Exhibit 10.1
DIRECTOR RESTRICTED PHANTOM UNIT
AGREEMENT
UNDER THE
STONEMOR PARTNERS L.P. LONG-TERM
INCENTIVE PLAN
This Director Restricted Phantom
Unit Agreement (the “Agreement”) entered into as of
June 23, 2009 (the “Agreement Date”), by and
between StoneMor GP LLC (the “Company”), the general
partner of and acting on behalf of StoneMor Partners L.P., a
Delaware limited partnership (the “Partnership”) and
Robert Hellman, a director of the Company (the
“Participant”).
BACKGROUND:
In order to make certain awards to
key employees, directors and consultants of the Company and its
Affiliates, the Company maintains the StoneMor Partners L.P.
Long-Term Incentive Plan (the “Plan”). The Plan is
administered by the Compensation Committee (the
“Committee”) of the Board of Directors of the Company.
The Committee has determined to grant to the Participant, pursuant
to the terms and conditions of the Plan, an award (the
“Award”) of Phantom Units, representing notional
limited partner interests in StoneMor Partners L.P. (the
“Partnership”). The Participant has determined to
accept such Award. Any initially capitalized terms and phrases used
in this Agreement, but not otherwise defined herein, shall have the
respective meanings ascribed to them in the Plan. This document is
intended to formalize a prior agreement made with the Participant
in connection with the Participant’s service as a
director.
NOW, THEREFORE, the Company and the
Participant, each intending to be legally bound hereby, agree as
follows:
ARTICLE I
AWARD OF PHANTOM
UNITS
1.1 Creation of Mandatory
Deferred Compensation Account . Commencing retroactive to the
first regular quarterly meeting of the Board of Directors in 2009,
compensation in the annual amount of $12,500, (“Annual
Deferral”) payable to the Participant in consideration for
service as a Director shall be deferred and credited, in the form
of Phantom Units, to a Mandatory Deferred Compensation Account
established by the Company for the Participant.
1.2 Crediting Phantom Units .
The Annual Deferral shall be credited in four (4) equal
quarterly installments to the Participant’s Mandatory
Deferred Compensation Account in the form of Phantom Units, each
installment to be credited on the date of the regular quarterly
meeting of the Board for such quarter. The number of Phantom Units
(or fractions thereof) to be credited to the Participant’s
Mandatory Deferred Compensation Account shall be determined by
dividing the amount of each quarterly installment by the closing
price for Common Units of the Partnership as published in The
Wall Street Journal or in Yahoo Finance for the trading
day immediately prior to the first day of such regular quarterly
Board meeting. Notwithstanding the foregoing, in the event that
there is no meeting of the Board during any calendar quarter, the
crediting shall occur on such date as is designated by the Company.
Crediting of Phantom Units (or fractions thereof) to the
Participant’s Mandatory Deferred Compensation Account shall
not
entitle the Participant to the rights of a
limited partner of the Partnership or a holder of Units. The term
“quarterly”, as used in this Agreement, refers to
calendar quarters.
1.3 Crediting Distribution
Equivalent Rights (“DERs”) . For each Phantom Unit
in the Participant’s Mandatory Deferred Compensation Account,
the Company shall credit such account, solely in Phantom Units (or
fractions thereof), with an amount, in respect of DERs, equal to
the cash distributions paid on a Unit. The crediting shall occur as
of the date on which such cash distributions on the Common Units of
the Partnership are paid. The number of Phantom Units (or fractions
thereof) to be credited to the Participant’s Mandatory
Deferred Compensation Account shall be calculated by dividing the
dollar amount of the DERs by the closing price for the Common Units
of the Partnership as published in The Wall Street Journal
or in Yahoo Finance for the trading day immediately prior to
the day on which the cash distribution is paid on the Units. Any
fractional Phantom Unit created by DERs or otherwise shall likewise
be entitled to further DERs equal to cash distributions paid on
Common Units of the Partnership multiplied by such fractional
Phantom Unit. The Company will establish a bookkeeping method to
account for DERs to be credited to the Participant’s
Mandatory Deferred Compensation Account. DERs shall cease to be
credited to the Participant’s Mandatory Deferred Compensation
Account from and after any of the events specified in
Section 1.4 hereof, except to the extent that any balance
remains in the Participant’s Mandatory Deferred Compensation
Account after such event. DERs shall not bear interest.
