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EXHIBIT 10.11
ALLIANCE RESOURCE MANAGEMENT GP, LLC
2000 LONG-TERM INCENTIVE PLAN
(AS AMENDED)
SECTION 1. Purpose of the Plan.
The Alliance Resource Management GP, LLC Long-Term Incentive Plan (the
"Plan") is intended to promote the interests of Alliance Resource Partners,
L.P., a Delaware limited partnership (the "Partnership"), by providing to
employees and directors of Alliance Resource Management GP, LLC (the "Company")
and its Affiliates who perform services for the Partnership 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 Partnership and to encourage them to devote their best
efforts to the business of the Partnership, thereby advancing the interests of
the Partnership and its partners.
SECTION 2. Definitions.
As used in the Plan, the following terms shall have the meanings set
forth below:
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with, the Person in question. As used
herein, the term "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"Award" means an Option or Restricted Unit granted under the Plan, and
shall include any tandem DERs granted with respect to such Award.
"Board" means the Board of Directors of the Company.
"Cause" means:
(i) fraud or embezzlement on the part of the Participant;
(ii) conviction of or the entry of a plea of nolo contendere
by the Participant to any felony;
(iii) gross insubordination or a material breach of, or the
willful failure or refusal by the Participant to perform and discharge
his duties, responsibilities or obligations (other than by reason of
disability or death) that is not corrected within thirty
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(30) days following written notice thereof to the Participant, such
notice to state with specificity the nature of the breach, failure or
refusal; or
(iv) any act of willful misconduct by the Participant which
(A) is intended to result in substantial personal enrichment of the
Participant at the expense of the Partnership, the Company or any of
their affiliates or (B) has a material adverse impact on the business
or reputation of the Partnership, the Company or any of their
affiliates (such determination to be made by the Partnership, the
Company or any of their affiliates in the good faith exercise of their
reasonable judgment).
"Change in Control" means, and shall be deemed to have occurred upon
the occurrence of one or more of the following events: (i) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company or the
Partnership to any Person or its Affiliates, unless immediately following such
sale, lease, exchange or other transfer such assets are owned, directly or
indirectly, by The Beacon Group, L.P. and its affiliated funds or the Company;
(ii) the consolidation or merger of the Company with or into another Person
pursuant to a transaction in which the outstanding voting interests of the
Company is changed into or exchanged for cash, securities or other property,
other than any such transaction where (a) the outstanding voting interests of
the Company is changed into or exchanged for voting stock or interests of the
surviving corporation or its parent and (b) the holders of the voting interests
of the Company immediately prior to such transaction own, directly or
indirectly, not less than a majority of the voting stock or interests of the
surviving corporation or its parent immediately after such transaction; or (iii)
a "person" or "group" (within the meaning of Sections 13(d) or 14(d)(2) of the
Exchange Act) being or becoming the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act) of more than 50% of all voting interests
of the Company then outstanding, other than (a) in a merger or consolidation
which would not constitute a Change of Control under clause (ii) above and (b)
The Beacon Group, LP and its affiliated funds.
"Committee" means the Compensation Committee of the Board or such other
committee of the Board appointed to administer the Plan.
"DER" means a contingent right, granted in tandem with a specific
Restricted Unit, to receive an amount in cash equal to the cash distributions
made by the Partnership with respect to a Unit during the period such Restricted
Unit is outstanding.
"Director" means a "non-employee director" of the Company, as defined
in Rule 16b-3.
"Employee" means any employee of the Company or an Affiliate, as
determined by the Committee.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"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.
"Good Reason," which shall mean:
(i) a reduction in the Participant's Base Salary;
(ii) failure to pay the Participant any compensation due
under an employment agreement, if any;
(iii) failure to continue to provide benefits substantially
similar to those then enjoyed by the Participant unless the
Partnership, the Company or their affiliates provide aggregate benefits
equivalent to those then in effect;
(iv) failure to continue a compensation plan or to continue
the Participant's participation in a plan on a basis not materially
less favorable to the Participant, subject to the power of the
Partnership, the Company or their affiliates to amend such plans in
their reasonable discretion;
(v) the Partnership, the Company or their affiliates purported
termination of the Participant's employment for Cause or disability not
pursuant to a procedure indicating the specific provision of the
definition of Cause contained in this Plan as the basis for such
termination of employment;
The Participant may not terminate for Good Reason unless he has given
written notice delivered to the Partnership, the Company or their affiliates, as
appropriate, of the action or inaction giving rise to Good Reason, and if such
action or inaction is not corrected within thirty (30) days thereafter, such
notice to state with specificity the nature of the breach, failure or refusal.
"Option" means an option to purchase Units granted under the Plan.
"Participant" means any Employee or Director granted an Award under the
Plan.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership of Alliance Resource Partners, L.P.
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"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.
"Restricted Period" means the period established by the Committee with
respect to an Award during which the Award either remains subject to forfeiture
or is not exercisable by or payable to the Participant. Notwithstanding anything
in the Plan to the contrary, the Restricted Period with respect to any Award
granted to an Employee may not terminate prior to the end of the Subordination
Period (as defined in the Partnership Agreement).
"Restricted Unit" means a phantom unit granted under the Plan which
upon or following vesting entitles the Participant to receive a Unit or an
equivalent amount of cash.
"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 Partnership.
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, 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. 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
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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, the Partnership, any Affiliate, any Participant, and any beneficiary of
any Award.
SECTION 4. Units
(a) Units Available. Subject to adjustment as provided in Section 4(c),
the number of Units with respect to which Options and Restricted Units may be
granted under the Plan is 600,000. If any Option or Restricted Unit is forfeited
or otherwise terminates or is canceled without the delivery of Units, then the
Units covered by such Award, to the extent of such forfeiture, termination or
cancellation, shall again be Units with respect to which Options or Restricted
Units may be granted.
