As filed with the Securities and Exchange Commission on October 31, 2016 (Registration No. 333-_______)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
EV Energy Partners, L.P.
(Exact name of registrant as specified in its charter)
| Delaware | 20-4745690 |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
1001 Fannin Street, Suite 800, Houston, Texas, 77002
(Address of Principal Executive Offices)
EV Energy Partners, L.P.
2016 Long-Term Incentive Plan
(Full title of the plan)
|
Michael E. Mercer 1001 Fannin Street, Suite 800 Houston, Texas 77002 (Name and address of agent for service) |
Copies to: Kendall Hollrah Haynes and Boone, LLP 1221 McKinney Street, Suite 2100 Houston, Texas 77010 |
(713) 651-1144
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “accelerated filer,” “large accelerated filer” and “smaller reporting company” in Rule 12b–2 of the Exchange Act. Check one:
| Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
|
Title of securities
to be registered |
Amount to be
registered (1)(2) |
Proposed maximum
offering price per unit (3) |
Proposed maximum
aggregate offering price |
Amount of
registration fee |
| Common Units representing limited partner interests | 5,000,000 | $1.96 | $9,800,000 | $1,135.82 |
|
(1)
|
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, there is also being registered such additional number of common units that become available under the plan because of events such as recapitalizations, stock dividends, stock splits or similar transactions effected without the receipt of consideration that increases the number of outstanding common units. |
| (2) | Represents common units reserved for issuance under the EV Energy Partners, L.P. 2016 Long-Term Incentive Plan. |
| (3) | Estimated solely for purposes of calculating the registration fee for such units in accordance with Rules 457(c) and (h) under the Securities Act. The price for the 5,000,000 common units being registered hereby is based on the average of the high and low sales prices of the common units as reported on the NASDAQ Global Select Market on October 31, 2016. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the EV Energy Partners, L.P. 2016 Long-Term Incentive Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be, and have not been, filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement (“Registration Statement”) or as prospectuses or prospectus supplements pursuant to Securities Act Rule 424. These documents, which include the statement of availability required by Item 2 of Form S-8 and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, EV Energy Partners L.P. (the “Partnership”) incorporates by reference in this Registration Statement the following documents and information, which previously have been filed with the Commission and are made a part hereof:
| (a) | The Partnership’s Annual Report on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on February 29, 2016; |
| (b) | The Partnership’s Quarterly Reports on Form 10-Q filed with the Commission on May 10, 2016 and August 9, 2016; and the Partnership’s Current Reports on Form 8-K filed with the Commission on April 4, 2016 and September 1, 2016; and |
| (c) | The description of the Partnership’s common units contained in the Partnership’s Registration Statement on Form 8-A filed with the Commission on September 15, 2006, and Forms 8-A/A filed with the Commission on September 20, 2006 and October 17, 2013, pursuant to Section 12(b) of the Exchange Act, and any amendment or report filed for the purpose of updating that description. |
In addition, all documents filed with the Commission by the Partnership pursuant to Sections 13(a), 13(c), 14 or15(d) of the Exchange Act (excluding any information furnished pursuant to Item 2.02 and Item 7.01 on any current report on Form 8-K) subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the dates of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act empowers a Delaware limited partnership to indemnify and hold harmless any partner or other person from and against any and all claims and demands whatsoever. Section 7.7(a) of the First Amended and Restated Agreement of Limited Partnership (the “Agreement”) of the Partnership provides that to the fullest extent permitted by law but subject to the limitations expressly provided in the Agreement, (a) EV Energy GP, L.P., and its successors and permitted assigns that are admitted to the Partnership as general partner of the Partnership, in its capacity as general partner of the Partnership (the “General Partner”), (b) any former General Partner from and after the effective date of any withdrawal or removal of such former General Partner (the “Departing General Partner”), (c) any person who is or was an affiliate of the General Partner or any Departing General Partner, (d) the EnCap Energy Capital Fund V, L.P., and EnCap V-B Acquisitions, L.P., (the “EnCap Partnerships”) and any person who is or was an affiliate of the EnCap Partnerships (e) any person who is or was a member, partner, director, officer, fiduciary or trustee of any member of the Partnership and its subsidiaries treated as a single consolidated entity (the “Group Member”), the General Partner or any Departing General Partner or any affiliate of any Group Member, the General Partner or any Departing General Partner, (f) any person who is or was serving at the request of the General Partner or any Departing General Partner or any affiliate of the General Partner or any Departing General Partner as an officer, director, member, partner, fiduciary or trustee of another person; provided that a person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, and (g) any person the General Partner designates as an “Indemnitee” for purposes of the Agreement (collectively the “Indemnitees”), shall be indemnified and held harmless by the Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to Section 7.7 of the Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; provided, further, no indemnification pursuant to Section 7.7. of the Agreement shall be available to the General Partner or its affiliates (other than a Group Member) with respect to its or their obligations incurred pursuant to the Underwriting Agreement, the Omnibus Agreement or the Operating Agreement (other than obligations incurred by the General Partner on behalf of the Partnership). Any indemnification pursuant to Section 7.7 of the Agreement shall be made only out of the assets of the Partnership, it being agreed that the General Partner shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate such indemnification.
