As filed with the Securities and Exchange Commission on December 14, 2011
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEMORIAL PRODUCTION PARTNERS LP
(Exact name of registrant as specified in its charter)
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Delaware
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90-0726667
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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1401 McKinney, Suite 1025
Houston, Texas 77010
(713) 579-5700
(Address of principal executive offices, including zip code)
Memorial Production Partners GP LLC Long-Term Incentive Plan
(Full title of the plan)
John A.
Weinzierl
President, Chief Executive Officer and Chairman
Memorial Production Partners GP LLC
1401 McKinney, Suite 1025
Houston, Texas 77010
(713) 579-5700
(Telephone number, including area code, of agent for service)
Copies to:
John Goodgame
Akin Gump Strauss Hauer & Feld LLP
1111 Louisiana Street, 44th
Floor
Houston, Texas 77002
(713) 220-8144
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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting
company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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þ
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be
Registered (1)
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Proposed Maximum
Offering Price Per
Unit (2)
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Proposed Maximum
Aggregate Offering
Price (2)
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Amount of
Registration Fee
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Common Units representing limited partner interests
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2,142,221 units
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$ 18.97
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$ 40,637,933
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$ 4,658
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), there are also being registered such additional common units as
may become issuable pursuant to the adjustment provisions of the Memorial Production Partners GP LLC Long-Term Incentive Plan.
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(2)
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Estimated solely for the purpose of calculating the registration fee and computed pursuant to Rule 457(c) and 457(h) under the Securities Act. The price for the
2,142,221 common units being registered hereby is based on a price of $18.97, which is the average of the high and low trading prices per common unit of Memorial Production Partners LP as reported by the NASDAQ Global Market on December 13, 2011.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Memorial Production
Partners GP LLC (the “General Partner”) will provide all participants in the Memorial Production Partners GP LLC Long-Term Incentive Plan (the “Plan”) with the document(s) containing information required by Part I of Form S-8, as
specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the note to Part I of Form S-8 and Rule
428 of the Securities Act, Memorial Production Partners LP (the “Registrant”) has not filed such document(s) with the Commission, but such documents (along with the documents incorporated by reference into this Form S-8 Registration
Statement (the “Registration Statement”) pursuant to Item 3 of Part II hereof) shall 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, the Registrant hereby incorporates by reference into this Registration Statement the following documents:
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(a)
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The Registrant’s prospectus filed pursuant to Rule 424(b) under the Securities Act on December 9, 2011, relating to the Registrant’s Registration
Statement on Form S-1 (File No. 333-175090).
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(b)
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The Registrant’s Current Report on Form 8-K (File No. 001-35364) filed with the Commission on December 12, 2011.
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(c)
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The description of the Registrant’s common units representing limited partner interests contained in the Registrant’s Registration Statement on Form 8-A (File
No. 001-35364) filed with the Commission on December 5, 2011 pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description.
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Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, all documents filed
by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold shall also be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein 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 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.
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Item 6. Indemnification of Directors and Officers.
Section 7.7 of the Registrant’s First Amended and Restated Agreement of Limited Partnership (the “Partnership
Agreement”) provides that the Registrant will indemnify and hold harmless the following persons (each, an “Indemnitee”), in most circumstances, to the fullest extent permitted by law, from and against 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 threatened, pending or completed claims, demands, actions, suits or
proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals:
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any departing general partner;
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any person who is or was an affiliate of the General Partner or any departing general partner;
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any person who is or was a manager, managing member, director, officer, employee, agent, fiduciary or trustee of the Registrant, its subsidiaries, the
General Partner, any departing general partner or any affiliate of the Registrant, its subsidiaries, the General Partner or any departing general partner;
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any person who is or was serving at the request of the General Partner or the departing general partner or any affiliate of the General Partner or any
departing general partner as a manager, managing member, director, officer, employee, agent, fiduciary or trustee of another person; and
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any person the General Partner designates as an indemnitee for purposes of the Partnership Agreement.
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Any indemnification described above will be made only out of the Registrant’s assets. The General Partner will not be
personally liable for such indemnification and will have no obligation to contribute or loan any monies or property to the Registrant to enable the Registrant to effectuate such indemnification.
