ex10_2.htm


    
      
Exhibit 10.2

     

    
      CLASS
B AGREEMENT

      (Sims)

      


      


      This
Class B Agreement (Sims) (the “Agreement”) made February 5, 2010 by and among
Denbury Resources Inc. (“Denbury”), Denbury Gathering & Marketing, Inc.
(“DGM”), Grant E. Sims (the “Subject Member”) and Genesis Energy, LLC (“Genesis
GP”) (Denbury, DGM, the Subject Member and Genesis GP are collectively referred
to herein as the “Parties,” and sometimes individually as a
“Party”).

      


      RECITALS

      


      1.        
    DGM, as the Class A Member, and Genesis GP entered into
that certain Limited Liability Company Agreement of Genesis Energy, LLC,
effective December 29, 2008, which agreement was amended by that certain First
Amendment thereto entered into among DGM, Genesis GP, the Subject Member, and
Joseph A. Blount, Jr. (“Blount”) and Robert V. Deere (“Deere,” and together with
Blount the “Other Class B Members”) effective December 31, 2008, pursuant to
which the Subject Member and the Other Class B Members were admitted as the
Class B Members of Genesis GP (such agreement, as amended, the “GP LLC
Agreement”).

      


      2.           
 Among its other provisions, Section 3.02(e)(2) of the GP LLC Agreement
provides that “In the event of a Change of Control, [Genesis GP] shall be required to
redeem each Class B Members’ Individual Class B Interest for the Redemption
Amount...and the Class B Members shall cease to be Members of [Genesis GP] as of
the effective date of the Change of Control... .”

      


      3.            
Genesis GP adopted the Genesis Energy, LLC Deferred Compensation Plan effective
as of December 31, 2008 (the “Deferred Compensation Plan”) and pursuant to
Deferred Compensation Grants (the “Deferred Compensation Grants”) effective
December 31, 2008 between Genesis GP and respectively the Subject Member and
Blount, Genesis GP granted deferred compensation to each of the Subject Member
and Blount (the “Deferred Compensation”).

      


      4.            
Pursuant to a Guaranty Agreement (herein so called) dated as of December 31,
2008, Denbury guaranteed to the Subject Member and to his permitted successors
and assigns the payment by Genesis GP of certain obligations (the “Guaranteed
Obligations”).  The Guaranteed Obligations included the obligation of
Genesis GP to pay any Redemption Amount and any Deferred Compensation and
certain ancillary obligations.

      


      5.            
Denbury and DGM, as the Selling Parties, have entered into that certain Purchase
Agreement dated December 17, 2009, as the same has been or may be amended (the
“Purchase Agreement”) with Q Genesis Acquisition, LLC (“Buyer”) setting forth
the terms and conditions of a transaction (the “Sale Transaction”) pursuant to
which DGM has agreed to sell to Buyer, and Buyer has agreed to purchase from
DGM, the Class A Interests (herein so called and in the GP LLC Agreement called
the “Class A Ownership Interests”) in Genesis GP, on the terms and conditions
therein provided.

      


      6.            
Buyer and the Subject Member have agreed upon the terms and conditions of the
merger of Buyer into Genesis GP subsequent to the closing of the Sale
Transaction (the “Merger”), and that as part of the Merger any remaining equity
interest held by the Subject Member in Genesis GP will be converted into equity
interests in the entity surviving the Merger.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      7.       
     The Parties enter into this Agreement to confirm
the effect of the Sale Transaction with respect to the Class A Interests, and
the treatment of the Subject Member, his Redemption Amount and Deferred
Compensation and the guaranty thereof, and the termination of the Guaranty
Agreement, in connection with the Sale Transaction and the Merger.

      


      8.        
    Capitalized terms used in this Agreement, and not
otherwise defined, will have the meaning as provided in the GP LLC
Agreement.