Section 7.7(b) of the Agreement also states that to the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7.7(a) of the Agreement in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior to a determination that the Indemnitee is not entitled to be indemnified upon receipt by the Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be determined that the Indemnitee is not entitled to be indemnified as authorized in Section 7.7 of the Agreement.
Section 7.7(d) of the Agreement also provides that the Partnership may purchase and maintain (or reimburse the General Partner or its affiliates for the cost of) insurance, on behalf of the General Partner, its affiliates and such other persons as the General Partner shall determine, against any liability that may be asserted against, or expense that may be incurred by, such person in connection with the Partnership’s activities or such person’s activities on behalf of the Partnership, regardless of whether the Partnership would have the power to indemnify such person against such liability under the provisions of this Agreement.
Section 7.8(a) of the Agreement provides that no Indemnitee shall be liable for monetary damages to the Partnership, the limited partners of the Partnership, or any other persons who have acquired interests in any class or series of equity interest in the Partnership (but excluding any options, rights, warrants and appreciation rights relating to an equity interest in the Partnership), for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.
Reference is made to Item 9 for the Partnership’s undertakings with respect to indemnification for liabilities arising under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Unless otherwise indicated below as being incorporated by reference to another filing of the Partnership with the Commission, each of the following exhibits is filed herewith:
| Exhibit Number |
Description
|
| 4.1 |
First Amended and Restated Agreement of Limited Partnership of EV Energy Partners, L.P. (incorporated by reference to Exhibit 3.1 of the Partnership’s current report on Form 8-K filed with the Commission on October 5, 2006).
|
| 4.2 |
First Amended and Restated Agreement of Limited Partnership of EV Energy GP, L.P. (incorporated by reference to Exhibit 3.2 of the Partnership’s current report on Form 8-K filed with the Commission on October 5, 2006).
|
| 4.3 |
Amended and Restated Limited Liability Company Agreement of EV Management, LLC (incorporated by reference to Exhibit 3.3 of the Partnership’s current report on Form 8-K filed with the Commission on October 5, 2006).
|
| 4.4 |
First Amendment dated April 15, 2008 to First Amended and Restated Partnership Agreement of EV Energy Partners, L.P., effective as of January 1, 2007 (incorporated by reference from Exhibit 3.1 to EV Energy Partners, L.P.’s current report on Form 8–K filed with the Commission on April 18, 2008).
|
| 4.5 |
2016 Long-Term Incentive Plan (incorporated by reference to Exhibit A of the Partnership’s Definitive Proxy Statement on Form DEF 14A filed with the Commission on July 20, 2016).
|
| 5.1* |
Opinion of Haynes and Boone, LLP as to the legality of the securities being registered.
|
| 10.1* |
Form of Grant of Phantom Units
|
| 23.1* |
Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.
|
| 23.2* |
Consent of Cawley, Gillespie & Associates, Inc.
|
| 23.3* |
Consent of Wright & Company, Inc.
|
| 23.4* |
Consent of Haynes and Boone, LLP (contained in Exhibit 5.1).