1.4 Time of Payment .
Participant shall be entitled to payment of the Participant’s
Mandatory Deferred Compensation Account upon the first payment
event to occur pursuant to Section 409A(a)(2) of the Code and
the rules and regulations adopted thereunder as follows:
(1) Separation from Service as
described under Section 409A of the Code and the rules and
regulations adopted thereunder; or
(2) Disability of the Participant.
The Participant is considered disabled if he is unable to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than 12 months; or
(3) an “Unforeseeable
Emergency” with respect to the Participant, but subject to
the limitations under Section 409A of the Code and the rules
and regulations adopted thereunder as to any amount which may be
paid. An Unforeseeable Emergency means a severe financial hardship
to the Participant resulting from an illness or accident of the
Participant, the Participant’s spouse, the
Participant’s dependent (as defined in Code section 152,
without regard to section 152(b)(1), (b)(2), and (d)(1)(B)) or a
Beneficiary; loss of the Participant’s property due to
casualty (including the need to rebuild a home following damage to
a home not otherwise covered by insurance, for example, as a result
of a natural disaster); or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond
the control of the Participant. The types of events which may
qualify as an Unforeseeable Emergency may be limited by the
Committee; or
2
(4) a “Change of
Control” of the Partnership or Company, as defined in the
Plan, but subject to any further limitations under
Section 409A of the Code and the rules and regulations adopted
thereunder; or
(5) death of the Participant. Upon
the death of a Participant prior to the full payment of all amounts
credited to the Participant’s Mandatory Deferred Compensation
Account, the balance of such Mandatory Deferred Compensation
Account shall be paid in accordance with Sections 1.5 and
1.6.
All payments of the
Participant’s Mandatory Deferred Compensation Account will
commence on or before the later of: (1) the last day of the
calendar year in which the payment event occurs or (2) the
15th day of the third month following the date the payment event
occurs. No payment of the Mandatory Deferred Compensation Account
shall be made to the Participant prior to the occurrence of any of
the preceding payment events and only to the extent permitted under
Section 409A(a)(2) of the Code and the rules and regulations
adopted thereunder.
1.5 Method of Payment
.
(a) All payments for Phantom Units
(or fractions thereof) credited to the Participant’s
Mandatory Deferred Compensation Account shall be made in Common
Units of the Partnership, except as the Company, at its option,
otherwise elects as provided in Section 1.5(b) hereof. The
number of Common Units of the Partnership paid shall be equal to
the number of whole Phantom Units in the Participant’s
Mandatory Deferred Compensation Account. For this purpose, any
fractional Phantom Units in such Account shall be combined to equal
whole Phantom Units to the extent possible. If after such
combination there is any remaining fractional Phantom Unit, such
remaining fractional Phantom Unit shall be distributed as an amount
of cash equal to the product of multiplying such fractional Phantom
Unit by the closing price for Common Units of the Partnership as
published in The Wall Street Journal or in Yahoo
Finance for the trading day immediately prior to the payment
date.
(b) The Company, at its option, may
elect to pay all or any portion of the Mandatory Deferred
Compensation Account in cash instead of paying in Common Units of
the Partnership. Phantom Units (or fractions thereof) credited to
the Participant’s Mandatory Deferred Compensation Account
shall be valued at the closing price for Common Units of the
Partnership as published in The Wall Street Journal or in
Yahoo Finance for the trading day immediately prior to the
payment date.
1.6 Designation of
Beneficiary .
(a) In the event of the
Participant’s death, the primary death beneficiaries and
contingent death beneficiaries entitled to receive payments due the
Participant at the time of death are designated below the
Participant’s signature on this Agreement, unless such
designation is amended as provided in this Section 1.6, in
which case the amended designation shall apply. No amendment to the
designation of the beneficiaries shall be valid unless in a
writing, signed by the Participant, dated, and filed with the
Committee during the lifetime of the Participant. A subsequent
beneficiary designation will cancel all beneficiary designations
signed
