Exhibit 10.1


 


FORM
OF


NISKA
GAS STORAGE PARTNERS LLC


2010 LONG TERM INCENTIVE PLAN


 


SECTION 1.                                Purpose of the Plan.


 


The Niska Gas Storage
Partners LLC 2010 Long Term Incentive Plan (the “Plan”)
has been adopted by Niska Gas Storage Partners LLC (the “Company”).
The Plan is intended to promote the interests of the Company by providing to
Employees, Consultants and Directors incentive compensation awards based on
Units to encourage superior performance. The Plan is also contemplated to
enhance the ability of the Company and its Affiliates to attract and retain the
services of individuals who are essential for the growth and profitability of
the Company and its Affiliates and to encourage them to devote their best
efforts to advancing the business of the Company and its Affiliates.


 


SECTION 2.                                Definitions.


 


As used in the Plan, the
following terms shall have the meanings set forth below:


 


“Affiliate”
means, with respect to any Person, any other Person that directly or indirectly
through one or more intermediaries controls, is controlled by or is under
common control with, the Person in question. As used herein, the term “control”
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise; provided, however, that with
respect to any Option granted to a Canadian Grantee, an Affiliate shall only
include a corporation that deals at non-arm’s length, within the meaning of the
ITA, with the Company.


 


“Award”
means an Option, Unit Appreciation Right, Restricted Unit, Phantom Unit, an
Other Unit-Based Award, a Unit Award granted under the Plan, or a Performance
Award or Incentive Award, and includes any tandem DERs granted with respect to
a Phantom Unit.


 


“Award
Agreement” means the written or electronic agreement by which an
Award shall be evidenced.


 


“Board”
means the Board of Directors of the Company.


 


“Canadian
Grantee” means a Participant who is a resident of Canada for the
purposes of the ITA, or who is granted an Award under the Plan in respect of
services performed in Canada for the Company or any of its Affiliates.


 


“Cessation
Date” means, subject to an alternative definition within any
Award Agreement, the date of the Participant’s termination of, or resignation
from, active employment or consulting services with the Company, or cessation
of active membership as a Director with the Company, regardless of whether
adequate or proper notice of termination or resignation shall have been
provided in respect of such cessation. 
For greater clarity, subject to an alternative treatment within any
Award Agreement, a transfer of employment, consulting or services as Director
between the Company and any of its Affiliates, or between any of the Company’s
Affiliates, shall not be considered an interruption or cessation of employment,
consulting or services as Director for any purpose of this Plan.


 

















 


“Change of
Control” means, and shall be deemed to have occurred upon,
one or more of the following events:


 


(i)            A “change in the ownership
of the Company” which shall occur on the date that any one Person, or more than
one Person acting as a group, acquires ownership of Units in the Company that,
together with Units held by such Person or group, constitutes more than 50% of
the total fair market value or total voting power of the Units of the Company;
however, if any one Person, or more than one Person acting as a group, is
considered to own more than 50% of the total fair market value or total voting
power of the Units of the Company, the acquisition of additional Units by the
same Person or Persons will not be considered a “change in the ownership of the
Company” (or to cause a “change in the effective control of the Company” within
the meaning of clause (ii) below) and an increase of the effective
percentage of Units owned by any one Person, or more than one Person acting as
a group, as a result of a transaction in which the Company acquires its Units
in exchange for property will be treated as an acquisition of Units for
purposes of this paragraph; provided, further, however, that for purposes of
this clause (i), the following acquisitions shall not constitute a Change of
Control:  (A) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any entity controlled by the Company, or (B) any acquisition by
investors (immediately prior to such acquisition) in the Company for financing
purposes, as determined by the Board or the Committee in its sole
discretion.  This clause (i) applies
only when there is a transfer of the Units of the Company (or issuance of Units)
and Units in the Company remains outstanding after the transaction.