|
| 24.1* |
Powers of Attorney (included on the signature page to this Registration Statement).
|
* Filed herewith.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
Provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions described under Item 6 above, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment of the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on October 31, 2016.
| EV ENERGY PARTNERS, L.P. | ||
| By: | EV Energy GP, L.P., its general partner | |
| By: | EV Management, LLC, its general partner | |
| By: | /s/ Nicholas P. Bobrowski | |
| Nicholas P. Bobrowski | ||
| Senior Vice President and Chief Financial Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Michael E. Mercer and Nicholas P. Bobrowski, and each of them severally, each of whom may act without the joinder of the other, as his true and lawful attorney-in-fact and agents, with full power of substitution and re-substitution, for him and on his behalf and in his name, place and stead, in any and all capacities, to execute any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, including, without limitation, additional registration statements filed pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Commission, granting unto said attorney-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same, as fully and to all intents and purposes as he might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or his or their substitute or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature | Title with EV Management, LLC | Date | ||
| /s/ John B Walker | Executive Chairman | October 31, 2016 | ||
| John B. Walker | (principal executive officer) | |||
| /s/ Michael E. Mercer | Director, Chief Executive Officer and President | October 31, 2016 | ||
| Michael E. Mercer | (principal executive officer) | |||
| /s/ Nicholas P. Bobrowski | Senior Vice President and Chief Financial Officer | October 31, 2016 | ||
| Nicholas P. Bobrowski | (principal financial officer) | |||
| /s/ Ryan Flory | Controller | October 31, 2016 | ||
| Ryan Flory | (principal accounting officer) | |||
| /s/ Victor Burk | Director | October 31, 2016 | ||
| Victor Burk | ||||
| /s/ Mark A. Houser | Director | October 31, 2016 | ||
| Mark A. Houser | ||||
| /s/ James R. Larson | Director | October 31, 2016 | ||
| James R. Larson | ||||
| /s/ George Lindahl, III | Director | October 31, 2016 | ||
| George Lindahl, III | ||||
| /s/ Kenneth Mariani | Director | October 31, 2016 | ||
| Kenneth Mariani | ||||
| /s/ Gary R. Petersen | Director | October 31, 2016 | ||
| Gary R. Petersen |
Exhibit Index
| Exhibit Number |
Description
|
| 4.1 |
First Amended and Restated Agreement of Limited Partnership of EV Energy Partners, L.P. (incorporated by reference to Exhibit 3.1 of the Partnership’s current report on Form 8-K filed with the Commission on October 5, 2006).
|
| 4.2 |
First Amended and Restated Agreement of Limited Partnership of EV Energy GP, L.P. (incorporated by reference to Exhibit 3.2 of the Partnership’s current report on Form 8-K filed with the Commission on October 5, 2006).
|
| 4.3 |
Amended and Restated Limited Liability Company Agreement of EV Management, LLC (incorporated by reference to Exhibit 3. of the Partnership’s current report on Form 8-K filed with the Commission on October 5, 2006).
|
| 4.4 |
First Amendment dated April 15, 2008 to First Amended and Restated Partnership Agreement of EV Energy Partners, L.P., effective as of January 1, 2007 (incorporated by reference from Exhibit 3.1 to EV Energy Partners, L.P.’s current report on Form 8–K filed with the Commission on April 18, 2008).
|
| 4.5 |
2016 Long-Term Incentive Plan (incorporated by reference to Exhibit A of the Partnership’s Definitive Proxy Statement on Form DEF 14A filed with the Commission on July 20, 2016).
|
| 5.1* |
Opinion of Haynes and Boone, LLP as to the legality of the securities being registered.
|
| 10.1* |
Form of Grant of Phantom Units
|
| 23.1* |
Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.
|
|
23.2*
|
Consent of Cawley, Gillespie & Associates, Inc.
|
| 23.3* |
Consent of Wright & Company, Inc.
|
| 23.4* |
Consent of Haynes and Boone, LLP (contained in Exhibit 5.1).
|
| 24.1* |
Powers of Attorney (included on the signature page to this Registration Statement).
|
* Filed herewith.
Exhibit 5.1
October 31, 2016
EV Energy Partners, L.P.
