PNGS GP LLC CLASS B
RESTRICTED UNITS AGREEMENT
PNGS GP LLC CLASS B RESTRICTED UNITS AGREEMENT (this Agreement) is entered into as of
(the Grant Date) by and between PNGS GP LLC, a Delaware limited liability
company (the Company), and
WHEREAS, to provide an incentive to Executive to enhance the profitability and growth of the
Company and its Affiliates and to encourage Executive to remain employed by the Company or its
Affiliates, the Company desires to grant to Executive Class B Units (the Granted
Units) on the Grant Date, which Granted Units shall have such rights, designations and preferences
as are set forth in this Agreement and the LLC Agreement;
WHEREAS, the Company and Executive desire to enter into this Agreement to evidence certain
terms and conditions that relate to the grant, ownership and transfer of the Granted Units; and
NOW, THEREFORE, in consideration of the mutual agreements set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company
and Executive agree as follows:
DEFINITIONS AND CONSTRUCTION
1.1 Construction. Unless the context requires otherwise: (a) the gender (or lack of gender)
of all words used in this Agreement includes the masculine, feminine, and neuter; (b) references to
Sections refer to sections of this Agreement; (c) references to Exhibits refer to the Exhibits
attached to this Agreement, each of which is made a part hereof for all purposes; (d) references to
money refer to legal currency of the United States of America; and (e) the word including means
including without limitation.
1.2 Definitions. Capitalized terms used in this Agreement (including Exhibit A attached
hereto) that are not defined in this Section 1.2 or in the body of this Agreement shall have the
meanings given to them in the LLC Agreement.
Affiliate of a person means any person controlling, controlled by, or under common control
with such person. As used herein, the terms controlling, controlled by and under common
control with mean the possession, directly or indirectly, of the power to direct or cause the
direction of management or policies (whether through ownership of securities or any partnership or
other ownership interest, by contract or otherwise) of a person. For the purposes of the preceding
sentence, control shall be deemed to exist when a person possesses, directly or indirectly, through
one or more intermediaries (a) in the case of a corporation, more than 50% of the outstanding
voting securities thereof; (b) in the case of a limited liability company,
partnership, limited partnership or venture, the right to more than 50% of the voting
membership, general partner or equivalent interest therein; or (c) in the case of any other person,
more than 50% of the economic or beneficial interest therein.
Board means the Board of Directors or governing board or committee of the Company.
Capital Call means the occurrence of an event that requires the partners to make a cash
contribution to the Company pursuant to Section 3.1(c) of the LLC Agreement.
Capital Call Amount means, with respect to a particular Capital Call, the aggregate amount
of the cash contributions required to be made to the Company by its members in connection
Cause means Executives (i) failure to perform his job function in accordance with standards
described to him in writing, or (ii) violation of the Companys Code of Business Conduct (unless
waived in accordance with the terms thereof), in each case, with the specific failure or violation
described to Executive in writing.
Change in Control means the determination by the Board that one of the following events has
(i) Any event as a result of which the Company or an Affiliate of the Company
retains neither direct nor indirect control over the MLP;
(ii) PAA and its Affiliates (collectively referred to as the Owner
Affiliates) cease to own directly or indirectly at least 50% of the member
interests of the Company;
(iii) a person or group (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) other than the Owner Affiliates becomes after the Grant Date
the beneficial owner (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more than 50% of the member interests of the
(iv) a transfer, sale, exchange or other disposition in a single transaction or
series of transactions (whether by merger or otherwise) of all or substantially all
of the assets of the Company or the MLP to one or more persons who are not
Affiliates of the Company, other than a transaction in which the Owner Affiliates
become the beneficial owners, directly or indirectly, of more than 50% of the
voting power of such person or persons immediately following such transaction;
provided, however, that no Change of Control shall be deemed to have occurred in
connection with a restructuring or reorganization related to a GP IPO if the Owner
Affiliates retain direct or indirect control over the IPO Entity and the Company.
Class A Unit means a Class A common unit of the Company.
Class B Series Cap has the meaning set forth in the LLC Agreement.