      


      AGREEMENTS

      


      In
consideration of the mutual terms, conditions and other agreements set forth
herein, the Parties agree as follows:

      


      1.         
   Transfer of Class A
Interests.  Effective simultaneously with the closing of the
Sale Transaction, the Class A Interests will be transferred to Buyer, Buyer will
be admitted as the Class A Member of Genesis GP in substitution of DGM with all
the rights and powers of the Class A Member under, and will be bound by the
terms and conditions of, the GP LLC Agreement, DGM will cease to be the Class A
Member, a Change of Control will have occurred, and DGM will cease to have or
exercise any right or power as a member of Genesis GP except for rights of
indemnification as contemplated by the GP LLC Agreement, the Partnership
Agreement and the Purchase Agreement.

      


      2.       
     Redemption Amount, Amendment
of GP LLC Agreement.

      


      (a)       
    Notwithstanding the Change of Control effected by the
Sale Transaction, and notwithstanding the provisions of Section 3.02(e)(2) of
the GP LLC Agreement pursuant to which in the event of a Change of Control
Genesis GP is required to redeem each Class B Members’ Individual Class B
Interest for the Redemption Amount, and the Class B Members cease to be Members
of Genesis GP, the Parties desire and intend that no Redemption Amount shall be
paid to the Subject Member as a result of the Sale Transaction and that
following closing of the Sale Transaction the Subject Member shall continue to
be a Member of Genesis GP.

      


      (b)       
    To give effect to the desire and intent expressed in
Section 2(a) above, the Parties agree that effective immediately prior to the
closing of the Sale Transaction, but subject to such closing
occurring:

      


      (i)       
     notwithstanding any provision of Section
3.02(e)(2) thereof to the contrary, the GP LLC Agreement is hereby amended to
provide that instead of the Subject Member’s Individual Class B Interests being
redeemed for the Redemption Amount and the Subject Member ceasing to be a Member
of Genesis GP as a result of the Change of Control effected by the Sale
Transaction, the Subject Member will not cease to be a Member of Genesis GP as
of the effective date of such Change of Control and no Redemption Amount shall
be paid to the Subject Member, but instead effective simultaneously with, and by
virtue of, the Merger the Class B Ownership Interests of the Subject Member will
be converted into equity interests in the entity surviving the Merger;
and

      


      (ii)      
     this Section 2(b) will constitute part of the
Genesis GP LLC Agreement.


      
        
           


        

        
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      (c)       
    The Subject Member agrees that effective simultaneously
with, and by virtue of, the Merger, and for the benefit of the Buyer, he will no
longer be a Class B Member of Genesis GP;

      


      (d)      
     The Subject Member agrees that effective
simultaneously with, and by virtue of, the Merger the Subject Member will
receive consideration for the Redemption Amount and all other amounts to which
he is entitled under the GP LLC Agreement by virtue of the Sale Transaction,
including consideration received upon the conversion of his Class B Ownership
Interests into equity interests in the entity surviving the Merger;
and

      


      (e)       
    Effective simultaneously with closing of the Sale
Transaction, and without further action on his part, the Subject Member hereby
releases Genesis GP, Denbury, DGM, and the Buyer and their respective Affiliates
(as that term is defined in the Purchase Agreement), from any and all liability
or obligation for payment of the Redemption Amount or any other amounts to which
he is entitled under the GP LLC Agreement by virtue of the Sale
Transaction.  The Subject Member expressly agrees that the Buyer and
its Affiliates are third party beneficiaries of such release.

      


      (f)       
    The Parties agree that the Subject Member’s Redemption
Amount as of the closing of the Sale Transaction is $5,714,639.84 , and that
such Redemption Amount will be used in connection with determining the purchase
price to be paid by Buyer to DGM in connection with the Sale
Transaction.

      


      3.        
    Deferred
Compensation.

      


      (a)     
      The Administrative Committee (as that term
is defined in the Deferred Compensation Plan) has adopted resolutions
terminating and liquidating the Deferred Compensation Plan and the Deferred
Compensation Grants effective immediately prior to, and conditioned on the
occurrence of, the closing of the Sale Transaction.  In connection
with such termination, DGM will contribute funds to Genesis GP in the amount of
$1,007,228.54 with respect to the Subject Member, and in the amount of
$866,685.03 with respect to Blount, in each case being the Maximum Deferred
Compensation Amount (as that term is defined in their respective Deferred
Compensation Grants), and as part of the closing of the Sale Transaction Genesis
GP will pay such amounts respectively to the Subject Member and Blount (less
withholding as provided in Section 5 of their respective Deferred Compensation
Grants), but be deemed to have paid such amounts immediately prior to such
closing, in liquidation of their rights and interests under the Deferred
Compensation Plan and their respective Deferred Compensation Grants and in
liquidation of Genesis GP’s obligations with respect thereto.

