exhibit10-5.htm


    Exhibit
10.5

     

    VANGUARD
NATURAL RESOURCES, LLC

     

    LONG-TERM
INCENTIVE PLAN

     

    PHANTOM
UNIT AWARD AGREEMENT

     

    


    
      	
              To:
      Scott W. Smith

            	
              Date
      of Grant: January 1, 2010

            	
              Number
      of Units: 15,000

            


    

     

    THIS PHANTOM UNIT AWARD
AGREEMENT (the “Agreement”)
is made as of January 1, 2010 between Vanguard Natural Resources, LLC (the
“Company”),
and Scott W. Smith (the “Executive”)
pursuant to the terms and conditions of the Company’s Long-Term Incentive Plan
(the “Plan”) and
that certain Second Amended and Restated Employment Agreement between Executive
and the Company dated January 1, 2010 (the “Employment
Agreement”).  A copy of the Plan is being furnished to the
Executive concurrently with the execution of this Agreement which shall be
deemed a part of this Agreement as if fully set forth herein.  By the
execution of this Agreement, the Executive acknowledges receipt of a copy of the
Plan.  Unless the context otherwise requires, all terms defined in the
Plan shall have the same meaning when used herein.

     

    WHEREAS, the Board of
Directors of the Company (the “Board”)
has adopted the Plan to encourage and enable certain employees and consultants
of the Company to acquire Awards the value of which is tied to the performance
of the common unit (a “Unit”) of
the Company, thus providing them with a more direct concern in the welfare of
the Company and assuring a closer identification of their interests with those
of the Company; and

     

    WHEREAS, the Executive is one
of such eligible employees.

     

    NOW THEREFORE, the parties
agree as follows:

     

    1. Phantom Unit
Award.  The Company hereby grants to the Executive (the “Award”),
effective as of January 1, 2010 (the “Date of
Grant”), in accordance with the terms and conditions set forth herein and
in the Plan, the right to receive a cash payment equal to the excess, if any, of
(a) the Fair Market Value of a Unit on the applicable determination date, over
(b) the Fair Market Value of a Unit on the Date of Grant, with respect to 15,000
shares of Units (the “Phantom
Units”).  The Award is specifically made subject to execution
by the Executive of this Agreement.

     

    2. Dividend
Equivalents.  The Executive will be entitled to receive, from
the date of settlement of this Award, an additional right to dividend
equivalents, or DERs, which shall be equal in value to the value of any
dividends made by the Company with respect to the number of shares of Units
specified in Section 1 above on and after the Date of Grant.  The
Executive may choose, in his discretion, whether to (a) directly receive the
DERs in the form of a cash payment at the time that all other members of the
Company receive distributions in relation to Units, or (b) receive a credit to a
bookkeeping account (without interest) for any DER received from the Date of
Grant until the payment of the underlying Phantom Units. The Executive will
notify the Committee of his choice by filing an election form with the Secretary
of the Company, such form to be provided by the Committee in accordance with the
rules and procedures adopted by the Committee.

     

    3. Vesting of Phantom
Units.  Subject to the earlier expiration of this Award as
herein provided, this Award may be settled in accordance with the provisions of
this Agreement in accordance with the following schedule:

     

    
      	
              
                Date
      of Vesting

              

            	
              Percentage
      of Rights

              
                That
      Become Vested

              

            
	
              January
      1,  2013 (Three Year Anniversary of the Date of
      Grant)

            	
              100%

            


    

    


    Phantom
Units that may be settled pursuant to the schedule above are “Vested
Units.”  Phantom Units that may not be settled pursuant to the
schedule above are “Unvested Units.”

     

    (a) Termination of Employment
for Cause.  In the event the Executive’s employment is
terminated for Cause all Phantom Units (both Vested Units and Unvested Units)
that have not been settled as of the date of such removal shall be
forfeited.

     

    (b) Termination of Employment
without Cause or a Change of Control Prior to Vesting.  In the
event that a settlement event described in Section 4 below occurs prior to the
Unvested Units becoming Vested Units according to the schedule above in this
Section 3, the Unvested Units shall be forfeited.

