severance of the service relationship.

 

“ Substitute Award ” means an award granted pursuant to Section 6(g) of the Plan.

 

“ Unit ” means a Common Unit of the Partnership.

 

“ Unit Appreciation Right ” or “ UAR ” means a contingent right that entitles the holder to receive the excess of the Fair Market Value of a Unit on the exercise date of the UAR over the exercise price of the UAR.

 

“ Unit Award ” means an award granted pursuant to Section 6(d) of the Plan.

 

SECTION 3.                             Administration .

 

(a)                                  The Plan shall be administered by the Committee, subject to subsection (b) below; provided, however, that in the event that the Board is not also serving as the Committee, the Board, in its sole discretion, may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan.  The governance of the Committee shall be subject to the charter, if any, of the Committee as approved and, if applicable, amended by the Board.  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 or have its vesting accelerated; (vi) interpret and administer the Plan and any instrument or agreement relating to an Award made under the Plan; (vii) establish, adopt, amend, suspend, or waive any Programs, 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.  The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan, any Program or an Award Agreement in such manner and to such extent as the Committee deems necessary or appropriate.  Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan, any Program or any Award shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons, including the Company, the Partnership, the General Partner, any of their Affiliates, any Participant and any beneficiary of any Participant.

 

(b)                                  To the extent permitted by applicable law and the rules of any securities exchange on which the Units are listed, quoted or traded, the Board or Committee may from time to time

 

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delegate to a committee of one or more members of the Board or the board of directors or board of managers, as the case may be, of the Company or to any other committee or individual, including to one or more officers of the General Partner or the Company the authority to grant or amend Awards or to take other administrative actions pursuant to Section 3(a); provided, however, that in no event shall an officer of the General Partner or the Company be delegated the authority to grant awards to, or amend awards held by officers of the General Partner or the Company (or Directors) to whom authority to grant or amend Awards has been delegated hereunder.  In addition, (i) no person or group of persons (other than a committee consisting solely of “non-employee directors” within the meaning of Rule 16b-3 under the Exchange Act) shall be delegated authority to grant awards to, or amend awards held by, individuals who are subject to Section 16 of the Exchange Act and (ii) any delegation of administrative authority shall only be permitted to the extent that it is permissible under applicable provisions of the Code and applicable securities laws and the rules of any securities exchange on which the Units are listed, quoted or traded.  Any delegation hereunder shall be subject to such restrictions and limitations as the Board or Committee, as applicable, specifies at the time of such delegation, and the Board or Committee, as applicable, may at any time rescind the authority so delegated or appoint a new delegatee.  At all times, the delegatee appointed under this Section 3(b) shall serve in such capacity at the pleasure of the Board and the Committee.

 

SECTION 4.                             Units .

 

(a)                                  Limits on Units Deliverable .  Subject to Section 4(d) and adjustment as provided in Section 4(c), the number of Units that may be delivered with respect to Awards under the Plan is 750,000.  Subject to Section 4(d), if any Award is forfeited, cancelled, exercised, paid, or otherwise terminates or expires without the actual delivery of Units pursuant to such Award (for the avoidance of doubt, the grant of Restricted Units is not a delivery of Units for this purpose unless and until such Restricted Units vest and any restrictions placed upon them under the Plan lapse), the Units subject to such Award that are not actually delivered pursuant to such Award shall again be available for Awards under the Plan.  To the extent permitted by applicable law and securities exchange rules, Substitute Awards and Units issued in assumption of, or in substitution for, any outstanding awards of any entity (including an existing Affiliate of the Partnership) that is (or whose securities are) acquired in any form by the Partnership or any Affiliate thereof shall not be counted against the Units available for issuance pursuant to the Plan.  There shall not be any limitation on the number of Awards that may be paid in cash.

 

(b)                                  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 the Partnership, any Affiliate thereof or any other Person, or Units otherwise issuable by the Partnership, or any combination of the foregoing, as determined by the Committee in its discretion.

 

(c)                                   Anti-dilution Adjustments .

 

(i)                                      Equity Restructuring .  With respect to any “equity restructuring” event (within the meaning of ASC Topic 718) that could result in an additional compensation expense to the Company, the General Partner or the Partnership pursuant to the provisions of ASC Topic

 

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718 if adjustments to Awards with respect to such event were discretionary, the Committee shall equitably adjust the number and type of Units covered by each outstanding Award and the terms and conditions, including the exercise price and performance criteria (if any), of such Award to equitably reflect such event and shall adjust the number and type of Units (or other securities or property) with respect to which Awards may be granted under the Plan after such event.  With respect to any other similar event that would not result in an ASC Topic 718 accounting charge if the adjustment to Awards with respect to such event were subject to discretionary action, the Committee shall have complete discretion to adjust Awards and the number and type of Units (or other securities or property) with respect to which Awards may be granted under the Plan in such manner as it deems appropriate with respect to such other event.

 

(ii)                                   Other Changes in Capitalization .  In the event of any non-cash distribution, Unit split, combination or exchange of Units, merger, consolidation or distribution (other than normal cash distributions) of Partnership assets to unitholders, or any other change affecting the Units of the Partnership, other than an “equity restructuring,” the Committee may make equitable adjustments, if any, to reflect such change with respect to (A) the aggregate number and kind of Units that may be issued under the Plan; (B) the number and kind of Units (or other securities or property) subject to outstanding Awards; (C) the terms and conditions of any outstanding Awards (including, without limitation, any applicable performance targets or criteria with respect thereto); and (D) the grant or exercise price per Unit for any outstanding Awards under the Plan.

 

(d)                                  Limitation on Unit Recycling . Notwithstanding anything to the contrary contained herein, the following Units shall not be added to the Units authorized for grant under Section 4(a) and shall not be available for future grants of Awards:

 

(i)                                      Units tendered by a Participant or withheld by the General Partner in payment of the exercise price of an Option;

 

(ii)                                   Units tendered by the Participant or withheld by the General Partner to satisfy any tax withholding obligation with respect to an Award;

 

(iii)                                Units subject to a Unit Appreciation Right that are not issued in connection with the Unit settlement of the Unit Appreciation Right on exercise thereof; and

 

(iv)                               Units purchased on the open market with the cash proceeds from the exercise of Options.

 

SECTION 5.                             Eligibility .

 

Any Employee, Consultant or Director shall be eligible to be designated a Participant and receive an Award under the Plan.

 

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SECTION 6.                             Awards .

 

(a)                                  Options and UARs .  The Committee shall have the authority to determine the Employees, Consultants and Directors to whom Options and/or UARs shall be granted, the number of Units to be covered by each Option or UAR, the exercise price therefor, the Restricted Period, if any, and other conditions and limitations applicable to the exercise of the Option or UAR, 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.  Options which are intended to comply with Treasury Regulation Section 1.409A-1(b)(5)(i)(A) and UARs which are intended to comply with Treasury Regulation Section 1.409A-1(b)(5)(i)(B) or, in each case, any successor regulation, may be granted only if the requirements of Treasury Regulation Section 1.409A-1(b)(5)(iii), or any successor regulation, are satisfied.  Options and UARs that are otherwise intended to be exempt from or compliant with Section 409A may be granted to any eligible Employee, Consultant or Director.

 

(i)                                      Exercise Price .  The exercise price per Unit purchasable under an Option or subject to a UAR shall be determined by the Committee at the time the Option or UAR is granted but, except with respect to a Substitute Award, may not be less than the Fair Market Value of a Unit as of the date of grant of the Option or UAR.

 

(ii)                                   Time and Method of Exercise .  The Committee shall determine the exercise terms and any applicable Restricted Period with respect to an Option or UAR, which may include, without limitation, provisions for accelerated vesting upon the achievement of specified performance goals and/or other events, and the method or methods by which payment of the exercise price with respect to an Option or UAR may be made or deemed to have been made, which may include, without limitation, cash, check acceptable to the General Partner, withholding Units having a Fair Market Value on the exercise date equal to the relevant exercise price from the Award, a “cashless” exercise through procedures approved by the General Partner, or any combination of the foregoing methods.

 

(iii)                                Exercise of Options and UARs on Termination of Service .  Each Option and UAR Award Agreement shall set forth the extent to which the Participant shall have the right to exercise the Option or UAR following a termination of the Participant’s Service.  Unless otherwise determined by the Committee, if the Participant’s Service is terminated for Cause, the Participant’s right to exercise the Option or UAR shall terminate as of the start of business on the effective date of the Participant’s termination.  Unless otherwise determined by the Committee, to the extent the Option or UAR is not vested and exercisable as of the termination of Service, the Option or UAR shall terminate when the Participant’s Service terminates.

 

(iv)                               Term of Options and UARs .  The term of each Option and UAR shall be stated in the Award Agreement, provided , that the term shall be no more than ten (10) years from the date of grant thereof.

 

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(b)                                  Restricted Units and Phantom Units .  The Committee shall have the authority to determine the Employees, Consultants and Directors to whom Restricted Units and/or Phantom Units shall be granted, the number of Restricted Units or Phantom Units to be granted to each such Participant, any applicable Restricted Period, the conditions under which the Restricted Units or Phantom Units may become vested or forfeited and such other terms and conditions, including, without limitation, restrictions on transferability, as the Committee may establish with respect to such Awards.

 

(i)                                      Payment of Phantom Units .  The Committee shall specify, or permit the Participant to elect in accordance with the requirements of Section 409A, the conditions and dates or events upon which the cash or Units underlying an award of Phantom Units shall be issued, which dates or events shall not be earlier than the date on which the Phantom Units vest and become nonforfeitable and which conditions and dates or events shall be intended to comply with Section 409A (unless the Phantom Units are intended to be exempt therefrom).

 

(ii)                                   Vesting of Restricted Units .  Upon or as soon as reasonably practicable following the vesting of each Restricted Unit, subject to satisfying the tax withholding obligations of Section 8(b), the Participant shall be entitled to have the restrictions removed from his or her Unit certificate (or book-entry account, as applicable) so that the Participant then holds an unrestricted Unit.

