Exhibit 10.2
NON-COMPETE
AGREEMENT
THIS NON-COMPETE AGREEMENT (this
“Agreement”) is entered into this 8th day of December,
2006, and effective as of the Effective Time (as defined below), by
and among Penn Virginia GP Holdings, L.P., a Delaware limited
partnership (“Holdings”), Penn Virginia Resource
Partners, L.P., a Delaware limited partnership (the
“MLP”), and Penn Virginia Resource GP, LLC, a Delaware
limited liability company and general partner of the MLP (the
“General Partner,” and together with the MLP and their
respective Subsidiaries, the “Partnership
Parties”).
RECITAL
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 will be addressed.
WHEREAS, Penn Virginia Corporation
(“Penn Virginia Corporation”), the General Partner,
Penn Virginia Operating Co., LLC, and the MLP are parties to an
Omnibus Agreement, dated as of October 30, 2001, as amended by
Amendment No. 1 thereto (the “Omnibus Agreement”),
pursuant to which Holdings, as a controlled Affiliate of Penn
Virginia Corporation, is prohibited from engaging in a Restricted
Business (as defined in the Omnibus Agreement);
WHEREAS, Penn Virginia Corporation
may reduce its ownership of Holdings, which would result in
Holdings no longer being a controlled Affiliate of Penn Virginia
Corporation and no longer being bound by Article II of the Omnibus
Agreement;
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 Article II 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:
ARTICLE I:
Definitions
1.1 Definitions .
(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 the General Partner
or the Holdings General Partner, as applicable, as defined in the
MLP Agreement, or the Holdings Agreement respectively.
“Effective Time” means
the time at which Holdings is no longer bound by Section II of the
Omnibus Agreement.
“General Partner” means
Penn Virginia Resource GP, LLC, a Delaware limited liability
company, and any successors thereto.
“Holdings” means Penn
Virginia GP Holdings, L.P., a Delaware limited partnership, and any
successors thereto.
“Holdings Agreement”
means the Amended and Restated Agreement of Limited Partnership of
Holdings, and any amendments thereto and restatements
thereof.
“Holdings General
Partner” means PVG GP, LLC, a Delaware limited liability
company, as the general partner of Holdings, and any successors
thereto.
“MLP” means Penn
Virginia Resource Partners, L.P., a Delaware limited partnership,
and any successors thereto.
“MLP Agreement” means
the First Amended and Restated Agreement of Limited Partnership of
the MLP, and any amendments thereto and restatements
thereof.
“MLP Business” means any
entity, business, asset or group of assets related to or engaged in
(i) owning, mining, processing, marketing, or transporting
coal; (ii) owning, acquiring or leasing coal reserves;
(iii) growing, harvesting, or selling timber or (iv) the
gathering or processing of natural gas or other
hydrocarbons.
“MLP Business Notice”
shall have the meaning set forth in Section 2.2(b).
“Partnership Parties”
means the General Partner, the MLP 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) 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 or 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. Public Equity Securities
shall not include GP Interests or non-GP Interests in entities
engaged in any MLP Business.
“Public Equity Securities
Notice” shall have the meaning set forth in
Section 2.1(b).
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, the General Partner (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 30 days after receipt
of such notification and information, Holdings shall notify the
Partnership Parties that either (i) Holdings has elected, with
the approval of a majority of the members of the Conflicts
Committee, not to cause Holdings to pursue the opportunity to
acquire such Public Equity Securitie
