Exhibit 10.1


 


BUCKEYE PARTNERS, L.P.


UNIT DEFERRAL AND INCENTIVE PLAN


 


Effective December 16, 2009


 

















 


BUCKEYE PARTNERS, L.P.


UNIT DEFERRAL AND INCENTIVE PLAN


 


ARTICLE I

ESTABLISHMENT AND PURPOSE


 


Buckeye Partners, L.P., a Delaware limited
partnership, hereby establishes the Buckeye Partners, L.P. Unit Deferral and
Incentive Plan, effective as of December 16, 2009.  The Plan is intended to provide a select
group of management and highly compensated employees of the Company and its
Affiliates with the opportunity to exchange annual bonus compensation for
Deferral and Matching Units that are all subject to a substantial, additional
vesting requirement.  The purposes of the
Plan are to attract and retain selected officers and key employees of the
Company and its Affiliates and to enable such individuals to acquire or
increase ownership interests in the Partnership.  The Plan is intended to provide benefits that
are excluded from the definition of “deferred compensation” under Code section
409A pursuant to the exclusion for certain short-term deferral amounts
applicable thereunder.  Capitalized
terms, unless otherwise defined herein, shall have the meanings provided in Article II.


 


ARTICLE II

DEFINITIONS


 


Whenever used in this Plan, the following terms will
have the respective meanings set forth below, unless the context clearly
indicates otherwise:


 


“Administrator”
shall mean the Committee.


 


“Affiliate” will have the meaning ascribed to such term in Rule 12b-2
of the General Rules under the Exchange Act.  Notwithstanding the foregoing, Buckeye Pipe
Line Services Company shall be considered an Affiliate of the Company and any
reference to an Affiliate in this Plan shall include an Affiliate of the
Company or the Partnership, as applicable.


 


“Annual Bonus” shall mean any amounts payable to the Participant
under the Buckeye Partners, L.P. Annual Incentive Compensation Plan or any
similar incentive plan.


 


“Beneficiary” or “Beneficiaries” means the beneficiary or beneficiaries
last designated in writing by a Participant in accordance with procedures
established by the Administrator to receive distributions under the Plan
following the Participant’s death.


 


“Board” means the Company’s Board of Directors as constituted
from time to time.


 


“Cause” shall mean, except to the extent specified otherwise
by the Administrator, a finding by the Administrator that the Participant (i) has
materially breached his or her employment, severance or service contract with
the Company, Partnership or Affiliate, (ii) has engaged in disloyalty to
the Company, Partnership or Affiliate, including, without limitation, 


 


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fraud, embezzlement, theft, commission of a felony or proven
dishonesty, (iii) has disclosed trade secrets or confidential information
of the Company, Partnership or Affiliate to persons not entitled to receive
such information, or (iv) has breached any written non-competition,
non-solicitation, invention assignment or confidentiality agreement between the
Participant and the Company, Partnership or Affiliate.


 


“Change of Control”
shall mean the occurrence of one or more of the following transactions:


 


(a)                                  the sale or disposal by the Partnership
of all or substantially all of its assets; or


 


(b)                                 the merger or consolidation of the Partnership
with or into another partnership, corporation, or other entity, other than a
merger or consolidation in which the Unit holders immediately prior to such
transaction retain at least a fifty percent (50%) equity interest in the
surviving entity; or


 


(c)                                  the occurrence of one or more of the
following events:


 


(i)                                the Company ceases to be the sole general
partner of the Partnership;


 


(ii)                             Buckeye GP
Holdings L.P. ceases
to own and control, directly or indirectly, 100% of the outstanding equity
interests of the Company;


 


(iii)                          MainLine Management LLC ceases to be the
sole general partner of Buckeye GP Holdings L.P.; or


 


(iv)                         BGH GP Holdings, LLC ceases to own and
control, directly or indirectly, 100% of the outstanding equity interests of
MainLine Management LLC;


