EXHIBIT 10.3
[FORM]
HOLLY LOGISTIC SERVICES, L.L.C.
PERFORMANCE UNIT AGREEMENT
UNDER THE HOLLY ENERGY PARTNERS, L.P.
LONG-TERM INCENTIVE PLAN
This Performance Unit Agreement (the "Agreement") is made and entered
into by and between HOLLY LOGISTIC SERVICES, L.L.C. (the "Company"), and
___________________ (the "Employee"). This Agreement is entered into as of the
____ day of ___, ____ (the "Date of Grant").
WITNESSETH:
WHEREAS, the Company has adopted the HOLLY ENERGY PARTNERS LONG-TERM
INCENTIVE PLAN (the "Plan") to attract, retain and motivate employees, directors
and consultants; and
WHEREAS, the Company believes that a grant to the Employee of
restricted units of Holly Energy Partners, L.P. (the "Partnership") as part of
the Executive's compensation for services provided to the Company is consistent
with the stated purposes for which the Plan was adopted.
NOW, THEREFORE, in consideration of the services rendered by the
Employee, it is agreed by and between the Company and the Employee, as follows:
1. Grant. The Company hereby grants as of the Date of Grant a
Performance Award (as defined in the Plan) of ________ performance units (the
"Units"), subject to the terms and conditions set forth in this Agreement.
Depending upon the performance of Holly Energy Partners, L.P. (the
"Partnership"), the Employee may earn from ___ percent (__%) to ______ percent
(____%) of the Units, based on the total unitholder return ("TUR") of the
Partnership's common units (the "Units"), as compared to the TUR of a peer group
of companies as provided in Section 2.
2. Nature of Award. The Units represent an award for the "Performance
Period" described in this Section 2. The Performance Period begins on ____, __
and ends on ____, __. At the end of the Performance Period, the Employee shall
be entitled to a cash payment equal to the value of the Units as determined
under this Section 2 and payable at the time indicated in Section 4 or Section
3(b), as applicable. At the end of the Performance Period, the amount paid with
respect to the Units will be based upon the TUR of the Partnership compared to
the TUR of a select group of peer companies designated by the Committee for
performance measurement purposes (the "Peer Group"), which for this Performance
Period shall be _______________________________________________________________
_______________________________________________________________________________.
TUR includes both appreciation in unit price during the Performance Period and
the assumed reinvestment of any distributions declared into additional Units at
the time distributions are paid. The Unit price for the TUR calculation of the
Company shall be the
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average Unit price for the final thirty- (30-) day trading period of the
Performance Period (the "Unit Price"). The amount payable to the Employee
pursuant to the Agreement shall be an amount equal to the number of Units (as
specified in Section 1 and after any applicable adjustment under Section 3)
multiplied by a "Performance Percentage" (which will be based upon the
Partnership's TUR ranking as compared to the ranking of the Peer Group)
multiplied by the Unit Price. The Performance Percentage will be determined in
accordance with the following "Performance Schedule."