To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee in appearing at,
participating in or defending any claim, demand, action, suit or proceeding will, from time to time, be advanced by the Registrant, subject to certain conditions. The Registrant may purchase and maintain (or reimburse the General Partner and its
affiliates for the cost of) insurance, on behalf of the General Partner, its affiliates and such other persons as the General Partner determines, covering liabilities asserted against and expenses incurred by such persons for the Registrant’s
activities or such person’s activities on behalf of the Registrant, regardless of whether the Registrant would have the power to indemnify such person against liabilities under the Partnership Agreement. The General Partner has purchased
director and officer liability insurance for the benefit of its directors and officers.
Section 8(b) of the underwriting
agreement entered into in connection with the sale of the common units offered pursuant to the Registrant’s registration statement on Form S-1 (File No. 333-175090) provides for the indemnification of the Registrant, the General
Partner’s officers and directors, and any person who controls the Registrant by the underwriters in certain circumstances, including indemnification for liabilities under the Securities Act.
Subject to any terms, conditions, or restrictions set forth in the Partnership Agreement, 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 persons from and against all claims and demands whatsoever.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
Unless otherwise indicated below as being incorporated by reference to another filing of the Registrant with the Commission, each of the following exhibits is filed herewith:
EXHIBIT INDEX
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Exhibit
Number
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Description of Exhibit
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4.1
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Certificate of Limited Partnership of Memorial Production Partners LP (incorporated by reference to Exhibit 3.1 to the Registrant’s registration statement on Form S-1 (File No.
333-175090), filed with the Commission on June 23, 2011).
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4.2
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Certificate of Formation of Memorial Production Partners GP LLC (incorporated by reference to Exhibit 3.4 to the Registrant’s registration statement on Form S-1 (File No.
333-175090), filed with the Commission on June 23, 2011).
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4.3
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Form of First Amended and Restated Agreement of Limited Partnership of Memorial Production Partners LP (incorporated by reference to Exhibit 3.3 to Amendment No. 4 to the
Registrant’s registration statement on Form S-1 (File No. 333-175090), filed with the Commission on November 9, 2011).
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4.4
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Form of Amended and Restated Limited Liability Company Agreement of Memorial Production Partners GP LLC (incorporated by reference to Exhibit 3.6 to Amendment No. 2 to the
Registrant’s registration statement on Form S-1 (File No. 333-175090), filed with the Commission on September 15, 2011).
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4.5#
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Form of Memorial Production Partners GP LLC Long-Term Incentive Plan (incorporated by reference to Exhibit 10.5 to Amendment No. 3 to the Registrant’s registration statement on
Form S-1 (File No. 333-175090), filed with the Commission on October 19, 2011).
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4.6*#
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Form of Restricted Unit Agreement under the Memorial Production Partners GP LLC Long-Term Incentive Plan.
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5.1*
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Opinion of Akin Gump Strauss Hauer & Feld LLP as to the legality of the securities being registered.
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23.1*
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Consent of KPMG LLP.
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23.2*
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Consent of KPMG LLP.
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23.3*
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Consent of Ernst & Young LLP.
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23.4*
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Consent of Deloitte & Touche LLP.
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23.5*
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Consent of Netherland, Sewell & Associates, Inc.
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23.6*
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Consent of Miller and Lents. Ltd.
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23.7*
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Consent of Akin Gump Strauss Hauer & Feld LLP (contained in Exhibit 5.1).
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24.1*
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Powers of Attorney (included on the signature page of this Registration Statement).
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Compensatory plan, contract or arrangement.
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Item 9. Undertakings.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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
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3
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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 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
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(iii)
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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.
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provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act, 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.
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(3)
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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.
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(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant
to the foregoing provisions 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 by 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.
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4
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 December 14, 2011.
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MEMORIAL PRODUCTION PARTNERS LP
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By:
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Memorial Production Partners GP LLC, its general partner
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By:
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/s/ John A. Weinzierl
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John A. Weinzierl
President, Chief Executive Officer and Chairman
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POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and appoints John A. Weinzierl and Andrew J. Cozby, and each of them, severally, any of whom may act without joinder of the other, as his true
and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including pre- and post-effective amendments) to this
Registration Statement on Form S-8 and any additional registration statement pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting
unto said attorneys-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, as fully to all intents and purposes as he might or would do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or his or their substitute or 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 by the following persons in the
capacities and on the date presented. This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.
