As
filed with the Securities and Exchange Commission on May 6, 2008
Registration No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
ENTERPRISE
PRODUCTS PARTNERS L.P.
(Exact
name of registrant as specified in its charter)
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Delaware
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76-0568219
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(State
or other jurisdiction
of
incorporation or organization)
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(I.R.S.
Employer
Identification
No.)
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1100
Louisiana Street, 10th Floor
Houston,
Texas
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77002
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Amended
and Restated 2008 Enterprise Products
Long-Term
Incentive Plan
(Full
title of the plan)
Richard
H. Bachmann
1100
Louisiana Street, 10th Floor
Houston,
Texas 77002
(Name and address of
agent for service)
(713)
381-6500
(Telephone
number, including area code, of agent for service)
Copies
to:
David
C. Buck
Andrews
Kurth LLP
600
Travis, Suite 4200
Houston,
Texas 77002
(713)
220-4200
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer x
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Accelerated
filer o
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Non-accelerated filer o (Do not check if
a smaller reporting company)
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Smaller
reporting company o
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CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
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Amount
to be registered (1)(2)
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Proposed
maximum
offering
price
per
share (3)
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Proposed
maximum
aggregate
offering
price
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Amount of
registration
fee
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Common
units representing limited partner interests
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10,000,000
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$31.04
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$310,400,000
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$12,199
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(1)
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Pursuant
to Rule 416(a) under the Securities Act, there is also being registered
such additional number of common units that become available under the
plan because of events such as recapitalizations, stock dividends, stock
splits or similar transactions effected without the receipt of
consideration that increases the number of outstanding common
units.
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(2)
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Represents
common units reserved for issuance under the Amended and Restated 2008
Enterprise Products Long-Term Incentive
Plan.
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(3)
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Estimated
solely for the purpose of determining the amount of the registration fee
in accordance with Rule 457(c) and (h) under the Securities Act of 1933,
as amended, and based on the average of the high and low prices of the
common units as reported by the NYSE on April 30,
2008.
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PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified in Part I of Form S-8 (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the
“Securities Act”). In accordance with Rule 428 and the requirements
of Part I of Form S-8, such documents are not being filed with the Securities
and Exchange Commission (the “Commission”) either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. Enterprise Products Partners L.P. (the
“Partnership”) shall maintain a file of such documents in accordance with the
provisions of Rule 428(a)(2) of the Securities Act. Upon request, the
Partnership shall furnish to the Commission or its staff a copy of any or all of
the documents included in the file.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Partnership incorporates by reference in this registration statement the
following documents and information previously filed with the
Commission:
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(1)
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The
Partnership’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2007, as filed by the Partnership with the Commission (File
No. 001-14323) on February 29,
2008.
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(2)
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The
Partnership’s Current Reports on Form 8-K as filed by the Partnership with
the Commission (File No. 001-14323) on February 4, 2008, February 26,
2008, March 14, 2008, March 28, 2008, April 3, 2008 and April 16, 2008 and
the Current Report on Form 8-K/A as filed by the Partnership with the
Commission (File No. 001-14323) on January 3, 2008 (only to the
extent the information contained in each of these Forms 8-K has been filed
and not furnished).
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(3)
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The
description of the Partnership’s common units contained in the
Partnership’s Registration Statement on Form 8-A/A (File No. 001-14323) as
filed by the Partnership with the Commission on May 15, 2007, and any
amendment or report filed for the purpose of updating that
description.
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All
documents filed with the Commission by the Partnership pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
(excluding any information furnished pursuant to Item 2.02 and Item 7.01 on any
current report on Form 8-K) subsequent to the date of this registration
statement and prior to the filing of a post-effective amendment that indicates
that all securities offered have been sold or that deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Any
statement contained herein or in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein or in any subsequently filed document that also is, or is
deemed to be, incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item
4. Description of Securities.
Not applicable.
Item
5. Interests of Named Experts and Counsel.
The
legality of the common units offered hereby is being passed upon for us by
Andrews Kurth LLP.