<Table>
<Caption>
PERFORMANCE SCHEDULE
PERFORMANCE PERCENTAGE (%)
TO BE MULTIPLIED BY UNITS
BASED UPON THE PARTNERSHIP'S TUR AS COMPARED TO THE PEER GROUP
- --------------------------------------------------------------------------------
THE PARTNERSHIP'S TSR AS COMPARED TO PERFORMANCE PERCENTAGE (%) TO BE
THE PEER GROUP TSR - PERCENTILE RANKING MULTIPLIED BY UNITS
____ Percentile or Less __%
Greater than ___ and equal to or less
than ___ Percentile __%
Greater than ___ and equal to or less
than ___ Percentile __%
Greater than ___ and equal to or less
than ___ Percentile __%
Greater than ___ and equal to or less
than ___ Percentile __%
Greater than ___ Percentile __%
</Table>
3. Early Termination. In the event of separation from employment of the
Employee prior to the end of the Performance Period on account of an event
described in this Section 3, the number of Units with respect to which payment
at the end of the Performance Period is based shall be determined as follows:
(a) (i) In the event that the Employee separates from
employment for any reason other than voluntary separation or Cause, as
defined in Section 3(c)(vii), or (ii) in the event of the Employee's
death or (iii) in the event of the Employee's total and permanent
disability as determined by the Committee in its sole discretion, or
(iv) in the event that the Employee shall retire after attaining normal
retirement age of 62 or after attaining an earlier retirement age
approved by the Committee in its sole discretion, the number of Units
that shall be earned by and paid to the Employee or his beneficiary, in
accordance with and at the time specified in Section 4, shall be
determined as follows: the Employee shall forfeit a percentage of the
Units equal to the percentage that the number of full months following
the date of separation, death, disability or retirement to the end of
the Performance Period bears to _______ days. The Committee shall
determine the number of Units earned and the amount to be paid to the
Employee or his beneficiary as soon as administratively practicable
after the end of the Performance Period based upon the TUR calculation
determined pursuant to Section 2 for the entire
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Performance Period. In its sole discretion, the Committee may make a
payment to the Employee assuming a Performance Percentage of up to
______ percent (____%) of the Units instead of the pro-rata number of
Units as determined pursuant to this Section 3(a). Unless the Committee
determines otherwise, the Employee will have no right to any other
Units and those other Units granted under this Agreement will be
forfeited. If the Employee separates from employment prior to the end
of the Performance Period due to voluntary separation or on account of
Cause, all Units hereunder will be forfeited.
(b) In the event of a Special Involuntary Termination, as
defined in Section 3(c)(vi), before the end of the Performance Period,
no Units shall be forfeited, and payment with respect to ______ percent
(____%) of the Units shall be made as soon as administratively
practicable following the Special Involuntary Termination. In the event
of a Special Involuntary Termination, the amount payable with respect
to this Agreement will equal the number of Units granted pursuant to
Section 1, multiplied by the Unit Price, and multiplied by a
Performance Percentage of ______ percent (____%); provided, however,
the Unit Price shall be calculated using the average Unit price for the
thirty- (30-) day trading period preceding the date of the Special
Involuntary Termination. Payment pursuant to this Section 3(b) is
in-lieu of payment pursuant to Section 3(a) and if the Employee
receives payment pursuant to this Section 3(b) the Employee will not be
entitled to any payment pursuant to Section 3(a).
(c) Definitions. For purposes of this Section 3,
(i) "Change in Control" shall mean:
A. Any "Person" (as defined in Section
3(c)(ii) below), other than Holly Corporation
("Holly") or any of its wholly-owned subsidiaries,
HEP Logistics Holdings, L.P. (the "General Partner"),
the Partnership, the Company, or any of their
subsidiaries, a trustee or other fiduciary holding
securities under an employee benefit plan of Holly,
the Partnership, the Company or any of their
"Affiliates" (as defined in Section 3(c)(v) below),
an underwriter temporarily holding securities
pursuant to an offering of such securities, or an
entity owned, directly or indirectly, by the holders
of the voting securities of Holly, the Company, the
General Partner or the Partnership in substantially
the same proportions as their ownership in Holly, the
Company, the General Partner or the Partnership,
respectively, is or becomes the "Beneficial Owner"
(as defined in Section 3(c)(iii) below), directly or
indirectly, of securities of Holly, the Company, the
General Partner or the Partnership (not including in
the securities beneficially owned by such person any
securities acquired directly from Holly, the General
Partner, the Partnership, the Company or their
Affiliates) representing more than forty percent
(40%) of the combined voting power of Holly's, the
Company's, the General Partner's or the Partnership's
then outstanding securities, excluding any Person who
becomes such a Beneficial Owner in connection with a
transaction described in Section 3(c)(i)(C)(1) below.
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B. The individuals who as of the Date of
Grant constitute the Board of Directors of Holly (the
"Holly Board") and any "New Director" (as defined in
Section 3(c)(iv) below) cease for any reason to
constitute a majority of the Holly Board.
