Exhibit 10.05
VALERO GP, LLC
AMENDED AND
RESTATED
2000 LONG-TERM INCENTIVE
PLAN
Amended and Restated as of January 1,
2005
SECTION 1. Purpose of the
Plan .
The Valero GP, LLC 2000 Long-Term Incentive Plan
(the “Plan”) is intended to promote the interests of
Valero L.P., a Delaware limited partnership (the
“Partnership”), by providing to employees and directors
of Valero GP, LLC, a Delaware limited liability company (the
“Company”), and its Affiliates who perform services for
the Partnership and its subsidiaries incentive awards for superior
performance that are based on Units. The Plan is also intended to
enhance the Company’s and its Affiliates’ ability to
attract and retain employees whose services are key to the growth
and profitability of the Partnership, and to encourage them to
devote their best efforts to the business of the Partnership,
thereby advancing the Partnership’s interests.
SECTION 2. Definitions
.
As used in the Plan, the following
terms shall have the meanings set forth below:
|
|
2.1
|
“Affiliate” means, with respect to
any Person, any other Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by or is under
common control with, the Person in question. As used herein, the
term “ control ” means the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of
voting securities, by contract or otherwise.
|
|
|
2.2
|
“Award” means a grant of one or more
Options or Restricted Units pursuant to the Plan, and any tandem
DERs granted with respect to such Award.
|
|
|
2.3
|
“Board” means the Board of Directors
of the Company.
|
|
|
(i)
|
fraud or
embezzlement on the part of the Participant;
|
|
|
(ii)
|
conviction of
or the entry of a plea of nolo contendere by the Participant
to any felony;
|
|
|
(iii)
|
gross
insubordination or a material breach of, or the willful failure or
refusal by the Participant to perform and discharge his duties,
responsibilities or obligations (other than by reason of disability
or death) that is not corrected within 30 days following written
notice thereof to the Participant, such notice to state with
specificity the nature of the breach, failure or refusal;
or
|
|
|
(iv)
|
any act of
willful misconduct by the Participant that (a) is intended to
result in substantial personal enrichment of the Participant at the
expense of the Partnership, the Company or any of their Affiliates,
or (b) has a material adverse impact on the business or reputation
of the Partnership, the Company or any of their Affiliates (such
determination to be made by the Partnership, the Company or any of
their Affiliates in the good faith exercise of its reasonable
judgment).
|
Page 1
|
|
2.5
|
“Change
of Control” means, and shall be deemed to have occurred upon
the occurrence of one or more of the following events: (i) any
sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all of the
assets of the Company or the Partnership to any Person or its
Affiliates, unless immediately following such sale, lease, exchange
or other transfer such assets are owned, directly or indirectly, by
Valero Energy Corporation and its Affiliates or the Company; (ii)
the consolidation or merger of the Partnership or the Company with
or into another Person pursuant to a transaction in which the
outstanding voting interests of the Company is changed into or
exchanged for cash, securities or other property, other than any
such transaction where, in the case of the Company, (a) all
outstanding voting interest of the Company is changed into or
exchanged for voting stock or interests of the surviving
corporation or entity or its parent and (b) the holders of the
voting interests of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority
of the voting stock or interests of the surviving corporation or
entity or its parent immediately after such transaction and, in the
case of the Partnership, Valero Energy Corporation retains
operational control, whether by way of holding a general partner
interest, managing member interest or a majority of the outstanding
voting interests of the surviving corporation or entity or its
parent; or (iii) a “person” or “group”
(within the meaning of Sections 13(d) or 14(d)(2) of the Exchange
Act) being or becoming the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more
than 50% of all voting interests of the Company then outstanding,
other than (a) in a merger or consolidation which would not
constitute a Change of Control under clause (ii) above and (b)
Valero Energy Corporation and its Affiliates.
|
|
|
2.6
|
“Committee” means the Compensation
Committee of the Board or such other committee of the Board
appointed to administer the Plan.
|
|
|
2.7
|
“DER” means a contingent right,
granted in tandem with a specific Restricted Unit, to receive an
amount in cash equal to the cash distributions made by the
Partnership with respect to a Unit during the period such
Restricted Unit is outstanding.
|
|
|
2.8
|
“Director” means a
“non-employee director” of the Company, as defined in
Rule 16b-3.
|
|
|
2.9
|
“Employee” means any employee of the
Company or an Affiliate, as determined by the Committee.
|
|
|
2.10
|
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
|
|
|
2.11
|
“Fair
Market Value” means the closing sales price of a Unit on the
New York Stock Exchange on the applicable date (or if there is no
trading in the Units on such date, on the next preceding date on
which there was trading). If Units are not publicly traded at the
time a determination of fair market value is required to be made
hereunder, the determination of fair market value shall be made in
good faith by the Committee.