 


provided, however, that none of the events described in
this clause (c) shall constitute a Change of Control if, following such
event, either ArcLight Capital Partners, LLC and its affiliates (“ArcLight”) or
Kelso & Company and its affiliates (“Kelso”) possess, or both ArcLight
and Kelso collectively possess, directly or indirectly, the power to direct or
cause the direction of the management and policies of the Partnership, whether
through the ownership of voting securities, by contract, or otherwise; or


 


(d)                                 the failure of ArcLight and Kelso
collectively to possess, directly or indirectly, the power to direct or cause
the direction of the management and policies of the Partnership, whether
through the ownership of voting securities, by contract, or otherwise.


 


“Change of Control Period”
shall mean the period commencing on the date of a Change of Control and ending
eighteen (18) calendar months following a Change of Control.


 


“Code” means the
Internal Revenue Code of 1986, as it may be amended from time to time.


 


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“Committee”
means the Compensation Committee of the Board, or such other committee as
determined by the Board.


 


“Company” means
Buckeye GP LLC, a Delaware limited liability company, and any successor
thereto.


 


“Deferral Amount”
or “Deferral” shall mean that portion of a
Participant’s Annual Bonus that is deferred in the form of Deferral Units that
a Participant irrevocably elects to have, and is deferred, for any one Plan
Year.


 


“Deferral Election” shall mean an Eligible Employee’s
election to defer a portion of his or her Annual Bonus in the form of Deferral
Units under the Plan on the form and in the manner prescribed by the
Administrator and required by the terms of the Plan.


 


“Deferral Unit” means a unit of measurement, which is deemed solely
for bookkeeping purposes under this Plan to be equivalent to one Unit.


 


“Disability” or “Disabled” means a Participant becoming disabled within the
meaning of section 22(e)(3) of the Code, a long-term disability as
determined under the long-term disability plan of the Company, the Partnership
or an Affiliate, which is applicable to the Participant, or as otherwise
determined by the Administrator.


 


“Distribution Equivalent
Rights” means an amount determined by multiplying the number of
Deferral Units and Matching Units credited to a Participant’s Unit Account,
subject to adjustment under Section 8.2, by the per-Unit cash
distribution, or the per-Unit fair market value (as determined by the
Administrator) of any distribution in consideration other than cash, paid by
the Partnership on its Units.


 


“Eligible Employee” shall mean any Employee who, for a relevant
Plan Year, has a base salary equal to or in excess of $150,000 (or such other
amount set from time to time by the Administrator) and who is selected by the
Administrator to participate in the Plan in the Administrator’s sole and
absolute discretion.


 


“Employee” means
a regular full-time salaried employee of the Company or an Affiliate who
performs services directly or indirectly for the benefit of the Partnership.


 


“Employer(s)”
shall mean the Company and any Affiliate (now in existence or hereafter formed
or acquired) that have been selected by the Administrator to participate in the
Plan.


 


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


 


“Fair Market Value”
of a Unit means the average, rounded to one cent ($0.01), of the highest and
lowest sales prices thereof on the New York Stock Exchange on the day on which
Fair Market Value is being determined, as reported on the Composite Tape for
transactions on the New York Stock Exchange. In the event that there are no
Unit transactions on the New York Stock Exchange on such day, the Fair Market
Value will be determined as of the immediately preceding day on which there
were Unit transactions on that exchange. 
If a Unit is not publicly 


 


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traded or, if publicly traded, is not subject to reported transactions
as set forth above, the Fair Market Value per share shall be as determined by
the Administrator through any reasonable valuation method.