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Signature
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Title
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Date
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/s/ John A. Weinzierl
John A. Weinzierl
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President, Chief Executive Officer and Chairman
(Principal Executive Officer)
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December 14, 2011
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/s/ Andrew J. Cozby
Andrew J. Cozby
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Vice President, Finance (Principal Financial Officer)
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December 14, 2011
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/s/ Patrick T. Nguyen
Patrick T. Nguyen
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Chief Accounting Officer (Principal Accounting Officer)
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December 14, 2011
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/s/ Jonathan M. Clarkson
Jonathan M. Clarkson
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Director
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December 14, 2011
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/s/ Kenneth A. Hersh
Kenneth A. Hersh
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Director
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December 14, 2011
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/s/ Scott A. Gieselman
Scott A. Gieselman
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Director
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December 14, 2011
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/s/ Tony R. Weber
Tony R. Weber
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Director
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December 14, 2011
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5
EXHIBIT INDEX
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Exhibit
Number
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Description of Exhibit
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4.1
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Certificate of Limited Partnership of Memorial Production Partners LP (incorporated by reference to Exhibit 3.1 to the Registrant’s registration statement on Form S-1 (File No.
333-175090), filed with the Commission on June 23, 2011).
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4.2
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Certificate of Formation of Memorial Production Partners GP LLC (incorporated by reference to Exhibit 3.4 to the Registrant’s registration statement on Form S-1 (File No.
333-175090), filed with the Commission on June 23, 2011).
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4.3
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Form of First Amended and Restated Agreement of Limited Partnership of Memorial Production Partners LP (incorporated by reference to Exhibit 3.3 to Amendment No. 4 to the
Registrant’s registration statement on Form S-1 (File No. 333-175090), filed with the Commission on November 9, 2011).
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4.4
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Form of Amended and Restated Limited Liability Company Agreement of Memorial Production Partners GP LLC (incorporated by reference to Exhibit 3.6 to Amendment No. 2 to the
Registrant’s registration statement on Form S-1 (File No. 333-175090), filed with the Commission on September 15, 2011).
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4.5#
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Form of Memorial Production Partners GP LLC Long-Term Incentive Plan (incorporated by reference to Exhibit 10.5 to Amendment No. 3 to the Registrant’s registration statement on
Form S-1 (File No. 333-175090), filed with the Commission on October 19, 2011).
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4.6*#
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Form of Restricted Unit Agreement under the Memorial Production Partners GP LLC Long-Term Incentive Plan.
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5.1*
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Opinion of Akin Gump Strauss Hauer & Feld LLP as to the legality of the securities being registered.
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23.1*
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Consent of KPMG LLP.
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23.2*
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Consent of KPMG LLP.
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23.3*
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Consent of Ernst & Young LLP.
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23.4*
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Consent of Deloitte & Touche LLP.
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23.5*
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Consent of Netherland, Sewell & Associates, Inc.
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23.6*
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Consent of Miller and Lents. Ltd.
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23.7*
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Consent of Akin Gump Strauss Hauer & Feld LLP (contained in Exhibit 5.1).
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24.1*
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Powers of Attorney (included on the signature page of this Registration Statement).
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Compensatory plan, contract or arrangement.
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6
Exhibit 4.6
MEMORIAL PRODUCTION PARTNERS GP LLC
LONG-TERM INCENTIVE PLAN
FORM OF RESTRICTED UNIT AGREEMENT
This Restricted Unit Agreement (this “
Agreement
”) is made and entered into by and between MEMORIAL PRODUCTION PARTNERS GP LLC, a Delaware limited liability company (the
“
Company
”), and [ ] (the “
Participant
”). This Agreement is entered into as of the
[ ] day of [ ], 20[ ] (the
“
Date of Grant
”). Capitalized terms used in this Agreement but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan (as defined below), unless the context requires otherwise.