      


      (b)     
      The Subject Member acknowledges and agrees
that:

      


      (i)     
       Effective immediately prior to, and
conditioned on the occurrence of, the closing of the Sale Transaction, the
Deferred Compensation Plan and his respective Deferred Compensation Grant will
be terminated; and

      


      (ii)       
    Upon receipt by him at closing of the Sale Transaction
of his Maximum Deferred Compensation Amount in the amount shown above (less
withholding as provided in Section 5 of his Deferred Compensation Grant), he
will have received payment in full of all amounts to which he is entitled under
the Deferred Compensation Plan and his Deferred Compensation Grant and in
connection therewith, and without further action on his part, he hereby releases
Genesis GP, Denbury, DGM, and the Buyer and their respective Affiliates, from
any and all liability or obligation for payment of any amounts under the
Deferred Compensation Plan or his Deferred Compensation Grant.  The
Subject Member expressly agrees that the Buyer and its Affiliates are third
party beneficiaries of such release.


      
        
           


        

        
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      4.      
      Guaranty Agreement,
Release.  Effective simultaneously with the closing of the Sale
Transaction, and without further action on his part:

      


      (a)       
    the Subject Member hereby agrees that Denbury is
released and forever discharged from any and all liability or obligation of any
nature whatsoever to the Subject Member under the Guaranty Agreement, and that
the Guaranty Agreement, and any and all liabilities and obligations of Denbury
thereunder, are released, forever discharged, cancelled, terminated, void and of
no further force or effect whatsoever.  The Subject Member agrees that
at the closing of the Sale Transaction he will mark the original executed copy
of the Guaranty Agreement “Cancelled and Void,” sign and date beneath such
marking, and return the same to Denbury; and

      


      (b)       
    the Subject Member hereby agrees that Denbury, DGM, and
their respective officers, directors, employees, agents and affiliated entities
are released and forever discharged from any and all liability, obligation,
claim, or cause of action of any nature whatsoever, to or of the Subject Member
arising under, related to or growing out of the Genesis GP LLC Agreement or the
rights of the Subject Member thereunder.

      


      5.        
    Subject Member
Authority.  The Subject Member acknowledges and agrees that he
has full power and authority to execute this Agreement and make and perform the
agreements herein contained without the joinder of any third party.

      


      6.         
   Miscellaneous.

      


      (a)       
    This Agreement shall inure to the benefit of, and be
binding upon, the Parties hereto and their respective successors and permitted
assigns; provided, however, that no Party shall assign or delegate any of the
obligations created under this Agreement without the prior written consent of
the other Parties.  Except as expressly provided in this Agreement,
nothing in this Agreement will confer on any person not a Party, or the legal
representative of any such person, any rights or remedies of any nature or kind
whatsoever under or by reason of this Agreement.

      


      (b)      
     All legal, accounting and other fees, costs and
expenses of a Party incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Party incurring such fees,
costs or expenses.

      


      (c)       
    All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made on receipt if delivered personally or sent by overnight courier or sent
by facsimile (with evidence of confirmation of receipt) to the Parties at the
following addresses:


      
        
           


        

        
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      (i)        
    If to Denbury or DGM, to:

      


      Denbury
Resources Inc.

      5100
Tennyson Parkway, Suite 1200

      Plano,
Texas  75024

      Facsimile:
972-673-2051

      Attention:
Phil Rykhoek

      


      with a
copy to:

      


      Baker
Hostetler LLP

      1000
Louisiana, Suite 2000

      Houston,
Texas  77002

      Facsimile:
(713) 751-1717

      Attention:
Donald W. Brodsky

      


      (ii)        
   If to Genesis GP, to:

      


      Genesis
Energy, LLC

      919
Milam, Suite 2100

      Houston,
Texas  77002

      Facsimile:
713-860-2640

      Attention:
Ross A. Benavides, its Secretary

      


      (iii)           If
to Subject Member, to:

      


      Grant E.
Sims

      11505
Quail Hollow

      Houston,
Texas  77024

      Facsimile:
(713) 467-5038

      


      or to
such other persons or at such other addresses as shall be furnished by any Party
by like notice to the other Parties.  No change in any of such
addresses shall be effective insofar as notices under this Section 6(c) are
concerned unless such changed address is located in the United States of America
and notice of such change shall have been given to the other Parties as provided
in this Section 6(c).