 

(c)                                   DERs .  The Committee shall have the authority to determine the Employees, Consultants and/or Directors to whom DERs are granted, whether such DERs are tandem or separate Awards, whether the DERs shall be paid directly to the Participant, be credited to a bookkeeping account (with or without interest in the discretion of the Committee), any vesting restrictions and payment provisions applicable to the DERs, and such other provisions or restrictions as determined by the Committee in its discretion, all of which shall be specified in the applicable Award Agreements.  Distributions in respect of DERs shall be credited as of the distribution dates during the period between the date an Award is granted to a Participant and the date such Award vests, is exercised, is distributed, is forfeited or expires, as determined by the Committee.  Such DERs shall be converted to cash, Units, Restricted Units and/or Phantom Units by such formula and at such time and subject to such limitations as may be determined by the Committee.  Tandem DERs may be subject to the same or different vesting restrictions as the tandem Award, or be subject to such other provisions or restrictions as determined by the Committee in its discretion. Notwithstanding the foregoing, DERs shall only be paid in a manner that is intended to be either exempt from or in compliance with Section 409A.  Furthermore, notwithstanding anything to the contrary contained herein, with respect to any Award with performance-based vesting, DERs which prior to vesting are credited to a bookkeeping account shall only be paid out to the Participant holding such Award to the extent that the performance-based vesting conditions (as opposed to continued service-based vesting conditions) are subsequently satisfied; all such payments, to the extent intended to be exempt from Section 409A, will be made no later than March 15 of the calendar year following the calendar year in which the right to the payment becomes nonforfeitable.

 

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(d)                                  Unit Awards .  Awards of Units may be granted under the Plan (i) to such Employees, Consultants and/or Directors and in such amounts as the Committee, in its discretion, may select, and (ii) subject to such other terms and conditions, including, without limitation, restrictions on transferability, as the Committee may establish with respect to such Awards.

 

(e)                                   Profits Interest Units .  Any Award consisting of Profits Interest Units may be granted to an Employee, Consultant or Director for the performance of services to or for the benefit of the Partnership (i) in the Participant’s capacity as a partner of the Partnership, (ii) in anticipation of the Participant becoming a partner of the Partnership, or (iii) as otherwise determined by the Committee.  At the time of grant, the Committee shall specify the date or dates on which the Profits Interest Units shall vest and become nonforfeitable, if subject to vesting, and may specify such conditions to vesting as it deems appropriate.  Profits Interest Units shall be subject to such restrictions on transferability and other restrictions as the Committee may impose.

 

(f)                                    Other Unit-Based Awards .  Other Unit-Based Awards may be granted under the Plan to such Employees, Consultants and/or Directors as the Committee, in its discretion, may select.  An Other Unit-Based Award shall be an award denominated or payable in, valued in or otherwise based on or related to Units, in whole or in part, including an award consisting of a specified amount of compensation that is deemed notionally invested in Units.  The Committee shall determine the terms and conditions of any Other Unit-Based Award.  An Other Unit-Based Award may be paid in cash, Units (including Restricted Units) or any combination thereof as provided in the Award Agreement.

 

(g)                                   Substitute Awards .  Awards may be granted under the Plan in substitution of similar awards held by individuals who are or who become Employees, Consultants or Directors in connection with a merger, consolidation or acquisition by the Partnership or an Affiliate of another entity or the securities or assets of another entity (including in connection with the acquisition by the Partnership or one of its Affiliates of additional securities of an entity that is an existing Affiliate of the Partnership).  Such Substitute Awards that are Options or UARs may have exercise prices less than the Fair Market Value of a Unit on the date of the substitution if such substitution complies with Section 409A and other applicable laws and securities exchange rules.

 

(h)                                  General .

 

(i)                                      Award Agreements . Each Award shall be evidenced in writing in an Award Agreement or a Program that shall reflect any vesting conditions or restrictions imposed by the Committee covering a period of time specified by the Committee and may also contain such other terms, conditions and limitations as shall be determined by the Committee in its sole discretion. Where signature or electronic acceptance of the Award Agreement by the Participant is required, any such Awards for which the Award Agreement is not signed or electronically accepted shall be forfeited.

 

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(ii)                                   Forfeitures .  Except as otherwise provided in the terms of an Award Agreement, upon termination of a Participant’s Service for any reason during an applicable Restricted Period, all outstanding, unvested Awards held by such Participant shall be automatically forfeited by the Participant.  Notwithstanding the immediately preceding sentence, the Committee may, in its discretion, waive in whole or in part such forfeiture with respect to any such Award; provided , that any such waiver shall be effective only to the extent that such waiver will not cause (i) any Award intended to satisfy the requirements of Section 409A to fail to satisfy such requirements or (ii) any Award intended to be exempt from Section 409A to become subject to and to fail to satisfy such requirements.

 

(iii)                                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 thereof.  Awards granted in addition to or in tandem with other Awards or awards granted under any other plan of the Company or any Affiliate thereof may be granted either at the same time as or at a different time from the grant of such other Awards or awards.

 

(iv)                               Limits on Transfer of Awards .

 

(A)                                Except as provided in paragraph (C) below, each Option and UAR shall be exercisable only by the Participant (or the Participant’s legal representative in the case of the Participant’s Disability or incapacitation) during the Participant’s lifetime, or by the person to whom the Participant’s rights shall pass by will or the laws of descent and distribution.

 

(B)                                Except as provided in paragraph (C) below, no Award and no right under any such Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant other than by will or 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, the Partnership, the General Partner or any Affiliate.

 

(C)                                The Committee may provide in an Award Agreement or Program or in its discretion that an Award may, on such terms and conditions as the Committee may from time to time establish, be transferred by a Participant without consideration to any “family member” of the Participant, as defined in the instructions to use of the Form S-8 Registration Statement under the Securities Act, as applicable, or any other transferee specifically approved by the Committee after taking into account any state, federal, local or foreign tax and securities laws applicable to transferable Awards.  In addition, vested Units may be transferred to the extent permitted by the Partnership Agreement and not otherwise prohibited by the Award Agreement or any other agreement or policy restricting the transfer of such Units.

 

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(v)                                  Term of Awards .  Subject to Section 6(a)(iv) above, the term of each Award, if any, shall be for such period as may be determined by the Committee.

 

(vi)                               Unit Certificates .  Unless otherwise determined by the Committee or required by any applicable law, rule or regulation, neither the General Partner nor the Partnership shall deliver to any Participant certificates evidencing Units issued in connection with any Award and instead such Units shall be recorded in the books of the Partnership (or, as applicable, its transfer agent or equity plan administrator).  All certificates for Units or other securities of the Partnership delivered under the Plan and all Units issued pursuant to book entry procedures pursuant to any Award or the exercise thereof shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and/or other requirements of the SEC, any securities 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 inscribed on any such certificates or book entry to make appropriate reference to such restrictions.

 

(vii)                            Consideration for Grants .  To the extent permitted by applicable law, Awards may be granted for such consideration, including services, as the Committee shall determine.

 

(viii)                         Delivery of Units or other Securities and Payment by Participant of Consideration .  Notwithstanding anything in the Plan or any Award Agreement to the contrary, subject to compliance with Section 409A, the General Partner shall not be required to issue or deliver any certificates or make any book entries evidencing Units pursuant to the exercise or vesting of any Award, unless and until the Board or the Committee has determined, with advice of counsel, that the issuance of such Units is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any securities exchange on which the Units are listed or traded, and the Units are covered by an effective registration statement or applicable exemption from registration.  In addition to the terms and conditions provided herein, the Board or the Committee may require that a Participant make such reasonable covenants, agreements, and representations as the Board or the Committee, in its discretion, deems advisable in order to comply with any such laws, regulations, or requirements.  Without limiting the generality of the foregoing, the 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 General Partner is not reasonably able to obtain or deliver Units pursuant to such Award without violating applicable law or the applicable rules or regulations of any governmental agency or authority 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 tax withholding) is received by the General Partner.

 

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SECTION 7.                             Amendment and Termination; Certain Transactions .

 

Except to the extent prohibited by applicable law:

 

(a)                                  Amendments to the Plan .  Except as required by applicable law or the rules of the principal securities exchange, if any, on which the Units are traded and subject to Section 7(b) below, the Board or the Committee may amend, alter, suspend, discontinue, or terminate the Plan in any manner at any time for any reason or for no reason without the consent of any partner, Participant, other holder or beneficiary of an Award, or any other Person.  The Board shall obtain securityholder approval of any Plan amendment to the extent necessary to comply with applicable law or securities exchange listing standards or rules.

 

(b)                                  Amendments to Awards .  Subject to Section 7(a) above, the Committee may waive any conditions or rights under, amend any terms of, or alter any Award theretofore granted, provided that no change, other than pursuant to Section 7(c) below, in any Award shall materially reduce the rights or benefits of a Participant with respect to an Award without the consent of such Participant.

 

(c)                                   Actions Upon the Occurrence of Certain Events .  Upon the occurrence of a Change in Control, any transaction or event described in Section 4(c) above, any change in applicable laws or regulations affecting the Plan or Awards hereunder, or any change in accounting principles affecting the financial statements of the General Partner or the Partnership, the Committee, in its sole discretion, without the consent of any Participant or holder of an Award, and on such terms and conditions as it deems appropriate, which need not be uniform with respect to all Participants or all Awards, may take any one or more of the following actions:

 

(i)                                      provide for either (A) the termination of any Award in exchange for a payment in an amount, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights under such Award (and, for the avoidance of doubt, if as of the date of the occurrence of such transaction or event, the Committee determines in good faith that no amount would have been payable upon the exercise of such Award or realization of the Participant’s rights, then such Award may be terminated by the General Partner without payment) or (B) the replacement of such Award with other rights or property selected by the Committee in its sole discretion having an aggregate value not exceeding the amount that could have been attained upon the exercise of such Award or realization of the Participant’s rights had such Award been currently exercisable or payable or fully vested;

 

(ii)                                   provide that such Award be assumed by the successor or survivor entity, or a parent or subsidiary thereof, or be exchanged for similar options, rights or awards covering the equity of the successor or survivor, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of equity interests and prices;

 

(iii)                                make adjustments in the number and type of Units (or other securities or property) subject to outstanding Awards, the number and kind of outstanding Awards, the

 

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terms and conditions of (including the exercise price), and/or the vesting and performance criteria included in, outstanding Awards; and

 

(iv)                               provide that such Award shall vest or become exercisable or payable, notwithstanding anything to the contrary in the Plan or the applicable Award Agreement.

