Exhibit 10.4


 


AMENDED AND RESTATED DEFERRED
COMPENSATION AGREEMENT

BETWEEN

GLOBAL PARTNERS LP AND EDWARD J. FANEUIL


DECEMBER 2008


 


This agreement
(the “Agreement”) is entered into between Global GP LLC on behalf of Global
Partners LP (the “Company”) and Edward J. Faneuil (the “Executive”).


 


WHEREAS, the Executive
presently serves as Executive Vice-President and General Counsel of the
Company; and


 


WHEREAS, in consideration of
past and future services performed by the Executive, the Company agrees to
provide deferred and other compensation to the Executive, payable in the
amounts and on the terms and conditions set forth herein.


 


NOW THEREFORE, in consideration
of the mutual promises made herein, the Executive and the Company hereby agree
as follows:


 


1.                                       Deferred
Compensation.  The Company agrees to
pay to the Executive deferred compensation on the following terms and
conditions.


 


(a)                                  Except
as otherwise provided in Sections 1(b), 1(c), 1(d) or 1(e) below, the
Company shall pay to the Executive the sum of $70,000 per year (the “Deferred
Compensation”) in equal monthly installments of $5,833.33, subject to
applicable withholding, on the first business day of each month for 15 years
(180 months) commencing on the earlier of: 
(i) August 1, 2014, and (ii) the first business day of
the month following the Executive’s “separation from service” from the Company
, as that phrase is defined in Section 409A of the Internal Revenue Code
of 1986, as amended, (the “Code”) for reasons other than Cause (as defined
below), subject to earlier termination as provided in this Agreement.  Unless his employment is earlier terminated
by the Company for reasons other than Cause, the Executive must remain
continuously employed through the earlier of (i) August 1, 2014; or (ii) an
applicable payment event set forth in Sections 1(b), 1(c) or 1(d) of
this Agreement to be eligible for benefits under this Agreement.  The Executive must be employed on the date of
a distribution under Section 1(e) of this Agreement, but a
distribution under Section 1(e) shall not otherwise alter the
eligibility requirements set forth in this Agreement.  In exchange for and as a requirement to
receive the compensation set forth in this Section 1(a) of this
Agreement, the Executive and Company (and its Affiliates) shall enter into a
mutually acceptable general release of claims accrued as of the date thereof in
favor of the Company and its Affiliates within 45 days following the Executive’s
“separation from service” from the Company. 
The form and scope of such release shall be acceptable to the Company
and its Affiliates, the approval of which shall not be unreasonably withheld by
the Company and its Affiliates.


 


(b)                                 The
Deferred Compensation shall be forfeited in its entirety in the event that the
Company terminates the Executive’s employment prior to August 1, 2014 for
Cause or if 


 


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the Executive terminates his employment for
any reason other than death, Disability, Constructive Termination (as that term
is defined in the Employment Agreement). 
On and after the date on which Deferred Compensation payments commence
hereunder, the Company may terminate its obligations under this Agreement only
for Cause or if the Company subsequently determines within eighteen (18) months
of the Executive’s termination that circumstances which would give rise to a
for Cause termination of the Executive otherwise existed at the time of the
Executive’s earlier termination.


 


(c)                                  In
the event that the Executive dies prior to having received any or all of the
aggregate amount of the Deferred Compensation payable under this Section 1
(including if the Executive’s death occurs before August 1, 2014), the
Company shall pay to his Beneficiary within sixty (60) days of the Executive’s
date of death a single lump sum payment in an amount equal to the present value
of the remaining payments that would have been paid to the Executive had he not
died. Such single lump sum payment shall be calculated by applying a discount
rate equal to the then applicable 10-year Treasury Note interest rate.