 


(ii)           A “change in the effective
control of the Company” which shall occur on the date that either (A) any
one Person, or more than one Person acting as a group, acquires (or has
acquired during the twelve month period ending on the date of the most recent
acquisition by such Person or Persons) ownership of Units of the Company
possessing 35% or more of the total voting power of the Units of the Company,
except for (1) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any entity controlled by the
Company, or (2) any acquisition by investors (immediately prior to such
acquisition) in the Company for financing purposes, as determined by the Board
or the Committee in its sole discretion; or (B) a majority of the members
of the Board are replaced during any twelve-month period by directors whose
appointment or election is not endorsed by a majority of the members of the
Board prior to the date of the appointment or election.  For purposes of a “change in the effective
control of the Company,” if any one Person, or more than one Person acting as a
group, is considered to effectively control the Company within the meaning of
this clause (ii), the acquisition of additional control of the Company by the
same Person or Persons is not considered a “change in the effective control of
the Company,” or to cause a “change in the ownership of the Company” within the
meaning of clause (i) above.


 


(iii)          A “change in the ownership
of a substantial portion of the Company’s assets” which shall occur on the date
that any one Person, or more than one Person acting as a group, acquires (or
has acquired during the twelve month period ending on the date of the most
recent acquisition by such Person or Persons) assets of the Company that have a
total gross fair market value equal to or more than 40% of the total gross fair
market value of all the assets of the Company immediately prior to such
acquisition or acquisitions.  For this
purpose, gross fair market value means the value of the assets of the Company,
or the value of the assets being 


 


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disposed of, determined without regard to any
liabilities associated with such assets. 
Any transfer of assets to an entity that is controlled by the
unitholders of the Company immediately after the transfer, as provided in
guidance issued pursuant to Section 409A of the Code and the regulations
promulgated thereunder, shall not constitute a Change of Control.


 


Notwithstanding the
foregoing, the Committee may elect in an Award Agreement to specify a different
definition of “Change of Control” for purposes deemed appropriate by the
Committee.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Committee”
means the entity appointed to administer the Plan, which may be the Board, any compensation
committee of the Board or such other committee as may be appointed by the Board
from time to time.


 


“Consultant”
means an individual who renders consulting services to the Company or its
Affiliates.


 


“DER”
means a contingent right, granted in tandem with a specific Phantom Unit, to
receive with respect to each Phantom Unit subject to the Award an amount in
cash, Units and/or Phantom Units, as determined by the Committee in its sole
discretion, equal in value to the distributions made by the Company with
respect to a Unit during the period such Award is outstanding.


 


“Director”
means a member of the Board who is not an Employee or a Consultant (other than
in that individual’s capacity as a Director).


 


“Employee”
means an employee of the Company or an Affiliate of the Company.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“Fair
Market Value” means the closing sales price of a Unit on the
principal national securities exchange or other market in which trading in
Units occurs as reported in The Wall Street
Journal (or other reporting service approved by the Committee) on
the most recent date on which Units were publicly traded preceding the date
with respect to which the Fair Market Value determination is made. If Units are
not traded on a national securities exchange or other market at the time a
determination of fair market value is required to be made hereunder, the
determination of fair market value shall be made in good faith by the
Committee.


 


“Incentive
Award” means a conditional right granted to an Eligible Person
under Section 6(e) of the Plan to receive a cash payment, Unit or
other Award, unless otherwise determined by the Committee, after the end of a
specified period of time.


 


“ITA”
means the Income Tax Act (Canada) and the regulations thereto, as amended.


 


“Option”
means an option to purchase Units granted under the Plan.


 


“Other
Unit-Based Award” means an award granted pursuant to Section 6(d) of
the Plan.


 


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“Participant”
means an Employee, Consultant or Director granted an Award under the Plan.


 


“Performance
Award” means a right, granted to a Participant under Section 6(e) of
the Plan, to receive an Award based upon performance criteria specified by the
Committee, which may be settled in cash or Units, as determined by the
Committee in its sole discretion.


 


“Person”
means an individual or a corporation, limited liability company, partnership,
joint venture, trust, unincorporated organization, association, governmental
agency or political subdivision thereof or other entity.


 


“Phantom
Unit” means a notional unit granted under the Plan that entitles
the Participant to receive, at the time of settlement, a Unit or an amount of
cash equal to the Fair Market Value of a Unit, or a combination of cash and
Units, as determined by the Committee in its sole discretion.


 


“Restricted
Period” means the period established by the Committee with
respect to an Award during which the Award remains subject to forfeiture and is
not either exercisable by or payable to the Participant, as the case may be.