 

Notwithstanding the foregoing, with respect to an above event that constitutes an “equity restructuring” that would be subject to a compensation expense pursuant to ASC Topic 718, the provisions in Section 4(c) above shall control to the extent they are in conflict with the discretionary provisions of this Section 7, provided, however , that nothing in this Section 7(c) or Section 4(c) above shall be construed as providing any Participant or any beneficiary of an Award any rights with respect to the “time value,” “economic opportunity” or “intrinsic value” of an Award or limiting in any manner the Committee’s actions that may be taken with respect to an Award as set forth in this Section 7 or in Section 4(c) above.

 

Furthermore, notwithstanding the foregoing, if a Change in Control occurs and a Participant’s Awards are not continued, converted, assumed, or replaced with a substantially similar award by (i) the Company or a member of the Partnership Group, or (ii) a successor entity or its parent or subsidiary (an “ Assumption ”), and provided that the Participant has not had a termination of Service prior to the Change in Control, then immediately before the Change in Control, such Awards will become fully vested, exercisable and payable, as applicable, and all forfeiture, repurchase and other restrictions on such Awards will lapse.  Such Awards that are not subject to an Assumption will be canceled upon the Change in Control in exchange for the right to receive the Change in Control consideration payable to other holders of Units, which (A) may be on such terms and conditions generally applicable to holders of Units under the Change in Control documents (including any escrow, earn-out or other deferred consideration provisions) or such other terms and conditions as the Committee may provide, and (B) is determined based on the number of Units subject to such Awards and net of any applicable exercise price; provided that if any Awards constitute “nonqualified deferred compensation” not payable upon the Change in Control without the imposition of taxes under Section 409A, the timing of such payments will be governed by the Award Agreement (subject to any deferred consideration provisions under the Change in Control documents); and provided , further, that if the amount to which a Participant would be entitled upon the settlement or exercise of such Award upon the Change in Control is zero or less, then such Award may be terminated without payment.  The Committee shall determine whether an Assumption of an Award has occurred in connection with a Change in Control.

 

SECTION 8.                             General Provisions .

 

(a)                                  No Rights to Award .  No Person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of Participants, including the treatment upon termination of Service or pursuant to Section 7(c).  The terms and conditions of Awards need not be the same with respect to each recipient.

 

(b)                                  Tax Withholding .  Unless other arrangements have been made that are acceptable to the Committee, the Company, the General Partner or any Affiliate of any of the foregoing is

 

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authorized to deduct or withhold, or cause to be deducted or withheld, 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 or Units, including Units that would otherwise be issued pursuant to such Award or other property) of any applicable taxes payable in respect of an Award, including its grant, its exercise, the lapse of restrictions thereon, or any payment or transfer thereunder or under the Plan, and to take such other action as may be necessary in the opinion of the Company to satisfy its withholding obligations for the payment of such taxes.  In the event that Units that would otherwise be issued pursuant to an Award are used to satisfy such withholding obligations, the number of Units which may be so withheld or surrendered shall be limited to the number of Units which have a Fair Market Value on the date of withholding equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such supplemental taxable income.

 

(c)                                   No Right to Employment or Services .  The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the Company, the Partnership, the General Partner or any of their Affiliates, or to continue to serve as a Consultant or a Director, as applicable.  Furthermore, the Company, the Partnership, the General Partner and/or an Affiliate thereof may at any time dismiss a Participant from employment or consulting free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan, any Award Agreement or other written agreement between any such entity and the Participant.

 

(d)                                  No Rights as Unitholder .  Except as otherwise provided herein, a Participant shall have none of the rights of a unitholder with respect to Units covered by any Award unless and until the Participant becomes the record owner of such Units.

 

(e)                                   Section 409A .  To the extent that the Committee determines that any Award granted under the Plan is subject to Section 409A, the Award Agreement evidencing such Award shall be drafted with the intention to include the terms and conditions required by Section 409A.  To the extent applicable, the Plan and Award Agreements shall be interpreted in accordance with Section 409A.  Notwithstanding any provision of the Plan to the contrary, in the event that following the Effective Date (as defined in Section 9 below), the Committee determines that any Award may be subject to Section 409A, the Committee may adopt such amendments to the Plan and the applicable Award Agreement, adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), and/or take any other actions that the Committee determines are necessary or appropriate to preserve the intended tax treatment of the Award, including without limitation, actions intended to (i) exempt the Award from Section 409A, or (ii) comply with the requirements of Section 409A; provided, however, that nothing herein shall create any obligation on the part of the Committee, the Partnership, the Company, the General Partner or any of their Affiliates to adopt any such amendment, policy or procedure or take any such other action, nor shall the Committee, the Partnership, the Company, the General Partner or any of their Affiliates have any liability for failing to do so.  If any termination of Service constitutes a payment event with respect to any Award which provides for the deferral of compensation and is subject to Section 409A, such termination of Service must also constitute a “separation from service” within the meaning of Section 409A.

 

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Notwithstanding any provision in the Plan to the contrary, the time of payment with respect to any Award that is subject to Section 409A shall not be accelerated, except as permitted under Treasury Regulation Section 1.409A-3(j)(4).  Notwithstanding any provision of this Plan to the contrary, if a Participant is a “specified employee” within the meaning of Section 409A as of the date of such Participant’s termination of Service and the General Partner determines that immediate payment of any amounts or benefits under this Plan would cause a violation of Section 409A, then any amounts or benefits which are payable under this Plan upon the Participant’s “separation from service” within the meaning of Section 409A that: (i) are subject to the provisions of Section 409A; (ii) are not otherwise exempt under Section 409A; and (iii) would otherwise be payable during the first six-month period following such separation from service, shall be paid, without interest, on the first business day following the earlier of: (1) the date that is six months and one day following the date of termination; or (2) the date of the Participant’s death.  Each payment or amount due to a Participant under this Plan shall be considered a separate payment, and a Participant’s entitlement to a series of payments under this Plan is to be treated as an entitlement to a series of separate payments.

 

(f)                                    Lock-Up Agreement .  Each Participant shall agree, if so requested by the Company, the Partnership or the General Partner and any underwriter in connection with any public offering of securities of the Partnership or any Affiliate thereof, not to directly or indirectly offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of or otherwise dispose of or transfer any Units held by it for such period, not to exceed one hundred eighty (180) days following the effective date of the relevant registration statement filed under the Securities Act in connection with such public offering, as such underwriter shall specify reasonably and in good faith.  The Company, the Partnership or the General Partner may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such 180-day period.  Notwithstanding the foregoing, the 180-day period may be extended for up to such number of additional days as is deemed necessary by such underwriter or the Company, Partnership or the General Partner to continue coverage by research analysts in accordance with FINRA Rule 2711 or any successor rule.

 

(g)                                Compliance with Laws .  The Plan, the granting and vesting of Awards under the Plan and the issuance and delivery of Units and the payment of money under the Plan or under Awards granted or awarded hereunder are subject to compliance with all applicable federal, state, local and foreign laws, rules and regulations (including but not limited to state, federal and foreign securities law and margin requirements), the rules of any securities exchange or automated quotation system on which the Units are listed, quoted or traded, and to such approvals by any listing, regulatory or governmental authority as may, in the opinion of counsel for the Company, the Partnership or the General Partner, be necessary or advisable in connection therewith.  Any securities delivered under the Plan shall be subject to such restrictions, and the Person acquiring such securities shall, if requested by the Company, the Partnership or the General Partner, provide such assurances and representations to the Company, the Partnership or the General Partner as the Company, the Partnership or the General Partner may deem necessary or desirable to assure compliance with all applicable legal requirements.  To the extent permitted by applicable law, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.  In the event an Award is

 

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granted to or held by a Participant who is employed or providing services outside the United States, the Committee may, in its sole discretion, modify the provisions of the Plan or of such Award as they pertain to such Participant to comply with applicable foreign law or to recognize differences in local law, currency or tax policy.  The Committee may also impose conditions on the grant, issuance, exercise, vesting, settlement or retention of Awards in order to comply with such foreign law and/or to minimize the Company’s, the Partnership’s or the General Partner’s obligations with respect to tax equalization for Participants employed outside their home country.

 

(h)                                  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 Colorado without regard to its conflicts of laws principles.

 

(i)                                      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 law 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.

 

(j)                                     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 same under Section 16(b) of the Exchange Act, and any payment tendered to the General Partner 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.

 

(k)                                  No Trust or Fund Created .  Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company, the Partnership, the General Partner or any of their Affiliates, on the one hand, and a Participant or any other Person, on the other hand.  To the extent that any Person acquires a right to receive payments pursuant to an Award, such right shall be no greater than the right of any general unsecured creditor of the Partnership or any participating Affiliate of the Partnership.

 

(l)                                      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.

 

(m)                              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 hereof.

 

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(n)                               No Guarantee of Tax Consequences .  None of the Board, the Committee, the Company, the Partnership or the General Partner provides or has provided any tax advice to any Participant or any other Person or makes or has made any assurance, commitment or guarantee that any federal, state, local or other tax treatment will (or will not) apply or be available to any Participant or other Person and assumes no liability with respect to any tax or associated liabilities to which any Participant or other Person may be subject.

 

(o)                                  Clawback .  To the extent required by applicable law or any applicable securities exchange listing standards, or as otherwise determined by the Committee, Awards and amounts paid or payable pursuant to or with respect to Awards shall be subject to the provisions of any clawback policy implemented by the Company, the Partnership or the General Partner, which clawback policy may provide for forfeiture, repurchase and/or recoupment of Awards and amounts paid or payable pursuant to or with respect to Awards.  Notwithstanding any provision of this Plan or any Award Agreement to the contrary, the Company, the Partnership and the General Partner reserve the right, without the consent of any Participant, to adopt any such clawback policies and procedures, including such policies and procedures applicable to this Plan or any Award Agreement with retroactive effect.

 

(p)                                  Unit Retention Policy .  The Committee may provide in its sole and absolute discretion, subject to applicable law, that any Units received by a Participant in connection with an Award granted hereunder shall be subject to a unit ownership, unit retention or other policy restricting the sale or transfer of units, as the Committee may determine to adopt, amend or terminate in its sole discretion from time to time.

 

(q)                                  Limitation of Liability . No member of the Board or the Committee or Employee to whom the Board or the Committee has delegated authority in accordance with the provisions of Section 3 of this Plan shall be liable for anything done or omitted to be done by him or her, by any member of the Board or the Committee or by any Employee in connection with the performance of any duties under this Plan, except for his or her own willful misconduct or as expressly provided by statute.