W I T N E S S E T H:
WHEREAS, the Memorial Production Partners GP LLC Long-Term Incentive Plan (the “
Plan
”) has been adopted by the Company; and
WHEREAS, the Board of Directors of the Company (the “
Board
”) has authorized the grant of Restricted Units to employees,
officers, consultants and directors of Memorial Production Partners LP, a Delaware limited partnership (the “
Partnership
”), subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the Participant’s agreement to provide or to continue providing services to the Partnership or
an Affiliate, the Participant and the Company agree as follows:
1. Grant.
The Company hereby grants to the Participant as of the Date of Grant an award of
[ ] Restricted Units, subject to the terms and conditions set forth in the Plan, which are incorporated herein by reference, and in this Agreement, including, without limitation,
those restrictions described in Section 2 hereof (the “
Restricted Units
”).
2. Restrictions.
The Restricted Units are restricted in that they may be forfeited to the Partnership and in that they may not, except as otherwise
provided in Section 5, be transferred or otherwise disposed of by the Participant until such restrictions are removed or expire as described in Section 4 of this Agreement. The Company shall cause the Partnership to issue in the
Participant’s name the Restricted Units and the Company shall retain the Restricted Units until the restrictions on such Restricted Units expire or until the Restricted Units are forfeited as described in Section 4 of this Agreement. The
Participant agrees that the Company will hold the Restricted Units pursuant to the terms of this Agreement until such time as the Restricted Units are either delivered to the Participant or forfeited to the Partnership pursuant to this Agreement.
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3. Rights of Participant; Unit Distribution Rights.
Effective as of the Date of Grant, the Participant shall be treated for all purposes as a Unit holder with respect to all of the
Restricted Units granted to him pursuant to Section 1 (except that the Participant shall not be treated as the owner of the Restricted Units for federal income tax purposes until the Restricted Units vest (unless the Participant makes an
election under section 83(b) of the Code, in which case the Participant shall be treated as the owner of the Restricted Units for all purposes on the Date of Grant)) and shall, except as provided herein, have all of the rights and obligations of a
Unit holder with respect to all such Restricted Units, including any right to vote with respect to such Restricted Units and to receive any UDRs thereon if, as, and when declared and paid by the Partnership. Notwithstanding the preceding provisions
of this Section 3, the Restricted Units shall be subject to the restrictions described herein, including, without limitation, those described in Section 2.
4. Forfeiture and Expiration of Restrictions.
(a)
Vesting Schedule
.
Subject to the terms and conditions of this Agreement, the restrictions described in Section 2 shall lapse and the Restricted Units shall become vested and nonforfeitable (“
Vested Units
”), provided the Participant has
continuously provided services to the Partnership or an Affiliate, without interruption, from the Date of Grant through each applicable vesting date (each, a “
Vesting Date
”), in accordance with the following schedule:
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Vesting Date
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Cumulative Vested Percentage
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(b)
Termination of Service
. If, at any time prior to the final Vesting Date, the Participant ceases
providing services to the Partnership and its Affiliates for any reason, then all Restricted Units granted pursuant to this Agreement that have not yet vested as of the date of the Participant’s termination shall become null and void as of the
date of such termination, shall be forfeited to the Partnership and the Participant shall cease to have any rights with respect thereto. In the event that such termination is on account of (i) a termination by the Partnership or an Affiliate
for Cause (as defined below) or (ii) (A) the Participant’s resignation and (B) the Participant engages in Competition (as defined below) prior to the final Vesting Date, then with respect to the Restricted Units, if any, that
have vested as of the date of such termination, the Company shall have the right, but not the obligation, to repurchase such Units at a price per Unit equal to the lesser of (x) the Fair Market Value of such Unit as of the date of repurchase
and (y) the price paid by the Participant for such Unit.