 


(d)                                 If
there is a Change in Control of the Company or if the Executive is determined
to have become Disabled prior to the Executive having received any or all of
the aggregate amount of the Deferred Compensation payable under this Section 1
(including if the Change in Control or determination that the Executive has
become Disabled occurs before August 1, 2014), the Company shall pay to
the Executive within sixty (60) days of the effective date of the Change in
Control or the determination that the Executive has become Disabled, a single
lump sum payment in an amount equal to the present value of the remaining
payments that would have been paid to the Executive had the Change in Control
not occurred or had the Executive not become Disabled. Such single lump sum
payment shall be calculated by applying a discount rate equal to the then
applicable 10-year Treasury Note interest rate.


 


(e)                                  In
the event of an “Unforeseeable Emergency” as that term is defined in Section 409A
of the Code, the Company shall pay to the Executive within fifteen (15) days of
the occurrence of the Unforeseeable Emergency the maximum amount allowable
pursuant to Section 409A(a)(2)(B)(ii) in a lump sum promptly
following the occurrence of such “Unforeseeable Emergency.”


 


2.                                       Definitions.
For purposes of this Agreement, the following definitions apply:


 


(a)                                  “Affiliates”
means all Persons directly or indirectly controlling, controlled by or under
common control with the Company, where control shall be determined by a
majority of voting power only.


 


(b)                                 “Beneficiary”
means the Person or Persons designated by the Executive in writing to receive
the payment of Deferred Compensation in the event of the Executive’s death. The
form of Beneficiary designation is attached to this Agreement as Exhibit B.
Any Beneficiary designation shall be effective only upon actual receipt by the
Company of such form. If no specific Beneficiary has been designated, the
Beneficiary shall be the Executive’s estate.


 


(c)                                  “Cause”
means Executive (a) commits any material breach of any of his obligations
under this Agreement, which breach is not cured within thirty (30) days of the 


 


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Executive’s receipt of written notice from
the Company, (b) breaches the obligations set forth on Exhibit “A”
attached hereto or in any noncompetition,nonsolicitation or confidentiality
provision included in the Employment Agreement, (c) engages in gross
negligence or willful misconduct in the performance of his duties on behalf of
the Company, (d) is convicted or pleads no contest to a crime involving
fraud, dishonesty or moral turpitude or any felony, or (e) commits an act
of embezzlement or willful breach of a fiduciary duty to the Company or any of
its Affiliates.


 


(d)                                 “Change
in Control”.  For purposes of this
Agreement, a “Change in  Control” shall occur on the date that any one
person, entity or group (other than Alfred Slifka, Richard Slifka or Eric
Slifka, or their respective family members or entities they control,
individually or in the aggregate, directly or indirectly (collectively referred
to hereinafter as the “Slifkas”)) acquires ownership of the membership
interests of the Company that, together with the membership interests of the
Company already held by such person, entity or group, constitutes more than 50%
of the total voting power of the membership interests of the Company; provided,
however, if any one person, entity or group is considered to own more than 50%
of the total voting power of the membership interests of the Company, the
acquisition of additional membership interests by the same person, entity or
group shall not be deemed to be a Change in Control.  The definition of “Change in Control” shall
be interpreted, to the extent applicable, to comply with Section 409A(a)(2)(A)(v) of
the Internal Revenue Code of 1986 (the “Code”), and the provisions of
Treasury Regulation Section 1.409A and any successor statute, regulation
and guidance thereto; provided, however, an interpretation in compliance with Section 409A
of the Code shall not expand the definition of Change in Control in any way or
cause an acquisition by the Slifkas to result in a Change in Control


 


(e)                                  “Code”
means the Internal Revenue Code of 1986, as amended, and its related
interpretive guidance, regulations and rulings.


 


(f)                                    “Disabled”
means that the Executive is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months, or the Executive is, by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits for a period
of not less than three months under an accident and health plan covering
employees of the Company.


 


(g)                                 “Employment
Agreement” means that certain Employment Agreement entered into by and between
the Company and Executive effective as of July 1, 2006, as amended, or any
successor employment agreement entered into by the Company and the Executive.


