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Exhibit 10.1
PENN VIRGINIA RESOURCE GP, LLC
FIFTH AMENDED AND RESTATED
LONG-TERM INCENTIVE PLAN
SECTION 1. Purpose of the Plan .
The Penn Virginia Resource GP, LLC Fifth Amended and Restated
Long-Term Incentive Plan, as amended and restated herein effective
December 8, 2008 (the "Plan") is intended to promote the
interests of Penn Virginia Resource Partners, L.P., a Delaware
limited partnership (the "Partnership"), by providing to employees
and directors of Penn Virginia Resource GP, LLC (the "Company") and
its Affiliates who perform services for the Partnership incentive
compensation awards for superior performance that are based on
Units. The Plan is also contemplated to enhance the ability of the
Company and its Affiliates to attract and retain the services of
individuals who are essential for 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 interests
of the Partnership and its partners.
SECTION 2. Definitions .
As used in the Plan, the following terms shall have the meanings
set forth below:
"Account" means the bookkeeping reserve account established and
maintained for each Director pursuant to Section 6(d)(iii)
hereof solely to determine the amount of Deferred Common Units
payable to the Director pursuant to Section 6(d)(i) and shall
not constitute a separate fund of assets. Each such Account shall
consist of such subaccounts as the Committee deems necessary or
desirable for the administration of the Plan.
"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.
"Award" means an Option, Unit, Restricted Unit, Phantom Unit or
Deferred Common Unit granted under the Plan, and shall include any
tandem DERs granted with respect to a Phantom Unit.
"Board" means the Board of Directors of the Company.
"Change of Control" 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 or a series of
related transactions) of all or substantially all of the assets of
the Partnership or the Company to any Person or its Affiliates,
other than the Partnership, the Company or any of their Affiliates,
(ii) any merger, reorganization, consolidation or other
transaction pursuant to which more than 50% of the combined voting
power of the equity interests in the Company ceases to be
beneficially owned (as defined in Rule 13d-3 under the Exchange
Act) by Penn Virginia Corporation, (iii) a "change of control"
of Penn Virginia Corporation, as provided in its Fifth Amended and
Restated 1999 Employee Stock Incentive Plan, as amended from time
to time, or (iv) the general partner (whether the Company or
any other Person) of the Partnership ceases to be an Affiliate of
Penn Virginia Corporation.
"Code" means the Internal Revenue Code of 1986,
as amended and the regulations promulgated thereunder.
"Committee" means the Compensation and Benefits Committee of the
Board or such other committee of the Board appointed by the Board
to administer the Plan.
"Deferred Common Unit" means a bookkeeping entry representing a
single Unit.
"DER" means a contingent right, granted in tandem with a
specific Phantom 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 Phantom Unit is outstanding.
"Director" means a member of the Board who is not an
Employee.
"Employee" means any employee of the Company or an Affiliate who
performs services for the Partnership, as determined by the
Committee.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means the closing sales price of a Unit 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) as
reported in The Wall Street Journal (or other reporting service
approved by the Committee). In the event 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 determined by the Committee pursuant to any reasonable valuation
method authorized under the Code.
"Option" means an option to purchase Units granted under the
Plan.
"Participant" means any Employee or Director granted an Award
under the Plan.
"Partnership Agreement" means the Second Amended and Restated
Agreement of Limited Partnership of Penn Virginia Resource
Partners, L.P., as amended from time to time.
"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.
"Phantom Unit" means a phantom (notional) Unit granted under the
Plan which upon vesting entitles the Participant to receive a Unit
or an amount of cash equal to the Fair Market Value of a Unit,
whichever is determined by the Committee.
"Restricted Period" means the period established by the
Committee with respect to an Award during which the Award remains
subject to forfeiture (is not vested) and is not exercisable by or
payable to the Participant; provided, however, the Restricted
Period with respect to any Award may not terminate prior to the end
of the Subordination Period (as defined in the Partnership
Agreement) except (i) at the same time and in the same
proportion as subordinated units are converted into Common Units,
and (ii) upon a Change of Control.
"Restricted Unit" means a Unit granted under the Plan that
remains subject to a Restricted Period.
"Retirement" means the voluntary termination by a
Participant of the Participant’s employment with the Company
after such Participant has become Retirement Eligible.
"Retirement Eligible" means a Participant has attained age 62
and completed at least ten consecutive Years of Service, or such
younger age or lesser number of consecutive Years of Service as
determined by the Committee.
"Rule 16b-3" means Rule 16b-3 promulgated by the SEC under the
Exchange Act, or any successor rule or regulation thereto as in
effect from time to time.
"SEC" means the Securities and Exchange Commission, or any
successor thereto.
"Unit" means a Common Unit of the Partnership.
