exv10w2






Exhibit 10.2




AMENDED AND RESTATED




COPANO ENERGY, L.L.C.

LONG-TERM INCENTIVE PLAN



     SECTION 1. Purpose of the Plan.



     The Copano Energy, L.L.C. Long-Term Incentive Plan (the “Plan”) is intended to promote the
interests of Copano Energy, L.L.C., a Delaware limited liability company (the “Company”), by
providing to Employees and Directors of the Company and its Affiliates incentive compensation
awards for superior performance that are based on Units. 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 to encourage those individuals to
devote their best efforts to advancing the business of the Company.



     SECTION 2. Definitions.



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



     “Affiliate” means, (i) 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 and (ii) with respect to the Company Copano Operations for so long as
Copano Operations provides any general and administrative functions or field operating personnel to
the Company or its subsidiaries. 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.



     “Award” means an Option, UAR, Restricted Unit, Phantom Unit or Unit Award granted under the
Plan, and shall include any tandem DERs granted with respect to an Award.



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



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



     “Change of Control” means the happening of any of the following events:




     (i) the acquisition by any “person,” as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), other than the
Company or an Affiliate of the Company (other than Copano Operations), of “beneficial
ownership” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 50% of the combined voting power of the
Company’s then outstanding securities entitled to vote generally in the election of
directors; or




     (ii) the consummation of a reorganization, merger, consolidation or other form of
business transaction or series of business transactions, in each case, with respect to which
persons who were the members of the Company immediately prior to such reorganization,



 









 







merger or consolidation or other transaction do not, immediately thereafter, own more
than 50% of the combined voting power entitled to vote generally in the election of
directors of the reorganized, merged or consolidated company’s then outstanding voting
securities; or




     (iii) the sale, lease or disposition (in one or a series of related transactions) by
the Company of all or substantially all the Company’s assets to any Person or its
Affiliates, other than the Company or its Affiliates (other than Copano Operations); or




     (iv) a change in the composition of the Board, as a result of which fewer than a
majority of the directors are Incumbent Directors. “Incumbent Directors” shall mean
directors who either (A) are directors of the Company as of the effective date of the
initial public offering of the Company’s equity interests, or (B) are elected, or nominated
for election, thereafter to the Board with the affirmative votes of at least a majority of
the Incumbent Directors at the time of such election or nomination or (C) are among the five
initial independent directors of the Company, but “Incumbent Director” shall not include an
individual whose election or nomination is in connection with (i) an actual or threatened
election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act) or an actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board or (ii) a plan or agreement to replace a majority of
the then Incumbent Directors; or




     (v) the approval by the Board or the members of the Company of a complete or
substantially complete liquidation or dissolution of the Company.



     “Code” means the Internal Revenue Code of 1986, as amended. Reference to any section of the
Code shall include reference to such section and the regulations and other authoritative guidance
promulgated thereunder.



     “Committee” means the Compensation Committee of the Board or such other committee of the Board
as may be appointed by the Board to administer the Plan.



     “DER” or “Distribution Equivalent Right” means a contingent right, granted in tandem with a
specific Option, UAR or Phantom Unit, to receive an amount in cash equal to the cash distributions
made by the Company with respect to a Unit during the period such tandem Award is outstanding.



     “Director” means a member of the Board who is not an Employee.



     “Employee” means (i) any employee of the Company or (ii) an employee of an Affiliate or an
independent contractor consultant who performs services for the benefit of the Company or a
subsidiary of the Company. As used herein, termination of consulting services shall be deemed to
be a termination of employment.



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



     “Fair Market Value” means the closing sales price of a Unit on the applicable date (or if
there is no trading in the Units on such date, on the next preceding date on which there was
trading) as reported in The Wall Street Journal (or other reporting service approved by the
Committee). In the event Units are not publicly traded 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.



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



 









 





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



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



     “Phantom Unit” means a phantom (notional) Unit granted under the Plan which upon vesting
entitles the Participant to receive a Unit or an amount of cash equal to the Fair Market Value of a
Unit, as determined by the Committee in its 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 either not 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.



     “Unit” means a common unit of the Company.



     “Unit Award” means a Unit granted under the Plan that is not subject to a Restricted Period.