 

(r)                                     Facility Payment .  Any amounts payable hereunder to any Person under legal disability or who, in the judgment of the Committee, is unable to manage properly his or her financial affairs, may be paid to the legal representative of such Person, or may be applied for the benefit of such Person in any manner that the Committee may select, and the Partnership, the Company, the General Partner and all of their Affiliates shall be relieved of any further liability for payment of such amounts.

 

(s)                                    Prohibition on Repricing . Subject to Section 7, the Committee shall not, without the approval of the unitholders of the Partnership, (i) authorize the amendment of any outstanding Option or Unit Appreciation Right to reduce its price per Unit, or (ii) cancel any Option or Unit Appreciation Right in exchange for cash or another Award when the Option or Unit Appreciation Right price per Unit exceeds the Fair Market Value of the underlying Units.  Subject to Section 7, the Committee shall have the authority, without the approval of the unitholders of the Partnership, to amend any outstanding Award to increase the price per Unit or

 

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to cancel and replace an Award with the grant of an Award having a price per Unit that is greater than or equal to the price per Unit of the original Award.

 

SECTION 9.                             Term of the Plan .

 

The Plan shall be effective on the date on which the Plan is adopted by the Board (the “ Effective Date ”) and shall continue until the earlier of date terminated by the Board or the ten year anniversary of the Effective Date.  However, 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.  The Plan shall, within twelve (12) months after the date of the Board’s initial adoption of the Plan, be submitted for approval by the Partnership’s unitholders and no Units will be issued under this Plan or delivered in satisfaction or settlement of an Award unless and until the Partnership’s unitholders have approved the Plan.

 

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Exhibit 10.4

 

TLP MANAGEMENT SERVICES LLC

SAVINGS AND RETENTION PLAN

 

Pursuant to the terms of the TLP Management Services LLC 2016 Long-Term Incentive Plan (the “LTIP”), TLP Management Services LLC, a Delaware limited liability company (the “Company”), hereby establishes the TLP Management Services LLC Savings and Retention Plan (the “Plan”), effective as of February 26, 2016 (the “Effective Date”). The purpose of the Plan is to provide for the reward and retention of certain key employees by means of compensation that vests over future service periods.  The benefits provided under the Plan are in addition to any right participating employees may have under other compensatory plans offered by the Company and in which the employee is eligible to participate.  The Plan is subject to all of the terms and conditions of the LTIP and to the extent the terms of the Plan and of the LTIP conflict, the terms of the LTIP shall control.

 

RECITALS

 

A.             TransMontaigne Inc., a Delaware corporation (“Predecessor Plan Sponsor”), established the TransMontaigne Services Inc. Savings and Retention Plan, effective as of January 1, 2007 (as amended and restated, the “Predecessor Plan”).

 

B.             On February 1, 2016 (the “Acquisition Closing Date”), Gulf TLP Holdings, LLC, a Delaware limited liability company and owner of all of the outstanding equity interests in the Company (the “Parent”) acquired all of the outstanding equity interests in the General Partner (the “Acquisition”) from a subsidiary of the Predecessor Plan Sponsor.

 

C.             In connection with the Acquisition, (i) it is expected that certain employees providing services with respect to the Partnership Group will transfer employment to the Company and (ii) the Parent has agreed to satisfy or to cause one of its Affiliates or a member of the Partnership Group to satisfy outstanding obligations with respect to certain awards previously granted under the Predecessor Plan (the “Assumed Awards”).  The Assumed Awards generally consist of awards of Covered Compensation granted in 2015 to employees who provide services with respect to the Partnership Group, as set forth more fully in agreements entered into by the Parent in connection with the Acquisition.

 

D.             In addition to awards granted under the Plan on or after the Effective Date, this Plan is intended to govern the payment of all outstanding obligations with respect to the Assumed Awards.

 

E.              The parties involved in the Acquisition have determined that no Participant holding Assumed Awards will be deemed to incur a “separation from service,” as that term is defined in Code Section 409A(a)(2)(A)(i) and Treas. Regs. Section 1.409A-1(h), and as amplified by any other official guidance, as a result of the Acquisition or such Participant’s transfer of employment to the Company.

 

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ARTICLE 1

 

Definitions

 

1.1                                Acquisition shall have the meaning ascribed thereto in the Recitals.

 

1.2                                Acquisition Closing Date shall have the meaning ascribed thereto in the Recitals.

 

1.3                                Administrator shall mean the Board, or the person or group of persons appointed by the Board to administer the Plan pursuant to Article 5 of the Plan.

 

1.4                                Affiliate shall mean, with respect to any entity, any other entity that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the entity 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 an entity, whether through ownership of voting securities, by contract or otherwise.

 

1.5                                Assumed Awards shall have the meaning ascribed thereto in the Recitals

 

1.6                                Beneficiary shall mean the person(s) or entity(ies) designated to receive payment of Covered Compensation in the event of a Participant’s death.  A Participant’s Beneficiary designation shall apply to all Covered Compensation Accounts of such Participant and shall be effective when it is submitted in writing to and acknowledged by the Company during the Participant’s lifetime on the Beneficiary Designation form provided in Appendix B of the Plan.  The submission of a properly completed new Beneficiary Designation form shall supersede and cancel all prior Beneficiary designations.  If (a) a Participant fails to designate a Beneficiary, (b) each person designated as a Beneficiary predeceases the Participant, (c) a Beneficiary disclaims all or a portion of such Participant’s Covered Compensation, (d) the Administrator cannot determine the identity of a Beneficiary or locate a Beneficiary without effort or expense that the Administrator deems unreasonable or excessive, or (e) a dispute arises between Beneficiaries or those claiming to be Beneficiaries of a Participant, then the Administrator shall direct the distribution of such benefits to the Participant’s estate.

 

1.7                                Board shall mean the Board of Directors of the General Partner.

 

1.8                                Business Day shall mean each calendar day, excluding Saturdays, Sundays or other holidays observed by the Company.

 

1.9                                Cause shall mean the Participant (a) is convicted of a felony involving theft, fraud, moral depravity or any other conduct that the Board determines materially injures the Company’s business or reputation, (b) willfully engages in misfeasance or malfeasance demonstrated by a pattern of failure to perform job duties for the Company diligently and professionally, which remains uncured for a period of thirty (30) days after Participant’s receipt of written notice by the Company, (c) commits any act or omission which causes or constitutes the need for a material restatement of the financial results of the Partnership; or (d) commits a material violation of any securities, commodities or banking law, any rules or regulations issued pursuant to such laws, or rules and regulations of any securities or commodities exchange or

 

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association of which the Company or any Company Affiliate is a member or of any policy of the Company or any Company Affiliates relating to compliance with any of the foregoing.

 

1.10                         Change in Control means, and shall be deemed to have occurred upon one or more of the following events:

 

(a)                                  any “person” or “group” within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act, other than the Company or an Affiliate (as determined immediately prior to such event), shall become the beneficial owner, by way of merger, acquisition, consolidation, recapitalization, reorganization or otherwise, of 50% or more of the combined voting power of the equity interests in the Parent, the Company, the Partnership or the General Partner;

 

(b)                                  the limited partners of the Partnership approves, in one or a series of transactions, a plan of complete liquidation of the Partnership;

 

(c)                                   the sale or other disposition by the Company, the Partnership or the General Partner of all or substantially all of the Company’s, the Partnership or the General Partner’s assets, respectively, in one or more transactions to any Person other than the Company, the Partnership, the General Partner or their Affiliates; or

 

(d)                                  a transaction resulting in a Person other than the General Partner or an Affiliate of the General Partner (as determined immediately prior to such event) being the sole general partner of the Partnership.

 

Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any Covered Compensation Award which provides for the deferral of compensation subject to Section 409A or such compensation otherwise would be subject to Section 409A, the transaction or event described in subsection (i), (ii), (iii) or (iv) above with respect to such Covered Compensation Award must also constitute a “change in control event,” as defined in Treasury Regulation §1.409A-3(i)(5), and as relates to the holder of such Covered Compensation Award, to the extent required to comply with Section 409A.  In addition, the Administrator may designate an alternate definition of Change in Control to apply with respect to any particular Covered Compensation Award or a portion thereof.

 

1.11                         Code shall mean the U.S. Internal Revenue Code of 1986, as amended from time to time.

 

1.12                         Company shall have the meaning ascribed thereto in the preamble.

 

1.13                         Covered Compensation shall mean the amount of compensation that the Administrator may in its discretion award as of a particular Grant Date to certain employees of the Company or any of its Affiliates under the terms of the Plan to reward and retain those employees by means of Covered Compensation that vests over future service periods and shall include all amounts of compensation covered by or that constitute the Assumed Awards.

 

1.14                         Covered Compensation Account shall mean a notional account that tracks a Participant’s Covered Compensation with respect to a particular Grant Date, as adjusted by

 

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earnings, gains and losses of the Investment Funds in which such Covered Compensation is deemed to be invested in accordance with the terms of the Plan.

 

1.15                         Covered Compensation Award shall mean any award of Covered Compensation to a Participant granted under this Plan on or after the Effective Date and any Assumed Award.

 

1.16                         Effective Date shall have the meaning ascribed thereto in the Recitals.

 

1.17                         Disability shall mean a condition causing a Participant to be “disabled” as such term is defined under Code Section 409A(a)(2)(C), the regulations thereunder, and any other published interpretive authority, as issued or amended from time to time.

 

1.18                         First Payment Date shall mean the Company’s first regular payroll payment date after the last Trading Day of the month during which any portion of a Participant’s Covered Compensation Account vests under Section 3.1(a) (or would have vested under Section 3.1(a) in the absence of any acceleration of vesting that may have applied under Section 3.2 with respect to such Participant’s Covered Compensation Account).

 

1.19                         General Partner shall mean TransMontaigne GP L.L.C., a Delaware limited liability company .

 

1.20                         Good Reason shall mean, in connection with a Termination of Employment from the Company or any of its subsidiaries by a Participant following a Change in Control, (i) a materially adverse alteration in the Participant’s position or in the nature or status of the Participant’s responsibilities from those in effect immediately prior to the Change in Control, or (ii) the Company’s or such subsidiary’s requiring the Participant’s principal place of employment to be located more than 30 miles from the location where the Participant is principally employed at the time of the Change in Control (except for required travel on the Company’s or such subsidiary’s business to an extent substantially consistent with the Participant’s business travel obligations in the ordinary course of business prior to the Change in Control).