1001 Fannin Street, Suite 800
Houston, Texas 77002
Re: Registration Statement on Form S-8 of 5,000,000 Common Units of EV Energy Partners, L.P.
Ladies and Gentlemen:
We have acted as counsel to EV Energy Partners, L.P., a Delaware limited partnership (the “Partnership” ) in connection with the filing with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Securities Act ”) of a registration statement on Form S-8 (the “ Registration Statement ”) by the Partnership relating to the registration of 5,000,000 common units (the “Common Units” ) representing limited partner interests in the Partnership, issuable pursuant to the Partnership’s 2016 Long-Term Incentive Plan (the “Plan” ).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
For purposes of the opinions we express below, we have examined originals, or copies certified or otherwise identified of (a) the Plan, (b) the First Amended and Restated Agreement of Limited Partnership, as amended, of the Partnership (the “Partnership Agreement” ) and the Certificate of Limited Partnership of the Partnership, (c) the First Amended and Restated Agreement of Limited Partnership of EV Energy GP, L.P., a Delaware limited partnership and the general partner of the Partnership (the “General Partner” ) and the Certificate of Limited Partnership of the General Partnership, (d) the Amended and Restated Limited Liability Company Agreement of EV Management, LLC, a Delaware limited liability company and the general partner of the General Partner ( “Management” ), and the Certificate of Formation of Management, (e) the resolutions of the Board of Directors of Management (f) the Registration Statement and all exhibits thereto, (g) partnership and limited liability company records of the Partnership, the General Partner and Management, as applicable, (h) certificates of public officials and of officers or other representatives of the Partnership, the General Partner and Management and (i) such other records, instruments and documents as we have deemed relevant and necessary for purposes of the opinion stated herein.
As to questions of fact material to the opinions expressed below, we have, without independent verification of their accuracy, relied to the extent we deem reasonably appropriate upon the representations and warranties of the Partnership contained in such documents, records, certificates, instruments or representations furnished or made available to us by the Partnership.
|
EV Energy Partners, L.P. October 31, 2016 Page 2 |
In making the foregoing examination, we have assumed (i) the genuineness of all signatures, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to original documents of all documents submitted to us as certified or photostatic copies, (iv) that all agreements or instruments we have examined are the valid, binding and enforceable obligations of the parties thereto, and (v) that all factual information on which we have relied was accurate and complete.
We have not considered, and express no opinion herein as to, the laws of any state or jurisdiction other than the Delaware Revised Uniform Limited Partnership Act (the “ Act ”) and the Delaware Limited Liability Company Act (the “ LLC Act ”), both as currently in effect.
We have also assumed that, at the time of the issuance of the Common Units, (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and will remain effective, (ii) no stop order of the Commission preventing or suspending the use of the prospectus described in the Registration Statement will have been issued, (iii) the prospectus described in the Registration Statement and any required supplement thereof will have been delivered to the recipient of the Common Units as required in accordance with applicable law, (iv) the resolutions of the Board of Directors of Management referred to above will not have been modified or rescinded, (v) the Partnership will receive consideration for the issuance of the Common Units required by the Plan, (vi) all requirements of the Act, the LLC Act, the Partnership Agreement and the Certificate of Limited Partnership of the Partnership will be complied with when the Common Units are issued, (vii) sufficient Common Units will be authorized for issuance under the Partnership Agreement that have not otherwise been issued or reserved for issuance and (viii) the issuance of the Common Units will not result in a violation of any agreement or instrument then binding upon the Partnership or any order of any court or governmental body having jurisdiction over the Partnership.
Based on the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that upon the issuance of the Common Units in accordance with the terms of the Plan and the instruments executed pursuant to such Plan, the Common Units will be validly issued, fully paid and non-assessable.
|
EV Energy Partners, L.P. October 31, 2016 Page 3 |
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus constituting part of the Registration Statement. In giving this consent, we are not admitting that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Haynes and Boone, LLP
Exhibit 10.1
EV Energy Partners, L.P.