 


“Restricted
Unit” means a Unit granted under the Plan that is subject to a
Restricted Period.


 


“Rule 16b-3”
means Rule 16b-3 promulgated by the SEC under the Exchange Act or any
successor rule or regulation thereto as in effect from time to time.


 


“SEC”
means the Securities and Exchange Commission or any successor thereto.


 


“UDR”
means a distribution made by the Company with respect to a Restricted Unit.


 


“Unit”
means a common unit of the Company.


 


“Unit
Appreciation Right” or “UAR” means
a contingent right that entitles the holder to receive, in cash or Units, as
determined by the Committee in its sole discretion, an amount equal to the
excess of the Fair Market Value of a Unit on the exercise date of the UAR over
the exercise price of the UAR.


 


“Unit
Award” means a grant of a Unit that is not subject to a
Restricted Period.


 


SECTION 3.                                Administration.


 


Subject to the terms of the
Plan and applicable law, and in addition to other express powers and authorizations
conferred on the Committee by the Plan, the Committee shall have full power and
authority to: (i) designate Participants; (ii) determine the type or
types of Awards to be granted to a Participant; (iii) determine the number
of Units to be covered by Awards; (iv) determine the terms and conditions
of any Award; (v) determine whether, to what extent, and under what
circumstances Awards may be vested, settled, exercised, canceled, or forfeited;
(vi) interpret and administer the Plan and any instrument or agreement
relating to an Award 


 


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made under the Plan; (vii) establish,
amend, suspend, or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration of the Plan;
and (viii) make any other determination and take any other action that the
Committee deems necessary or desirable for the administration of the Plan. The
Committee may correct any defect or supply any omission or reconcile any
inconsistency in the Plan or an Award Agreement in such manner and to such
extent as the Committee deems necessary or appropriate. Unless otherwise
expressly provided in the Plan, all designations, determinations,
interpretations, and other decisions under or with respect to the Plan or any
Award shall be within the sole discretion of the Committee, may be made at any
time and shall be final, conclusive, and binding upon all Persons, including
the Company, any Affiliate, any Participant, and any beneficiary of any Award.


 


SECTION 4.                                Units.


 


(a)           Limits on
Units Deliverable.  Subject to adjustment as provided in Section 4(c),
the number of Units that may be delivered with respect to Awards under the Plan
will not exceed     Units.  Units withheld from an Award to either satisfy
the Participant’s, the Company’s or an Affiliate’s tax withholding obligations
with respect to the Award or pay the exercise price of an Award shall not be
considered to be Units delivered under the Plan for this purpose. If any Award
is forfeited, cancelled, exercised, paid, or otherwise terminates or expires
without the actual delivery of Units pursuant to such Award (the grant of
Restricted Units is not a delivery of Units for this purpose), the Units
subject to such Award shall again be available for Awards under the Plan. There
shall not be any limitation on the number of Awards that may be paid in cash.


 


(b)           Sources of
Units Deliverable Under Awards.  Any Units
delivered pursuant to an Award shall consist, in whole or in part, of Units held
by the Company, or acquired in the open market from any Affiliate, or any other
Person, or any combination of the foregoing, as determined by the Committee in
its discretion; provided, however, that any Units delivered upon the exercise
of an Option granted to a Canadian Grantee shall be previously unissued Units.


 


(c)           Anti-dilution
Adjustments.  With respect to any “equity
restructuring” event that could result in an additional compensation expense to
the Company pursuant to the provisions of Statement of Financial Accounting
Standards Accounting Standards Codification Topic 718, Stock Compensation (“ASC  Topic
718”) if adjustments to Awards with respect to such event were
discretionary, the Committee shall equitably adjust the number and type of
Units covered by each outstanding Award and the terms and conditions, including
the exercise price and performance criteria (if any), of such Award to
equitably reflect such restructuring event and shall adjust the number and type
of Units (or other securities or property) with respect to which Awards may be
granted after such event. With respect to any other similar event that would
not result in an ASC Topic 718 accounting charge if the adjustment to Awards
with respect to such event were subject to discretionary action, the Committee
shall have complete discretion to adjust Awards in such manner as it deems
appropriate with respect to such other event. 
In the event the Committee makes any adjustment pursuant to the
foregoing provisions of this Section 4(c), the Committee shall make a
corresponding and proportionate adjustment with respect to the maximum number
of Units that may be delivered with respect to Awards under the Plan as 


 


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provided in Section 4(a) and the
kind of Units or other securities available for grant under the Plan.  All adjustments under this Section 4(c) shall
be made, to the extent possible, in such manner so as to nor cause any adverse
tax consequences under the ITA


 


SECTION 5.                                Eligibility.