Class B Unit means a Class B common unit of the Company.
Company Distribution means, with respect to a particular fiscal quarter, that portion of the
Companys quarterly cash distributions, if any, payable pursuant to Section 4.1(b) of the LLC
Conversion Factor means, as of a particular time, a fraction, (a) the numerator of which is
the most recent regular quarterly cash distribution paid with respect to an Earned Unit or Vested
Unit, and (b) the denominator of which is the most recent regular quarterly cash distribution paid
with respect to a Class A Unit.
Earned Unit means, as of any date, a Granted Unit that has become earned, as provided in
Section 2.2(b), subject to the proviso to Section 2.2(a).
Exchange Act means the Securities Exchange Act of 1934, as amended.
Forfeiture Event means, with respect to a Restricted Unit or Earned Unit, the termination of
Executives employment with the Company and its Affiliates for any reason (including death or
disability) prior to such unit becoming a Vested Unit pursuant to Section 2.2(c) or (d).
GP IPO means an initial registered public offering of equity interests in an entity that
owns directly or indirectly at least 75% of the incentive distribution rights issued by the MLP.
IPO Entity means, with respect to a GP IPO, the entity that is registering its equity
interests under the Securities Act of 1933 in connection with such GP IPO.
LLC Agreement means that certain Amended and Restated Limited Liability Company Agreement of
PNGS GP LLC dated as of , 2010, as such agreement may be amended or restated from time
MLP means PAA Natural Gas Storage L.P., a Delaware limited partnership.
MLP Quarterly Distribution means the amount of the quarterly cash distribution made with
respect to a common unit of the MLP on the relevant quarterly distribution date for the MLP.
PAA means Plains All American Pipeline, L.P.
Restricted Unit means, as of any date, a Granted Unit that is not an Earned Unit or a Vested
Transfer means any direct or indirect transfer, assignment, sale, gift, pledge,
hypothecation or other encumbrance, or any other disposition (whether voluntary, involuntary or by
operation of law other than to the estate of Executive in the event of death), of Restricted Units,
Earned Units or Vested Units, including derivative or similar transactions or arrangements
whereby a portion or all of the economic interest in, risk of loss or opportunity for gain
with respect to, or voting or other rights, of such units are transferred or shifted to another
Vested Unit means an Earned Unit or a Restricted Unit that becomes a Vested Unit pursuant
to Section 2.2(b), 2.2(c) or 2.2(d).
GRANT; FORFEITURE OF RESTRICTED UNITS
AND EARNED UNITS; DISTRIBUTIONS
2.1 Grant. The Company hereby grants to Executive the Granted Units effective as of the Grant
Date. Unless Class A Units are uncertificated, the Company shall issue Executive a certificate
representing the Granted Units, and such certificate shall bear such legends as provided for in
Exhibit A and such additional legends as may be determined by Company counsel to reflect the other
terms and conditions of this Agreement and to comply with applicable securities laws. To insure
the availability for delivery of Executives Restricted Units upon a Forfeiture Event, Executive
hereby appoints the Secretary of the Company (or any other person designated by the Company) as
escrow agent, as Executives attorney-in-fact to sell, assign and transfer unto the Company such
Restricted Units or Earned Units, if any, and upon execution of this Agreement, Executive delivers
and deposits with the Secretary of the Company, or such other person designated by the Company, the
certificates representing the Granted Units, together with the unit assignment duly endorsed in
blank, attached hereto as Exhibit B. The Granted Units and unit assignment shall be held by the
Secretary (or any other person designated by the Company as escrow agent) in escrow, pursuant to
the Joint Escrow Instructions of the Company and Executive attached as Exhibit C hereto, until such
time as the Granted Units become forfeited or Vested Units, as the case may be, at which time
unless Class A Units are uncertificated, the Company shall issue and deliver to Executive a new
certificate or certificates evidencing the ownership of the Vested Units. Upon issuance of the new
certificate evidencing the ownership of the Vested Units, the certificate deposited with the escrow
agent shall be marked Exchanged and Cancelled and returned to the unit transfer book of the
Company and the Company shall deliver a replacement certificate to the escrow agent to reflect any
remaining Restricted Units and Earned Units. Any new certificate issued to evidence the ownership
of Vested Units shall bear such legends as may be determined by Company counsel to reflect the
terms and conditions of this Agreement and the LLC Agreement and to comply with applicable