 


“Good Reason”
shall mean the occurrence, without the Participant’s express written consent,
of any of the following events during the Change of Control Period:


 


(a)                                  a substantial adverse change in the
Participant’s duties or responsibilities from those in effect on the date
immediately preceding the first day of the Change of Control Period;


 


(b)                                 a material reduction in Participant’s
annual rate of Base Salary or annual bonus opportunity as in effect immediately
prior to commencement of a Change of Control Period; or


 


(c)                                  requiring Participant to be based at a
location more than 100 miles from the Participant’s primary work location as it
existed on the date immediately preceding the first day of the Change of
Control Period, except for required travel substantially consistent with the
Participant’s present business obligations.


 


Notwithstanding the foregoing, Participant shall not
have Good Reason for termination unless (i) Participant gives written
notice of termination for Good Reason within 30 days after the event giving
rise to Good Reason occurs, (ii) the Company does not cure the action or
failure to act that constitutes the grounds for Good Reason, as set forth in
Participant’s notice of termination, within 30 days after the date on which
Participant gives written notice of termination and (iii) Participant
actually resigns within 60 days following the expiration of the Company’s
30-day cure period.


 


“LTIP” shall
mean the Buckeye Partners, L.P. 2009 Long-Term Incentive Plan, including any
amendments or modifications thereto.


 


“Matching Unit”
means a notional Unit credited to a Participant’s Unit Account that is subject
to service-based vesting restrictions.


 


“Participant” shall mean an Eligible Employee who has commenced
participation in the Plan and whose Unit Account has not been fully
distributed.


 


“Partnership”
means Buckeye Partners, L.P., a Delaware limited partnership or any successor
thereto.


 


“Plan” shall mean the Buckeye Partners, L.P. Unit Deferral
and Incentive Plan set forth herein, in effect as of December 16, 2009, as
amended from time to time.


 


“Plan Year” shall mean a calendar year.


 


“Unit”  means a unit
representing a limited partnership interest in the Partnership.


 


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“Unit Account”
shall mean the unfunded bookkeeping account established and maintained by the
Administrator for each Participant that is credited with Deferral Units and
Matching Units.


 


“Vesting Date” shall mean the date a Participant’s Deferral Units
and Vesting Units become vested in accordance with Section 5.7 of the
Plan.


 


ARTICLE III

ADMINISTRATION


 


The Administrator shall have sole discretionary
responsibility for the operation, interpretation, and administration of the
Plan.  Any action taken on any matter
within the discretion of the Administrator shall be final, conclusive, and
binding on all parties.  In order to
discharge its duties hereunder, the Administrator shall have the power and
authority to remedy any errors, inconsistencies or omissions, to resolve any
ambiguities, to adopt, interpret, alter, amend or revoke rules necessary
to administer the Plan, to delegate its duties and to employ such outside
professionals as may be required for prudent administration of the Plan.  The records of the Administrator with respect
to the Plan shall be conclusive on all Participants, all Beneficiaries, and all
other persons whomsoever.  The
Administrator shall also have the right within the scope of his authority (if a
designee of the Company) to enter into agreements on behalf of the Company
necessary to administer the Plan.  Any
Participant who is acting as Administrator shall not be entitled to vote or act
on any matter relating solely to himself or herself.


 


ARTICLE IV

ELIGIBILITY AND PARTICIPATION


 


4.1.                            Eligibility.  Only Eligible
Employees may become Participants.  Prior
to each Plan Year, each Eligible Employee shall be notified as to eligibility
to defer a portion of his or her Annual Bonus for that Plan Year in the form of
Deferral Units.  For the avoidance of
doubt, eligibility to defer Annual Bonus for one Plan Year shall not imply
eligibility to defer Annual Bonus for a subsequent Plan Year.


 


4.2.                            Participation. 
An Eligible
Employee shall become a Participant by completing an election form and
delivering it to the Company as specified in the Plan.  If the Administrator determines in good faith
that a Participant is no longer an Eligible Employee, the Participant shall
cease active participation in the Plan immediately and the terms of the Plan
shall continue to govern the Participant’s Unit Account until his or her Unit
Account has been paid in full.


