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8-K - FORM 8-K - EVERFLOW EASTERN PARTNERS LP | c96000e8vk.htm |
EX-3.1 - EXHIBIT 3.1 - EVERFLOW EASTERN PARTNERS LP | c96000exv3w1.htm |
Exhibit No. 99.1
Everflow Eastern Partners, L.P.
Option Repurchase Plan
Option Repurchase Plan
Adopted December 2, 2009
1. Establishment and Purpose.
Everflow Eastern Partners, L.P., a Delaware limited partnership (the Company), hereby
establishes the Option Repurchase Plan (the Plan). The Plan permits the grant of options to
purchase Units as described below.
The purpose of the Plan is to assist the Company and its affiliates to attract and retain
officers and other key employees and to enable those individuals to acquire or increase their
ownership interest in the Company in order to encourage them to promote the growth and
profitability of the Company. The Plan is designed to align directly the financial interests of
the participants with the financial interests of the Unitholders.
2. Definitions.
(a) | Administrator shall mean either the Options Committee of the Board or such
committee of the Board to which the Board may from time to time delegate the powers,
authority and discretion of the Administrator under the Plan. |
(b) | Agreement shall mean, in respect of any Unit option granted pursuant to the
Plan, the written Agreement executed by the Company and the Participant which sets
forth the terms of the option, in such form as shall be prescribed by the
Administrator. |
(c) | Board means the duly elected Board of Directors of Everflow Management
Corporation, the managing member of the General Partner, or the duly elected board of
directors or other comparable governing body of any corporation or other business
entity or organization which succeeds to the business of the Company and assumes the
Plan. |
(d) | Code means the Internal Revenue Code of 1986, as amended, and any successor
statute. |
(e) | Company means Everflow Eastern Partners, L.P., a Delaware limited
partnership, or any corporation or other business entity or organization which succeeds
to the business of the Company and assumes the Plan, whether by operation of law or
otherwise. |
(f) | Exercise Price shall mean a price equal to the price paid by the Company to
the tendering Unitholders in the repurchase offer conducted annually by the Company. |
(g) | General Partner shall mean Everflow Management Limited, LLC, the general
partner of the Company. |
(h) | Participant means any person to whom a stock option is granted pursuant to
the Plan. |
(i) | Sale of the Company means, either in one transaction or in a series of
related transactions, (i) a sale, exchange or other transfer of Units of voting
partnership interest of the Company representing fifty percent (50%) or more of all
votes entitled to be cast by the Unitholders (either to a single person or group of
persons acting in concert or pursuant to a public offering of such Units, and
including, without limitation, a transfer or exchange of such Units by way of a merger
or consolidation in which the Company is a constituent entity), or (ii) a redemption or
repurchase of all of the Units of the Company in connection with a sale of all or
substantially all of the assets of the Company, or (iii) the winding up, dissolution or
liquidation of the Company, or (iv) a sale of all or substantially all of the assets of
the Company. |
(j) | Securities Act means the Securities Act of 1933, as amended from time to
time. |
(k) | Units shall mean the units of the limited partnership interest in the
Company. |
(l) | Unitholders shall mean the holders of units of limited partnership interests
in the Company. |
3. Administration.
The Plan shall be administered by the Administrator. The Administrator shall, consistent with
the provisions of the Plan, be authorized to (a) select eligible persons to participate in the
Plan, (b) determine the form of the Agreements which shall set the terms of the grants made under
the Plan to a Participant, including conditions and restrictions to which such grants will be
subject, (c) interpret the provisions of the Plan, and (d) adopt, amend, or rescind such rules and
regulations for carrying out the Plan as it may deem appropriate. Decisions of the Administrator
on all matters relating to the Plan shall be in the Administrators sole discretion (consistent
with the Plan and any applicable Agreement) and shall be conclusive and binding on all persons,
including the Company, its Unitholders, and the Participants. The validity, construction and
effect of the Plan and any rules and regulations relating to the Plan shall be determined in
accordance with applicable federal and state laws and rules and regulations promulgated pursuant
thereunder.
4. Units Available for the Plan.
Subject to adjustments as provided in Section 12, the number of Options which may be granted
annually will not exceed the lesser of 30,000 Units or 50% of the Units Repurchased by the Company
in the annual Repurchase Offer. With regard to grants to any one individual in a calendar year,
the number of options that may be granted under the Option Repurchase Plan will not exceed 10,000.
If any Option granted under the Plan expires, terminates unexercised or is forfeited, such
unpurchased or forfeited Units shall not thereafter be available for further grants.
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5.
Participation.
Participation in the Plan is limited to those key officers or employees of the Company, the
General Partner and any of their affiliates selected by the Administrator. Nothing in the Plan or
in any grant thereunder shall confer any right on a Participant to continue in the employ of the
Company or shall interfere in any way with the right of the Company or any affiliate to terminate
the employment of a Participant.
6.
Options.
Subject to the other applicable provisions of the Plan, the Administrator may from time to
time grant to eligible persons options to acquire Units. The options granted shall be subject to
the following terms and conditions.