C. There is consummated a merger or
consolidation of Holly, the Company, the General
Partner or the Partnership with any other entity,
except if:
(1) the merger or consolidation
results in the voting securities of Holly,
the Company, the General Partner or the
Partnership outstanding immediately prior
thereto continuing to represent (either by
remaining outstanding or by being converted
into voting securities of the surviving
entity or any parent thereof) at least sixty
percent (60%) of the combined voting power
of the voting securities of Holly, the
Company, the General Partner or the
Partnership, as applicable, or such
surviving entity or any parent thereof
outstanding immediately after such merger or
consolidation; or
(2) the merger or consolidation is
effected to implement a recapitalization of
Holly, the Company, the General Partner or
the Partnership (or similar transaction) in
which no Person is or becomes the Beneficial
Owner, directly, or indirectly, of
securities of Holly, the Company, the
General Partner or the Partnership, as
applicable, (not including in the securities
beneficially owned by such Person any
securities acquired directly from Holly, the
Company, the General Partner or the
Partnership or their Affiliates other than
in connection with the acquisition by Holly,
the Company, the General Partner or the
Partnership or its Affiliates of a business)
representing more than forty percent (40%)
of the combined voting power of Holly's, the
Company's, the General Partner's or the
Partnership's, as applicable, then
outstanding securities.
D. The holders of the voting securities of
Holly, the Company, the General Partner or the
Partnership approve a plan of complete liquidation or
dissolution of Holly, the Company, the General
Partner or the Partnership, as applicable, or an
agreement for the sale or disposition by Holly, the
Company, the General Partner or the Partnership of
all or substantially all of Holly's, the Company's,
the General Partner's or the Partnership's assets, as
applicable, other than a sale or disposition by
Holly, the Company, the General Partner or the
Partnership of all or substantially all of Holly's,
the Company's, the General Partner's, or the
Partnership's assets, as applicable, to an entity at
least sixty percent (60%) of the combined voting
power of the voting securities of which is owned by
the direct or indirect holders of the voting
securities of Holly, the
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Company, the General Partner or the Partnership, as
applicable, in substantially the same proportions as
their ownership of Holly, the Company, the General
Partner or the Partnership, as applicable,
immediately prior to such sale.
(ii) "Person" shall have the meaning given in section
3(a)(9) of the Securities Exchange Act of 1934 (the "1934
Act") as modified and used in sections 13(d) and 14(d) of the
1934 Act.
(iii) "Beneficial Owner" shall have the meaning
provided in Rule 13d-3 under the 1934 Act.
(iv) "New Director" shall mean an individual whose
election by the Holly Board, or nomination for election by
holders of the voting securities of Holly, was approved by a
vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the Date of Grant or
whose election or nomination for election was previously so
approved or recommended. However, "New Director" shall not
include a director whose initial assumption of office is in
connection with an actual or threatened election contest,
including but not limited to a consent solicitation relating
to the election of directors of Holly.
(v) "Affiliate" shall have the meaning set forth in
Rule 12b-2 promulgated under section 12 of the 1934 Act.
(vi) "Special Involuntary Termination" shall mean the
occurrence of (1) or (2) below within sixty (60) days prior
to, or at any time after, a "Change in Control" (as defined in
Section 3(c)(i)), where (1) is termination of the Employee's
employment with the Company (including subsidiaries of the
Company) by the Company for any reason other than "Cause" (as
defined in Section 4(d)(vii)) and (2) is a resignation by the
Employee from employment with the Company (including
subsidiaries of the Company) within ninety (90) days after an
"Adverse Change" (as defined in Section 3(d)(vii)) by the
Company (including subsidiaries of the Company) in the terms
of the Employee's employment.
(vii) "Cause" shall mean (A) an act or acts of
dishonesty on the part of the Employee constituting a felony
or serious misdemeanor and resulting or intended to result
directly in gain or personal enrichment at the expense of the
Company; (B) gross or willful and wanton negligence in the
performance of the Employee's material and substantial duties
of employment with the Company; (C) conviction of a felony
involving moral turpitude. The existence of Cause shall be
determined by the Committee, in its sole and absolute
discretion.
(viii) "Adverse Change" shall mean (A) a change in
the city in which the Employee is required to work regularly,
(B) a substantial increase in travel requirements of
employment, (C) a substantial reduction in duties of the type
previously performed by the Employee, or (D) a significant
reduction in
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compensation or benefits (other than bonuses and other
discretionary items of compensation) that does not apply
generally to executives of the Company or its successor.