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



     “Unit Appreciation Right” or “UAR” means an Award that, upon exercise, entitles the holder to
receive the excess of the Fair Market Value of a Unit on the exercise date over the exercise price
established for such Unit Appreciation Right. Such excess may be paid in cash and/or in Units as
determined by the Committee in its discretion.



     SECTION 3. Administration.



     The Plan shall be administered by the Committee. A majority of the Committee shall constitute
a quorum, and the acts of the members of the Committee who are present at any meeting thereof at
which a quorum is present, or acts unanimously approved by the members of the Committee in writing,
shall be the acts of the Committee. Subject to the following and applicable law, the Committee, in
its sole discretion, may delegate any or all of its powers and duties under the Plan, including the
power to grant Awards under the Plan, to the Chief Executive Officer of the Company, subject to
such limitations on such delegated powers and duties as the Committee may impose, if any. Upon any
such delegation all references in the Plan to the “Committee”, other than in Section 7, shall be
deemed to include the Chief Executive Officer; provided, however, that such delegation shall not
limit the Chief Executive Officer’s right to receive Awards under the Plan. Notwithstanding the
foregoing, the Chief Executive Officer may not grant Awards to, or take any action with respect to
any Award previously granted to, a person who is an officer subject to Rule 16b-3 or a member of
the Board. 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 settled, exercised,
canceled, or forfeited; (vi) interpret and administer the Plan and any instrument or agreement
relating to an Award 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. 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 shall not exceed
6,200,000 Units, determined at the time of any Award; provided, however, that no more than
3,700,000 (as adjusted pursuant to Section 4(c)) may be delivered in payment of Unit Awards,
Restricted Units and Phantom Units. If any Award (including Restricted Units) is terminated,
forfeited or expires for any reason without the delivery of Units covered by such Award, or Units
are withheld from an Award to satisfy the exercise price or tax withholding obligation with respect
to such Award, such Units shall again be available for delivery pursuant to other Awards granted
under the Plan. Notwithstanding the foregoing, there shall not be any limitation on the number of
Awards that may be granted under the Plan and 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 acquired in the open market, from any Affiliate
or any other Person, newly issued Units, or any combination of the foregoing, as determined by the
Committee in its sole discretion.



     (c) Adjustments. In the event that the Committee determines that any distribution
(whether in the form of cash, Units, other securities, or other property), recapitalization, split,
reverse split, reorganization, merger, Change of Control, consolidation, split-up, spin-off,
combination, repurchase, or exchange of Units or other securities of the Company, issuance of
warrants or other rights to purchase Units or other securities of the Company, or other similar
transaction or event affects the Units such that an adjustment is determined by the Committee to be
appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall, in such manner as it may
deem equitable, adjust any or all of (i) the number and type of Units (or other securities or
property) with respect to which Awards may be granted, (ii) the number and type of Units (or other
securities or property) subject to outstanding Awards, (iii) the grant or exercise price with
respect to any Award, or (iv) if deemed appropriate, make provision for a cash payment to the
holder of an outstanding Award; provided, that the number of Units subject to any Award shall
always be a whole number.



     SECTION 5. Eligibility.



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



     SECTION 6. Awards.



 









 





     (a) Options. The Committee shall have the authority to determine the Employees and
Directors to whom Options shall be granted, the number of Units to be covered by each Option,
whether DERs are granted with respect to such Option, the purchase price for such Units and the
conditions and limitations applicable to the exercise of the Option, 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 purchase price per Unit purchasable under an Option
shall be determined by the Committee at the time the Option is granted, provided such
purchase price may not be less than its Fair Market Value as of the date of grant.




     (ii) Time and Method of Exercise. The Committee shall determine the Restricted
Period, i.e., the time or times at which an Option may be exercised in whole or in part,
which may include, without limitation, accelerated vesting upon the achievement of specified
performance goals, and, in its discretion, the method or methods by which payment of the
exercise price with respect thereto may be made or deemed to have been made, which may
include, without limitation, cash, check acceptable to the Company, a “cashless-broker”
exercise through procedures approved by the Company, with the consent of the Company, the
withholding of Units that would otherwise be delivered to the Participant upon the exercise
of the Option, other securities or other property, or any combination thereof, 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 Award
Agreement, upon termination of a Participant’s employment with the Company and its
Affiliates or membership on the Board, whichever is applicable, for any reason during the
applicable Restricted Period, all Options 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.