2.2 Vesting and Forfeitures of Restricted Units and Earned Units.
(a) Forfeiture of Restricted Units. If a Forfeiture Event occurs, then Executive
shall, for no consideration, automatically forfeit to the Company as of the date such event
occurs all then Restricted Units and Earned Units of Executive on such date, and neither the
Executive nor any of his successors, heirs, assigns, or personal representatives shall
thereafter have any further rights or interests in such Restricted Units or Earned Units or
the certificates representing such Restricted Units and Earned Units; provided, however, if
such Forfeiture Event is termination of Executives employment (A) by reason of death or
disability or (B) by the Company or any of its Affiliates without Cause, then for all
purposes of this Agreement, such Forfeiture Event
shall be suspended and shall not be deemed to occur until the 180th day after the date
of such termination unless during such 180-day period (x) Executive shall breach in any
material respect any confidentiality obligation to the Company or any of its Affiliates or
(y) any of the events described in clause (ii) of the definition of Cause shall occur or
shall be discovered to have occurred, in which case (1) for all purposes of this Agreement,
such Forfeiture Event shall be deemed to have occurred on the date of such termination and
(2) any Granted Unit which otherwise would have become an Earned Unit or a Vested Unit
during such suspension period shall be deemed to be a Restricted Unit for all purposes under
this Agreement and, for the avoidance of doubt, shall (together with all other Restricted
Units) be forfeited to the Company, for no consideration, effective as of such date of
(b) Earned and Vested Units. A percentage of Granted Units shall become Earned and
Vested Units on the 180th day following the distribution date on which the MLP pays a
quarterly distribution in accordance with the following schedule (such 180th day
being the Earn-Out Date):
||Cumulative Percentage of Initially Granted
|MLP Quarterly Distribution
||Units that Become Earned and Vested Units
|per MLP Common Unit
Less than $0.495
$0.495, but less than $0.580
$0.580, but less than $0.6325
$0.6325, but less than $0.675
$0.675 or greater
Once a Granted Unit has become an Earned Unit pursuant to the above schedule, the Earned
Unit shall remain an Earned Unit thereafter until it becomes a Vested Unit or is forfeited.
(c) Vesting and Forfeiture of Earned Units. With respect to those Granted Units that
become Earned Units on an Earn-Out Date occurring prior to the 5th anniversary of
the Grant Date, such Earned Units shall become Vested Units on the 5th
anniversary of the Grant Date, unless a Forfeiture Event occurs prior to such 5th
anniversary or Earn-Out Date, in which event such Earned Units shall be subject to
forfeiture in accordance with Section 2(a). Any Granted Units that would otherwise become
Earned Units on an Earn-Out Date that occurs after the 5th anniversary of the
Grant Date shall instead become Vested Units on such Earn-Out Date, unless a Forfeiture
Event occurs prior to such Earn-Out Date, in which event such Granted Units shall be subject
to forfeiture in accordance with Section 2(a).
(d) Change in Control. All Earned Units automatically shall become Vested Units upon a
Change in Control. If prior to the Change in Control 0% of the Granted
Units have become Earned or Vested Units, then 25% of the Granted Units automatically
shall become Vested Units upon the Change in Control. If prior to the Change in Control
only 25% of the Granted Units have become Earned Units and Vested Units, then an additional
25% of the Granted Units automatically shall become Vested Units upon the Change in Control.