 


Any Employee, Consultant or
Director shall be eligible to be designated a Participant by the Committee and receive
an Award under the Plan.


 


SECTION 6.                                Awards.


 


(a)           Options
and UARs.  The Committee shall have the authority
to determine the Employees, Consultants and Directors to whom Options and/or
UARs shall be granted, the number of Units to be covered by each Option or UAR,
the exercise price therefor, the Restricted Period and other conditions and
limitations applicable to the exercise of the Option or UAR, including the
following terms and conditions and such additional terms and conditions, as the
Committee shall determine, that are not inconsistent with the provisions of the
Plan.


 


(i)            Exercise Price.  The
exercise price per Unit purchasable under an Option or subject to a UAR shall
be determined by the Committee at the time the Option or UAR is granted but may
not be less than the Fair Market Value of a Unit as of the date of grant of the
Option or UAR.


 


(ii)           Time and Method of Exercise.  The
Committee shall determine the exercise terms and the Restricted Period with
respect to an Option or UAR grant, which may include, without limitation, a
provision for accelerated vesting upon the achievement of specified performance
goals or other events, and the method or methods by which payment of the
exercise price with respect to an Option may be made or deemed to have been
made, which may include, without limitation, cash, check acceptable to the
Company, withholding Units from the Award (except with respect to an Option
granted to a Canadian Grantee), a “cashless-broker” exercise through procedures
approved by the Company, or any combination of the above methods, having a Fair
Market Value on the exercise date equal to the relevant exercise price.


 


(iii)          Forfeitures.  Except
as otherwise provided in the terms of the Option or UAR grant, upon a
Participant’s Cessation Date, for any reason during the applicable Restricted
Period, all unvested Options and UARs shall be forfeited by the Participant.
The Committee may, in its discretion, waive in whole or in part such forfeiture
with respect to a Participant’s Options or UARs.


 


(iv)          Awards Granted to Canadian
Grantees.  All Options granted to a Canadian Grantee who is an Employee or a
Director shall have such terms and conditions as are necessary or desirable to
ensure that the Options are governed by Section 7 of the ITA and, unless
otherwise determined by the Committee, that the Units covered by any such
Option constitute “prescribed shares” within the meaning of Section 6204
of the regulations to the ITA.  All UARs
granted to a Canadian Grantee who is an Employee or a Director shall be
structured so as to not constitute a “salary deferral arrangement” within the
meaning of Section 248(1) of the ITA.


 


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(b)           Restricted
Units and Phantom Units.  The Committee shall have the
authority to determine the Employees, Consultants and Directors to whom
Restricted Units and Phantom Units shall be granted, the number of Restricted
Units or Phantom Units to be granted to each such Participant, the Restricted
Period, the conditions under which the Restricted Units or Phantom Units may
become vested or forfeited and such other terms and conditions as the Committee
may establish with respect to such Awards.


 


(i)            DERs.  To
the extent provided by the Committee, in its discretion, a grant of Phantom
Units may include a tandem DER grant, which may provide that such DERs shall be
paid directly to the Participant, be credited to a bookkeeping account (with or
without interest in the discretion of the Committee), be “reinvested” in
Restricted Units or additional Phantom Units and be subject to the same or
different vesting restrictions as the tandem Phantom Unit Award, or be subject
to such other provisions or restrictions as determined by the Committee in its
discretion. Absent a contrary provision in the Award Agreement, upon a
distribution with respect to a Unit, DERs equal in value to such distribution
shall be paid promptly to the Participant in cash without vesting restrictions.