 

1.21                         Grant Date shall mean the date on which the Administrator grants Covered Compensation to an employee of the Company or any of its Affiliates under the terms of the Plan, provided that, in the case of Covered Compensation relating to the Assumed Awards, the Grant Date shall mean the date on which the applicable Assumed Award was granted under the terms of the Predecessor Plan.

 

1.22                         Investment Fund shall mean the investment funds designated on Appendix A from time to time.

 

1.23                         LTIP shall have the meaning ascribed thereto in the preamble.

 

1.24                         Parent shall have the meaning ascribed thereto in the Recitals.

 

1.25                         Participant shall mean an employee of or other individual service provider to the Company or one of its Affiliates, with respect to whom the Administrator has awarded Covered Compensation under the Plan.

 

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1.26                         Partnership means TransMontaigne Partners L.P., a Delaware limited partnership.

 

1.27                         Partnership Group means, collectively, the General Partner, the Partnership and the Partnership’s direct and indirect subsidiaries.

 

1.28                         Plan shall have the meaning ascribed thereto in the preamble.

 

1.29                         Predecessor Plan shall have the meaning ascribed thereto in the Recitals.

 

1.30                         Predecessor Plan Sponsor shall have the meaning ascribed thereto in the Recitals.

 

1.31                         Proprietary Information shall mean, with respect to any Participant, any information that may have intrinsic value to the Company, the Company’s customers or other parties with which the Company has a relationship, or that may provide the Company with a competitive advantage, including, without limitation, any trade secrets, inventions (whether or not patentable); formulas; flow charts; computer programs, access codes or other systems information; algorithms, technology and business processes; business, product, or marketing plans; sales and other forecasts; financial information; customer lists or other intellectual property; information relating to compensation and benefits; and public information that becomes proprietary as a result of the Company’s compilation of that information for use in its business; provided that such Proprietary Information does not include any information which is, or has become, publicly available other than as a result of the Participant’s action.  Proprietary Information may be in any medium or form including, without limitation, physical documents, computer files or discs, videotapes, audiotapes, and oral communications.

 

1.32                         Retirement shall mean with respect to any Participant, the attainment of the earliest of (a) age sixty (60), (b) age fifty-five (55) and ten (10) years of service as an officer of the Company or any Affiliate of the Company, or (c) age fifty (50) and twenty (20) years of service with the Company or any Affiliate of the Company as an employee.  A Participant’s status as an officer shall be determined as of the Grant Date of the relevant Covered Compensation Award hereunder.  Years of service shall be determined based on the number of full years that the individual has served as an officer or employee of the Company or any Affiliate of the Company, measured by anniversaries of the date that the individual commenced employment with the Company or any Affiliate of the Company, as indicated on the Participant’s personnel records, which shall include, without limitation, prior years of service with Coastal Fuels Marketing, Inc.; Radcliff/Economy Services, Inc.; Louis Dreyfus Energy Corp; El Paso CGP Company; and the Predecessor Plan Sponsor and its subsidiaries.

 

1.33                         Second Payment Date shall mean the Company’s first regular payroll payment date after the last Trading Day of the month during which any portion of a Participant’s Covered Compensation Account vests under Section 3.1(b) (or would have vested under Section 3.1(b) in the absence of any acceleration of vesting that may have applied under Section 3.2 with respect to such Participant’s Covered Compensation Account).

 

1.34                         Termination of Employment shall mean a “separation from service” as that term is defined in Code Section 409A(a)(2)(A)(i) and Treas. Regs. Section 1.409A-1(h), and as amplified by any other official guidance, with respect to a Participant’s employment or other service with the Company and its Affiliates.  For the avoidance of doubt, with respect to

 

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Assumed Awards, no Participant shall be deemed to incur a separation from service as a result of such Participant’s transfer of employment to the Company.

 

1.35                         Trading Day shall mean each day that the New York Stock Exchange Inc. or its successor is open for the trading of securities listed on such exchange.

 

1.36                         Unauthorized Comments shall mean comments made by a Participant, directly or indirectly, which contain or involve any negative, derogatory or disparaging comment, whether written, oral or in electronic format, to any reporter, author, producer or similar person or entity or to any general public media in any form (including, without limitation, books, articles or writings of any other kind, as well as film, videotape, audio tape, computer/Internet format or any other medium) that concerns, directly or indirectly, the Company or any Affiliate of the Company, its business or operations or any Affiliate’s business or operations, or any of it or any Affiliate’s current or former agents, employees, officers or directors.

 

ARTICLE 2

 

Deemed Investment of Covered Compensation

 

2.1                                Investments.

 

(a)                                  The amount that is ultimately payable to the Participant with respect to Covered Compensation shall be the amount notionally credited to such Participant’s vested Covered Compensation Account as if such Covered Compensation Account had been invested in some or all of the Investment Funds set forth in Appendix A .  The Administrator shall have the authority, in its sole discretion, with or without notice, to add, change or eliminate one or more of the Investment Funds in Appendix A at any time by updating such Appendix.

 

(b)                                  Subject to the discretion of the Administrator, it is generally anticipated that all or a portion of each grant of Covered Compensation to each Participant will be designated on the applicable Grant Date as being deemed to be invested in one of more of the Investment Funds.  To the extent that the Board or the Administrator does not designate a specific Investment Fund with respect to all or any portion of a grant of Covered Compensation as of the applicable Grant Date (the “Undesignated Portion”), in accordance with any additional rules, procedures or options that the Administrator may establish, the Administrator may permit each Participant to recommend that such Undesignated Portion be deemed to be invested in any one or more of the Investment Funds by submitting to the Company an Investment Direction in the form set forth at Appendix C within thirty (30) days after the applicable Grant Date, or such longer period as the Administrator may, in its discretion, allow.  If validly completed and timely received by the Company, such Investment Direction shall, if determined by the Company in its sole discretion to be put into effect, be effective as of the date of receipt by the Administrator, and shall remain in effect until such Covered Compensation vests and is paid or is forfeited in accordance with the Plan.  To the extent that the Administrator has not received a validly completed Investment

 

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Direction with respect to any Undesignated Portion of a Participant’s Covered Compensation Account or the Company determines in its sole discretion not to effectuate the recommendation in a validly completed, timely received Investment Direction, it shall deemed to be invested in the TransMontaigne Partners Common Units Fund or in such other Investment Fund as may be selected by the Administrator from time to time.  The Administrator, in its sole discretion, may restrict or limit the investment elections of any Participant who is subject to Section 16 of the Securities Exchange Act of 1934, as amended.

 

(c)                                   Anything in the Plan to the contrary notwithstanding, and notwithstanding the election by any Participant to designate the Investment Funds in which all or a portion of such Participant’s Covered Compensation Account is deemed to be invested and the deemed allocation of such Participant’s Covered Compensation Account among such Investment Funds, the Company is under no obligation to segregate or otherwise set aside any property or assets with respect to such Participant’s Covered Compensation Account.

 

2.2                                Investment Earnings or Losses.   Any notional amounts credited to a Participant’s Covered Compensation Account shall increase or decrease based on any increase or decrease in the value of the Investment Fund in which such amounts are deemed to be invested in accordance with Section 2.1.  In a manner consistent with the allocations described in Section 2.1, the notional investment earnings or losses under this Section 2.2 shall be credited to a Participant’s Covered Compensation Account, as determined in good faith by the Administrator.

 

2.3                                Contribution of Notional Distributions.   The Covered Compensation Account of each Participant shall be credited with notional dividends and other notional distributions at the same time, in the same form, and in equivalent amounts as dividends and other distributions, if any, are payable from time to time with respect to the Investment Funds in which such Covered Compensation Account is deemed to be invested.  Any such notional dividends and other notional distributions shall be valued as of the date on which they are credited to a Participant’s Covered Compensation Account and reallocated to acquire additional interests in the Investment Funds in which such Covered Compensation Account is deemed to be invested.  If such notional dividends and other notional distributions are credited in a form other than common stock, common units or cash, the Administrator will determine their value in good faith and may treat such dividends and distributions as having been made in a like amount of cash.

 

2.4                                Valuation of Participant’s Covered Compensation Account.   The value of a Participant’s Covered Compensation Account as of any time shall be determined based on the value of the underlying investments, which comprise the Investment Fund, in which such Covered Compensation Account is deemed to be invested as of such date.  The value of each deemed underlying investment that is publicly traded shall be determined based on the closing sales price for such investment as quoted or otherwise reported on the date of determination (or, if no closing sales price was reported on such date, on the last trading date such closing sales price was reported), as reported in The Wall Street Journal , or such other source as the Administrator deems reliable.

 

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ARTICLE 3

 

Vesting and Payment of Covered Compensation

 

3.1                                Vesting of Covered Compensation Account.   Subject to the provisions of Section 3.2, a Participant’s Covered Compensation Account with respect to Covered Compensation awarded as of a particular Grant Date shall become vested as follows:

 

(a)                                  Subject to subparagraph (c) of Section 3.6 and to Section 3.7, fifty percent (50%) of such Covered Compensation Account shall become vested as of the first day of the month that falls closest to the second anniversary of the Grant Date applicable to such Covered Compensation Account.

 

(b)                                  Subject to subparagraph (c) of Section 3.6 and to Section 3.7, the remainder of such Covered Compensation Account shall become vested as of the first day of the month that falls closest to the third anniversary of the Grant Date applicable to such Covered Compensation Account.

 

3.2                                Acceleration of Vesting.   Notwithstanding the provisions of Section 3.1, a Participant’s Covered Compensation Account(s) shall become fully vested upon:

 

(a)                                  The Participant’s death, Disability or attainment of Retirement;

 

(b)                                  The involuntary Termination of Employment of such Participant by the Company without Cause at a time when the Participant is otherwise willing and able to continue providing services; or

 

(c)                                   The Participant’s Termination of Employment for Good Reason within eighteen (18) months after the date of a Change in Control.