 


ARTICLE
V

DEFERRAL UNITS AND MATCHING UNITS


 


5.1.                            Deferral Elections.  Each Plan Year
an Eligible Employee may, in accordance with procedures established by the
Administrator in its sole discretion, elect to defer up to 50% of his or her
Annual Bonus for that Plan Year to the Participant’s Unit Account in the form
of Deferral Units.  Deferral Elections
are effective on a Plan Year basis, and become irrevocable no 


 


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later than the date specified by the Administrator but
in any event before the beginning of the Plan Year that the Employer would
otherwise have paid the Annual Bonus to the Participant but for the Participant’s
Deferral Election.  For the avoidance of
doubt, Deferral Elections generally must be completed on or before December 31
of the Plan Year prior to the scheduled payment date for the Annual Bonus.  For example, a Deferral Election with respect
to an Annual Bonus amount payable for the 2010 Plan Year (otherwise payable in
2011) generally would need to be completed no later than December 31,
2010.   A Participant’s Deferral Election
will become effective only if the forms required by the Administrator have been
properly completed and signed by the Participant, timely delivered to the
Administrator, and accepted by the Administrator.  A Participant who fails to file a Deferral
Election before the required date will be treated as having elected not to
defer any amounts for the Plan Year. 
Deferrals are subject to the vesting and forfeiture conditions of
Sections 5.7 and 5.8.


 


5.2.                            Deferral Limits. 
The Administrator may change the maximum deferral percentage and
establish minimum deferral percentages from time to time in its sole
discretion.  Any such limits shall be
communicated by the Administrator prior to the commencement of any election
period.


 


5.3.                            Deferral Units. 
The Administrator shall credit a Participant’s Unit Account with
Deferral Units equal to the portion of his or her Annual Bonus that the
Participant elected to defer.  The number
of Deferral Units shall be determined by dividing the amount of Annual Bonus
deferred by the Participant to his Unit Account by the Fair Market Value of a
Unit on the date that the Employer would otherwise have paid the Annual Bonus
to the Participant but for the Participant’s Deferral Election or such other
date as determined by the Administrator in accordance with procedures governing
grants under the LTIP.


 


5.4.                            Matching Units. 
An Eligible Employee who elects to defer a portion of his or her Annual
Bonus under the Plan shall be entitled to receive a Matching Unit for each
Deferral Unit that is credited to a Participant’s Unit Account during a Plan
Year.


 


5.5.                            Distribution Equivalent
Rights.  Participants shall be entitled to
Distribution Equivalent Rights with respect to the Deferral Units and Matching
Units allocated to a Participant’s Unit Account as if each such Deferral Unit
and Matching Unit had been a Unit. 
Except as otherwise determined by the Administrator, Distribution
Equivalent Rights shall be paid as soon as practicable following the payment of
a distribution by the Partnership on its Units. 
A Participant will receive the aggregate amount of the Participant’s
Distribution Equivalent Rights in cash or Units as determined by the
Administrator in its discretion.


 


5.6.                            Unit Accounts.


 


(a)                                  Establishment of Unit Account. 
The Administrator will establish a Unit Account for each Participant who
has elected to defer a portion of his or her Annual Bonus in Deferral
Units.  Unit Accounts shall be credited
as appropriate for Deferral Units and Matching Units, and debited for
distributions from the Unit Account.


 


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(b)                                 Timing of Credits. 
The Administrator shall credit Deferrals to the Participant’s Unit
Account not later than the end of the calendar year that the Employer would
otherwise have paid the Annual Bonus to the Participant but for the Participant’s
Deferral Election.  The Administrator
shall credit Matching Units to a Participant’s Unit Account at such times and
in such amounts as the Administrator determines.