 


(ii)           UDRs.  To
the extent provided by the Committee, in its discretion, a grant of Restricted
Units may provide that the distributions made by the Company with respect to
the Restricted Units shall be subject to the same forfeiture and other
restrictions as the Restricted Unit and, if restricted, such distributions
shall be held, without interest, until the Restricted Unit vests or is
forfeited with the UDR being paid or forfeited at the same time, as the case
may be. In addition, the Committee may provide that such distributions be used
to acquire additional Restricted Units for the Participant. Such additional
Restricted Units may be subject to such vesting and other terms as the
Committee may prescribe. Absent such a restriction on the UDRs in the Award
Agreement, UDRs shall be paid promptly to the holder of the Restricted Unit
without vesting restrictions.


 


(iii)          Forfeitures.  Except
as otherwise provided in the terms of the applicable Award Agreement, upon a
Participant’s Cessation Date, for any reason during the applicable Restricted
Period, all outstanding, unvested Restricted Units and Phantom Units awarded
the Participant shall be automatically forfeited on such Cessation Date. The
Committee may, in its discretion, waive in whole or in part such forfeiture
with respect to a Participant’s Restricted Units and/or Phantom Units.


 


(iv)          Lapse of Restrictions.


 


(A)          Phantom Units.  Upon
or as soon as reasonably practical following the vesting of each Phantom Unit,
subject to the provisions of Section 8(b), the Participant shall be
entitled to settlement of such Phantom Unit and shall receive from the Company
either one Unit or an amount in cash equal to the Fair Market Value of a Unit, or
a combination of cash and Units, as determined by the Committee in its
discretion.


 


(B)           Restricted Units.  Upon
or as soon as reasonably practical following the vesting of each Restricted
Unit, subject to satisfying the tax withholding obligations of Section 8(b),
the Participant shall be entitled to have 


 


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the restrictions removed from his or her Award so that the Participant
then holds an unrestricted Unit.


 


(v)           Awards Granted to Canadian Grantees.  All Phantom Units granted to a Canadian Grantee
who is an Employee or a Director shall have such terms and conditions as are
necessary or desirable to ensure that such Phantom Units are excluded from the
definition of “salary deferral arrangement” under Section 248(1) of
the ITA by virtue of falling within either paragraph (k) or paragraph (l) of
that definition.


 


(c)           Unit
Awards.  Unit Awards may be granted under the Plan to such
Employees, Consultants and/or Directors and in such amounts as the Committee,
in its discretion, may select.


 


(d)           Other Unit-Based
Awards.  Other Unit-Based Awards may be granted under the Plan to
such Employees, Consultants and/or Directors as the Committee, in its
discretion, may select. An Other Unit-Based Award shall be an award denominated
or payable in, valued in or otherwise based on or related to Units, in whole or
in part. The Committee shall determine the terms and conditions of any such
Other Unit-Based Award. Upon or as soon as reasonably practical following vesting,
an Other Unit-Based Award may be settled, as determined by the Committee in its
sole discretion, in cash, Units (including Restricted Units) or any combination
thereof as provided in the applicable Award Agreement.


 


(e)           Performance Awards and Incentive
Awards.  The right of an Employee,
Consultant and/or Director to receive a grant, and the right of a Participant
to exercise or receive a grant or settlement of any Award, and the timing
thereof, may be subject to such performance conditions as may be specified by
the Committee.  The Committee may use such
business criteria and other measures of performance as it may deem appropriate
in establishing any performance conditions, and may exercise its discretion to
reduce or increase the amounts payable under any Award subject to performance
conditions.


 


(i)            Performance Goals Generally.  The performance goals for Performance Awards
or Incentive Awards shall consist of one or more business criteria or
individual performance criteria and a targeted level or levels of performance
with respect to each of such criteria, as specified by the Committee in its
sole discretion.  The Committee may
determine that such Performance Awards or Incentive Awards shall be granted,
exercised, and/or settled upon achievement of any one performance goal or that
two or more of the performance goals must be achieved as a condition to grant,
exercise and/or settlement of such Performance Awards or Incentive Awards.  Performance goals may differ for Performance
Awards or Incentive Awards granted to any one Participant or to different Participants.


 


(ii)           Performance Periods.  Achievement of performance goals in respect
of Performance Awards or Incentive Awards shall, subject to other provisions of
this Plan, be measured over a performance period of up to ten years, as
specified by the Committee.