Item
6. Indemnification of Directors and Officers.
Section 17-108 of the Delaware
Revised Uniform Limited Partnership Act empowers a Delaware limited partnership
to indemnify and hold harmless any partner or other person from and against all
claims and demands whatsoever. The Partnership’s partnership agreement provides
that the Partnership will indemnify (i) Enterprise Products GP, LLC
(“Enterprise Products GP”), (ii) any departing general partner,
(iii) any person who is or was an affiliate of Enterprise Products GP or
any departing general partner, (iv) any person who is or was a member,
partner, officer director, employee, agent or trustee of Enterprise Products GP
or any departing general partner or any affiliate of Enterprise Products GP or
any departing general partner or (v) any person who is or was serving at
the request of Enterprise Products GP or any departing general partner or any
affiliate of any such person, any affiliate of Enterprise Products GP or any
fiduciary or trustee of another person (each, a “Partnership Indemnitee”), to
the fullest extent permitted by law, from and against any and all losses,
claims, damages, liabilities (joint or several), expenses (including, without
limitation, legal fees and expenses), judgments, fines, penalties, interest,
settlements and other amounts arising from any and all claims, demands, actions,
suits or proceedings, whether civil, criminal, administrative or investigative,
in which any Partnership Indemnitee may be involved, or is threatened to be
involved, as a party or otherwise, by reason of its status as a Partnership
Indemnitee; provided that in each case the Partnership Indemnitee acted in good
faith and in a manner that such Partnership Indemnitee reasonably believed to be
in or not opposed to the best interests of the Partnership and, with respect to
any criminal proceeding, had no reasonable cause to believe its conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere, or its equivalent,
shall not create an assumption that the Partnership Indemnitee acted in a manner
contrary to that specified above. Any indemnification under these
II-
1
provisions
will be only out of the assets of the Partnership, and Enterprise Products GP
shall not be personally liable for, or have any obligation to contribute or lend
funds or assets to the Partnership to enable it to effectuate, such
indemnification. The Partnership is authorized to purchase (or to reimburse
Enterprise Products GP or its affiliates for the cost of) insurance against
liabilities asserted against and expenses incurred by such persons in connection
with the Partnership’s activities, regardless of whether the Partnership would
have the power to indemnify such person against such liabilities under the
provisions described above.
Section 18-108 of the Delaware
Limited Liability Company Act provides that, subject to such standards and
restrictions, if any, as are set forth in its limited liability company
agreement, a Delaware limited liability company may, and shall have the power
to, indemnify and hold harmless any member or manager or other person from and
against any and all claims and demands whatsoever. The limited liability company
agreement of Enterprise Products GP provides for the indemnification of
(i) present or former members of the Board of Directors of Enterprise
Products GP or any committee thereof, (ii) present or former officers,
employees, partners, agents or trustees of the Enterprise Products GP or
(iii) persons serving at the request of Enterprise Products GP in another
entity in a similar capacity as that referred to in the immediately preceding
clauses (i) or (ii) (each, a “General Partner Indemnitee”) to the fullest
extent permitted by law, from and against any and all losses, claims, damages,
liabilities, joint or several, expenses (including reasonable legal fees and
expenses), judgments, fines, penalties, interest, settlements and other amounts
arising from any and all claims, demands, actions, suits or proceedings, whether
civil, criminal, administrative or investigative, in which any such person may
be involved, or is threatened to be involved, as a party or otherwise, by reason
of such person’s status as a General Partner Indemnitee; provided, that in each
case the General Partner Indemnitee acted in good faith and in a manner which
such General Partner Indemnitee believed to be in, or not opposed to, the best
interests of the Enterprise Products GP and, with respect to any criminal
proceeding, had no reasonable cause to believe such General Partner Indemnitee’s
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere, or
its equivalent, shall not create a presumption that the General Partner
Indemnitee acted in a manner contrary to that specified above. Any
indemnification pursuant to these provisions shall be made only out of the
assets of Enterprise Products GP. Enterprise Products GP is authorized to
purchase and maintain insurance, on behalf of the members of its Board of
Directors, its officers and such other persons as the Board of Directors may
determine, against any liability that may be asserted against or expense that
may be incurred by such person in connection with the activities of Enterprise
Products GP, regardless of whether Enterprise Products GP would have the power
to indemnify such person against such liability under the provisions of its
limited liability company agreement.