 


5.7.                            Vesting. 
Except as otherwise specified by the Administrator in its discretion, a
Participant shall become vested as follows:


 


(a)                                  General. 
A Participant shall become 100% vested in Deferral Units and Matching
Units credited to his or her Unit Account during a Plan Year on the first day
of the Plan Year that is three years after the Plan Year that the Deferral
Units and Matching Units are credited to his or her Unit Account provided that
the Participant is continuously employed by, or continuously provides services
to, the Company, Partnership or Affiliate through that date.  For example, Deferral Units and Matching
Units that are credited to a Participant’s Unit Account in 2010 will vest on January 1,
2013 provided that the Participant is continuously employed by, or continuously
provides services to, the Company, Partnership or Affiliate from the date that
such Deferral Units and Matching Units are credited to his or her Unit Account
until January 1, 2013.


 


(b)                                 Termination without Cause. 
If a Participant’s employment is terminated by the Company, Partnership
or Affiliate without Cause, such Participant’s unvested Deferral Units will
immediately vest in full and unvested Matching Units will vest on a prorated
basis, based on the portion of the vesting period during which the Participant
was employed by the Company, Partnership or Affiliate.  For purposes of determining the number of
Matching Units that become vested pursuant to this section, the vesting period
commences on the January 1 of the Plan Year that the Company would
otherwise have paid the Annual Bonus to the Participant but for the Participant’s
Deferral Election and ends three years later.


 


(c)                                  Disability. 
If a Participant is determined to be Disabled, such Participant’s
unvested Deferral Units and Matching Units will immediately vest in full.


 


(d)                                 Death. 
In the event of the death of a Participant while employed by the
Company, Partnership or Affiliate, such Participant’s unvested Deferral units
and Matching Units will immediately vest in full.


 


(e)                                  Change of Control. 
In the event a Change of Control occurs while the Participant is employed
by, or providing services to the Company, Partnership or Affiliate, and (i) the
Participant is terminated without Cause during the Change of Control Period or (ii) the
Participant resigns for Good Reason during the Change of Control Period, such
Participant’s unvested Deferral Units and Matching Units will immediately vest
in full.


 


5.8.                            Forfeiture.


 


(a)                                  If a Participant’s employment is
terminated for Cause or voluntarily on the part of the Participant, any and all
unvested Deferral Units and Matching Units shall be forfeited 


 


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as of the date the Participant ceases to be employed
by, or provide service to the Company, Partnership or Affiliate.


 


(b)                                 If a Participant’s employment is
terminated without Cause, all unvested Matching Units that do not vest in
accordance with Section 5.7(b) shall be forfeited as of the date the
Participant ceases to be employed by, or provide service to the Company,
Partnership or Affiliate.


 


5.9.                            Distribution. 
Vested Deferral Units and Matching Units shall be distributed to the
Participant (or in the case of a deceased Participant, the Participant’s
Beneficiary) in a single lump sum payment as soon as reasonably practicable
following the Vesting Date and in no event later than the later of the last day
of the calendar year in which the Vesting Date occurs or two and one-half
months following the Vesting Date. 
Vested Deferral Units and Matching Units will be settled in Units
reserved under the LTIP; provided, however, that the Administrator may in its
sole discretion specify prior to an affected Deferral Election that with
respect to particular Participants or Deferral Units settlement will or may be
made by a cash payment in lieu of Units. 
The amount of such cash payment shall equal the most recent Fair Market
Value of a Unit as of the Vesting Date, multiplied by the number of Deferral
Units and Matching Units to be paid in such manner.  Any distribution that complies with this
section shall be deemed for all purposes to comply with the Plan requirements
regarding the time and form of distributions.


 


ARTICLE VI

CLAIMS PROCEDURES


 


6.1.                            Exclusive Procedures.  This article
sets forth the exclusive procedures by which claims under the Plan are to be
made.  No legal action may be brought by
any person claiming entitlement to payment under the Plan until after the
claims procedures set forth herein have been exhausted.


 


6.2.                            Claim.  Any person who
believes that he or she is being denied a benefit to which he or she is
entitled under the Plan (hereafter referred to as a “Claimant”) may file a
written request for such benefit with the Administrator setting forth the basis
for the claim.