 


(h)                                 “Person”
means an individual, a corporation, a limited liability company, an
association, a partnership, an estate, a trust or any other entity or
organization, other than the Company.


 


3.                                       Confidential
Information and Restricted Activities. The Executive will be subject to the
terms and conditions relating to confidential information, non-solicitation and
non-competition set forth in Exhibit A, which is incorporated into this
Agreement by reference.


 


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4.                                       Amendment and
Termination.  This Agreement may be
amended or terminated only with the mutual written consent of the Company and
the Executive.  In the event of any
amendments involving further deferrals of the Deferred Compensation, each
installment payment called for under Section 1 above shall be treated, to
the extent permissible under the Code, as a separate payment for purposes of Section 409A
of the Code.


 


5.                                       Section 409A;
No Guarantee of any Tax Consequences.  The parties hereto intend that
this Agreement comply with the requirements of Section 409A of the Code
and related regulations and Treasury pronouncements (“Section 409A”)
and this Agreement shall be interpreted to comply with Section 409A. 
If any provision provided herein results in the imposition of an additional tax
under the provisions of Section 409A, the Executive and the Company agree
that any such provision will be reformed to avoid imposition of any such
additional tax in the manner that the Executive and the Company mutually agree
is appropriate to comply with Section 409A. Notwithstanding the foregoing,
the Company makes no guarantee of any tax consequences under any section of the
Code or state tax laws, including, without limitation, Section 409A of the
Code.


 


6.                                       Delay in
Payments.  Notwithstanding any other
provision with respect to the timing of payments hereunder, if, at the time of
the Executive’s termination, the Executive is deemed to be a “specified
employee” (within the meaning of Section 409A of the Code, and any
successor statute, regulation and guidance thereto) of the Company, then only
to the extent necessary to comply with the requirements of Section 409A of
the Code, any payments to which the Executive may become entitled hereunder as
a result of the Executive’s “separation from service” as defined under Section 409A
of the Code will be withheld until the first business day of the seventh month
following the Date of Termination, at which time the Executive shall be paid an
aggregate amount equal to six (6) months of payments otherwise due to the
Executive under the terms of Section 1 above. After the first business day
of the seventh month following the Date of Termination and continuing each
month thereafter, the Executive shall be paid the regular payments otherwise
due to the Executive in accordance with the terms of Section 1 above.


 


7.                                       Unsecured
Promise to Pay.  This Plan
constitutes an unfunded and non-qualified deferred compensation arrangement
between the Company and the Executive. Neither the Executive nor any other
person shall have any interest in any specific asset or assets of the Company
by reason of any obligations hereunder nor any rights to payment of any
Deferred Compensation except as expressly provided hereunder. The rights of the
Executive and any designated beneficiary are unsecured and shall be subject to
the creditors of the Company.


 


8.                                       Incapacity.  If the Company shall receive evidence
satisfactory to it that Executive or any Beneficiary entitled to receive any
benefit under this Agreement is, at the time when such benefit becomes payable,
a minor, or is physically or mentally incompetent to give a valid release
therefor, and that another person or an institution is then maintaining or has
custody of such person and that no guardian, committee or other representative
of the estate of the Trustee or Beneficiary shall have been duly appointed, the
Company may make payment(s) of benefits otherwise payable to the Executive
or designated beneficiary to such other person or institution, including a
custodian under a Uniform Gifts to Minors Act, or corresponding legislation
(who shall be a guardian of the minor or a trust company), and the release of
such other person or 


 


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institution shall be a valid and complete
discharge for the payment of such benefit. Notwithstanding the foregoing, if
there is a reasonable question as to who is the rightful recipient of any
Deferred Compensation payments under this Agreement, the Company may file an
action in a court of competent jurisdiction to resolve such question.


 


9.                                       Spendthrift
Provision.  The Deferred Compensation
shall not be subject to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, or charges and any attempt so to anticipate, alienate,
sell, transfer, assign, pledge, encumber or charge the same shall be void; nor
shall any portion of any such right hereunder be in any manner payable to any
assignee, receiver or trustee.