(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, the Partnership or any other Person, or any
combination of the foregoing, as determined by the Committee in its 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,
consolidation, split-up, spin-off, combination, repurchase, or exchange of Units
or other securities of the Partnership, issuance of warrants or other rights to
purchase Units or other securities of the Partnership, 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 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, and (iii) the grant
or exercise price with respect to any Award or, 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,
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the purchase price therefor 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 and may be more or 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, and 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, other securities or other
property, a note from the Participant in a form acceptable to the
Company, or any combination thereof, having a Fair Market Value on the
exercise date equal to the relevant exercise price.
(iii) Term. Subject to earlier termination as provided in the
grant agreement or the Plan, each Option shall expire on the 10th
anniversary of its date of grant.
(iv) Forfeiture. Except as otherwise provided in the terms of
the Option grant, 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.
(b) 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
duration of the Restricted Period (if any), the conditions under which the
Restricted Units may become vested (which may be immediate upon grant) or
forfeited, 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 Restricted Units.
(i) DERs. To the extent provided by the Committee, in its
discretion, a grant of Restricted 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. Notwithstanding the foregoing however, DERs shall not be
granted with respect to any Award prior to the end of the Subordination
Period.
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(ii) Forfeiture. Except as otherwise provided in the terms of
the Restricted Units grant, 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 Restricted Units 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 Restricted Units.
(iii) Lapse of Restrictions. Upon or following the vesting of
each Restricted Unit, the Participant shall be entitled to receive from
the Company one Unit or cash equal to the Fair Market Value of one
Unit, as determined by the Committee, subject to the provisions of
Section 8(b).
(c) 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 (C) below, each Option
shall be exercisable only by the Participant during the
Participant's lifetime, or by the person to whom the
Participant's rights shall pass by will or the laws of descent
and distribution.
(B) Except as provided in (C) below, no Award and no
right under any such Award may be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered
by a Participant and any such purported assignment,
alienation, pledge, attachment, sale, transfer or encumbrance
shall be void and unenforceable against the Company or any
Affiliate.
(C) To the extent specifically provided by the
Committee with respect to an Award, an Award may be
transferred by a Participant without consideration to
immediate family members or related family trusts, limited
partnerships or similar entities or on such terms and
conditions as the Committee may from time to time establish.
In addition, Awards may be transferred by will and the laws of
descent and distribution.
(iii) Term of Awards. The term of each Award shall be for such
period as may be determined by the Committee.
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(iv) Unit Certificates. All certificates for Units or other
securities of the Partnership 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 no
cash consideration or for such consideration as the Committee
determines.
(vi) Delivery of Units or other Securities and Payment by
Participant of Consideration. Notwithstanding anything in the Plan or
any grant 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 grant agreement
(including, without limitation, any exercise price or tax withholding)
is received by the Company. Such payment may be made by such method or
methods and in such form or forms as the Committee shall determine,
including, without limitation, cash, other Awards, withholding of
Units, cashless-broker exercises with simultaneous sale, or any
combination thereof; provided that the combined value, as determined by
the Committee, of all cash and cash equivalents and the Fair Market
Value of any such Units or other property so tendered to the Company,
as of the date of such tender, is at least equal to the full amount
required to be paid to the Company pursuant to the Plan or the
applicable Award agreement.
(vii) Change in Control. Upon a Change in Control, all Awards
shall automatically vest and become payable or exercisable, as the case
may be, in full. 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. Notwithstanding the foregoing however,
the Restricted Period may not terminate prior to the end of the
Subordination Period.
(viii) Sale of Significant Assets. In the event the
Partnership sells or otherwise dispose of a significant portion of the
assets under its control, (such significance to be determined by action
of the Board of the Company in its sole discretion) and as a
consequence of such disposition (a) a Participant's employment is
terminated by the Partnership, the Company or their affiliates without
Cause or by the Participant for Good Reason or (b) as a result of such
sale or disposition, the Participant's employer shall no longer be the
Partnership, the Company or one of their affiliates, then all of such
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Participant's Awards shall automatically vest and become payable or
exercisable, as the case may be, in full. 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.
Notwithstanding the foregoing however, the Restricted Period may not
terminate prior to the end of the Subordination Period.
SECTION 7. Amendment and Termination.
Except to the extent prohibited by applicable law and unless otherwise
expressly provided in an Award agreement or in the Plan:
(a) Amendments to the Plan. Except as required by applicable
law or 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, including increasing the number of Units available for
Awards under the Plan, without the consent of any partner, Participant,
other holder or beneficiary of an Award, or other Person; provided,
however, that no amendment may be made without the approval of a Unit
Majority (as defined in the Partnership Agreement) that would either
accelerate, with respect to an Award granted to an Employee, vesting to
a date prior to the end of the Subordination Period or permit DERs to
be granted prior to the end of the Subordination Period.
(b) Amendments to Awards. 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), in any Award shall materially reduce the benefit to Participant
without the consent of such Participant.
(c) Adjustment of Awards Upon the Occurrence of Certain
Unusual or Nonrecurring Events. The Committee is hereby authorized to
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 Partnership or the financial statements of the
Partnership, 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.
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.
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(b) 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, Units that would otherwise be issued pursuant to such
Award or other property) 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 all 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 Delaware and applicable federal law.
(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 or 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 Partnership 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.
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(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.
SECTION 9. Term of the Plan.
The Plan shall be effective on the date of its approval by the Board
and shall continue until the date terminated by the Board or Units are no longer
available for grants of Awards under the Plan, whichever occurs first. 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.