2016 Long-Term Incentive Plan
Phantom Units Award Agreement
| Grantee: | (“ Grantee ”) | |
| Grant Date: | (“ Grant Date ”) |
| 1. | Grant of Phantom Units. EV Management, LLC (the “Company” ) hereby grants to you _______________________ (___) Phantom Units (the “ Phantom Units ” ) under the EV Energy Partners, L.P. 2016 Long-Term Incentive Plan (the “Plan” ) on the terms and conditions set forth in this Agreement (the “Agreement ” ) and in the Plan, which is incorporated herein by this reference and included as a part of this Agreement. This grant of Phantom Units includes a tandem grant of DERs with respect to each Phantom Unit. In the event of any conflict between the terms of this Agreement and the Plan, the Plan shall control. Capitalized terms used in this Agreement but not defined herein shall have the meanings ascribed to such terms in the Plan or in the Definitions Appendix to this Agreement, unless the context requires otherwise. |
| 2. | Regular Vesting. Except as otherwise provided in Section 3 , the Phantom Units granted hereunder and any distributions made by the Company with respect to the Phantom Units shall vest as follows: |
| Vesting Date |
Cumulative
Vested Percentage |
|||
| January 15, 2018 | 25 | % | ||
| January 15, 2019 | 50 | % | ||
| January 15, 2020 | 75 | % | ||
| January 15, 2021 | 100 | % | ||
For each outstanding Phantom Unit, you shall be entitled to receive a payment equal to any cash distributions made by the Partnership on a Unit during the period that such Phantom Unit is outstanding; provided, however, that no amounts shall be payable to or for your benefit with respect to any record dates occurring (a) prior to the Grant Date, or (b) after the date, if any, on which you have forfeited the Phantom Unit for whatever reason.
| 3. | Events Occurring Prior to Regular Vesting. |
| (a) | Death or Disability . If your Service terminates as a result of your death or Disability, all of the unvested Phantom Units then held by you will automatically become 100% vested as of your termination date. |
| 1 |
| (b) | Involuntary Termination other than for Cause. If your Service is involuntarily terminated by the Company or its Affiliate for any reason other than for “Cause” (as defined in the Definitions Appendix), the unvested Phantom Units then held by you will automatically immediately vest in such amount as would have been vested as if you had remained in Service until the designated vesting date next following your termination date. |
| (c) | Other Terminations . Except as provided in Section 2 , if your Service is terminated for any reason other than as provided in Sections 3(a) and 3(b) above, all unvested Phantom Units held by you as of your termination date shall be forfeited, in their entirety, on such date without the payment of any amount or the necessity of any notice to you. |
| (d) | Change of Control . All outstanding unvested Phantom Units held by you will automatically become fully vested upon a Change of Control (as defined in the Definitions Appendix). |
| 4. | Payment. As soon as administratively practicable but not later than sixty (60) days following the vesting date, upon the vesting of a Phantom Unit, you shall be entitled to receive one Unit; provided, however, the Company has the right, in its sole discretion, to pay you an amount of cash equal to the Fair Market Value of the Unit on the vesting date (the “ Cash-Out Price ”) in lieu of issuing such Unit to you (the “ Cash-Out Right ”). In the event the Company elects to exercise its Cash-Out right with respect to any Phantom Unit upon vesting, the Company shall pay the Cash-Out Price (less any amount required by the Company or an Affiliate to meet its tax or other withholding obligations under the Plan or applicable law) to you within thirty (30) business days following such vesting date. |
| 5. | Limitations Upon Transfer. All rights under this Agreement shall belong to you alone and may not be transferred, assigned, pledged, or hypothecated by you in any way (whether by operation of law or otherwise), other than by will or the laws of descent and distribution, and shall not be subject to execution, attachment, or similar process. Upon any attempt by you to transfer, assign, pledge, hypothecate, or otherwise dispose of such rights in any manner that is contrary to the provisions in this Agreement or the Plan, or upon the levy of any attachment or similar process upon such rights, such rights shall immediately become null and void. |
| 6. | Restrictions. By accepting and executing this Agreement, you agree that any Units which you may acquire upon vesting of any of your Phantom Units cannot be sold or otherwise disposed of in any manner which would constitute a violation of any applicable federal or state securities law or regulations. You also agree that (a) the certificates representing the Units acquired under this Agreement may bear such legend or legends as the Committee deems appropriate in order to assure compliance with applicable securities laws, (b) the Company may refuse to register the transfer of the Units acquired under this Agreement on the transfer records of the Partnership if such proposed transfer would, in the opinion of counsel satisfactory to the Partnership, constitute a violation of any applicable securities law, and (c) the Partnership may give related instructions to its transfer agent, if any, to stop registration of the transfer of the Units to be acquired under this Agreement. |