If prior to the Change in Control only 50% of the Granted Units have become Earned Units
and Vested Units, then an additional 25% of the Granted Units automatically shall become
Vested Units upon the Change in Control. If prior to the Change in Control 75% of the
Granted Units have become Earned Units and Vested Units, then all remaining Granted Units
automatically shall become Vested Units upon the Change in Control. Unless and except to
the extent specifically provided otherwise by the Partnership upon or in connection with
such Change in Control, Executive shall, for no consideration, automatically forfeit to the
Company as of the date such Change in Control occurs all Restricted Units of Executive that
do not vest upon such Change in Control as provided herein, and neither Executive nor any of
his successors, heirs, assigns, or personal representatives shall thereafter have any
further rights or interests in such Restricted Units or the certificates representing such
Restricted Units. Solely for purposes of this Section 2.2(d), any Restricted Units for
which the MLP distribution threshold in Section 2.2(b) has been met but the Earn-Out Date
has not been reached shall be deemed to have become Earned Units and Vested Units as of the
date of such MLP distribution.
2.3 Company Distributions. With respect to Restricted Units, Executive shall not be entitled
to, and shall not, receive any Company Distributions. With respect to Earned Units and Vested
Units, Executive shall be entitled to receive a share of (i) Company Distributions, as provided in
Section 4.1(b) of the LLC Agreement, and (ii) any liquidating distributions, as provided in
Section 10.3(c) of the LLC Agreement. Company Distributions and any liquidating distributions,
to the extent payable to Executive with respect to an Earned Unit or Vested Unit, shall be paid to
Executive at the same time that such Company Distributions or liquidating distributions are paid
to holders of Class A Units.
2.4 Limitation on Company Distributions. After Executives termination of employment with the
Company and its Affiliates for any reason, Company Distributions made with respect to Executives
Vested Units shall be limited to the Class B Series Cap applicable to Executives Vested Units as
provided in Section 4.1(b) of the LLC Agreement.
2.5 Capital Calls. In the event of a Capital Call, Executive shall be required to pay to the
Partnership his or her allocable share of the associated Capital Call Amount, which allocable share
shall be determined in accordance with Section 3.1(c) of the LLC Agreement.
ACKNOWLEDGEMENT; RESTRICTIONS; ELECTIONS;
3.1 Acknowledgment; Conflicts. Executive agrees that the Granted Units shall be subject to
the LLC Agreement. Executive (a) hereby accepts and adopts, and agrees to be bound by, the terms
and provisions of the Certificate of Formation of the Company filed with the Secretary of State of
Delaware, as amended or restated, and the LLC Agreement to the same
extent as if Executive had executed the LLC Agreement and (b) agrees that the Granted Units
shall be bound by the terms and conditions of such agreement, including, but not limited to, the
transfer restrictions, if any, set forth therein, provided however, that in the event of any
conflict between the provisions of such agreement and the provisions of this Agreement, the
provisions of this Agreement shall govern.
3.2 Company Acts. Subject to the anti-dilution provisions set forth in Section 3.5, the
existence of the Restricted Units, Earned Units or Vested Units shall not affect in any way the
right or power of the Board or the holders of Class A Units to make or authorize any adjustment,
recapitalization, reorganization or other change in the Companys capital structure or its
business, any merger, consolidation, equity exchange or other business combination of the
Partnership with or into any other entity (and, where necessary or appropriate (as determined by
the Board in good faith), the conversion or exchange of Class A Units and Class B Units into other
securities or interests in the Company or any other entity in connection therewith, provided that
the relative economic rights and preferences of the Class A Units and the Class B Units are
affected proportionately, taking into account their current terms), any issue of debt or equity
securities, the dissolution or liquidation of the Company or any sale, lease, exchange or other
disposition of all or any part of its assets or business or any other act or proceeding.
3.3 Transfer Restrictions. The Restricted Units and Earned Units shall be subject to the
Transfer restrictions and other terms and conditions set forth or described in Exhibit A attached
hereto, as applicable. Vested Units shall be subject only to the provisions of the LLC Agreement.
Executive agrees that Executive will, at any time and from time to time as requested by the
Company, execute and deliver to the Company such other documents and instruments, if any, as the
Board, in its discretion, may require to evidence Executives agreement to be bound by the terms of
Exhibit A. The terms and conditions of Exhibit A shall survive the termination of this Agreement.