     

    4. Settlement of Phantom Units and
DERs.

     

    (a) Settlement.  The
Vested Units shall be settled by the Company within the earliest to occur of the
following periods:  (i) except in the event that Executive is
terminated for Cause as noted in Section 3 above, the period beginning on the
date the Executive incurs a “separation from service” (within the meaning of
Treasury Regulation § 1.409A-1(h)(1)) from the Company and ending on
December 31 of the calendar year of such “separation from service,” or
(ii) within 90 days following a Change in
Control.  Notwithstanding Section 4(a)(i), in the event the
Executive’s “separation from service” occurs on or after December 1 of a
calendar year, the Vested Units settleable pursuant to Section 4(a)(i) will be
settled as soon as administratively feasible following such “separation from
service,” but in no event later than 60 days following such “separation from
service.”  The Vested Units will be settled through a single lump-sum
cash payment to the Executive.  Where applicable, settlement of the
DERs credited to the Executive from the Date of Grant through the date of the
settlement of the Vested Units shall also be included in the single lump-sum
cash payment the Executive is entitled to receive according to this Section
4(a).

     

    (b) Procedures.  Settlement
of Phantom Units shall be subject to and pursuant to rules and procedures
established by the Committee in its sole discretion.

     

    5. Transferability and
Assignment.  This Agreement and the Phantom Units granted
hereunder will not be transferable by the Executive other than by will or the
laws of descent and distribution. Any attempt by the Executive
to  transfer, assign, pledge, hypothecate, or otherwise dispose of
such rights contrary to the provisions in this Agreement or the Plan, or upon
the levy of any attachment or similar process upon such rights, such rights
shall immediately become null and void.

     

    6. Recapitalization or
Reorganization.

     

    (a) Existence of Plan and
Award. The existence of the Plan and the Award shall not affect in any
way the right or power of the Board or the members of the Company to make or
authorize any adjustment, recapitalization, reorganization or other change in
the Company’s capital structure or its business, any merger or consolidation of
the Company, any issue of debt or equity securities ahead of or affecting Units
or the rights thereof, 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 corporate act or proceeding.

     

    (b) Subdivision or Consolidation
of Units.  The terms of this Award shall be subject to
adjustment from time to time, in accordance with the following
provisions:

     

    (i) If at any
time, or from time to time, the Company shall subdivide as a whole (by
reclassification, by a unit split, by the issuance of a dividend on Units
payable in Units, or otherwise) the number of shares of Units then outstanding
into a greater number of shares of Units, then the number of shares of Phantom
Units specified in Section 1 above shall be increased
proportionately.

     

    (ii) If at any
time, or from time to time, the Company shall consolidate as a whole (by
reclassification, reverse unit split, or otherwise) the number of shares of
Units then outstanding into a lesser number of shares of Units, the number of
shares of Phantom Units specified in Section 1 above shall be decreased
proportionately.

     

    (iii) Whenever
the number of shares of Units subject to this Award are required to be adjusted
as provided in this Section 6(b), the Committee shall promptly prepare and
deliver to the Executive a notice setting forth, in reasonable detail, the event
requiring adjustment, the amount of the adjustment, the method by which such
adjustment was calculated, and the change in the number of shares of Phantom
Units specified in Section 1 above after giving effect to the
adjustments.  The Committee shall promptly give the Executive such a
notice.

     

    (iv) Adjustments
under Sections 6(b)(i) and (ii) shall be made by the Committee, and its
determination as to what adjustments shall be made and the extent thereof shall
be final, binding, and conclusive.

     

    7. No Multiple
Payments.  Settlement of the Phantom Units shall not occur
under more than one provision of this Agreement.

     

    8. Information
Confidential.  As partial consideration for the granting of the
Phantom Units hereunder, the Executive hereby agrees with the Company that the
Executive will keep confidential all information and knowledge that the
Executive has relating to the terms and conditions of this Agreement; provided,
however, that such information may be disclosed as required by law and may be
given in confidence to the Executive’s spouse, tax and financial advisors, or to
a financial institution to the extent that such information is necessary to
secure a loan.  In the event any breach of this promise comes to the
attention of the Company, it shall take into consideration that breach in
determining whether to recommend the grant of any future similar award to the
Executive, as a factor militating against the advisability of granting any such
future award to the Executive.

     

    9. No Right to Continued
Employment.  This Agreement shall not be construed to confer
upon the Executive any right to continue as an employee of the
Company.  Any question as to whether there has been a termination of
such employment, and the cause of such termination, shall be determined by the
Committee or the Board and its determination shall be final and
binding.