 


10.                                 Plan Administration.  This Agreement is intended to be a plan (the “Plan”)
of deferred compensation for a select group of management or highly compensated
employees described in Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA, and shall be interpreted and administered accordingly.  The Plan shall be administered by the Board
of Directors of Global GP LLC or any successor group of such Board of
Directors (the “Board”). The Board shall have discretionary authority to
administer the Plan and make claims determinations consistent with the terms of
the Plan. The Board may delegate any of its responsibilities under the Plan
provided that such delegation does not result in any violation of the Plan or
any applicable law, rule, regulation or order.


 


(a)                                  Claims
Procedure.  If any request for a
distribution under the Plan, which request may be made by filing a written
request with the Board, is denied, the Board shall so notify the claimant
within 90 days after receipt of the application and shall afford such claimant
a reasonable opportunity for a full and fair review of the decision denying his
claim. Notice of such denial shall set forth, in addition to the specific
reasons for the denial, the following:


 


(i)            reference to pertinent
provisions of the Plan or of the Board’s rules;


 


(ii)           a description of any
additional information or material necessary to perfect the claim and an
explanation of why it is necessary; and


 


(iii)          an explanation of the
claims review procedure including advising the claimant that he may request the
opportunity to review pertinent Plan documents and submit a statement of issues
and comments in writing.


 


Within 60 days following receipt of notice of
denial of a claim, a claimant may request a review of such denial by the
Board.  The Board shall take appropriate
steps to review its decision in light of any further information or comments
submitted by such claimant.  The Board
shall render a decision within 60 days after claimant’s request for review and
shall advise claimant in writing of its decision on such review, specifying its
reasons for the decision and identifying appropriate provisions of the Plan
that support the Board’s decision. Any of the periods set forth herein may be
extended by the Board upon notice to the Claimant of the extension and the
reason for the extension if notice is provided prior to the expiration of such
period.  The provisions of 


 


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this Section 10(b) shall be
interpreted and administered in a manner consistent with the applicable
provisions of Department of Labor Regulation Section 2560.503-1.


 


(b)                                 Named
Fiduciary and Plan Administrator.  The
Board shall be the Named Fiduciary and Plan Administrator of this Plan.


 


11.                                 Notices.  For purposes of this Plan, notices and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered personally or mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, or by nationally recognized overnight delivery service, addressed to
the Executive at the home address set forth in the Company’s records, and to
the Company at its principal place of business (attention: Chief Executive
Officer) or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.


 


12.                                 Successors and
Assigns.  This Agreement shall be
applicable to, and shall inure to the benefit of, the Company and their
successors and assigns and to the Executive and his heirs, executors,
administrators and personal representatives.


 


13.                                 Governing Law.  This Agreement shall continue in effect after
termination of my employment and shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without regard to
its conflict of laws principles, to the extent not preempted by U.S. federal
law.


 


14.                                 Consent to
Jurisdiction.  In the event of any
alleged breach of this Agreement which the parties are unable to settle by
mutual consultation, the Company and the Executive hereby consent and submit to
arbitration. Such arbitration shall take place in Boston, Massachusetts, unless
the parties otherwise mutually agree in writing, in accordance with the
employment rules of the American Arbitration Association (“AAA”) and under
the laws of the Commonwealth of Massachusetts. Unless otherwise required by
law, the parties hereby agree to proceed before one impartial arbitrator
selected by mutual agreement of the parties. Any demand for arbitration
hereunder shall be filed within a reasonable time after the controversy or
claim has arisen, but in no event later than the date when the institution of
legal or equitable proceedings based on the claim would be barred by the
statute of limitations under applicable law. This arbitration provision may be
specifically enforced in any court of competent jurisdiction. Judgment upon the
award rendered by the arbitrator(s) may be entered in the federal and
state courts in and of the Commonwealth of Massachusetts.