 


(iii)          Performance Award or Incentive Award  Pool.  The Committee
may, but is not required to, establish a Performance Award pool or an Incentive
Award pool which shall be an unfunded pool, for purposes of measuring
performance of the Company in 


 


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connection with Performance Awards or Incentive Awards.  The amount of such pools, if any, shall be
based upon the achievement of a performance goal or goals based on one or more
criteria during the given performance period, as specified by the
Committee.  The Committee may specify the
amount of the applicable pool as a percentage of any of such criteria, a
percentage thereof in excess of a threshold amount, or as another amount which
need not bear a strictly mathematical relationship to such criteria.


 


(iv)          Settlement of Performance Awards and  Incentive Awards. 
After the end of each applicable performance period, the Committee shall
determine the amount, if any, of (A) the Performance Award or Incentive
Award pool, and the maximum amount of the potential Award payable to each
Participant in the Performance Award or Incentive Award pool, or (B) the
amount of the potential Performance Award or Incentive Award otherwise payable
to each Participant.  Settlement of such
Performance Awards or Incentive Awards shall be in cash, Units, other Awards or
other property, in the discretion of the Committee.


 


(f)            General.


 


(i)            Awards May Be Granted
Separately, Together or as a Substitution.    Awards
may, in the discretion of the Committee, be granted either alone or in addition
to, in tandem with, or in substitution or exchange for any other Award granted
under the Plan or any award granted under any other plan of the Company or any
Affiliate, or of any business entity to be acquired by the Company or any of
its Affiliates, or any other right of an Eligible Person to receive payment
from the Company or any of its Affiliates.  Awards granted in addition to or in tandem
with other Awards or awards granted under any other plan of the Company or any
Affiliate may be granted either at the same time as or at a different time from
the grant of such other Awards or awards. 
If an Award is granted in substitution or exchange for another Award,
the Committee shall require the surrender of such other Award in consideration
for the grant of the new Award.


 


(ii)           Limits on Transfer of Awards.


 


(A)          Except as provided in Paragraph (C) below,
each Option and Unit Appreciation Right shall be exercisable only by the
Participant during the Participant’s lifetime, or by the Person to whom the
Participant’s rights shall pass by will or the laws of descent and
distribution.


 


(B)           Except as provided in Paragraph (C) below,
no Award and no right under any such Award may be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by a Participant and any
such purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Company or any
Affiliate.


 


(C)           To the extent specifically provided by the Committee
with respect to an Option or Unit Appreciation Right, an Option or Unit
Appreciation Right may be transferred by a Participant without consideration to
immediate family 


 


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members or related family trusts, limited partnerships or similar
entities or on such terms and conditions as the Committee may from time to time
establish.


 


(iii)          Term of Awards.  Subject
to the other provisions of this Plan or restrictions within any Award
agreement, the term of each Award shall be for such period as may be determined
by the Committee.


 


(iv)          Issuance of Units.  The
Units purchased or delivered pursuant to an Award may be evidenced in any
manner deemed appropriate by the Committee in its sole discretion, including
but not limited to, in the form of a certificate issued in the name of the
Participant or by book entry, electronic or otherwise, subject to such stop
transfer orders and other restrictions as the Committee may deem advisable
under the Plan or the rules, regulations, and other requirements of the SEC,
any stock exchange upon which such Units or other securities are then listed,
and any applicable federal or state laws, and the Committee may cause a legend
or legends to be inscribed on any certificates to make appropriate reference to
such restrictions.


 


(v)           Consideration for Grants.  Awards
may be granted for such consideration, including services, as the Committee
shall determine.


 


(vi)          Delivery of Units or other
Securities and Payment by Participant of Consideration.  Notwithstanding anything in the Plan or any Award
Agreement to the contrary, delivery of Units pursuant to the exercise, vesting
and/or settlement of an Award may be deferred for any period during which, in
the good faith determination of the Committee, the Company (or any Affiliate)
is not reasonably able to obtain Units to deliver pursuant to such Award
without violating applicable law or the applicable rules or regulations of
any governmental agency or authority or securities exchange. No Units or other
securities shall be delivered pursuant to any Award until payment in full of
any amount required to be paid pursuant to the Plan or the applicable Award Agreement
(including, without limitation, any exercise price or tax withholding) is
received by the Company.


 


SECTION 7.                                Amendment and Termination.