4. Payment of Units. The value of the Units earned shall be converted
to a fully equivalent cash value at the end of the Performance Period (or such
earlier time as specified under Section 3(b)) and shall be payable in cash as
soon as reasonably practicable following the close of the Performance Period (or
such earlier time as specified under Section 3(b)) in the amount determined in
accordance with Section 2, as adjusted by Section 3, if applicable. Such cash
payment will be subject to withholding for taxes and other applicable payroll
adjustments. The Committee's determination of the amount payable shall be
binding upon the Employee and his beneficiary or estate.
5. Adjustment in Number of Units. Except as provided below, in the
event that the outstanding Units of the Partnership are increased, decreased or
exchanged for a different number of kind of units or other securities, or if
additional, new or different units or securities are distributed with respect to
the Units through merger, consolidation, sale of all or substantially all of the
assets of the Partnership, reorganization, recapitalization, unit dividend, unit
split, reverse unit split or other distribution with respect to such Units, the
number of Units subject to this Agreement shall be adjusted, in the sole
discretion of the Committee, to reflect the change in outstanding Units, and, to
the extent Units are replaced or exchanged for different securities, the
Committee shall, in its sole discretion, cause the Units to be valued in
accordance with Sections 2 and 3 of this Agreement, but with respect to such new
securities.
6. Definitions; Copy of Plan. To the extent not specifically provided
herein, all terms used in this Agreement shall have the same meanings ascribed
to them in the Plan. By the execution of this Agreement, the Employee
acknowledges receipt of a copy of the Plan. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any applicable law, then
such provision will be deemed to be modified to the minimum extent necessary to
render it legal, valid and enforceable; and if such provision cannot be so
modified, then this Agreement will be construed as if not containing the
provision held to be invalid, and the rights and obligations of the parties will
be construed and enforced accordingly.
7. Administration. This Agreement shall at all times be subject to the
terms and conditions of the Plan. The Committee shall have sole and complete
discretion with respect to all matters reserved to it by the Plan and decisions
of the majority of the Committee with respect thereto and this Agreement shall
be final and binding upon the Employee and the Company. In the event of any
conflict between the terms and conditions of this Agreement and the Plan, the
provisions of the Plan shall control.
8. No Right to Continued Employment. This Agreement shall not be
construed to confer upon the Employee any right to continue as an Employee of
the Company and shall not limit the right of the Company, in its sole
discretion, to terminate the service of the Employee at any time.
9. Governing Law. This Agreement shall be interpreted and administered
under the laws of the State of Texas, without giving effect to any conflict of
laws provisions.
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10. Amendments. This Agreement may be amended only by a written
agreement executed by the Company and the Employee. Any such amendment shall be
made only upon the mutual consent of the parties, which consent (of either
party) may be withheld for any reason.
11. No Liability for Good Faith Determinations. The Company and the
members of the Committee and the Board shall not be liable for any act, omission
or determination taken or made in good faith with respect to this Agreement or
the Units granted hereunder.
12. No Guarantee of Interests. The Board and the Company do not
guarantee the Units (as defined in the Plan) from loss or depreciation.
13. Nontransferability. This Agreement and all rights under this
Agreement shall not be transferable by the Employee during his life other than
by will or pursuant to applicable laws of descent and distribution. Any rights
and privileges of the Employee in connection herewith shall not be transferred,
assigned, pledged or hypothecated by the Employee or by any other person or
persons, in any way, whether by operation of law, or otherwise, and shall not be
subject to execution, attachment, garnishment or similar process. In the event
of any such occurrence, this Agreement shall automatically be terminated and
shall thereafter be null and void. Notwithstanding the foregoing, all or some of
the Units or rights under this Agreement may be transferred to a spouse pursuant
to a domestic relations order issued by a court of competent jurisdiction.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its officers thereunto duly authorized, and the Employee has set his
hand effective as of the date and year first above written.
HOLLY LOGISTIC SERVICES, L.L.C.
By:
--------------------------------
-----------------------------------
Employee
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