 


15.                                 Remedies.  The Company and the Executive agree that
forfeiture of the Deferred Compensation shall serve as liquidated damages in
the event that the Executive breaches any of the provisions of this Agreement.
The parties acknowledge that actual damages will be difficult to ascertain and
that such liquidated damages represent the best estimate of such damages.


 


16.                                 Waiver of Breach.  The waiver by the Company or the Executive of
a breach of any provision of this Agreement must be in writing and shall not
operate or be construed as a waiver of any subsequent breach.


 


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17.                                 Entire Agreement.  The Company and the Executive intend that
this Agreement shall amend, restate, and supersede the Deferred Compensation
Agreement between Global Partners LP and Edward J. Faneuil dated February 1,
2007. This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, whether written or oral,
relating to the subject matter of this Agreement.


 


18.                                 Severability.  Any provision in this Agreement which is
prohibited or unenforceable in any jurisdiction by reason of applicable law
shall, as to such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating or affecting the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


19.                                 Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.


 


IN WITNESS
WHEREOF, the Executive and the Company have executed this Agreement this 31st day
of December, 2008.


 


 


	
   

  	
  /s/ Edward
  J. Faneuil

  
	
   

  	
  Edward J.
  Faneuil

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GLOBAL
  PARTNERS LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  GLOBAL GP
  LLC, its General Partner

  
	
   

  	
   

  
	
   

  	
  /s/ Eric
  Slifka

  
	
   

  	
  Name:

  	
  Eric Slifka

  
	
   

  	
  Title:

  	
  PRESIDENT & CEO

  
					



 


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EXHIBIT A


 


CONFIDENTIALITY AND RESTRICTED
ACTIVITIES


 


Confidentiality


 


1.                                       During
the course of the Executive’s employment with the Company, he has and will
learn of Confidential Information, as defined below, and he may develop
Confidential Information on behalf of the Company. Executive agrees that he will
not use or disclose to any Person (except as required by applicable law or for
the proper performance of his regular duties and responsibilities for the
Company) any Confidential Information obtained by him incident to his
employment or any other association with the Company or any of its Affiliates.
Executive understands that this restriction shall continue to apply after his
employment terminates, regardless of the reason for such termination.


 


2.                                       All
documents, records and files, in any media of whatever kind and description,
relating to the business, present or otherwise, of the Company or any of its
Affiliates, and any copies, in whole or in part, thereof, and other Company
property, including, without limitation, computers, cell phones, other electronic
devices, discs and customer lists (the “Property”) whether or not prepared by
Executive shall be the sole and exclusive property of the Company. Executive
agrees to safeguard all Property and to surrender to the Company, at the time
his employment terminates or at such earlier time or times as the Chief
Executive Officer or his designee may specify, all Property then in his
possession or control.


 


Non-Solicitation


 


3.                                       During
Executive’s employment, and until the later of (i) the date on which the
Company is required to make its last payment to the Executive pursuant to the
Deferred Compensation Agreement, or (ii) two (2) years from the date
payments under this Agreement commence, Executive will not and will not assist
anyone else to (i) hire or attempt to hire any employee of the Company,
and (ii) encourage any employee of the Company to discontinue employment
or any former employee to become employed in any business directly or
indirectly competitive with the Company’s business; provided, however, that Executive
may hire or attempt to hire any administrative assistant or secretary who does
not, and has not, acted in any managerial or executive capacity with the
Company.