 


Except to the extent
prohibited by applicable law:


 


(a)           Amendments
to the Plan and Awards.  Except as otherwise required by
the rules of the principal securities exchange on which the Units are
traded, by the Code, by the ITA, or by the Exchange Act, the Board or the
Committee may amend, alter, suspend, discontinue, or terminate the Plan in any
manner, including increasing the number of Units available for Awards under the
Plan, without the consent of any member of the Company, Participant, other
holder or beneficiary of an Award, or any other Person.  Notwithstanding the foregoing, the Committee
may waive any conditions or rights under, amend any terms of, or alter any
Award theretofore granted, provided no change, other than pursuant to Section 7(b) below,
in any Award shall materially reduce the rights or benefits of a Participant
with respect to an Award without the consent of such Participant.


 


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(b)           Actions
Upon the Occurrence of Certain Events.  Upon the occurrence
of a Change of Control; a recapitalization, reorganization, merger,
consolidation, combination, exchange or other relevant change in capitalization
of or involving the Company; any change in applicable law or regulation
affecting the Plan or Awards thereunder; or any change in accounting principles
affecting the financial statements of the Company, the Committee, in its sole
discretion, without the consent of any Participant or holder of the Award, and
on such terms and conditions as it deems appropriate, may, but is not required
to, take any one or more of the following actions in order to prevent dilution
or enlargement of the benefits or potential benefits intended to be made
available under the Plan or an outstanding Award:


 


(i)            provide for either (A) the cancellation and termination
of any Award in exchange for an amount of cash, other property, or securities,
if any, equal to the amount that would have been attained upon the exercise of
such Award or realization of the Participant’s rights or if Participant were a unitholder
as of the date of the occurrence of such event (and, for the avoidance of
doubt, if as of the date of the occurrence of such transaction or event the
Committee determines in good faith that no amount would have been attained upon
the exercise of such Award or realization of the Participant’s rights, then
such Award may be terminated by the Company without payment) or (B) the
replacement of such Award with or the conversion of such Award into cash or
other securities, rights or property selected by the Committee in its sole
discretion; provided, that the Committee will not take any action that would
result in a Participant becoming subject to the adverse tax consequences
imposed by a violation of Section 409A of the Code or Section 7(1.4)
of the ITA as a result of such action;


 


(ii)           provide that such Award be assumed by the successor
or survivor entity, or a parent or subsidiary thereof, or be exchanged for
similar options, rights or awards covering the equity of the successor or
survivor, or a parent or subsidiary thereof, or cash or other property with
appropriate adjustments as to the number and kind of equity interests or cash
or other property and prices, provided, however, in the discretion of the
Committee, the vesting schedule applicable to such Award may be retained;
provided, that the Committee will not take any action that would result in a
Participant becoming subject to the adverse tax consequences imposed by a
violation of Section 409A of the Code or Section 7(1.4) of the ITA as
a result of such action;


 


(iii)          make adjustments in the number and type of Units (or
other securities or property) subject to outstanding Awards, and in the number
and kind of outstanding Awards or in the terms and conditions of (including the
exercise price), and the vesting and performance criteria included in,
outstanding Awards, or both;


 


(iv)          provide that, such Award shall be exercisable or
payable, notwithstanding anything to the contrary in the Plan or the applicable
Award Agreement;


 


(v)           provide that, such Award shall be fully vested
and/or nonforfeitable; and


 


(vi)          provide that the Award cannot be exercised or become
payable after such event, i.e.,
shall terminate upon such event.


 


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Notwithstanding the
foregoing, with respect to an above event that is an “equity restructuring”
event that would be subject to a compensation expense pursuant ASC Topic 718,
the provisions in Section 4(c) shall control to the extent they are
in conflict with the discretionary provisions of this Section 7.


 


SECTION 8.                                General Provisions.


 


(a)           No Rights
to Award.  No Person shall have any claim to be
granted any Award under the Plan, and there is no obligation for uniformity of
treatment of Participants. The terms and conditions of Awards need not be the
same with respect to each recipient.