"Unit Distribution" means any cash distribution or other
distribution paid by the Company on account of the Units.
"Year of Service" means any calendar year in which an employee
of the Company is paid or entitled to be paid for 1,000 hours of
service.
SECTION 3. Administration .
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 following and any applicable law, the
Committee, in its sole discretion, may delegate any or all of its
powers and duties under the Plan (provided the Chief Executive
Officer is a member of the Board), including the power to grant
Awards under the Plan, to the Chief Executive Officer of the
Company, subject to such limitations on such delegated powers and
duties as the Committee may impose, if any. Upon any such
delegation all references in the Plan to the "Committee", other
than in Section 7, shall be deemed to include the Chief
Executive Officer; provided, however, that such delegation shall
not limit the Chief Executive Officer’s right to receive
Awards under the Plan. Notwithstanding the foregoing, the Chief
Executive Officer may not grant Awards to, or take any action with
respect to any Award previously granted to, a person who is an
officer subject to Rule 16b-3 or a member of the Board. Subject to
the terms of the Plan and applicable law, and in addition to other
express powers and authorizations conferred on the Committee by the
Plan, the Committee shall have full power and authority to:
(i) designate Participants; (ii) determine the type or
types of Awards to be granted to a Participant;
(iii) determine the number of Units to be covered by Awards;
(iv) determine the terms and conditions of any Award;
(v) determine whether, to what extent, and under what
circumstances Awards may be settled, exercised, canceled, or
forfeited; (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 .
(a) Units Available . Subject to adjustment as provided
in Section 4(c), the number of Units with respect to which
Awards may be granted under the Plan is 3,000,000. If any Option,
Restricted Unit or Phantom Unit 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.
(b) Sources of Units Deliverable Under Awards . Any Units
delivered pursuant to an Award shall consist, in whole or in part,
of Units acquired in the open market, from any Affiliate, the
Partnership or any other Person, or any combination of the
foregoing, as determined by the Committee in its discretion.
(c) Adjustments . In the event of any distribution
(whether in the form of cash, Units, other securities, or other
property), recapitalization, split, reverse split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase,
or exchange of Units or other securities of the Partnership,
issuance of warrants or other rights to purchase Units or other
securities of the Partnership, or other similar transaction or
event affects the Units, then the Committee shall, in such manner
as it may deem equitable and appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, adjust any or all of
(i) the number and type of Units (or other securities or
property) with respect to which Awards may be granted,
(ii) the number and type of Units (or other securities or
property) subject to outstanding Awards, and (iii) the grant
or exercise price with respect to any Award or, if deemed
appropriate, make provision for a cash payment to the holder of an
outstanding Award; provided, that the number of Units subject to
any Award shall always be a whole number.
SECTION 5. Eligibility .
Any Employee or Director shall be eligible to be designated a
Participant and receive an Award under the Plan, except that only
Directors shall be eligible to receive Deferred Common Units.
SECTION 6. Awards .
(a) Options . The Committee shall have the authority to
determine the Employees and Directors to whom Options shall be
granted, the number of Units to be covered by each Option, the
purchase price therefor and the conditions and limitations
applicable to the exercise of the Option, including the following
terms and conditions and such additional terms and conditions, as
the Committee shall determine, that are not inconsistent with the
provisions of the Plan.
(i) Exercise Price . The purchase price per Unit
purchasable under an Option shall be determined by the Committee at
the time the Option is granted and may not be less than its Fair
Market Value as of the date of grant.
(ii) Time and Method of Exercise . The Committee shall
determine the Restricted Period, i.e., the time or times at which
an Option may be exercised in whole or in part, which may include,
without limitation, accelerated vesting upon the achievement of
specified performance goals, and the method or methods by which
payment of the exercise price with respect thereto may be made or
deemed to have been made, which may include, without limitation,
cash, check acceptable to the Company, a "cashless-broker" exercise
through procedures approved by the Company, other securities or
other property, a recourse note from the Participant in a form
acceptable to the Company, or any combination
thereof, having a Fair Market Value on the exercise date equal to
the relevant exercise price.
(iii) Forfeiture . Except as otherwise provided in the
terms of the Option grant, upon termination of a
Participant’s employment with the Company and its Affiliates
or membership on the Board, whichever is applicable, for any reason
other than a Participant’s Retirement during the applicable
Restricted Period, all Options shall be forfeited by the
Participant. The Committee may, in its discretion, waive in whole
or in part such forfeiture with respect to a Participant’s
Options.
(b) Phantom Units . The Committee shall have the
authority to determine the Employees and Directors to whom Phantom
Units shall be granted, the number of Phantom Units to be granted
to each such Participant, the Restricted Period, the conditions
under which the Phantom Units may become vested or forfeited,
whic
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