For purposes of this Agreement, the term
“
Cause
” means, (A) the Partnership or an Affiliate having “cause” or “good cause” to terminate a Participant’s employment or service, as defined in any employment or consulting agreement or similar
services agreement between the Participant and the Partnership or an Affiliate in effect at the time of such termination or (B) in the absence of any such employment, consulting, or similar services agreement (or the absence of any definition
of “Cause” or “Good Cause” contained therein), (1) the Participant’s commission of, conviction for, plea of guilty or
nolo contendere
to a felony or a crime involving moral turpitude, or other material act or
omission involving dishonesty or fraud, (2) the
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Participant’s conduct that results in or is reasonably likely to result in harm to the reputation or business of the Partnership or any of its Affiliates in any material way, (3) the
Participant’s failure to perform duties as reasonably directed by the Partnership or the Participant’s material violation of any rule, regulation, policy or plan for the conduct of any service provider to the Partnership or its Affiliates
or its or their business (which, if curable, is not cured within 5 days after notice thereof is provided to the Participant) or (4) the Participant’s gross negligence, willful malfeasance or material act of disloyalty or violation of the
Company’s policy with respect to the Partnership or its Affiliates (which, if curable, is not cured within 5 days after notice thereof is provided to the Participant). Any determination of whether Cause exists shall be made by the Committee in
its sole discretion.
For purposes of this Agreement, the tem “
Competition
” means the Participant, directly
or indirectly, engaging in (i) any business that directly competes with the Partnership or any of its Affiliates or (ii) any business that the Partnership or any of its Affiliates (A) was engaged in or (B) actively pursuing, as
of the date of the Participant’s termination, anywhere in the world in which the Partnership and its Affiliates are doing business.
(c)
Change of Control
. In the event of a termination of the Participant’s employment (i) by the Partnership or an Affiliate without Cause or (ii) by the Participant for Good Reason
(as defined below), in each case, within the one (1) year period following the occurrence of a Change of Control, all restrictions described in Section 2 shall lapse and all Restricted Units granted pursuant to this Agreement shall become
immediately vested and nonforfeitable as of the date of such termination.
For purposes of this Agreement, the term
“
Good Reason
” means, (A) the Participant having “good reason” to terminate his employment or service, as defined in any employment or consulting agreement or similar services agreement between the Participant and the
Partnership or an Affiliate in effect at the time of such termination or (B) in the absence of any such employment, consulting, or similar services agreement (or the absence of any definition of “Good Reason” contained therein),
(1) a material diminution of the Participant’s annual base salary (other than in connection with a diminution of base salaries affecting similarly situated employees), (2) a material diminution in the Participant’s position,
duties, authorities or responsibilities, or (3) a relocation of the Participant’s principal business location to an area outside of a fifty (50) mile radius of the Participant’s principal business location immediately prior to
the Change in Control;
provided
,
that
, the Participant gives notice to the Partnership or Affiliate, as applicable, of the event or condition allegedly constituting Good Reason within ninety (90) days after the initial occurrence
of such event or condition and such event or condition is not fully corrected in all material respects by the Partnership or Affiliate, as applicable, within thirty (30) days following receipt of the Participant’s written notification.
5. Limitations on Transfer.
The Participant agrees that he shall not dispose of (meaning, without limitation, sell, transfer, pledge, exchange, hypothecate or otherwise dispose of) any Restricted Units hereby acquired prior to the
applicable Vesting Dates, including pursuant to a domestic relations order issued by a court of competent jurisdiction, unless such transfer is expressly approved in writing by the Committee. Any attempted disposition of the Restricted Units in
violation of the preceding sentence shall be null and void.
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6. Nontransferability of Agreement.
This Agreement and all rights under this Agreement shall not be transferable by the Participant other than by will or pursuant to
applicable laws of descent and distribution. Any rights and privileges of the Participant in connection herewith shall not be transferred, assigned, pledged or hypothecated by the Participant or by any other person or persons, in any way, whether by
operation of law, or otherwise, and shall not be subject to execution, attachment, garnishment or similar process. In the event of any such occurrence, the Restricted Units shall automatically be forfeited. Notwithstanding the foregoing, all or some
of the Restricted Units or rights under this Agreement may be transferred if such transfer is approved in writing by the Committee.
7.
Adjustment of Restricted Units.
The number of Restricted Units granted to the Participant pursuant to this Agreement shall
be adjusted to reflect unit splits or other changes in the capital structure of the Partnership, all in accordance with the Plan. All provisions of this Agreement shall be applicable to such new or additional or different units or securities
distributed or issued pursuant to the Plan to the same extent that such provisions are applicable to the Units with respect to which they were distributed or issued.