| 2 |
| 7. | Withholding of Tax. To the extent that vesting of a Phantom Unit hereunder results in the receipt of compensation by you for which the Company or an Affiliate has a tax withholding obligation pursuant to applicable law or regulation, the tax withholding obligation shall be satisfied as prescribed in the Plan at such time. No issuance of an unrestricted Unit shall be made pursuant to this Agreement unless and until all tax withholding obligations have been fully satisfied. |
| 8. | Rights as Unitholder. You, or in the event of your death, your surviving spouse, estate, executor or other Person to whom your rights hereunder have transferred by will or via the laws of descent and distribution, shall have the right to vote and receive distributions on a Unit as well as all the other privileges of a unitholder of the Partnership only from the date of issuance of a Unit certificate. |
| 9. | Binding Effect. This Agreement shall be binding upon and inure to the benefit of any successor of the Company and upon any person lawfully claiming through or under you. |
| 10. | Amendment and Termination. Except as provided below, any amendment, modification or termination of this Agreement shall be effective only if it is in writing and signed by both you and an authorized officer of the Company on behalf of the Company. Notwithstanding anything in the Plan or this Agreement to the contrary, (a) if the Committee determines that the terms of this Agreement do not, in whole or in part, satisfy the requirements of Section 409A or an exemption thereunder, the Committee, in its discretion, may unilaterally modify this Agreement in such manner as it deems appropriate to comply with Section 409A, and (b) the Committee, in its discretion, may unilaterally modify this Agreement in any manner that does not materially reduce your benefit. |
| 11. | Plan Governs. Notwithstanding anything in this Agreement to the contrary, the terms of this Agreement shall be subject to the terms of the Plan, a copy of which may be obtained by you from the office of the Secretary of the Company. |
| 12. | Governing Law. This grant shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to conflicts of laws principles thereof. |
| 13. | Code Section 409A Compliance. This Agreement is intended to be drafted in a manner such that no compensation or other benefit provided under this Agreement becomes subject to (a) gross income inclusion under Section 409A or (b) interest and additional tax under Section 409A (collectively, “ Section 409A Penalties ”), including, where appropriate, the construction of defined terms to have meanings that would not cause the imposition of the Section 409A Penalties. |
| 14. | Miscellaneous. |
| (a) | Not an Employment Agreement . This Agreement is not an employment, consulting or other type of personal services agreement, and no provision of this Agreement shall be construed or interpreted to create any employment, consulting or other type of service relationship between you and the Company for any time period. |
| 3 |
| (b) | Notices . Any notice, instruction, authorization, request or demand required hereunder shall be in writing, and shall be delivered either by personal delivery, telecopy or similar facsimile means, by certified or registered mail, return receipt requested, or by courier or delivery service, addressed to the Company at its then current main corporate address, and to Grantee at the address indicated on the Company’s records, or at such other address as a party has previously designated by written notice given to the other party in the manner hereinabove set forth. Notices shall be deemed given when received, if sent by facsimile means (confirmation of such receipt by confirmed facsimile transmission being deemed receipt of communications sent by facsimile means); and when delivered and receipted for (or upon the date of attempted delivery where delivery is refused), if hand-delivered, sent by express courier or delivery service, or sent by certified or registered mail, return receipt requested. |
| (c) | Waiver . Any waiver of the terms or conditions hereof shall be made only by a written instrument executed and delivered by the party waiving compliance. Any waiver granted by the Company shall be effective only if executed and delivered by a duly authorized executive officer of the Company other than Grantee. The failure of any party at any time or times to require performance of any provisions hereof shall in no manner affect the right to enforce the same. |
| (d) | Severability . It is the desire of the parties hereto that this Agreement be enforced to the full extent permitted by law, and should any provision contained herein be held unenforceable by a court of competent jurisdiction, the parties hereby agree that such provision shall be reformed to the minimum extent necessary to create a valid and enforceable provision; provided, however, if such provision cannot be reformed, it shall be deemed ineffective and deleted herefrom without affecting any other provision of this Agreement. |