Insofar as indemnification for
liabilities arising under the Securities Act of 1933, as amended, may be
permitted to directors, officers or persons controlling the Partnership or
Enterprise Products GP as set forth above, the Partnership and Enterprise
Products GP have been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
Item
7. Exemption from Registration Claimed.
Not applicable.
Item
8. Exhibits.
| Exhibit | ||
| Number | Description | |
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*4.1
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Amended
and Restated 2008 Enterprise Products Long-Term Incentive Plan dated
May 2, 2008.
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*4.2
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Form
of Restricted Unit Grant.
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*4.3
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Form
of Option Grant.
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+4.4
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Fifth
Amended and Restated Agreement of Limited Partnership of Enterprise
Products Partners L.P., dated effective as of August 8, 2005 (incorporated
by reference to Exhibit 3.1 to Form 8-K filed August 10,
2005).
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+4.5
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First
Amendment to Fifth Amended and Restated Partnership Agreement of
Enterprise Products Partners L.P. dated as of December 27, 2007
(incorporated by reference to Exhibit 3.1 to Form 8-K/A filed
January 3, 2008).
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II- 2
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+4.6
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Second
Amendment to Fifth Amended and Restated Partnership Agreement of
Enterprise Products Partners L.P. dated as of April 14, 2008 (incorporated
by reference to Exhibit 10.1 to Form 8-K filed April 16,
2008).
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+4.7
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Fifth
Amended and Restated Limited Liability Company Agreement of Enterprise
Products GP, LLC, dated as of November 7, 2007 (incorporated by
reference to Exhibit 3.2 to Form 10-Q filed November 8,
2007).
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*5.1
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Opinion
of Andrews Kurth LLP with respect to legality of the
securities.
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*23.1
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Consent
of Deloitte & Touche LLP.
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*23.2
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Consent
of Andrews Kurth LLP (included as part of Exhibit
5.1).
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*24.1
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Power
of Attorney (set forth on the signature page of this registration
statement).
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+
Incorporated by reference.
* Filed
herewith.
Item
9. Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
a prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided, however, That
paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II- 3
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 6 above, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such
issue.
II- 4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Houston, State of Texas, on May 6, 2008.
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ENTERPRISE
PRODUCTS PARTNERS L.P.
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By:
Enterprise Products GP, LLC, its general partner
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By: /s/
Michael J.
Knesek
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Michael
J. Knesek
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Senior
Vice President, Controller and
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Principal
Accounting Officer
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POWER
OF ATTORNEY
The
undersigned managers and officers of Enterprise Products GP, LLC hereby
constitute and appoint Richard H. Bachmann and Michael A. Creel, each with full
power to act and with full power of substitution and resubstitution, our true
and lawful attorneys-in-fact and agents with full power to execute in our name
and behalf in the capacities indicated below any and all amendments (including
post-effective amendments and amendments thereto) to this registration statement
and to file the same, with all exhibits and other documents relating thereto and
any registration statement relating to any offering made pursuant to this
registration statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act with the Securities and Exchange Commission and
hereby ratify and confirm all that such attorney-in-fact or his substitute shall
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons on behalf of the registrant in the
capacities indicated below on May 6, 2008.
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Signature
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Title
(Position with Enterprise Products GP, LLC)
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/s/
Dan L. Duncan
Dan
L. Duncan
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Director
and Chairman
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/s/ Michael A. Creel
Michael
A. Creel
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Director,
President and Chief Executive Officer
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/s/ W. Randall
Fowler
W.
Randall Fowler
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Director,
Executive Vice President and Chief Financial Officer
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/s/ Richard H.
Bachmann
Richard
H. Bachmann
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Director,
Executive Vice President, Chief Legal Officer and
Secretary
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/s/ Ralph S.
Cunningham
Dr. Ralph
S. Cunningham
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Director
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/s/ E. William Barnett
E.
William Barnett
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Director
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/c/ Charles M.
Rampacek
Charles
M. Rampacek
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Director
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/s/ Rex C. Ross
Rex
C. Ross
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Director
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/s/ Michael J. Knesek
Michael
J. Knesek
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Senior
Vice President, Controller and Principal Accounting
Officer
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EXHIBIT
INDEX
| Exhibit | ||
| Number | Description | |
|
|
*4.1
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Amended
and Restated 2008 Enterprise Products Long-Term Incentive Plan, dated
May 2, 2008.