8. Delivery of Vested Units.
Promptly following the expiration of the
restrictions on the Restricted Units as contemplated in Section 4 of this Agreement, and subject to Section 9, the Company shall cause to be issued and delivered to the Participant or the Participant’s designee the number of
Restricted Units as to which restrictions have lapsed, free of any restrictive legend relating to the lapsed restrictions, and shall pay to the Participant any previously unpaid UDRs distributed with respect to the Restricted Units. Neither the
value of the Restricted Units nor the UDRs shall bear any interest owing to the passage of time.
9. Securities Act.
The Company shall have the right, but not the obligation, to cause the Restricted Units to be registered under the appropriate rules and
regulations of the SEC. The Company shall not be required to deliver any Units hereunder if, in the opinion of counsel for the Company, such delivery would violate the Securities Act of 1933 or any other applicable federal or state securities laws
or regulations. By accepting this grant, the Participant agrees that any Units that the Participant may acquire upon vesting of this Award will not be sold or otherwise disposed of in any manner that would constitute a violation of any applicable
federal or state securities laws.
10. Copy of Plan.
By the execution of this Agreement, the Participant acknowledges receipt of a copy of the Plan. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any
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applicable law, then such provision will be deemed to be modified to the minimum extent necessary to render it legal, valid and enforceable; and if such provision cannot be so modified, then this
Agreement will be construed as if not containing the provision held to be invalid, and the rights and obligations of the parties will be construed and enforced accordingly.
11. Notices.
Whenever any notice is required or permitted hereunder, such
notice must be in writing and personally delivered or sent by mail. Any such notice required or permitted to be delivered hereunder shall be deemed to be delivered on the date on which it is personally delivered or, whether actually received or not,
on the third business day (on which banking institutions in the State of Texas are open) after it is deposited in the United States mail, certified or registered, postage prepaid, addressed to the person who is to receive it at the address which
such person has theretofore specified by written notice delivered in accordance herewith. The Company or the Participant may change at any time and from time to time by written notice to the other, the address which it or he previously specified for
receiving notices. The Company and the Participant agree that any notices shall be given to the Company or to the Participant at the following addresses:
Company: Memorial Production Partners GP LLC, 1401 McKinney, Suite 1025, Houston, Texas 77010
Participant: At the Participant’s current address as shown in the Company’s records.
12. General Provisions.
(a)
Administration
. This Agreement shall at all times be subject to the terms and conditions of the Plan. The Committee shall have
sole and complete discretion with respect to all matters reserved to it by the Plan and decisions of the Committee with respect thereto and with respect to this Agreement shall be final and binding upon the Participant and the Company. In the event
of any conflict between the terms and conditions of this Agreement and the Plan, the provisions of the Plan shall control.
(b)
Continuation of Service
. This Agreement shall not be construed to confer upon the Participant any right to continue in the
service of the Partnership or an Affiliate.
(c)
Governing Law
. This Agreement shall be interpreted and administered
under the laws of the State of Texas, without giving effect to any conflict of laws provisions.
(d)
Amendments
. This
Agreement may be amended only by a written agreement executed by the Company and the Participant, except that the Committee may unilaterally waive any conditions or rights under, amend any terms of, or alter this Agreement provided no such change
(other than pursuant to Section 4(c) or 7(c) of the Plan) materially reduces the rights or benefits of the Participant with respect to the Restricted Units without his consent.
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(e)
Binding Effect
. This Agreement shall be binding upon and inure to the benefit of
any successor or successors of the Company and upon any person lawfully claiming under the Participant.
(f)
Entire
Agreement
. This Agreement constitutes the entire agreement of the parties with regard to this subject matter hereof, and contains all the covenants, promises, representations, warranties and agreements between the parties with respect to the
Restricted Units granted hereby. Without limiting the scope of the preceding sentence, all prior understandings and agreements, if any, among the parties hereto relating to the subject matter hereof are hereby null and void and of no further force
and effect.