| (e) | Governing Law; Jurisdiction . All matters or issues relating to the interpretation, construction, validity, and enforcement of this Agreement shall be governed by the laws of the State of Delaware, without giving effect to any choice-of-law principle that would cause the application of the laws of any jurisdiction other than Delaware. Jurisdiction and venue of any action or proceeding relating to this Agreement shall be exclusively in the federal and state courts of competent jurisdiction located in Harris County, Texas, and the parties hereto waive any objection to such venue and jurisdiction including, without limitation, that it is inconvenient. |
| (f) | Grantee’s Acknowledgment . You represent and acknowledge that (i) you are knowledgeable and sophisticated as to business matters, including the subject matter of this Agreement, (ii) you have read this Agreement, understand its terms and conditions, and have been given sufficient opportunity to discuss this Agreement with legal counsel of your choice, if so desired, prior to execution of this Agreement, and (iii) no strict rules of construction shall apply for or against the drafter of the Agreement or any other party. |
| 4 |
| (g) | Successors and Assigns . This Agreement shall bind, be enforceable by, and inure to the benefit of, the Company and Grantee and their permitted successors and assigns as determined under the terms of the Plan. |
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement, effective as of the Grant Date first above written.
| EV Management, LLC | |||
| By: | |||
| Name: Michael E. Mercer | |||
| Title: President and Chief Executive Officer | |||
| Date: | |||
| Grantee : | |||
| Signature: | |||
| Name: | |||
| Date: | |||
[Definitions Appendix follows.]
| 5 |
Definitions Appendix
| 1. | Cause . “Cause” means: (i) the willful breach or habitual neglect of assigned duties related to the Company or its Affiliate, including the willful failure to comply with policies of the Company or its Affiliate; (ii) conviction (including any plea of nolo contendere ) of Grantee of any felony or crime involving dishonesty or moral turpitude; (iii) any act of personal dishonesty knowingly taken by Grantee in connection with responsibilities as an Employee and intended to result in personal enrichment of Grantee or any other Person; (iv) bad faith conduct that is materially detrimental to the Company or its Affiliate; (v) inability of Grantee to perform Grantee’s duties as an Employee due to alcohol or illegal drug use; (vi) Grantee’s failure to comply with any legal written directive of the Company or its Affiliate; (vii) any act or omission of Grantee which is of substantial detriment to the Company or its Affiliate because of Grantee’s intentional failure to comply with any statute, rule or regulation, except any act or omission believed by Grantee in good faith to have been in or not opposed to the best interest of the Company (without intent of Grantee to gain, directly or indirectly, a profit to which Grantee was not legally entitled), and except that Cause shall not mean bad judgment or negligence other than habitual neglect of duty; or (viii) any other act or failure to act or other conduct which is demonstrably and materially injurious to the Company or its Affiliate, monetarily or otherwise. Any determination of Cause shall be made by the Board. |
| 2. | Change of Control . “Change of Control” means (i) a merger of the Partnership in which the Partnership is not the surviving entity, (ii) upon the sale of all or substantially all of the assets of the Partnership and its consolidated subsidiaries (taken as one entity) in one transaction or a series of related transactions; (iii) a corporation, person, or group acting in concert (other than the Company, or any savings, pension, or other benefit for the benefit of employees of the Company, or the Affiliates thereof) (a “ Person” ) as described in Section 14(d)(2) of the Exchange Act, other than the current beneficial owners (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of and equity interest in the profits and losses of EnerVest, Ltd., a Texas limited partnership, acquires, directly or indirectly, beneficial ownership (within the meaning of such Rule 13d-3) of more than fifty percent (50%) of the equity interests in the Company then entitled to vote generally in the election of the Board of Directors; or (iv) the withdrawal, removal or resignation of the Company as the general partner of EV Energy GP. L.P., a Delaware limited partnership, or the withdrawal, removal or resignation of EV Energy GP, L.P. as the general partner of EV Energy Partners, L.P., a Delaware limited partnership. |
Notwithstanding the foregoing provisions of this definition, and only to the extent that any payment or acceleration of compensation under the Agreement is subject to taxation under Code Section 409A due to a Change of Control event, the term Change of Control hereunder shall be construed in accordance with the meaning of the term “change in control event” as set forth in Code Section 409A if such terms are inconsistent, but only to the minimum extent necessary to comply with such definition under Code Section 409A as determined by the Company.