 


6.3.                            Determination;
Notification.  Except as provided herein, within sixty (60)
days of receiving the claim, the Administrator shall determine whether to grant
or deny the claim and notify the Claimant in writing of the decision.  If the claim is granted, the Administrator
shall commence payment in accordance with the provisions of Section 5.9.  If the claim is denied, in whole or in part,
the Administrator’s notice to the Claimant shall:


 


(a)                                  explain the specific reasons for the
denial;


 


(b)                                 refer to the specific Plan provisions on
which the denial is based;


 


(c)                                  describe any additional material or information
necessary for the Claimant to perfect the claim (if perfection of the claim is
possible) and an explanation of why such material or information is necessary;
and


 


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(d)                                 explain the steps and time limit for
requesting review of the claim.


 


If the Administrator
determines that an extension of time for processing is required, written notice
of the extension shall be furnished to the Claimant prior to termination of the
original 60-day period.  In no event
shall such extension exceed sixty (60) days from the end of such initial
period.


 


6.4.                            Claim
Review.  A Claimant (or his authorized representative)
shall have sixty (60) days from the date the Administrator’s notice is mailed
in which to file an appeal of the denial of his claim.  Any such appeal must: (a) be in writing;
(b) request review of the Claimant’s claim; (c) set forth each ground
on which the request for review is based and the facts in support thereof; and (d) provide
any other comments the Claimant believes pertinent and helpful to his
application.  The Claimant (or the
Claimant’s duly authorized representative) may (i) request access to, and
copies of, all documents, records, and other information relevant to the claim,
which shall be provided to Claimant free of charge and (ii) submit written
comments or other documents.  Any
Claimant who fails to timely file such a written appeal shall be estopped and
barred from any further challenge to the Administrator’s determination to deny
his claim.


 


6.5.                            Review of
Determination.  The Administrator shall
complete its review and decide the appeal within sixty (60) days after the
written request for review was received by the Administrator (or within
one-hundred twenty (120) days if special circumstances require additional time,
and if written notice of such extension and circumstances is given to the
Claimant within the initial 60-day period). 
In conducting its review, the Administrator may, in its sole discretion,
require the Claimant to submit such additional documents or other evidence as
the Administrator deems necessary or appropriate.  The Administrator’s decision shall be final
and binding on all persons with respect to the Claimant’s appeal.  The Administrator shall notify the Claimant
in writing that the claim has been allowed in full or that the claim has been
denied, in whole or in part, and any denial notice must set forth:


 


(a)                                  Specific reasons for the decision;


 


(b)                                 Specific reference(s) to the
pertinent Plan provisions upon which the decision was based;


 


(c)                                  A statement that Claimant is entitled to
reasonable access to, and copies of, all documents, records or other
information relevant to the claim upon request and free of charge; and


 


(d)                                 Such other matters as the Administrator
deems relevant.


 


6.6.                            Reimbursement of Costs.  If the
Company, an Affiliate, the Plan, a Claimant, or a successor in interest to any
of the foregoing brings legal action to enforce any of the provisions of this
Plan, the prevailing party in such legal action shall be reimbursed by the
other party for the prevailing party’s costs, including, without limitation,
reasonable fees of attorneys, accountants and similar advisors and expert
witnesses.


 


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ARTICLE VII

AMENDMENT AND TERMINATION


 


The Plan may be amended, suspended, or terminated at
any time (in whole or in part) by action of the Board, with or without prior
notice; provided, however, that no such amendment, suspension or termination
shall reduce any Participant’s Unit Account balances without the written
consent of the affected Participant.  In
the event of any suspension or termination of the Plan (or any portion
thereof), Participants’ Unit Accounts shall continue to vest and be distributed
in accordance with the Plan.