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*4.2
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Form
of Restricted Unit Grant.
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*4.3
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Form
of Option Grant.
|
|
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+4.4
|
Fifth
Amended and Restated Agreement of Limited Partnership of Enterprise
Products Partners L.P., dated effective as of August 8, 2005 (incorporated
by reference to Exhibit 3.1 to Form 8-K filed August 10,
2005).
|
|
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+4.5
|
First
Amendment to Fifth Amended and Restated Partnership Agreement of
Enterprise Products Partners L.P. dated as of December 27, 2007
(incorporated by reference to Exhibit 3.1 to Form 8-K/A filed
January 3, 2008).
|
|
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+4.6
|
Second
Amendment to Fifth Amended and Restated Partnership Agreement of
Enterprise Products Partners L.P. dated as of April 14, 2008 (incorporated
by reference to Exhibit 10.1 to Form 8-K filed April 16,
2008).
|
|
|
+4.7
|
Fifth
Amended and Restated Limited Liability Company Agreement of Enterprise
Products GP, LLC, dated as of November 7, 2007 (incorporated by
reference to Exhibit 3.2 to Form 10-Q filed November 8,
2007).
|
|
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*5.1
|
Opinion
of Andrews Kurth LLP with respect to legality of the
securities.
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*23.1
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Consent
of Deloitte & Touche LLP.
|
|
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*23.2
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Consent
of Andrews Kurth LLP (included as part of Exhibit
5.1).
|
|
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*24.1
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Power
of Attorney (set forth on the signature page of this registration
statement).
|
+
Incorporated by reference.
* Filed
herewith.
EXHIBIT
4.1
AMENDED
AND RESTATED
2008 ENTERPRISE PRODUCTS LONG-TERM
INCENTIVE PLAN
(May 2,
2008)
Section 1. Purpose
of the Plan. The 2008
Enterprise Products Long-Term Incentive Plan, as established hereby (the
“Plan”), is intended to promote the interests of EPCO, Inc., a Texas corporation
(the “Company”), Enterprise Products Partners L.P., a Delaware limited
partnership (the “Partnership”) and Enterprise Products GP, LLC, the general
partner of the Partnership (“General Partner”), by encouraging directors,
employees and consultants of the Company and employees and consultants of its
Affiliates who perform services for the Partnership or its subsidiaries to
acquire or increase their equity interests in the Partnership and to provide a
means whereby they may develop a sense of proprietorship and personal
involvement in the development and financial success of the Partnership, and to
encourage them to remain with the Company and its Affiliates and to devote their
best efforts to the Company, the General Partner and the
Partnership.
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,
Common Unit Appreciation Right, a Restricted Unit, a Phantom Unit or DER granted
under the Plan.
“Board” means the Board of
Directors of the Company.
“Committee” means the Audit,
Conflicts and Governance Committee of the Board of Directors of the General
Partner.
“Common Unit” means a Common
Unit of the Partnership.
“Common Unit Appreciation
Right” or “CUAR” means an Award that, upon vesting entitles the holder to
receive the excess, or such designated portion of the excess not to exceed 100%,
of the Fair Market Value of a Common Unit on the vesting date over the grant
price established for such Common Unit Appreciation Right. Such excess may be
paid in cash and/or in Common Units as determined by the Committee in its
discretion.
“Consultant” means an
individual, other than an Employee or a Director, providing bona fide services
to the Partnership or any of its subsidiaries as a consultant or advisor, as
applicable, provided that (i) such individual is a natural person, and
(ii) the grant of an Award to such Person could not reasonably be expected
to result in adverse federal income tax consequences under Section 409A of
the Code; provided that for purposes of issuing Options or Unit Appreciation
Rights, “subsidiary” means any entity in a chain of entities in which the
Partnership has a “controlling interest” within the meaning of Treas. Reg.
Section 1.414(c)-2(b)(2)(i), but using the threshold of 50 percent
ownership wherever 80 percent appears.