 


Non-Competition


 


4.                                       During
Executive’s employment, and until the later of (i) the date on which the
Company is required to make its last payment to the Executive pursuant to the
Deferred Compensation Agreement, or (ii) two (2) years from the date
payments under this Agreement commence, except as otherwise agreed to by the
Company in writing, the Executive shall be prohibited from working (as an
employee, consultant, advisor, director or otherwise) for, engaging in or
acquiring or investing in any business having assets engaged in the following
businesses (the “Restricted Businesses”) in New England and other
jurisdictions in which the Company is conducting business (“Restricted
Geography”): (i) wholesale marketing, sale, distribution and
transportation of petroleum products; (ii) the storage of petroleum
products in 


 


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connection with any of the activities
described in (i); (iii) bunkering in connection with petroleum products;
and (iv) the wholesale or retail sale or distribution of petroleum or
gasoline products, unless the Chief Executive Officer of the Company and the
Board approve such activity. Notwithstanding any provision of this paragraph to
the contrary, the Executive may (x) own up to 3% of a publicly traded
entity that is engaged in one or more of the Restricted Businesses and (y) with
the prior consent of the Company, may serve as a director of an entity that is
engaged in one or more of the Restricted Businesses.


 


Special Definitions


 


5.                                       For
purposes of this Exhibit A, “Confidential Information” means any secret,
confidential or proprietary information, knowledge or data of the Company or
its Affiliates obtained by Executive while in the employ of the Company, the
disclosure of which Executive knows or has reason to know will be damaging to
the Company or any of its Affiliates; provided, however, that such information,
knowledge or data shall not include (i) any information, knowledge or data
known generally to the public (other than as a result of unauthorized
disclosure by the Executive) or (ii) any information, knowledge or data which
the Executive may be required to disclose by any applicable law, order, or
judicial or administrative proceeding.


 


Enforceability


 


6.                                       If
any provision of this Exhibit A should, for any reason, be held invalid or
unenforceable in any respect, including, but not limited to, a determination
that such provision is unenforceable by reason of it being extended over too
great a time, too large a geographic area, or too great a range of activities,
it shall not affect any other provisions and shall be construed by limiting it
so as to be enforceable to the maximum extent compatible with applicable law.


 


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EXHIBIT B


 


DESIGNATION OF
BENEFICIARY


 


The Executive
may designate one or more beneficiaries to receive any amount of Deferred
Compensation that remains payable at his death. 
If the Designated Beneficiary survives the Executive, but dies before
receiving the payment to which he or she is entitled, the remainder will be paid
to the Designated Beneficiary’s estate, unless you specifically elect otherwise
in your Designation of Beneficiary form.


 


The Executive may indicate the
names not only of one or more primary Designated Beneficiaries but also the
names of secondary beneficiaries who would receive payment of the Deferred
Compensation in the event that none of the primary beneficiary or beneficiaries
are alive at the time of
Executive’s death.  Designated
Beneficiaries may be changed by the Executive at any time, without their
consent, by filing a new Designation of Beneficiary form with the Company.


 


***************


 


I, Edward J. Faneuil, hereby
designate the person or persons listed below to receive any amount of Deferred
Compensation that remains payable to me in the event of my death, pursuant to
the Amended and Restated Deferred Compensation Agreement dated December, 2008
between me and Global Partners LP. This designation of beneficiary shall become
effective upon its delivery to the President or Chief Executive Officer of the
Company prior to my death, and revokes any designation(s) of beneficiary
previously made by me. I reserve the right to revoke this designation of
beneficiary at any time without notice to any beneficiary.


 


I hereby name the following as
primary Designated Beneficiary:


 


	
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In the event
that one or more of the primary Designated Beneficiaries predeceases me, his or
her share shall be allocated pro rata among the surviving primary Designated
Beneficiaries based on the allocation percentage listed above. I hereby name
the following as secondary Designated Beneficiaries, in the event that no
primary Designated Beneficiary survives me:


 


	
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In the event that no primary
Designated Beneficiary survives me and one or more of the secondary Designated
Beneficiaries predeceases me, his or her share shall be allocated pro rata
among the surviving secondary Designated Beneficiaries based on the allocation
percentage listed above.


 


 


	
   

  	
   

  	
   

  
	
  (Witness)

  	
  (Signature of Edward J. Faneuil)

  
	
   

  	
   

  
	
  Date:

  	
  Date:

  



 


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