 


ARTICLE VIII

MISCELLANEOUS


 


8.1.                            FICA and Other Taxes. To the extent required by the law in
effect at the time benefits are distributed, the Participant’s Employer shall
withhold from any benefits to a Participant any employment or other taxes required
to be withheld by the federal government or any state or local government in
amounts and in a manner to be determined in the sole discretion of the
Employer.


 


8.2.                            Adjustment of Number and
Price of Units, Etc.  If there is any change in the
number or kind of Units outstanding (i) by reason of a Unit distribution,
spinoff, recapitalization, Unit split, or combination or exchange of Units, (ii) by
reason of a merger, reorganization, consolidation or reclassification, or (iii) by
reason of any other extraordinary or unusual event affecting the outstanding
Units as a class without the Company’s receipt of consideration, or if the
value of outstanding Units is substantially reduced as result of a spinoff or
the Company’s payment of any extraordinary distribution, the kind and number of
Units covered by Deferral Units and Matching Units to be issued or issuable
under the LTIP, and the applicable market value of outstanding Deferral Units
and Matching Units shall be required to be equitably adjusted by the Administrator
to reflect any increase or decrease in the number of, or change in the kind or
value of, issued Units to preclude, to the extent practicable, the enlargement
or dilution of rights and benefits under the LTIP and such outstanding Deferral
Units and Matching Units; provided, however, than any fractional Units
resulting from such adjustment shall be eliminated.  Any adjustments determined by the
Administrator shall be final, binding and conclusive.


 


8.3.                            Unsecured General Creditor.  Participants
and their Beneficiaries, heirs, successors and assigns shall have no legal or
equitable rights, interests or claims in any property or assets of an
Employer.  An Employer’s obligation under
the Plan shall be merely that of an unfunded and unsecured promise to pay money
in the future.


 


8.4.                            Unfunded Status of Plan. 
The Plan is intended to constitute an “unfunded” plan.  Benefits payable hereunder shall be payable
out of the general assets of the Company, and no segregation of any assets
whatsoever for such benefits shall be made. 
With respect to any payments not yet made to a Participant, nothing
contained herein shall give any such Participant any rights to assets that are
greater than those of a general creditor of the Company.


 


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8.5.                            Designation of Beneficiary. 
Each Participant may designate a Beneficiary or Beneficiaries (which
Beneficiary may be an entity other than a natural person) to receive any
payments which may be made following the Participant’s death.  Such designation may be changed or canceled
at any time without the consent of any such Beneficiary.  Any such designation, change or cancellation
must be made in a form approved by the Administrator and shall not be effective
unless and until it is filed with the Administrator during the Participant’s
lifetime.  If no Beneficiary has been
named, or the designated Beneficiary or Beneficiaries shall have predeceased
the Participant, the Beneficiary shall be the Participant’s estate.  If a Participant designates more than one
Beneficiary, the interests of such Beneficiaries shall be paid in equal
percentages, unless the Participant has specifically designated otherwise.


 


8.6.                            Nontransferability.  The right of a
Participant, Beneficiary, or other person to any payment under this Plan shall
not be assigned, alienated, transferred, pledged or encumbered.


 


8.7.                            No Rights to Employment. 
This Plan does not confer nor shall it be construed as creating an
express or implied contract of employment between any Participant and the
Company, Partnership, or Affiliate or other party. Nothing in the Plan shall
interfere with or limit in any way the right of the Company, Partnership, or
Affiliate to terminate any Participant’s employment at any time, nor confer
upon any Employee any right to continue in the employment of the Company,
Partnership, or Affiliate.


 


8.8.                            Employer’s Liability.  An Employer’s
liability for the distribution of a Participant’s Unit Account shall be defined
only by the Plan.  An Employer shall have
no obligation to a Participant except as expressly provided in the Plan.