“DER” means a contingent
right to receive an amount of cash equal to all or a designated portion (whether
by formula or otherwise) of the cash distributions made by the Partnership with
respect to a Common Unit during a specified period.
“Director” means a
“non-employee director,” as defined in Rule 16b-3, of the General
Partner.
1
“Employee” means any employee
of the Company or an Affiliate who performs services for the Partnership or its
subsidiaries; provided that for purposes of issuing Options or Unit Appreciation
Rights, “subsidiary” means any entity in a chain of entities in which the
Partnership has a “controlling interest” within the meaning of Treas. Reg.
Section 1.414(c)-2(b)(2)(i), but using the threshold of 50 percent
ownership wherever 80 percent appears.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Fair Market Value” means the
closing sales price of a Common Unit on the applicable date (or if there is no
trading in the Common 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 Common Units are not publicly
traded at the time a determination of Fair Market Value is required to be made
hereunder, the determination of Fair Market Value shall be made in good faith by
the Committee.
“Option” means an option to
purchase Common Units granted under the Plan.
“Participant” means any
Employee, Director or Consultant granted an Award under the
Plan.
“Person” means any
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or political subdivision thereof or other entity.
“Phantom Unit” means a
notional or phantom unit granted under the Plan which upon vesting entitles the
holder to receive one Unit upon vesting.
“Restricted Unit” means a
Unit granted under the Plan that is subject to forfeiture provisions and
restrictions on its transferability.
“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.
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 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 Common Units to be covered by
Awards; (iv) determine the terms and conditions of any Award;
(v) determine whether, to what extent, and under what circumstances Awards
may be settled, exercised, canceled, or forfeited; (vi) interpret and
administer the Plan and any instrument or agreement relating to an Award made
under the Plan; (vii) establish, amend, suspend, or waive such rules and
regulations and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and (viii) make any other determination and
take any other action that the Committee deems necessary or desirable for the
administration of the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with
respect to the Plan or any Award shall be within the sole discretion of the
Committee, may be made at any time and shall be final, conclusive, and binding
upon all Persons, including the Company, the Partnership, any Affiliate, any
Participant, and any beneficiary thereof.
Section 4. Common
Units Available for Awards.
2
(a) Common
Units Available. Subject to
adjustment as provided in Section 4(c), the number of Common Units with
respect to which Awards may be granted under the Plan is 10,000,000. To the
extent an Award is forfeited or otherwise terminates or is canceled without the
delivery of Common Units, then the Common Units covered by such Award, to the
extent of such forfeiture, termination or cancellation, shall again be Common
Units with respect to which Awards may be granted. If any Award is exercised and
less than all of the Common Units covered by such Award are delivered in
connection with such exercise, then the Common Units covered by such Award which
were not delivered upon such exercise shall again be Common Units with respect
to which Awards may be granted. Common Units withheld to satisfy tax withholding
obligations of the Company or an Affiliate shall not be considered to have been
delivered under the Plan for this purpose.
(b) Sources
of Common Units Deliverable Under Awards. Any Common Units
delivered pursuant to an Award shall consist, in whole or in part, of Common
Units acquired in the open market, from any Affiliate (including, without
limitation, the Partnership) or other Person, or any combination of the
foregoing, as determined by the Committee in its discretion. If, at the time of
exercise by a Participant of all or a portion of such Participant’s Award, the
Company determines to acquire Common Units in the open market and the Company is
prohibited, under applicable law, or the rules and/or regulations promulgated by
the Securities and Exchange Committee or the New York Stock Exchange or the
policies of the Company or an Affiliate, from acquiring Common Units in the open
market, delivery of any Common Units to the Participant in connection with such
Participant’s exercise of an Award may be delayed until such reasonable time as
the Company is entitled to acquire, and does acquire, Common Units in the open
market.
(c) Adjustments. In the event the
Committee determines that any distribution (whether in the form of cash, Common
Units, other securities, or other property), recapitalization, split, reverse
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Common Units or other securities of the Partnership,
issuance of warrants or other rights to purchase Common Units or other
securities of the Partnership, or other similar transaction or event affects the
Common 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 Common Units (or other securities or property)
with respect to which Awards may be granted, (ii) the number and type of
Common Units (or other securities or property) subject to outstanding Awards,
and (iii) the grant or exercise price with respect to any Award; provided,
that the number of Common Units subject to any Award shall always be a whole
number.