The restrictions set forth in Exhibit A shall not apply to the transfer of Restricted Units or
Earned Units pursuant to a plan of reorganization of the Company, but the Class A Units, securities
or other property received in exchange therefor shall also become subject to the Transfer
restrictions to the same extent as the Restricted Units, Earned Units and Vested Units exchanged
therefor and the certificates, if any, representing such Class A Units, securities or other
property shall be legended to show such restrictions.
3.4 Tax Withholding; §83(b) Election.
(a) To the extent that the receipt of the Restricted Units, Earned Units, Vested Units,
or any other event pursuant to this Agreement results in compensation income or wages to
Executive for federal, state or local tax purposes, Executive shall deliver to the Company
at the time of such receipt, lapse or event, as the case may be, such amount of money as the
Company may require to meet its minimum withholding obligation under applicable tax laws,
and if Executive fails to do so, the Company is authorized to withhold from any cash or
other remuneration (including withholding and cancelling any Restricted Units, Earned Units
or Vested Units distributable to Executive under this Agreement) then or thereafter payable
to Executive any tax required to be withheld by reason of such resulting compensation income
(b) Within 30 days after the date of issuance of the Restricted Units, Executive shall
make an election authorized by section 83(b) of the Code with respect to such Restricted
Units and Executive shall submit to the Company a copy of the statement filed by Executive
to make such election. The form of such election shall be in such form as approved by the
Company and delivered to the Executive following the issuance of the Restricted Units.
(c) Executive acknowledges and agrees that he is not relying upon any written or oral
statement or representation of the Company, its Affiliates, or any of their respective
Executives, directors, officers, attorneys or agents regarding the tax effects associated
with the Restricted Units, Earned Units, Vested Units or the execution of this Agreement.
Executive acknowledges and agrees that in deciding to enter into this Agreement, Executive
is relying on his own judgment and the judgment of the professionals of his choice with whom
he has consulted.
3.5 Anti-Dilution Provisions.
(a) If after the date of this Agreement, the Class A Units shall be changed or proposed
to be changed into a different number or class of units by reason of the occurrence of any
reclassification, recapitalization, split-up, combination, exchange of shares or similar
readjustment, or a unit dividend thereon shall be paid, appropriate proportional adjustments
shall be made to the Class B Units, as determined by the Board in good faith.
Notwithstanding the foregoing, no repurchase of Class A Units for fair value (as determined
by the Board in good faith) shall require any adjustment under this Section 3.5(a).
(b) If the Company issues any additional member interests or other securities other
than those currently authorized for issuance, the Company may, but shall not be required to,
make adjustments to the terms or outstanding amounts of the Class B Units, if determined in
the good faith discretion of the Board to be appropriate and desireable.
3.6 Drag-Along Provisions.
(a) In the event of a sale of all or substantially all of the assets or equity of the
Company in a bona fide arms length transaction, then the Board shall have the right to
require Executive to transfer all of his Earned Units and Vested Units (including any
Granted Units that vest pursuant to Section 2.2(d) hereof) in such transaction in exchange
for consideration per transferred Class B Unit that is equal to the Conversion Factor times
the consideration to be received per Class A Unit in such transaction.
(b) In connection with any transfer required pursuant to this Section 3.6, Executive
shall deliver the certificates representing his Class B Units duly endorsed or accompanied
by written instruments of transfer, in form and substance reasonably satisfactory to the
Company, free and clear of any liens, together with any other documents reasonably required
to be executed in connection with such transaction.
(c) Class B Units subject to this Section 3.6 will be included in a proposed sale
pursuant hereto and be subject to any agreement with the purchaser in such transaction
relating thereto, on the same terms and subject to the same conditions applicable to the
Class A Units. Such terms and conditions shall be determined in the sole discretion of the
Board, and shall include (i) the consideration to be paid (including without limitation the
form and the aggregate amount thereof) and (ii) the provision of information,
representations, warranties, covenants and requisite indemnifications; provided, however,
that Executive shall not be required to make any representations and warranties, other than
those relating specifically to Executives execution and delivery of any transaction
agreement (including absence of conflicts), and title to the Class B Units, and any
indemnification provided by Executive shall be on a several, not joint, basis and shall be
based on (and shall not exceed) Executives pro rata share of the aggregate consideration
paid in such transaction. For purposes of this Section 3.6 Executive includes any
Permitted Transferee (as defined in the Partnership Agreement).
