Exhibit 10.33
FORM OF NON-COMPETE
AGREEMENT
THIS NON-COMPETE
AGREEMENT (this “ Agreement ”) is entered into
this [ ] day of [ ], 2006, but effective as of the Effective Time
(as defined below), by and among Valero GP Holdings, LLC, a
Delaware limited liability company (“ Holdings
”), Valero L.P., a Delaware limited partnership (the “
MLP ”), Riverwalk Logistics, L.P., a Delaware limited
partnership and general partner of the MLP (“
Riverwalk ”), and Valero GP, LLC, a Delaware limited
liability company and general partner of Riverwalk (“
Valero GP ” and together with the MLP, Riverwalk, and
their respective Subsidiaries, the “ Partnership
Parties ”).
The parties hereto
desire, by their execution of this Agreement, to evidence the terms
and conditions pursuant to which business opportunities available
to the Partnership Parties and Holdings and their respective
affiliates (other than the Partnership Parties) will be
addressed.
WHEREAS,
Valero Energy Corporation (“ Valero Energy ”),
Valero GP, Riverwalk, the MLP and Valero Logistics Operations, L.P.
are parties to the Amended and Restated Omnibus Agreement, dated as
of [ ], 2006 (the “ Omnibus Agreement ”),
pursuant to which Holdings, as a Controlled Valero Affiliate (as
defined in the Omnibus Agreement), is prohibited from engaging in a
Restricted Business (as defined in the Omnibus
Agreement);
WHEREAS,
Valero Energy has stated its intent to reduce its ownership of
Holdings, which would result in Holdings no longer being a
Controlled Valero Affiliate and no longer being bound by the terms
of the Omnibus Agreement; and
WHEREAS ,
it is the intent of the parties hereto to be bound by the
provisions of this Agreement effective immediately upon Holdings no
longer being bound by the provisions of the Omnibus
Agreement.
In consideration
of the premises and the covenants, conditions, and agreements
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
(a) Capitalized
terms used herein but not defined herein shall have the meanings
given them in the MLP Agreement.
(b) As
used in this Agreement, the following terms shall have the
respective meanings set forth below:
“
Affiliate ” shall have the meaning attributed to such
term in the MLP Agreement.
“
Agreement ” shall mean this Non-Compete Agreement, as
it may be amended, modified, or supplemented from time to
time.
“
Conflicts Committee ” means a committee of the Board
of Directors of Holdings or Valero GP, as applicable, as defined in
the Holdings Agreement or the MLP Agreement,
respectively.
“
Effective Time ” means the time at which Holdings is
no longer a Controlled Valero Affiliate under the terms of the
Omnibus Agreement.
“
Holdings ” means Valero GP Holdings, LLC, a Delaware
limited liability company, and any successors thereto.
“
Holdings Agreement ” means the Second Amended and
Restated Limited Liability Company Agreement of Holdings, and any
amendments thereto and restatements thereof.
“
Logistics Business ” means any business, asset or
group of assets related to the transportation, storage or
terminalling of crude oil, feedstocks or refined petroleum products
(including petrochemicals), in the United States or internationally
that is not a Public Equity Security.
“
Logistics Business Notice ” shall have the meaning set
forth in Section 2.1(b).
“
MLP ” means Valero L.P., a Delaware limited
partnership, and any successors thereto.
“
MLP Agreement ” means the Third Amended and Restated
Agreement of Limited Partnership of the MLP, and any amendments
thereto and restatements thereof.
“
Partnership Parties ” means Valero GP, the MLP,
Riverwalk and their respective Subsidiaries.
“
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.
“
Public Equity Securities ” shall mean (i) general
partner interests (or securities which have characteristics similar
to general partner interests) and incentive distribution rights or
similar rights in publicly traded partnerships or interests in
Persons that own or control such general partner or similar
interests (collectively, “ GP Interests ”) and
securities convertible, exercisable, exchangeable or otherwise
representing ownership or control of such GP Interests and
(ii) incentive distribution rights and limited partner
interests (or securities which have characteristics similar to
incentive distribution rights or limited partner interests) in
publicly traded partnerships or interests in Persons that own or
control such limited partner or similar interests (collectively,
“ non-GP Interests ”); provided that such non-GP
Interests are owned by the owners of the GP Interests being
acquired or their respective Affiliates.
-2-
“
Public Equity Securities Notice ” shall have the
meaning set forth in Section 2.1(b).
“
Riverwalk ” means Riverwalk Logistics, L.P., a
Delaware limited partnership, and any successors
thereto.
“
Valero GP ” means Valero GP, LLC, a Delaware limited
liability company, and any successors thereto.
ARTICLE II:
Business Opportunities
2.1 Public
Equity Securities Opportunity . (a) During the term of
this Agreement, the Partnership Parties are prohibited from
acquiring Public Equity Securities unless and until the opportunity
to acquire such Public Equity Securities has been offered to
Holdings and Holdings has declined or abandoned such opportunity as
provided in Section 2.1(b).
(b) If any of
the Partnership Parties becomes aware of an opportunity to acquire
Public Equity Securities from a third party that it wishes to
pursue, then as soon as practicable, Valero GP (on behalf of the
Partnership Parties) shall notify Holdings of such opportunity (the
“ Public Equity Securities Notice ”) and deliver
to Holdings all information prepared by or on behalf of the
Partnership Parties relating to the Public Equity Securities. As
soon as practicable, but in any event within
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