     (iv) DERs. To the extent provided by the Committee, in its discretion, a grant
of Options 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) subject to the same vesting restrictions as the tandem
Award, or be subject to such other provisions or restrictions as determined by the Committee
in its discretion. Further, to the extent required by Section 409A of the Code, DERs
granted in tandem with Options shall not be directly or indirectly contingent on the
exercise of the Options with respect to which they were granted.




     (v) Option Cash-Out Right. To the extent determined by the Company in its sole
discretion, and to the extent provided for in an Award Agreement, in lieu of issuing Units
to the Participant in connection with the exercise of an Option, the Company may elect to
pay the Participant an amount of cash equal to the excess of the aggregate Fair Market Value
of the Units as to which the Options are being exercised as of the date of exercise over the
aggregate exercise price for such Units, less any amounts required to be withheld by the
Company or an Affiliate to meet withholding obligations under applicable law (the right to
make such election, the “Option Cash-Out Right”). Upon payment by the Company of such
amount, the number of Units that may be purchased by the Participant pursuant to the Options
shall be reduced to the same extent as if the Company had not exercised the Option Cash-Out
Right and the Participant had exercised the Options pursuant to his election.



 









 





     (b) UARs. The Committee shall have the authority to determine the Employees and
Directors to whom Unit Appreciation Rights shall be granted, the number of Units to be covered by
each grant, whether DERs are granted with respect to such Unit Appreciation Right, the exercise
price therefor and the conditions and limitations applicable to the exercise of the Unit
Appreciation Right, 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 Appreciation Right shall be
determined by the Committee at the time the Unit Appreciation Right is granted but may not
be less than the Fair Market Value of a Unit as of the date of grant.




     (ii) Time of Exercise. The Committee shall determine the Restricted Period,
i.e., the time or times at which a Unit Appreciation Right may be exercised in whole or in
part, which may include, without limitation, accelerated vesting upon the achievement of
specified performance goals.




     (iii) Forfeitures. Except as otherwise provided in the terms of the Award
Agreement, upon termination of a Participant’s employment with the Company and its
Affiliates or membership on the Board, whichever is applicable, for any reason during the
applicable Restricted Period, all outstanding Unit Appreciation Rights awarded the
Participant shall be automatically forfeited on such termination. The Committee may, in its
discretion, waive in whole or in part such forfeiture with respect to a Participant’s Unit
Appreciation Rights.




     (iv) Unit Appreciation Right DERs. To the extent provided by the Committee, in
its discretion, a grant of Unit Appreciation Rights 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) subject to
the same vesting restrictions as the tandem Unit Appreciation Rights Award, or be subject to
such other provisions or restrictions as determined by the Committee in its discretion.
Further, to the extent required by Section 409A of the Code, DERs granted in tandem with
UARs shall not be directly or indirectly contingent on the exercise of the UARs with respect
to which they were granted.



     (c) Phantom Units. The Committee shall have the authority to determine the Employees
and Directors to whom Phantom Units shall be granted, the number of Phantom Units to be granted to
each such Participant, the Restricted Period, the time or conditions under which the Phantom Units
may become vested or forfeited, which may include, without limitation, the accelerated vesting upon
the achievement of specified performance goals, and such other terms and conditions as the
Committee may establish with respect to such Awards, including whether DERs are granted with
respect to such Phantom Units.




     (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) subject to the same vesting restrictions as the
tandem Award, or be subject to such other provisions or restrictions as determined by the
Committee in its discretion.




     (ii) Forfeitures. Except as otherwise provided in the terms of the Award
Agreement, upon termination of a Participant’s employment with the Company and its
Affiliates or membership on the Board, whichever is applicable, for any reason during the
applicable



 









 







Restricted Period, all outstanding Phantom Units awarded the Participant shall be
automatically forfeited on such termination. The Committee may, in its discretion, waive in
whole or in part such forfeiture with respect to a Participant’s Phantom Units.




     (iii) Lapse of Restrictions. 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 receive from the Company one Unit or cash equal to the Fair Market
Value of a Unit, as determined by the Committee in its discretion.



     (d) Restricted Units. The Committee shall have the authority to determine the
Employees and Directors to whom Restricted Units shall be granted, the number of Restricted Units
to be granted to each such Participant, the Restricted Period, the conditions under which the
Restricted Units may become vested or forfeited, which may include, without limitation, the
accelerated vesting upon the achievement of specified performance goals, and such other terms and
conditions as the Committee may establish with respect to such Awards.