4.1 Notices. For purposes of this Agreement, notices and all other communications provided
for herein shall be given in the same manner as indicated in the LLC Agreement.
4.2 Employment Relationship. For purposes of this Agreement (including Exhibit A attached
hereto), Executive shall be considered to be in the employment of the Company as long as Executive
remains an employee of an Affiliate of the Company. Without limiting the scope of the preceding
sentence, it is expressly provided that Executive shall be considered to have terminated employment
with the Company at the time the entity or other organization that employs Executive is no longer
an Affiliate of the Company. Any question as to whether and when there has been a termination of
such employment or association, and the cause of such termination, shall be determined by the Board
and its determination shall be final.
4.3 Entire Agreement; Amendment. This Agreement and the LLC Agreement constitute the entire
agreement, and supersede all previous agreements and discussions relating to the same or similar
subject matters between Executive and the Company or any Affiliate and constitute the entire
agreement between Executive and the Company and any Affiliate with respect to the subject matter of
this Agreement. Without limiting the scope of the preceding sentence, except for this Agreement
and the Company Agreement, all prior and contemporaneous understandings and agreements, if any,
among the parties hereto relating to the subject matter hereof are hereby null and void and of no
further force and effect. Except as provided below, any modification of this Agreement shall be
effective only if it is in writing and signed by both Executive and the Company as authorized by
the Board. Notwithstanding the foregoing, the Company may unilaterally amend this Agreement in any
manner that the Board determines in good faith is necessary or advisable to facilitate the
consummation of a GP IPO. For the avoidance of doubt, notwithstanding anything in this Agreement
to the contrary, in the event of a GP IPO, the Board shall be entitled (but not required) to make
such adjustments as the Board shall determine in good faith to be equitable, including without
limitation causing all or a portion of the Class B Units not to be converted into or exchanged for
similar equity interests in the IPO Entity, and to remain outstanding as Class B Units of the
anything in this Agreement to the contrary, if the Board determines that (i) the provisions of
section 409A of the Code apply to this Agreement or the Class B Units and that the terms of this
Agreement or such units do not, in whole or in part, satisfy the requirements of such section, or
(ii) any provision of this Agreement or the effect or operation thereof would produce material
adverse tax consequences to Executive, then the Company, in the sole discretion of the Board, may
unilaterally modify this Agreement in such manner as the Board deems appropriate to comply with
such section 409A and any regulations or guidance issued thereunder or to mitigate or avoid such
adverse tax consequences.
4.4 Binding Effect. This Agreement shall be binding upon and inure to the benefit of any
successors to the Company and all permitted transferees of any Transfer made in compliance with
Exhibit A and other persons lawfully claiming under Executive.
4.5 Governing Law. This Agreement is governed by and shall be construed in accordance with
the laws of the State of Delaware, excluding any conflict-of-laws rule or principle that might
refer the governance or the construction of this Agreement to the laws of another jurisdiction. If
any provision of this Agreement or the application thereof to any person or circumstance is held
invalid or unenforceable to any extent, the remainder of this Agreement and the application of that
provision to other persons or circumstances is not affected thereby and that provision shall be
enforced to the greatest extent permitted by law.
4.6 Injunctive Relief. Executive acknowledges that a remedy at law for any breach or
attempted breach of this Agreement will be inadequate, agrees that the Company may be entitled to
specific performance and injunctive and other equitable relief to be implemented by a court of
competent jurisdiction in case of any such breach or attempted breach, and further agrees to waive
any requirement for the securing or purchasing of any bond in connection with the obtaining of any
such injunctive or any other equitable relief. Executive agrees that the Companys right to
injunctive relief will be in addition to any other rights the Company may have.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective for all purposes as
of the Grant Date.
||PNGS GP LLC