     

    10. Payment of
Taxes.  The Company may from time to time, in its discretion,
require the Executive to pay the Company the amount that the Company deems
necessary to satisfy the Company’s current or future obligation to withhold
federal, state or local income or other taxes incurred by the Executive as a
result of the Award.  With respect to any required tax withholding,
(a) the Company may withhold from the cash payment to be paid to the Executive
the amount necessary to satisfy the Company’s obligation to withhold taxes, (b)
with the Company’s consent, the Executive may deliver sufficient cash to the
Company to satisfy its tax withholding obligations, or (c) the withholding
obligations may be met by any such other arrangement that is acceptable to the
Company and the Executive.  In the event that the Company subsequently
determines that the amount withheld as payment of any tax withholding obligation
is insufficient to discharge that tax withholding obligation, then the Executive
shall pay to the Company, immediately upon the Company’s request, the amount of
that deficiency.

     

    11. Administration.  This
Agreement shall at all times be subject to the terms and conditions of the
Plan.  The Committee shall have sole and complete discretion with
respect to all matters reserved to it by the Plan and decisions of a majority of
the Committee with respect thereto and this Agreement shall be final and binding
upon the Executive and the Company.  In the event of any conflict
between the terms and conditions of this Agreement and the Plan, the provisions
of the Plan shall control.

     

    12. Unfunded
Arrangement.  This Agreement and the Plan shall not give a
Executive any security or other interest in any assets of the Company; rather
the Executive’s right to the Award is that of a general unsecured creditor of
the Company.

     

    13. No Liability for Good Faith
Determinations.  The Company, the Committee and the members of
the Board shall not be liable for any act, omission or determination taken or
made in good faith with respect to this Agreement or the Phantom Units granted
hereunder.

     

    14. No Guarantee of
Interests.  The Company, the Committee and the members of the
Board do not guarantee the Units from loss or depreciation.

     

    15. Company
Records.  Records of the Company regarding the Executive’s
period of service, termination of service and the reason therefor, leaves of
absence, and other matters shall be conclusive for all purposes hereunder,
unless determined by the Company to be incorrect.

     

    16. Company Action.  Any
action required of the Company shall be by resolution of its Board or by a
person authorized to act by resolution of the Board.

     

    17. Severability.  If
any provision of this Agreement is held to be illegal or invalid for any reason,
the illegality or invalidity shall not affect the remaining provisions hereof,
but such provision shall be fully severable and this Agreement shall be
construed and enforced as if the illegal or invalid provision had never been
included herein.

     

    18. Notices.  All
notices required or permitted under this Agreement must be in writing and
personally delivered or sent by mail and shall be deemed to be delivered on the
date on which it is actually received by the person to whom it is properly
addressed.  A notice shall be effective when actually received by the
Company in writing and in conformance with this Agreement and the
Plan.

     

    19. Waiver of
Notice.  Any person entitled to notice hereunder may waive such
notice.

     

    20. Successors.  This
Agreement shall be binding upon the Executive, the Executive’s legal
representatives, heirs, legatees and distributees, and upon the Company, its
successors and assigns.

     

    21. Headings.  The
titles and headings of Sections are included for convenience of reference only
and are not to be considered in construction of the provisions
hereof.

     

    22. Governing Law.  All
questions arising with respect to the provisions of this Agreement shall be
determined by application of the laws of the State of Delaware without regard to
choice of law provisions thereunder, except to the extent Delaware law is
preempted by federal law.

     

    23. Word Usage.  Words
used in the masculine shall apply to the feminine where applicable, and wherever
the context of this Agreement dictates, the plural shall be read as the singular
and the singular as the plural.

     

    24. Amendment.  This
Agreement may be amended by the Committee or the Board; provided, however, that
no amendment may decrease Executive’s rights inherent in this Agreement prior to
such amendment without Executive’s express written
consent.  Notwithstanding the provisions of this Section 24, this
Agreement may be amended by the Committee, without the consent of the Executive,
to the extent necessary to comply with applicable laws and regulations and to
conform the provisions of this Agreement to any changes thereto or to settle the
Award pursuant to all applicable provisions of the Plan.

     

    25. Nonqualified Deferred Compensation
Rules.  In the event this Award fails to meet the limitations,
requirements or exemptions of or from Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”), or
the laws, rules, and regulations promulgated in connection with Section 409A of
the Code, then this Award shall be modified by the Committee, in its sole
discretion, to the limited extent necessary to satisfy such nonqualified
deferred compensation rules.

     

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    IN WITNESS WHEREOF, the
Company has caused this Agreement to be executed by its duly authorized officer
effective as of January 1, 2010.

     

    


    VANGUARD NATURAL RESOURCES,
LLC

    


     

    


    By: /s/ W. Richard
Anderson


    Name: W. Richard Anderson

    


    Title: Chairman of the
Board

    


    


    EXECUTIVE

    


    


    _/s/ Scott W.
Smith

    Scott W. Smith