 

3.3                                Payment of Covered Compensation Account.   Fifty percent (50%) of a Participant’s vested Covered Compensation Account with respect to Covered Compensation awarded as of a particular Grant Date shall be paid to such Participant (or to such Participant’s Beneficiary in the event of the Participant’s death), within five (5) business days following the First Payment Date, and the remainder of such Participant’s vested Covered Compensation Account with respect to Covered Compensation awarded as of a particular Grant Date shall be paid to such Participant (or to such Participant’s Beneficiary in the event of the Participant’s death) within five (5) business days following the Second Payment Date.  Notwithstanding the foregoing sentence and subject to any six-month delay of the payment required by Section 3.7 below, in the event any of the following events occurs prior to a Participant’s First Payment Date and/or Second Payment Date, the Participant’s vested Covered Compensation Account shall be paid on the first Business Day occurring on or immediately following sixty (60) calendar days after the earliest to occur of the following events:

 

(a)                                  The Participant’s death,

 

(b)                                  The Participant’s involuntary Termination of Employment by the Company without Cause at a time when the Participant is otherwise willing and

 

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able to continuing providing services or Termination of Employment by the Participant for Good Reason, occurring in either case within eighteen (18) months after the date of a Change in Control, or

 

(c)                                   The Participant’s Termination of Employment following his or her attainment of Retirement.

 

Notwithstanding the prior provisions of this Section 3.3, however, the Company’s obligation to make any such payment to a Participant on account of the Participant’s Termination of Employment shall be subject (except in the case of death) to the Participant’s prior execution and delivery to the Company within fifty (50) days following such Participant’s Termination of Employment of a legal release substantially in the form of Appendix D attached hereto, which release becomes effective and irrevocable in its entirety within the time period specified in Appendix D .

 

3.4                                Form of Payment.   The value of all or a portion of a Covered Compensation Account that is payable under the Plan shall be determined as of the last Trading Day of the month during which it vests.  A Participant’s vested Covered Compensation Account shall be paid in cash or in kind, at the sole discretion of the Administrator based on the Investment Fund(s) in which the Participant’s Covered Compensation Account is deemed invested under the terms of the Plan.  With respect to the vested portion of a Participant’s Covered Compensation Account that is deemed invested in common units of the Partnership, payment shall be made in the form of Partnership common units, unless otherwise determined by the Administrator and subject to the terms, conditions and limitations of the LTIP.  The Administrator shall not make or authorize a distribution of securities of the Partnership if the General Partner believes that such distribution would require any governmental, security holder or other third party consent or approval, or would otherwise be prohibited or subject to registration or restriction under applicable law, regulation or stock exchange rule.

 

3.5                                Tax Withholding and Reporting.   The Company shall have the right to withhold all applicable taxes from any payment under the Plan, including any federal, state, local, and foreign income, employment or other taxes, and may require Participants to make arrangements to satisfy all applicable withholding requirements prior to any payment being made hereunder.

 

In addition, in its sole discretion, and pursuant to the provisions of Treasury Regulations Sections 1.409A-3(i)(2)(i) and 1.409A-3(j)(4)(vi), the Administrator may permit acceleration of the time or schedule of payment of any portion of a Participant’s vested Covered Compensation Account solely to the extent as may be necessary to pay (i) the Federal Insurance Contributions Act (“FICA”) taxes imposed under Section 3101, 3121(a) and 3121(v)(2) of the Code (as applicable) with respect to a Participant’s vested Covered Compensation Account; (ii) the income tax at source on wages imposed under Section 3401 of the Code or the corresponding withholding provisions of applicable state, local, or non-U.S. tax laws as a result of the payment of the FICA tax; and (iii) the additional income tax at source on wages attributable to the pyramiding Section 3401 wages and taxes.  Notwithstanding the foregoing, the total accelerated distribution to a Participant under this Section 3.5 shall not exceed the aggregate amount of FICA taxes referred to in subsection (i) above, plus the income tax withholding related to the distribution in the amount of such FICA taxes.

 

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3.6                                Forfeiture of Covered Compensation Account(s) .

 

(a)                                  With respect to any Covered Compensation Award, if the Participant has a Termination of Employment for any reason other than as described in Section 3.2 above, before the date an applicable portion of the Participant’s Covered Compensation Account(s) becomes vested as prescribed in Section 3.1(a) or 3.1(b) above, the Participant shall automatically forfeit all unvested portions of his or her Covered Compensation Account(s) for no consideration.

 

(b)                                  With respect to any Covered Compensation Award, a Participant shall automatically forfeit his or her Covered Compensation Account(s) pertaining thereto, including any portions thereof which may previously have become vested and paid to a Participant pursuant to the Plan, for no consideration if the Plan Administrator shall determine that the Participant, while employed with the Company or any Affiliate of the Company, or during the one (1) year period following Participant’s Termination of Employment with the Company or any Affiliate of the Company:

 

(i)                                      has misused Proprietary Information, or has otherwise failed to comply with his or her obligations with respect to the use of Proprietary Information in violation of Company policies pertaining thereto, including the Company’s Code of Conduct, as such policies may be amended from time to time;

 

(ii)                                   has made any Unauthorized Comments;

 

(iii)                                has cooperated with any third party in litigation proceedings adverse to the Company or any Affiliate of the Company, except to any extent such cooperation was compelled by legal process or otherwise required by law;

 

(iv)                               has refused to honor the Company’s request to cooperate or participate on behalf of the Company or any Affiliate of the Company in any litigation proceedings involving the Company or any Affiliate of the Company;

 

(v)                                  has been terminated for Cause;

 

(vi)                               has, directly or indirectly, solicited the employment, or hired any employee of the Company or any Affiliate of the Company, or induced any employee of the Company or any Affiliate of the Company to terminate his/her employment with the Company or any Affiliate of the Company; provided, however, that this provision shall apply only if such solicitation, hiring or inducement to terminate employment relates to an employee of the Company or any Affiliate of the Company having the status of Executive Director or higher, and further provided that this provision shall not apply if any such hiring, solicitation or inducement of the employee (A) is as a result of any general solicitation for employees

 

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(including through the use of employment agencies) not specifically directed at any such persons and such person responds to any such general solicitation; (B) if such employee approaches the Participant on an unsolicited basis; or (C) such solicitation occurs following cessation of such employee’s employment with the Company or any Affiliate of the Company without any solicitation or encouragement from the Participant; or

 

(vii)                            has, directly or indirectly, solicited or enticed away, or in any manner attempted to persuade any customer, or prospective customer of the Company or any Affiliate of the Company (A) to discontinue or diminish his, her or its relationship or prospective relationship with the Company or any Affiliate of the Company, or (B) to otherwise provide his, her or its business to any person, company, partnership or other business entity which is engaged in any line of business in which the Company or any Affiliate of the Company is engaged; provided, however, that this provision shall apply only to customers, or prospective customers, that Participant had contact with while working on an actual or prospective project or assignment during the 180 days preceding Participant’s Termination of Employment.

 

To the extent Participant is required to repay any amounts previously paid from his or her Covered Compensation Account pursuant to this Section 3.6(b), such Participant shall promptly repay such amounts in full to the Company in a lump sum in cash.

 

(c)                                   The Plan Administrator may require a Participant to provide the Plan Administrator with a written certification or other evidence that the Plan Administrator deems appropriate, in its sole discretion, that the Participant has not engaged in the conduct described in Section 3.5(b)(i) or (ii) above.

 

(d)                                  Each Participant accepting Covered Compensation shall be deemed to agree that for a period of one (1) year following the Participant’s Termination of Employment with the Company and within a fifty (50) mile radius of any location where the Company is actively engaged in the business of refined petroleum product (A) terminaling or (B) transportation (collectively, the “Business”), or proposes to engage in the Business, on or prior to such Participant’s Termination of Employment:

 

(i)                                      Participant shall not, directly or indirectly, through one or more other persons or entities, engage in, or have any financial or other interests (whether as a principal, partner, shareholder, director, officer agent, employee, consultant or otherwise) (other than ownership of 1% or less of the outstanding stock of any corporation listed on the New York Stock Exchange, the American Stock Exchange or NASDAQ) in, or provide assistance to, any person, firm, corporation or business that engages in any activity which is the same as the Business.

 

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(ii)                                   Participant shall not solicit or attempt to solicit any of the Company’s customers, clients, members, vendors, licensees, lessees, business partners or suppliers, or otherwise interfere with any business relationship or contract between the Company and any of its customers, clients, members, vendors, licensees, lessees, business partners or suppliers.

 

(iii)                                Participant shall not solicit, induce, recruit or encourage any of the Company’s employees, independent contractors or consultants to terminate their relationship with the Company, or take away such employees, independent contractors or consultants, or attempt to solicit, induce, recruit, encourage or take away employees, independent contractors or consultants of the Company.

 

3.7                                Section 409A and No Guarantee of Tax Consequences.   The Administrator shall delay the payment of any benefits payable under this Plan to the extent necessary to comply with Section 409A(a)(2)(B)(i) of the Code (relating to payments made to certain “specified employees” of certain publicly-traded companies) and in such event, any such amount to which a Participant would otherwise be entitled during the six (6) month period immediately following his or her separation from service will be paid on the first Business Day following the expiration of such six (6) month period.  Each payment or amount due to a Participant under this Plan shall be considered a separate payment, and a Participant’s entitlement to a series of payments under this Plan is to be treated as an entitlement to a series of separate payments.  This Plan is intended to comply with or otherwise be exempt from the provisions of Code Section 409A and shall be interpreted consistent with such intention, and the Company reserves the right (but shall have no obligation) to amend the Plan in its discretion in order to make the Plan comply with Code Section 409A.   None of the Board, the Company, the Partnership or the General Partner makes any representation or guarantee that the benefits provided under the Plan will comply with Code Section 409A or that any particular federal, state, local or other tax treatment will (or will not) apply or be available to any Participant or other Person or makes any undertaking to prevent Code Section 409A from applying to the benefits provided under the Plan or to mitigate its effects on any deferrals or payments made under the Plan or assumes any liability with respect to any tax or associated liabilities to which any Participant or other Person may be subject.

 

ARTICLE 4

 

Amendment and Termination of Plan

 

4.1                                Amendment, Suspension, and Early Termination.   The Administrator shall have the authority, in its discretion, to amend, alter, suspend, discontinue or terminate the Plan in any manner at any time for any reason or for no reason without the consent of any Participant.  The Administrator shall notify Participants of any amendment, suspension or early termination of the Plan as soon as administratively possible after such amendment, alteration, suspension, discontinuation or early termination.

 

4.2                                Termination of the Plan.  The Plan shall terminate on the date when no Participant (or Beneficiary) has any right to or expectation of payment of benefits under the Plan.

