Exhibit 10.03
NON-COMPETE
AGREEMENT
THIS NON-COMPETE AGREEMENT (this
“ Agreement ”) is entered into this 19
th day of July, 2006, and 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” ).
R E C I T A L
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 March 31, 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;
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:
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 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 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
2
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
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
30 days after receipt of su