(a) | Price. The price per Unit payable upon the exercise of an option shall be the
Exercise Price. |
(b) | Payment. Options may be exercised in whole or in part upon payment of the
Exercise Price of the Units to be acquired and satisfaction of all such other
conditions as may be required by the Plan, the applicable Agreement and by applicable
law. Payment may be made in cash. |
(c) | Terms of Options. The period during which an option may be exercised shall be
three (3) business days from the date of grant of the options, which will be granted
simultaneous with the expiration of the annual Repurchase Offer. All rights to
purchase Units pursuant to an option shall, unless sooner terminated, expire at such
date. Except as otherwise set forth in the Agreement, an option may be exercised only
while a Participant is employed by the Company or any affiliate. The Agreement may set
forth criteria for the forfeiture of options including, without limitation, upon a
Participants termination of employment. Prior to the exercise of the option and
issuance of Units pursuant to exercise of the option, the Participant shall have no
rights to any dividends or be entitled to any voting rights in respect of any Units
subject to the option. |
(d) | Sale of the Company. Upon a Sale of the Company, the Administrator shall have
the right and authority, but not the obligation, (i) to compel a Participant to
exercise his option to the extent that such option is then exercisable (or becomes
exercisable because of the Sale of the Company), or (ii) to cancel such option in whole
or in part and terminate all rights of the Participant thereunder with respect to the
canceled option Units upon payment to the Participant of the difference between (A) the
aggregate value of the canceled option Units, whether vested or unvested (as determined
by the Administrator on the basis of the value of a Unit in such Sale of the Company),
minus (B) the aggregate exercise price payable upon the exercise of such option with
respect to the canceled Option Units (assuming the options were then fully
exercisable), or (iii) to provide that such option shall be converted into a comparable
option, as determined by the Administrator in its sole discretion, to purchase
securities of a corporation or
other entity acquiring direct or indirect control of the Company in such Sale of the
Company. |
(e) | Nonqualified Options. All options granted pursuant to the Plan shall be
nonqualified options and shall not be treated as incentive stock options as defined in
Section 422 of the Code. |
(f) | No Rights as a Unitholder. No Participant to whom an option is granted under
the Plan shall have any of the rights of a Unitholder of the Company with respect to
the Units which are the subject of such option unless and until such time as Units are
actually issued to such Participant upon exercise thereof in accordance with the Plan,
including, without limitation, any rights to vote such Units or to grant or withhold
any consent in respect of such Units, or to receive any distributions that may be
declared or paid on or in respect of such Units. |
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7.
Form of Agreements.
Each Participant to whom a grant of a Unit option is made under the Plan shall execute an
Agreement that shall contain such provisions, not inconsistent with the provisions of the Plan, as
may be prescribed by the Administrator. Without limiting the generality of the foregoing, the
Administrator may require that any Participant to whom Units are to be issued upon the exercise of
an option under the Plan shall, as a condition to such exercise, execute and deliver to the Company
a counterpart signature page to, and agree to be bound by, all of the terms and provisions of the
Partnership Agreement, or another written agreement, in such form as the Administrator may
prescribe, providing for any lawful restrictions upon and other provisions relating to transfers or
resales of such Units as the Administrator may specify. Further, the Administrator may require
that any Participant to whom an option is to be granted under the Plan shall, as a condition to the
effectiveness of such option, agree with the Company either in the applicable option Agreement or
in a separate written agreement that such Participant shall refrain from engaging specified
conduct. The Administrator may amend or modify the Agreement governing any outstanding option in
any manner to the extent that the Administrator would have had the authority to grant such option
under the Agreement as so modified or amended, including without limitation changing the dates as
of which an option becomes exercisable or restrictions on Units lapse. The foregoing
notwithstanding, no modification of an Agreement may be made that would materially adversely affect
a Participant without the approval of the Participant; provided, that the Administrator may modify
any Agreement if such modification is required by applicable law.
8.
Withholding of Taxes.
The Administrator shall require, as a condition to the delivery of certificates for Units
issued under the Plan, that the Participant pay to the Company, in cash, the amount of any federal,
state or local taxes of any kind required by law to be withheld with respect to any grant, payment
or delivery of Units.
9.
Transferability.
No option granted under the Plan shall be transferable by a Participant other than by will or
the laws of descent and distribution or to such other persons as may be approved by the
Administrator in the Agreement or otherwise. Except as otherwise set forth in an Agreement, an
option may be exercised only by the Participant or his guardian or legal representative. No Units
issued upon exercise of an option shall be transferable by a participant except in compliance with
all of the terms and conditions of the Partnership Agreement.
10.
Listing and Registration.
If the Administrator determines that the listing, registration, exemption from registration,
or qualification upon any securities exchange or under any law of Units subject to any option is
necessary or desirable as a condition of, or in connection with, the grant thereunder, then no such
option may be exercised in whole or in part unless such listing, registration, exemption from
registration, or qualification is effected or perfected free of any conditions not acceptable to
the Administrator; provided, that, if an exemption from registration is reasonably
available, the Administrator shall use reasonable efforts to obtain such exemption.
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11. Transfer of Employee.
Transfer of a Participants employment from the Company or the General Partner to an
affiliate, from an affiliate to the Company or the General Partner, or from one affiliate to
another shall not, for purposes of the Plan, be considered a termination of employment.
12.
Adjustments.
In the event of a reorganization, recapitalization, Unit split, Unit distribution, combination
of Units, merger, Unit exchange, consolidation, substantial distribution of assets, or any similar
changes in the partnership structure or Units (an Adjustment Event), then the number and kind of
Units reserved for issuance under the Plan, the number and kind of Units covered by outstanding
options granted under the Plan, the exercise price of outstanding options, and the maximum number
of Units specified in Section 4 of the Plan shall be appropriately adjusted, as determined by the
Administrator in its sole discretion, so that they are proportionately equivalent to the number and
kind of shares, exercise price of outstanding options and maximum number of Units specified in
Section 4 of the Plan as immediately prior to such Adjustment Event.
13.
Amendments to the Plan.
Except as otherwise provided herein or in an Agreement, the Administrator may at any time
amend, modify, suspend or terminate the Plan; provided, however, that the
Administrator may not amend the final sentence of Section 7 of the Plan without the consent of all
Participants.
14.
Termination Date.
No further grants of options may be made under the Plan following the close of business on
December 31, 2035, unless such date is extended by the Options Committee at its sole discretion.
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