     (i) UDRs. To the extent provided by the Committee, in its discretion, a grant
of Restricted Units may provide that 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. Absent such a restriction on the UDRs in the Award
Agreement, UDRs shall be paid to the holder of the Restricted Unit without restriction.




     (ii) Forfeitures. Except as otherwise provided in the terms of the Award
Agreement, upon termination of a Participant’s employment with the Company and its
Affiliates or membership on the Board, whichever is applicable, for any reason during the
applicable Restricted Period, all outstanding Restricted Units awarded the Participant shall
be automatically forfeited on such termination. The Committee may, in its discretion, waive
in whole or in part such forfeiture with respect to a Participant’s Restricted Units.




     (iii) Lapse of Restrictions. Upon or as soon as reasonably practical following
the vesting of each Restricted Unit, subject to the provisions of Section 8(b), the
Participant shall be entitled to have the restrictions removed from his or her Unit
certificate so that the Participant then holds an unrestricted Unit.




     (iv) Restricted Unit Cash-Out Right. To the extent determined by the Company
in its sole discretion, and to the extent provided for in an Award Agreement, the Company
may elect to pay a Participant an amount of cash equal to the aggregate Fair Market Value of
the Restricted Units on the vesting date of such units, less any amounts required by the
Company or an Affiliate to meet withholding obligations under applicable law, in lieu of
issuing such units to the Participant (the right to make such election, the “Restricted Unit
Cash-Out Right”). Upon payment by the Company of such amount, any certificate representing
the Restricted Units as to which such Restricted Unit Cash-Out Right has been exercised
shall be cancelled.



     (e) Unit Awards. The Committee may grant Unit Awards to such Employees and Directors, and in
such amounts, as it may determine. Such grants may be based on the Participant’s performance or
such other considerations as the Committee deems appropriate.



     (f) General.



 









 






     (i) Awards May Be Granted Separately or Together. Awards may, in the
discretion of the Committee, be granted either alone or in addition to, in tandem with, or
in substitution for any other Award granted under the Plan or any award granted under any
other plan of the Company or any Affiliate. 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.




     (ii) Limits on Transfer of Awards.




     (A) Except as provided in paragraph (C) below, each Award shall be exercisable
or payable only by or to 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 paragraphs (A) and (C), 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 or approved by the Committee with
respect to an Award, an Award may be transferred by a Participant without
consideration to immediate family members or related family trusts, limited
partnerships or similar entities on such terms and conditions as the Committee may
from time to time establish.




     (iii) Term of Awards. The term of each Award shall be for such period as may
be determined by the Committee, but shall not exceed 10 years.




     (iv) Unit Certificates. All certificates for Units or other securities of the
Company delivered under the Plan pursuant to any Award or the exercise thereof shall be
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 put on any such
certificates to make appropriate reference to such restrictions.




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




     (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 or vesting of an Award may be deferred
for any period during which, in the good faith determination of the Committee, the Company
is not reasonably able to obtain Units to deliver pursuant to such Award without violating
the rules or regulations of any applicable law 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.



 









 






     (vii) Change of Control. Unless specifically provided otherwise in the Award
Agreement, upon a Change of Control or such time prior thereto as established by the
Committee, all outstanding Awards shall automatically vest or become exercisable in full, as
the case may be. In this regard, all Restricted Periods shall terminate and all performance
criteria, if any, shall be deemed to have been achieved at the maximum level. To the extent
an Option or UAR is not exercised, or a Phantom Unit or Restricted Unit does not vest, upon
the Change of Control, the Committee may, in its discretion, cancel such Award or provide
for an assumption of such Award or a replacement grant on substantially the same terms;
provided, however, upon any cancellation of an Option or UAR that has a positive “spread” or
a Phantom Unit or Restricted Unit, the holder shall be paid an amount in cash and/or other
property, as determined by the Committee, equal to such “spread” if an Option or UAR or
equal to the Fair Market Value of a Unit, if a Phantom Unit or Restricted Unit.



     SECTION 7. Amendment and Termination. Except to the extent prohibited by applicable
law:



     (a) Amendments to the Plan. Except as required by the rules of the principal
securities exchange on which the Units are traded and subject to Section 7(b) below, the Board or
the Committee may amend, alter, suspend, discontinue, or terminate the Plan in any manner, without
the consent of any member, Participant, other holder or beneficiary of an Award, or other Person.