 


(b)           Tax
Withholding.  Unless other arrangements have been
made that are acceptable to the Company, the Company or any Affiliate is
authorized to withhold from any Award, from any payment due or transfer made
under any Award or from any compensation or other amount owing to a Participant
the amount (in cash, Units, Units that would otherwise be issued pursuant to
such Award or other property) of any applicable taxes payable in respect of the
grant or settlement of an Award, its exercise, the lapse of restrictions
thereon, or any other payment or transfer under an Award or under the Plan and
to take such other action as may be necessary in the opinion of the Company to
satisfy its or the Affiliate’s withholding obligations for the payment of such
taxes.


 


(c)           No Right
to Employment or Services.  The grant of an Award shall not
be construed as giving a Participant the right to be retained in the employ of
the Company or any Affiliate, to continue consulting services or to remain as a
Director, as applicable. Furthermore, the Company or an Affiliate may at any
time dismiss a Participant from employment or consulting free from any
liability or any claim under the Plan, unless otherwise expressly provided in
the Plan, any Award Agreement or other agreement.


 


(d)           Governing
Law.  The validity, construction, and effect of the Plan and any
rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of            without regard to its conflicts of laws principles.


 


(e)           Severability.  If
any provision of the Plan or any Award is or becomes or is deemed to be invalid,
illegal, or unenforceable in any jurisdiction or as to any Person or Award, or
would disqualify the Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
the applicable law or, if it cannot be construed or deemed amended without, in
the determination of the Committee, materially altering the intent of the Plan
or the Award, such provision shall be stricken as to such jurisdiction, Person
or Award and the remainder of the Plan and any such Award shall remain in full
force and effect.


 


(f)            Other Laws.  The
Committee may refuse to issue or transfer any Units or other consideration
under an Award if, in its sole discretion, it determines that the issuance or
transfer of such Units or such other consideration might violate any applicable
law or regulation, the rules of the principal securities exchange on which
the Units are then traded, or entitle the Company or an Affiliate to recover
the same under Section 16(b) of the Exchange Act, and any payment
tendered to the Company by a Participant, other holder or beneficiary in
connection 


 


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with the exercise of such Award shall be
promptly refunded to the relevant Participant, holder or beneficiary.


 


(g)           No Trust
or Fund Created.  Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company or any participating Affiliate and a
Participant or any other Person. To the extent that any Person acquires a right
to receive payments from the Company or any participating Affiliate pursuant to
an Award, such right shall be no greater than the right of any general
unsecured creditor of the Company or any participating Affiliate.


 


(h)           No
Fractional Units.  No fractional Units shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine in
its sole discretion whether cash, other securities, or other property shall be
paid or transferred in lieu of any fractional Units or whether such fractional
Units or any rights thereto shall be terminated or otherwise eliminated with or
without consideration.


 


(i)            Headings.  Headings
are given to the Sections and subsections of the Plan solely as a convenience
to facilitate reference. Such headings shall not be deemed in any way material
or relevant to the construction or interpretation of the Plan or any provision
thereof.


 


(j)            Facility
of Payment.  Any amounts payable hereunder to any individual
under legal disability or who, in the judgment of the Committee, is unable to
manage properly his financial affairs, may be paid to the legal representative
of such individual, or may be applied for the benefit of such individual in any
manner that the Committee may select, and the Company shall be relieved of any
further liability for payment of such amounts.


 


(k)           Gender and
Number.  Words in the masculine gender shall include the feminine
gender, the plural shall include the singular and the singular shall include
the plural.


 


(l)            Compliance
with Section 409A.  Nothing in the Plan or any Award
Agreement shall operate or be construed to cause the Plan or an Award to fail
to comply with the requirements of Section 409A of the Code. The applicable
provisions of Section 409A the Code and the regulations thereunder are
hereby incorporated by reference and shall control over any Plan or Award
Agreement provision in conflict therewith.


 


SECTION 9.                                Term of the Plan.


 


The Plan shall be effective
on the date immediately preceding the close of the initial public offering of
Units and shall continue until the earliest of (i) the date terminated by
the Board, (ii) all Units available under the Plan have been paid to
Participants, or (iii) the tenth year anniversary of the date the Plan is
approved by the Company.  However, any
Award granted prior to such termination, and the authority of the Board or the
Committee to amend, alter, adjust, suspend, discontinue, or terminate any such
Award or to waive any conditions or rights under such Award, shall extend
beyond such termination date.


 


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