|
|
|
2.12
|
“Good
Reason” means:
|
|
|
(i)
|
a reduction in
the Participant’s annual base salary;
|
|
|
(ii)
|
failure to pay
the Participant any compensation due under an employment agreement,
if any;
|
Page 2
|
|
(iii)
|
failure to
continue to provide benefits substantially similar to those then
enjoyed by the Participant unless the Partnership, the Company or
their Affiliates provide aggregate benefits equivalent to those
then in effect; or
|
|
|
(iv)
|
failure to
continue a compensation plan or to continue the Participant’s
participation in a plan on a basis not materially less favorable to
the Participant, subject to the power of the Partnership, the
Company or their Affiliates to amend such plans in their reasonable
discretion
|
|
|
(v)
|
the
Partnership, the Company or their Affiliates purported termination
of the Participant’s employment for Cause or disability not
pursuant to a procedure indicating the specific provision of the
definition of Cause contained in this Plan as the basis for such
termination of employment;
|
The Participant may not terminate
for Good Reason unless he has given written notice delivered to the
Partnership, the Company or their Affiliates, as appropriate, of
the action or inaction giving rise to Good Reason, and if such
action or inaction is not corrected within thirty (30) days
thereafter, such notice to state with specificity the nature of the
breach, failure or refusal.
|
|
2.13
|
“Option” means an option to purchase
Units as described in Section 6.1.
|
|
|
2.14
|
“Participant” means any Employee or
Director granted an Award under the Plan.
|
|
|
2.16
|
“Person” means an individual or a
corporation, limited liability company, partnership, joint venture,
trust, unincorporated organization, association, government agency
or political subdivision thereof or other entity.
|
|
|
2.17
|
“Restricted Period” means the period
established by the Committee with respect to the vesting of an
Award during which the Award either remains subject to forfeiture
or is not exercisable by the Participant.
|
|
|
2.18
|
“Restricted Unit” means a phantom
unit granted under the Plan which is equivalent in value and in
divided and interest rights to a Unit, and which upon or following
vesting entitles the Participant to receive a Unit .
|
|
|
2.19
|
“Rule
16b-3” means Rule 16b-3 promulgated by the SEC under the
Exchange Act, or any successor rule or regulation thereof as in
effect from time to time.
|
|
|
2.20
|
“SEC” means the Securities and
Exchange Commission.
|
|
|
2.21
|
“Unit” means a common unit of the
Partnership.
|
SECTION 3. Administration
.
Annual grant levels for Participants will be
recommended by the Chief Executive Officer of the Company, subject
to the review and approval of the Committee. The Plan shall be
administered by the Committee. A majority of the Committee shall
constitute a quorum, and the acts of the members of the Committee
who are present at any meeting thereof at which a quorum is
present, or acts unanimously approved by the members of the
Committee in writing, shall be the acts of the Committee. Subject
to the terms of the Plan and applicable law, and in addition to
other express
Page 3
powers and authorizations conferred on the
Committee by the Plan, the Committee shall have full power and
authority to: (i) designate Participants; (ii) determine the type
or types of Awards to be granted to a Participant; (iii) determine
the number of Units to be covered by Awards; (iv) determine the
terms and conditions of any Award; (v) determine whether, to what
extent, and under what circumstances Awards may be settled,
exercised, canceled, or forfeited; (vi) interpret and administer
the Plan and any instrument or agreement relating to an Award made
under the Plan; (vii) establish, amend, suspend, or waive such
rules and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and (viii)
make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of
the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions
under or with respect to the Plan or any Award shall be within the
sole discretion of the Committee, may be made at any time and shall
be final, conclusive, and binding upon all Persons, including the
Company, the Partnership, any Affiliate, any Participant, and any
beneficiary of any Award.
SECTION 4. Units Available for
Awards .
|
|
4.1
|
Units
Available . Subject to
adjustment as provided in Section 4.3, the number of Units with
respect to which Awards may be granted under the Plan is 250,000.
If any Award is forfeited or otherwise terminates or is canceled
without the delivery of Units, then the Units covered by such
Award, to the extent of such forfeiture, termination, or
cancellation, shall again be Units with respect to which Awards may
be granted.
|
|
|
4.2
|
Sources of
Units Deliverable Under Awards . Any Units delivered pursuant to an Award shall
consist, in whole or in part, of Units acquired in the open market,
from any Affiliate, the Partnership or any other Person, or any
combination of the foregoing, as determined by the Committee in its
discretion.
|
|
|
4.3
|
Adjustments . If the Committee determines that any
distribution (whether in the form of cash, Units, other securities,
or other property), recapitalization, split, reverse split,
reorganiz
|
|