(g)
No Liability for Good Faith Determinations
. None of the Partnership, the Company, or the members of
the Committee or the Board, or any officer of the Partnership or the Company, shall be liable for any act, omission or determination taken or made in good faith with respect to this Agreement or the Restricted Units granted hereunder.
(h)
No Guarantee of Interests
. The Board, the Partnership, and the Company do not guarantee the Units from loss or depreciation.
(i)
Withholding Taxes
. To the extent that the grant or vesting of a Restricted Unit or distribution thereon results in
the receipt of compensation by the Participant with respect to which the Partnership or any of its Affiliates has a tax withholding obligation pursuant to applicable law, unless other arrangements have been made by the Participant that are
acceptable to the Partnership or such Affiliates, the Participant shall deliver to the Partnership or such Affiliate an amount of money as the Partnership or such Affiliate may require to meet its withholding obligations under applicable law. No
issuance of an unrestricted Unit shall be made pursuant to this Agreement until the Participant has paid or made arrangements approved by the Partnership or such Affiliate to satisfy in full the applicable tax withholding requirements of the
Partnership or such Affiliate with respect to such event.
(j)
Insider Trading Policy
. The terms of the
Partnership’s Insider Trading Policy with respect to the Units are incorporated herein by reference.
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INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its officer
thereunto duly authorized, and the Participant has set his hand as to the date and year first above written.
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MEMORIAL PRODUCTION PARTNERS GP LLC
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By:
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Name:
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Title:
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PARTICIPANT
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Exhibit 5.1
December 14, 2011
Memorial Production Partners LP
1401 McKinney, Suite 1025
Houston, Texas 77010
Re:
Memorial Production Partners LP
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Memorial Production Partners
LP, a Delaware limited partnership (the “
Partnership
”), in connection with in connection with a Registration Statement on Form S-8 of the Partnership (the “
Registration Statemen
t”), being filed on the
date hereof with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), relating to the proposed issuance of up to 2,142,221 common units representing limited partnership interests in the
Partnership (the “
Common Units
”), authorized for issuance pursuant to the Memorial Production Partners GP LLC 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 Act.
We have examined originals or certified copies of
such partnership records of the Partnership and other certificates and documents of officials of the Partnership or its general partner, public officials and others as we have deemed appropriate for purposes of this letter. We have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all copies submitted to us as conformed, certified or
reproduced copies. We have also assumed that (i) upon issuance, the certificates for the Common Units will conform to the specimen thereof included as an exhibit to the form of partnership agreement of the Partnership filed as an exhibit to the
Registration Statement and will have been duly countersigned by the transfer agent and duly registered by the registrar for the common units of the Partnership or, if uncertificated, valid book-entry notations for the issuance of the Common Units in
uncertificated form will have been duly made in the register of common units of the Partnership and (ii) each award agreement setting forth the terms of each award granted pursuant to the Plan is consistent with the Plan and has been duly
authorized and validly executed and delivered by the parties thereto. As to various questions of fact relevant to this letter, we have relied, without independent investigation, upon certificates of public officials and certificates of officers of
the general partner of the Partnership, all of which we assume to be true, correct and complete.
Memorial Production Partners LP
December 14, 2011
Page 2
Based upon the foregoing and subject to the assumptions, exceptions, qualifications and limitations stated herein, we are of the opinion
that, when the Common Units have been issued and delivered upon payment therefor in accordance with the terms of the Plan and applicable award agreement, the Common Units will be duly authorized, validly issued and non-assessable.
The opinions and other matters in this letter are qualified in their entirety and subject to the following:
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A.
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We express no opinion as to the laws of any jurisdiction other than the Revised Uniform Limited Partnership Act of the State of Delaware (the “
Delaware
Act
”). As used herein, the term “Delaware Act” includes the statutory provisions contained therein and all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws.
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B.
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This opinion letter is limited to the matters expressly stated herein and no opinion is to be inferred or implied beyond the opinion expressly set forth herein. We
undertake no, and hereby disclaim any, obligation to make any inquiry after the date hereof or to advise you of any changes in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Partnership or any
other person or any other circumstance.
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder.
Very truly yours,
/s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
AKIN,
GUMP, STRAUSS, HAUER & FELD, L.L.P.