| A- 1 |
| 3. | Disability . “Disability” means, as determined by the Committee in its discretion exercised in good faith, a physical or mental condition of Grantee that would entitle Grantee to payment of disability income payments under the Company’s, the Partnership’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 (i) Grantee is not covered, for whatever reason, under any such long-term disability insurance policy or plan for employees of the Company, the Partnership or one of their Affiliates, or (ii) the Company, the Partnership or one of their Affiliates does not maintain such a long-term disability insurance policy or plan covering Grantee, then “Disability” shall mean 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 Phantom Unit which provides for the deferral of compensation required to comply with Section 409A, or such compensation otherwise would be subject to the tax under Section 409A if such Disability did not comply with Section 409A, then, to the extent required to comply with Section 409A as determined by the Committee, Grantee must also be considered “disabled” within the meaning of Section 409A. If applicable, a determination of Disability may be made by a physician selected or approved by the Company or Committee and, in this respect, the Grantee shall submit upon request to any reasonable examinations by such physician to determine the existence or extent of any Disability hereunder. |
| A- 2 |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 26, 2016, relating to the consolidated financial statements of EV Energy Partners, L.P. and subsidiaries and the effectiveness of EV Energy Partners, L.P.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of EV Energy Partners, L.P. for the year ended December 31, 2015.
/s/ DELOITTE & TOUCHE LLP
Houston, Texas
October 31, 2016
Exhibit 23.2
CAWLEY, GILLESPIE & ASSOCIATES, INC.
PETROLEUM CONSULTANTS
|
13640 BRIARWICK DR., SUITE 100 |
306 WEST SEVENTH STREET, SUITE 302 |
1000 LOUISIANA STREET, SUITE 625 |
| AUSTIN, TEXAS 78729-1107 | FORT WORTH, TEXAS 76102-4987 | HOUSTON, TEXAS 77002-5008 |
| 512-249-7000 | 817-336-2461 | 713-651-9944 |
| FAX 512-233-2618 | FAX 817-877-3728 | FAX 713-651-9980 |
| October 11, 2016 |
EV Energy Partners, L.P.
1001 Fannin Street, Suite 800
Houston, Texas 77002
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
As independent petroleum engineers, we hereby consent to all references to our firm incorporated by reference in this Registration Statement on Form S-8 of EV Energy Partners, L.P. with respect to our estimates of the oil, natural gas and natural gas liquids reserves of EV Energy Partners, L.P. and to the use of our report dated January 25, 2016 in EV Energy Partners, L.P.’s Annual Report on Form 10-K for the year ended December 31, 2015, filed with the Securities and Exchange Commission on February 29, 2016.
| Yours very truly, | ||
| /s/ W. TODD BROOKER | ||
| W. Todd Brooker, P.E. | ||
|
Vice President CAWLEY, GILLESPIE & ASSOCIATES, INC. |
||
Exhibit 23.3
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS
As independent petroleum engineers, we hereby consent to all references to our firm incorporated by reference in this Registration Statement on Form S-8 of EV Energy Partners, L.P. with respect to our estimates of the oil, natural gas and natural gas liquid reserves of EV Energy Partners, L.P and to the use of our report dated January 6, 2016 in EV Energy Partners, L.P.’s Annual Report on Form 10-K for the year ended December 31, 2015, filed with the Securities and Exchange Commission on February 29, 2016.
/s/ D. RANDALL WRIGHT
D. Randall Wright, P.E.
President
Wright & Company, Inc.
TX Reg. No F–12302
October 12, 2016