      


      (d)      
     This Agreement represents the entire agreement and
understanding of the Parties with reference to the matters set forth
herein.  This Agreement supersedes all prior negotiations,
discussions, correspondence, communications, understandings and agreements
between the Parties relating to the subject matter hereof or thereof and all
prior drafts of such documents, all of which are merged into this
Agreement.  No prior drafts of this Agreement and no words or phrases
from any such prior drafts shall be admissible into evidence in any action or
suit involving this Agreement.

      


      (e)       
    Any Party to this Agreement may, by written notice to
the other Parties:  (a) extend the time for the performance of any of
the obligations or other actions of the other Parties; (b) waive compliance with
any of the agreements of the other Parties contained in this Agreement; or (c)
waive performance of any of the obligations of the other Parties created under
this Agreement.  The waiver by any Party of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach, whether or not similar, unless such waiver specifically
states that it is to be construed as a continuing waiver.  This
Agreement may be amended, modified or supplemented only by a written instrument
executed by all of the Parties.


      
        
           


        

        
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      (f)        
    This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof.  Furthermore, in lieu of any such invalid or
unenforceable term or provision, the Parties intend that there shall be added as
a part of this Agreement a provision as similar in terms to such invalid or
unenforceable term or provision as may be possible and be valid and
enforceable.

      


      (g)      
     Facsimile transmission of any signed original of
this Agreement or retransmission of any signed facsimile transmission of this
Agreement shall be the same as delivery of an original.  At the
request of any Party, another Party will confirm facsimile transmission by
signing and delivering a duplicate original of this Agreement.  This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall be considered one and the
same agreement.

      


      (h)        
   This Agreement shall be governed by and construed in
accordance with the internal and substantive laws of the State of Texas and
without regard to any conflicts of laws concepts that would apply the
substantive law of some other jurisdiction.

      


      (i)          
  To the fullest extent permitted by applicable law, the Parties
hereby irrevocably submit to the jurisdiction of the courts of the State of
Texas and the federal courts of the United States of America, located in Harris
County, Texas over any dispute arising out of or relating to this Agreement or
any of the transactions contemplated hereby, and each Party irrevocably agrees
that all claims in respect of such dispute or proceeding shall be heard and
determined in such courts.  The Parties hereby irrevocably waive, to
the fullest extent permitted by applicable law, any objection which they may now
or hereafter have to the venue of any dispute arising out of or relating to this
Agreement or any of the transactions contemplated hereby brought in such court
or any defense of inconvenient forum for the maintenance of such
dispute.  Each Party agrees that a judgment in any dispute heard in
the venue specified by this section may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by applicable
law.

      


      (j)      
      Each of the Parties hereby irrevocably
waives, to the fullest extent permitted by law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this
Agreement.


      
        
           


        

        
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      IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
above written.

      


      
        	 
      	
                DENBURY
      RESOURCES INC.

              
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/

              	
                Mark C. Allen

              
	 
      	
                Name:

              	
                Mark
      C. Allen

              
	 
      	
                Title:

              	
                Senior
      Vice President and Chief Financial Officer

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                DENBURY
      GATHERING & MARKETING, INC.

              
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/

              	
                Mark C. Allen

              
	 
      	
                Name:

              	
                Mark
      C. Allen

              
	 
      	
                Title:

              	
                Senior
      Vice President and Chief Financial Officer

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                /s/ Grant E. Sims

              
	 
      	
                Grant
      E. Sims

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                GENESIS
      ENERGY, LLC

              
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/

              	
                Ross A. Benavides

              
	 
      	
                Name:

              	
                Ross
      A. Benavides

              
	 
      	
                Title:

              	
                General
      Counsel

              


      

       

       

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