 

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ARTICLE 5

 

Administration

 

5.1                                Administration.  The Administrator shall administer the Plan and interpret, construe and apply its provisions in accordance with its terms and otherwise in accordance with the administration provisions set forth in Section 3 of the LTIP, including the delegation provisions set forth in Section 3(b) thereof.  The Administrator shall further establish, adopt or revise such rules and regulations as it may deem necessary or advisable for the administration of the Plan.  All decisions of the Administrator shall be final and binding, subject only to a determination otherwise by the Administrator.

 

5.2                                Delegation of Authority .  As of the Effective Date and until such time as the Board shall determine to revoke this delegation, the Board hereby delegates its authority as the Administrator of the Plan to the board of managers of the Company (the “Company Board”), subject to the limitations set forth in Section 3(b) of the LTIP, provided, however, that (i) the Board shall also have the authority in its sole discretion to exercise any and all rights and duties of the Administrator under the Plan and (ii) the Board may request from time to time that all awards of Covered Compensation granted by the Company Board be made subject to prior approval or ratification by the Board.

 

5.3                                No Liability.  The Administrator shall not be liable for any determination, decision, or action made in good faith with respect to the Plan.  The Company will indemnify, defend and hold harmless the Administrator from and against any and all liabilities, costs, and expenses incurred by such person(s) as a result of any act, or omission, in connection with the performance of such person’s duties, responsibilities, and obligations under the Plan, other than such liabilities, costs, and expenses as may result from the bad faith, gross misconduct, breach of fiduciary duty, failure to follow the lawful instructions of the Administrator or criminal acts of such persons.

 

ARTICLE 6

 

Conditions Related to Benefits

 

6.1                                Nonassignability.  The compensation and benefits provided under the Plan may not be alienated, assigned, transferred, pledged, encumbered or hypothecated by any person, at any time, or to any person whatsoever.  Such amounts shall be exempt from the claims of creditors or other claimants of the Participant or Beneficiary and from all orders, decrees, levies, garnishment or executions to the fullest extent allowed by law.

 

6.2                                No Right to Company Assets.  Covered Compensation paid under the Plan shall be paid from the general funds of the Company, and the Participant and any Beneficiary shall be no more than unsecured general creditors of the Company with no special or prior right to any assets of the Company for payment of any obligations hereunder.  The Plan shall not be deemed to confer any legal rights or benefits on a Participant until payment of Covered Compensation is authorized by the Administrator.

 

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6.3                                Trust.  At its discretion, the Company may establish one or more grantor trusts for the purpose of providing for payment of Covered Compensation under the Plan.  Such trust or trusts may be irrevocable, but the assets thereof shall be subject to the claims of the Company’s and its Affiliates’ creditors.  Amounts paid to the Participant or the Participant’s Beneficiary from any such trust or trusts shall be considered paid by the Company for purposes of meeting the obligations of the Company under the Plan.

 

ARTICLE 7

 

Miscellaneous

 

7.1                                Incorporation of the LTIP . This Plan is subject to the terms and conditions set forth in the LTIP, which is incorporated herein by reference, and is intended to constitute a “Program” (as defined in the LTIP) under the LTIP.  In the event of any inconsistency between this Plan and the LTIP, the terms of the LTIP will control.  For the avoidance of doubt, in no event will any Partnership common units be issued in respect of any awards of Covered Compensation unless and until the unitholder approval described in Section 9 of the LTIP has been obtained.  The Administrator may delay any payment to be made hereunder as the Administrator may determine appropriate with respect to complying with the preceding sentence unless (i) such payment is with respect to an amount that constitutes “non-qualified deferred compensation” within the meaning of Section 409A or (ii) such delay would cause the amount to become “non-qualified deferred compensation” within the meaning of Section 409A.  Notwithstanding anything to the contrary in this Plan, nothing in this Plan is intended to or shall change the time of payment with respect to any Assumed Award as compared to the time of payment provided under the terms of the applicable Assumed Award.  The terms of the Predecessor Plan shall control, in all respects, for purposes of determining the time of payment with respect to any Assumed Award.

 

7.2                                Successors of the Company.  The rights and obligations of the Company under the Plan shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company.

 

7.3                                Employment or Other Service Not Guaranteed.  Nothing contained in the Plan nor any action taken hereunder shall be construed as a contract of employment or for other service with the Company or any Affiliate of the Company, as amending or modifying any term or condition of a Participant’s written employment agreement with the Company or any Affiliate of the Company (if any such agreement is in effect, now or in the future) or as giving any Participant any right to continued employment with or other service to the Company or any Affiliate of the Company.

 

7.4                                Gender, Singular and Plural.  All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, or neuter, as the identity of the person or persons may require.  As the context may require, the singular may be read as the plural and the plural as the singular.

 

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7.5                                Captions.  The captions of the Articles and paragraphs of the Plan are for convenience only and shall not control or affect the meaning or construction of any of its provisions.

 

7.6                                Validity.  In the event any provision of the Plan is held invalid, void or unenforceable, the same shall not affect, in any respect whatsoever, the validity of any other provisions of the Plan.

 

7.7                                Waiver of Breach.  The waiver by the Company of any breach of any provision of the Plan shall not operate or be construed as a waiver of any subsequent breach.

 

7.8                                Notice.  Any notice or filing required or permitted to be given to the Company, the Participant or a Participant’s Beneficiary under the Plan shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, in the case of the Company, to the principal office of the Company, directed to the attention of the Administrator, and in the case of the Participant or a Participant’s Beneficiary, to the last known address of the Participant or a Participant’s Beneficiary indicated on the records of the Company.  Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification.

 

7.9                                No Effect on Retirement or Other Benefits.  Except as specifically provided in a retirement or other benefit plan of the Company, or any Affiliate of the Company, amounts payable under the Plan shall not be deemed compensation for purposes of computing benefits or contributions under any other compensatory or retirement plan of the Company, or any Affiliate of the Company, and shall not affect any benefits under any other benefit plan of any kind or any benefit plan subsequently instituted by the Company under which the availability or amount of benefits is related to level of compensation, except as otherwise determined by the Administrator; provided, however, that nothing in this Section 7.9 or any other provision of the Plan shall be construed to prevent payments under the Plan from being treated as compensation under any 401(k) plan maintained by the Company or any Affiliate of the Company would otherwise treat payments under the Plan as compensation.

 

7.10                         Applicable Law.  With respect to matters that are not addressed directly under the terms of the LTIP, this Plan is to be construed in accordance with and governed by the internal laws of the State of Colorado without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Colorado to the rights and duties of the parties.  Matters that are addressed directly under the terms of the LTIP shall be governed in accordance with Section 8(h) of the LTIP.

 

7.11                         Dispute Resolution.   Each Participant accepting Covered Compensation shall be deemed to agree that this Section 7.11 shall be the exclusive means for resolving any dispute arising out of or relating to the Plan.  The Participant and the Company shall attempt in good faith to resolve any disputes arising out of or relating to the Plan by negotiation between individuals who have authority to settle the controversy.  Negotiations shall be commenced by either party by providing notice of a written statement of the party’s position (the “Initiating Notice”) and the name, title, mailing address, telephone number, and e-mail address of the individual who will represent the party.  Within fifteen (15) days of receipt of the Initiating

 

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Notice, the other party shall provide the initiating party a written statement of its position.  Within fifty (50) days of the exchange of written notifications, the parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to resolve the dispute.  If the dispute has not been resolved by negotiation within ninety (90) days of the date of receipt of the Initiating Notice, the parties agree that any dispute or other matter in question of any kind arising out of or relating to the Plan shall be settled by binding, mandatory arbitration in Colorado to be conducted by a single, neutral arbitrator mutually acceptable to the parties in accordance with the American Arbitration Association’s National Rules for Employment Disputes.  The parties shall have the right to conduct discovery which provides them with access to documents and witnesses that are essential to the dispute, as determined by the arbitrator.  The parties agree that the arbitrator shall have no authority to vary the terms of the Plan or to award any punitive, consequential, incidental, indirect or special damages, interest, fees or expenses.  The arbitrator’s written award shall include the essential findings and conclusions upon which the award is based.  The decision of the arbitrator shall be final and may be enforced in any court of competent jurisdiction.  In no event shall a demand for arbitration be made after the date when the applicable statute of limitations would bar the institution of a legal or equitable proceeding based on such claim, dispute or other matter in question.  The parties shall bear their own attorneys’ fees and other costs arising under this Section 7.11 except as otherwise required by law, and shall share equally in the cost of the arbitrator.

 

7.12                         Modification and Severability.   If any restriction set forth in this Plan is found by any court of competent jurisdiction, or an arbitrator appointed under the terms of this Plan, to be unenforceable because it is too broad, or extends for too long a period of time, or over too great a range of activities, or in too broad a geographic area, it shall be modified by the court or arbitrator and interpreted to extend only over the maximum scope, period of time, range of activities or geographic area as to which it may be enforceable.  If any provision of this Plan, or application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction, or an arbitrator appointed under the terms of this Plan, to be invalid, unenforceable, or void, the remainder of this Plan and such provisions as applied to other persons, places and circumstances shall remain in full force and effect.

 

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TLP MANAGEMENT SERVICES LLC

SAVINGS AND RETENTION PLAN

 

APPENDIX A

 

Investment Funds

 

1.                                       Fixed Interest Fund.   Amounts deemed to be invested in this Fund with respect to a Participant will accrue interest at a fixed rate to be determined annually by the Administrator.  For all Covered Compensation Awards granted under the Plan, the interest rate shall be 5%, unless otherwise set forth in the award.

 

2.                                       Dodge & Cox Income Fund .  Amounts deemed to be invested in this Fund with respect to a Participant will be treated as though invested in the Dodge & Cox Income Fund, which is an open-end fund incorporated in the USA.  The Fund’s objective is a high and stable rate of current income, consistent with long-term preservation of capital.  The Fund invests primarily in a diversified portfolio of high-quality bonds and other fixed-income securities, including US government obligations, mortgage and asset-backed securities and corporate bonds.

 

3.                                       TransMontaigne Partners Common Units Fund.   Amounts deemed to be invested in this Fund with respect to a Participant will be treated as though invested in TransMontaigne Partners L. P. Common Units (NYSE:  TLP), and as though all distributions paid on such Common Units are re-invested in TransMontaigne Partners L.P. Common Units.