     (b) Amendments to Awards. Subject to Section 7(a), 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(c) or, as determined by the Committee, in its sole
discretion, as being necessary or appropriate to comply with applicable law, including, without
limitation, Section 409A of the Code, in any Award shall materially reduce the benefit of a
Participant without the consent of such Participant.



     (c) Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring
Events. The Committee may make adjustments in the terms and conditions of, and the criteria
included in, Awards in recognition of unusual or nonrecurring events (including, without
limitation, the events described in Section 4(c) of the Plan) affecting the Company or the
financial statements of the Company, or of changes in applicable laws, regulations, or accounting
principles, whenever the Committee determines that such adjustments are appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended to be made available
under the Plan or any Award.



     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. 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, other securities or property, or Units
that would otherwise be issued or delivered pursuant to such Award) of any applicable taxes payable
in respect of the grant of an Award, its exercise, the lapse of restrictions thereon, or any
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 withholding obligations for the payment of
such taxes.



 









 





     (c) No Right to Employment. 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 or to remain on
the Board, as applicable. Further, the Company or an Affiliate may at any time dismiss a
Participant from employment, free from any liability or any claim under the Plan, unless otherwise
expressly provided in the Plan or in any Award 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 Texas law without regard to its conflict 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 laws, 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 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 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 canceled, terminated, or otherwise eliminated.



     (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 Payment. Any amounts payable hereunder to any person under legal
disability or who, in the judgment of the Committee, is unable to properly manage his financial
affairs, may be paid to the legal representative of such person, or may be applied for the benefit
of such person in any manner which 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 of the Code. Nothing in the Plan or any Award
Agreement shall operate or be construed to cause the Plan or an Award, to the extent subject to
Section 409A, to fail to comply with the requirements of Section 409A of the Code. With respect to
any Award that is subject to Section 409A of the Code, the applicable provisions of Section 409A
the Code are hereby incorporated by reference and shall control over any provision of the Plan or
any Award Agreement that is in conflict therewith. For purposes of such compliance, in the event
that an Award that is subject to Section 409A of the Code is payable in connection with a
Participant’s termination of service as an Employee or Director, such payments shall be made only
in connection with a ‘separation from service’ within the meaning of Section 409A of the Code and
the regulations thereunder (a “Separation from Service”) and the adjustment provisions of the
Plan (including, without limitation, Sections 4(c), 6(f)(vii), and 7(c)) shall be applied in a
manner consistent with the requirements of Section 409A. In addition, in the event that an Award
that is intended to be exempt from Section 409A as a short term deferral provides for vesting in
connection with termination of service as an Employee or Director, such vesting shall occur only at
the time of the Employee’s or Director’s Separation from Service. Further, notwithstanding anything
to the contrary in the Plan or any Award Agreement, with respect to any Award that is subject to
Section 409A and that provides for vesting in connection with a Change in Control or a change in
control of any Affiliate of the Company, the timing of payment of such award shall not be
accelerated unless the event(s) constituting the Change of Control or the change of control of such
Affiliate constitute a change of control event (as defined in Treasury regulation section
1.409A-3(i)(5)). Finally, notwithstanding anything to the contrary in this Plan, in the event an
Award issued under the Plan is subject to Section 409A of the Code, if upon a Participant’s
Separation from Service, the Participant is a ‘specified employee’ within the meaning of Section
409A of the Code, and the deferral of any amounts or benefits otherwise payable or to be provided
under any Award made pursuant to this Plan as a result of the Participant’s Separation from Service
is necessary in order to prevent any accelerated or additional tax to the Participant under Section
409A of the Code, then the Company will delay the payment of any such amounts or the provision of
any such benefits hereunder until the earlier of (x) the date that is six (6) months following the
date of the Participant’s Separation from Service and (y) the date of the Participant’s death
following such Separation from Service. Upon the expiration of the applicable deferral period, any
delayed amounts will be paid to the Participant in a single lump sum and any delayed benefits will
be provided on such date.



     SECTION 9. Term of the Plan.



     The Plan shall become effective on the date of the initial public offering of Units and shall
continue until the earlier of the date terminated by the Board or the Committee or the 15th
anniversary of the date the Plan was first approved by the Unitholders or members of the Company.
However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement, 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.


Effective as of May 18, 2011