 


8.9.                            Payments to Minors and
Incompetents.  If any person entitled to any payment under
this Plan is, in the judgment of the Administrator, incapable of receiving such
payment because of minority, illness, infirmity or other incapacity, the
Administrator may pay the amount due such person to a duly appointed legal
representative, if there is one, or, if none, to the spouse, children,
dependents, or such other persons with whom the person entitled to payment
resides.  Any such payment shall be a
complete discharge of the liability of the Company, Partnership, Affiliate and
the Plan with respect to such payment.


 


8.10.                     Furnishing Information.  A Participant
or his Beneficiary will cooperate with the Administrator by furnishing any and
all information requested by the Administrator and take such other actions as
may be requested in order to facilitate the administration of the Plan and the
distributions hereunder, including but not limited to taking such physical
examinations as the Administrator may deem necessary.


 


8.11.                     Notice.  Any notice or
filing required or permitted under the Plan shall be sufficient if in writing
and if (a) hand-delivered or sent by telecopy; (b) sent by registered
or certified mail; or (c) sent by nationally-recognized overnight
courier.  Such notice shall be deemed
given as of (i) the date of delivery if hand-delivered or sent by
telecopy; (ii) as of the date shown on the postmark on the receipt for
registration or certification, if delivery is by mail; or (iii) on the
first business day after dispatch, if sent by nationally-recognized overnight
courier.  In the case of the Company,
mailed or couriered notices will be addressed to its corporate 


 


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headquarters, and all notices will be directed to the
attention of its General Counsel.  In the
case of a Participant, mailed or couriered notice to a Participant or
Beneficiary shall be directed to the individual’s last known address in the
Employer’s records.


 


8.12.                     Code Section 409A.  All Plan
benefits are intended to constitute short-term deferrals within the meaning of
Code section 409A and shall be excepted from the applicable requirements of
Code section 409A in accordance with the regulations issued thereunder, and the
Plan shall be maintained, interpreted and administered accordingly.
Notwithstanding the foregoing, to the extent that deferred compensation subject
to the requirements of Code section 409A becomes payable under this Plan, all
provisions of this Plan shall be construed and interpreted to comply with Code
section 409A and applicable regulations thereunder and if necessary, any
provision shall be held null and void to the extent such provision (or part thereof)
fails to comply with Code section 409A or regulations thereunder.  In addition, to the extent that deferred
compensation subject to the requirements of Code section 409A becomes payable
under this Plan to a “specified employee” (within the meaning of Code section
409A) on account of “separation from service” (within the meaning of Code
section 409A), any such payments shall be delayed by six months to the extent
necessary to comply with the requirements of Code section 409A, but not beyond
the death of the Participant.  Nothing
herein shall be construed as a guarantee of any particular tax treatment to a
Participant.


 


8.13.                     Successors.  This Plan
shall be binding upon and inure to the benefit of the Partnership, the Company,
and their successors and assigns and the Participant and his or her heirs,
executors, administrators and legal representatives.


 


8.14.                     Gender and Number.  Except when
otherwise indicated by context, words in the masculine gender shall include the
feminine and neuter genders, the singular shall include the plural, and the
plural shall include the singular.


 


8.15.                     Headings. 
The
headings contained in this Plan are for convenience only and will not control
or affect the meaning or construction of any of the terms or provisions of this
Plan.


 


8.16.                     Invalid or Unenforceable
Provisions.  If any provision of this Plan shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provisions hereof and the Administrator may elect in its sole
discretion to construe such invalid or unenforceable provisions in a manner
that conforms to applicable law or as if such provisions, to the extent invalid
or unenforceable, had not been included.


 


8.17.                     Applicable Law.  The Plan shall
be construed and administered in accordance with and governed by the laws of
the State of Delaware, other than its laws respecting choice of law.


 


8.18.                     Entire Agreement.  This Plan
constitutes the entire understanding and agreement with respect to the subject
matter contained herein, and there are no agreements, understandings,
restrictions, representations or warranties among any Participant and the
Partnership, Company or Affiliates other than those set forth or provided for
herein.


 


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