 

4.                                       Equity Index Fund.   Amounts deemed to be invested in this Fund with respect to a Participant will be treated as though invested in the SPDR Trust Series 1 (AMEX:  SPY) (which has an investment goal of tracking the performance of the Standard & Poors 500 Index), or such other equity index as the Administrator may from time to time select, and calculated based on the reported value of such index in The Wall Street Journal , or such other source as the Administrator deems reliable.

 

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TLP MANAGEMENT SERVICES LLC

SAVINGS AND RETENTION PLAN

 

APPENDIX B

 

BENEFICIARY DESIGNATION FORM

 

Participant’s Name:

 

Spouse’s Name (if any):

 

Address:

 

In the event of my death prior to the payment of all or any portion of my Covered Compensation, and in lieu of disposing of my interest in the Covered Compensation by my will or the laws of intestate succession, I hereby designate the following persons as Primary Beneficiary(ies) and Contingent Beneficiary(ies) of my interest in the Covered Compensation (please attach additional sheets if necessary):

 

		Primary Beneficiary(ies) (Select only one of the three alternatives)
		o  (a)   Individuals and/or Charities		% Share
1)		Name
		Address
2)		Name
		Address
3)		Name
		Address
4)		Name
		Address
		o  (b)   Residuary Testamentary Trust
		In trust, to the trustee of the trust named as the beneficiary of the residue of my probate estate.

 

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o   (c)   Living Trust

 

		The			Trust, dated
			(print name of trust)			(fill in date trust was established)

 

		Contingent Beneficiary(ies) (Select only one of the three alternatives)
		o   (a)   Individuals and/or Charities		% Share
1)		Name
		Address
2)		Name
		Address
3)		Name
		Address
4)		Name
		Address
		o   (b)   Residuary Testamentary Trust
		In trust, to the trustee of the trust named as the beneficiary of the residue of my probate estate.

 

o   (c)   Living Trust

 

		The			Trust, dated
			(print name of trust)			(fill in date trust was established)

 

Should all the individual Primary Beneficiary(ies) fail to survive me or if the trust named as the Primary Beneficiary does not exist at my death (or no will of mine containing a residuary trust is admitted to probate within six months of my death), the Contingent Beneficiary(ies) shall be entitled to my interest in the Covered Compensation in the shares indicated.  Should any

 

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individual beneficiary fail to survive me or a charity named as a beneficiary no longer exists at my death, such beneficiary’s share shall be divided among the remaining named Primary or Contingent Beneficiaries, as appropriate, in proportion to the percentage shares I have allocated to them.  This beneficiary designation is effective until I file another such designation with the Administrator and such designation is acknowledged by the Administrator during my lifetime.  Any previous beneficiary designations are hereby revoked.

 

Submitted by:			Accepted by:
o   Participant o   Participant’s Spouse
			By:
(Signature)
			Its:
Date:			Date:

 

Spousal Consent (alternative to separate designation by spouse):

 

I hereby consent to the beneficiary designation contained herein and agree that the designation of beneficiaries provided herein shall apply to my community property interest in any Covered Compensation payable to my spouse in connection with his or her employment with the Company or any Affiliate of the Company.

 

(Signature of Spouse)
Date:

 

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TLP MANAGEMENT SERVICES LLC

SAVINGS AND RETENTION PLAN

 

APPENDIX C

 

INVESTMENT DIRECTION

 

The undersigned Participant by execution and submittal to the Administrator of this Investment Direction form hereby recommends that the portions of Participant’s Covered Compensation Account in the Plan with respect to the [date of award] Grant Date be deemed to be invested in the Investment Fund(s) listed below in accordance with the percentages indicated opposite each Investment Fund(s).

 

INVESTMENT		Percentage
Fixed Interest Fund			%
Dodge & Cox Income Fund			%
TransMontaigne Partners L.P. Common Units Fund			%
Equity Index Fund			%
		100	%

 

	Participant:
	Signature:
	Date:

 

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TLP MANAGEMENT SERVICES LLC

SAVINGS AND RETENTION PLAN

 

APPENDIX D

 

LEGAL RELEASE

 

This Legal Release (the “Agreement”) is executed by undersigned employee (“Employee”) for the benefit of TLP Management Services LLC, its subsidiaries, affiliates and predecessors, and their respective officers, directors, employees, agents, equityholders, representatives and insurers (collectively “TransMontaigne” or the “Company”).  References herein to “you” and “your” and other similar references refer to the Employee.

 

1.                                       You acknowledge that you have read and understand the TLP Management Services LLC Savings and Retention Plan (the “Plan”).

 

2.                                       You agree that you wish to receive the payment of the vested portion(s) of your Covered Compensation Account(s) described in the Plan (the “Vested Benefits”), that your decision to do so is entirely voluntary, that you have not been pressured into accepting the Vested Benefits and that you have enough information about the Vested Benefits to decide whether to sign this Agreement.  If, for any reason, you believe that your acceptance of the Vested Benefits is not entirely voluntary, or if you believe that you do not have enough information, then you should not sign this Agreement.

 

3.                                       You, for yourself, your heirs, personal representatives and assigns, and any other person or entity that could or might act on behalf of you, including, without limitation, your counsel (all of whom are collectively referred to as “Releasor”), hereby fully and forever release and discharge the Company and its present and future affiliates and subsidiaries, and each of their past, present and future officers, directors, employees, shareholders, independent contractors, attorneys, insurers and any and all other persons or entities that are now or may become liable to Releasor due to any act or omission of such person or entity (all of whom are collectively referred to as “Releasees”) of and from any and all actions, causes of action, claims, demands, costs and expenses, including attorneys’ fees, of every kind and nature whatsoever, in law or in equity, whether now known or unknown, that Releasor, or any person acting under or on behalf of Releasor, may now have, or claim at any future time to have, based in whole or in part upon any act or omission occurring on or before the date of execution and delivery of this Agreement to the Company, in any way relating to your employment with TLP Management Services LLC or any of its Affiliates, as that term is defined in the Plan, including your separation from employment, if applicable, except your rights to the Vested Benefits provided pursuant to the Plan, your vested rights, if any, in any Company-sponsored retirement savings plan, and your COBRA, unemployment compensation and workers compensation rights, if any. Such release is made without regard to present actual knowledge of such acts or omissions, including specifically, but not by way of limitation, matters which may arise at common law, such as breach of contract, express or implied, promissory estoppel, wrongful discharge, tortious interference with contractual rights, infliction of emotional distress, defamation, or under all federal, state or local laws that protect employees from discrimination in employment on the basis of sex, race, national origin, religion, disability and age, such as the Fair Labor Standards

 

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Act, the Employee Retirement Income Security Act, the National Labor Relations Act, Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1987, the Rehabilitation Act of 1973, the Equal Pay Act, the Americans With Disabilities Act, and the Family and Medical Leave Act, the Workers Adjustment and Retraining Notification Act (“WARN”); EXCEPT for the rights and obligations created by this Agreement.  You agree that you have had a full and fair opportunity to consult with an attorney of your choosing concerning the agreements and representations set forth in the previous sentence and all other provisions of this Agreement.

 

You understand and agree that by signing this Agreement you are giving up your right to bring any legal claim against the Company concerning, directly or indirectly, your employment relationship with the Company, including your separation from employment, if applicable.  You agree that this legal release is intended to be interpreted in the broadest possible manner in favor of the Company, to include all actual or potential legal claims that you may have against the Company, except as specifically provided otherwise in this Agreement. You further agree that if you bring any kind of legal claim against the Company that you have released and discharged by signing this Agreement, then you will be in violation of this Agreement and must pay all legal fees and other costs and expenses incurred by the Company in defending against any such claim.

 

4.                                       You agree that the Vested Benefits that you are accepting by signing this Agreement have value to you, that you would not be entitled to the Vested Benefits without signing this Agreement, that you will receive the Vested Benefits in exchange for the benefit to TransMontaigne from your signing this Agreement, and that TransMontaigne will withhold from the Vested Benefits all applicable federal, state and local taxes.

 

5.                                       You agree that the only benefit you are to receive by signing this Agreement are the Vested Benefits, and that in signing this Agreement you did not rely on any information, oral or written, from anyone, including your supervisor, other than the information contained in the Plan.

 

6.                                       You represent that you have not previously assigned or transferred any of the legal rights and claims that you have given up by signing this Agreement, and you agree that this Agreement also binds all persons who might assert a legal right or claim on your behalf, such as your heirs, personal representatives and assigns, now and in the future.

 

7.                                       You agree that:  (a) this Agreement constitutes the entire agreement between you and TransMontaigne, without regard to any other oral or written information that you may have received about this Agreement; (b) if any part of this Agreement is declared to be unenforceable, all other provisions of this Agreement shall remain enforceable; and (c) this Agreement shall be governed by federal law and by the internal laws of the State of Colorado, irrespective of the choice of law rules of any jurisdiction.

 

8.                                       You agree and acknowledge that you: (i) understand the language used in this Agreement and the Agreement’s legal effect; (ii) understand that by signing this Agreement you are giving up the right to sue the Company for age discrimination; (iii) will receive compensation under this Agreement to which you would not otherwise have been entitled without signing this

 

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Agreement; (iv) have been advised by the Company to consult with an attorney before signing this Agreement; and (v) were given no less than forty-five (45) calendar days to consider whether to sign this Agreement. During such forty-five (45) calendar day period, you, in considering whether to sign this Agreement, may wish to review the terms of the Vested Benefits set forth herein.

 

For a period of seven (7) calendar days after the signing of this Agreement, you may, in your sole discretion, rescind this Agreement by delivering a written notice of revocation to the Company by delivering a written revocation statement to Michael A. Hammell, Executive Vice President, General Counsel and Secretary, at 1670 Broadway, Suite 3100, Denver, Colorado 80202. If you rescind this Agreement within seven (7) calendar days after the signing date, this Agreement shall be void, all actions taken pursuant to this Agreement shall be reversed, and neither this Agreement, nor the facts of or circumstances surrounding its execution shall be admissible for any purpose whatsoever in any proceeding between the parties, except in connection with a claim or defense involving the validity or effective rescission of this Agreement.  If you do not rescind this Agreement within seven (7) calendar days after the signing date, this Agreement shall become final and binding and shall be irrevocable.

 

Acknowledgment

 

By signing below, you acknowledge that you have read and understand this Agreement and understand that it is a legally binding document that may affect your legal rights, and that you have been advised to consult a lawyer of your choosing before signing this Agreement and have had an opportunity to do so.

 

 

Signed:
Print name:
Date:

 

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