Section 5. Eligibility. Any Employee,
Director or Consultant shall be eligible to be designated a
Participant.
Section 6. Awards.
(a) Options. The Committee
shall have the authority to determine the Employees, Directors and Consultants
to whom Options shall be granted, the number of Common Units to be covered by
each Option, the exercise 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 or intent of the
Plan.
(i) Exercise
Price. The purchase
price per Common Unit purchasable under an Option shall be determined by the
Committee at the time the Option is granted, but may not be less than 100% of
the Fair Market Value per Common Unit as of the date of
grant.
(ii) Time and
Method of Exercise. The Committee
shall determine the time or times at which an Option may be exercised in whole
or in part, and the method or methods by which any 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
3
approved
by the Company); other property (including, with the consent of the Committee,
the withholding of Common Units that may otherwise be delivered to the optionee
upon the exercise of the Option); or any combination thereof, in each case
having a value on the exercise date equal to the relevant exercise
price.
(iii) Term. Each Option
shall expire as provided in the grant agreement for such
Option.
(b) Restricted
Units. The Committee
shall have the authority to determine the Employees, Directors and Consultants
to whom Restricted Units shall be granted, the number of Restricted Units to be
granted to each such Participant, the period and the conditions under which the
Restricted Units may become vested or forfeited, which may include, without
limitation, the accelerated vesting upon the achievement of specified
performance goals or other criteria, and such other terms and conditions as the
Committee may establish with respect to such Award, including whether any
distributions made by the Partnership with respect to the Restricted Units shall
be payable with respect to, and/or accrue on, such Restricted Units and, if
payable and/or accrued, whether such distributions shall be subject to
forfeiture and/or other restrictions. If distributions are to be forfeited
and/or otherwise restricted, such restrictions (including forfeitures, if any)
shall be determined in the sole discretion of the Committee.
(c) Phantom
Units. The Committee
shall have the authority to determine the Employees, Directors and Consultants
to whom Phantom Units shall be granted, the number of Phantom Units to be
granted to each such Participant, the period during which the Award remains
subject to forfeiture, the conditions under which the Phantom Units may become
vested or forfeited, and such other terms and conditions as the Committee may
establish with respect to such Award. Upon or as soon as reasonably practical
following the vesting of each Phantom Unit, the Participant shall be entitled to
receive payment thereof in a single lump sum no later than the fifteenth (15th)
day of the third (3rd) month following the date on which vesting occurs and the
restrictions lapse. Should the Participant die before receiving all amounts
payable hereunder, the balance shall be paid to the Participant’s estate by this
date.
(d) DERs. The Committee
shall have the authority to determine the Employees, Directors and Consultants
to whom DERs shall be granted, the number of DERs to be granted to each such
Participant, the period during which the Award remains subject to forfeiture,
the limits, if any, or portion of a DER that is payable, the conditions under
which the DERs may become vested or forfeited, and such other terms and
conditions as the Committee may establish with respect to such Award. To the
extent DER’s are subject to any payment restrictions, any amounts not previously
paid shall be paid to the Participant at the time the payment restrictions
lapse. Such amounts shall be distributed in a single lump sum no later than the
fifteenth (15th) day of the third (3rd) month following the date on which the
payment restrictions lapse. Should the Participant die before receiving all
amounts payable hereunder, the balance shall be paid to the Participant’s estate
by this date.
(e) CUARs. The Committee
shall have the authority to determine the Employees, Directors and Consultants
to whom CUARs shall be granted, the number of Common Units to be covered by each
grant, the exercise price therefor and the conditions and limitations applicable
to the exercise of the CUAR, and such additional terms and conditions as the
Committee may establish with respect to such Award.
(f) General.
(i) Awards
May Be Granted Separately or Together. Awards may, in
the discretion of the Committee, be granted either alone or in addition to, in
tandem with, or in substitution for any other Award granted under the Plan or
any award granted under any other plan of the Company or any Affiliate. Awards
granted in addition to or in tandem with other Awards or awards granted under
any other plan of the Company or any Affiliate may be granted either at the same
time as or at a different time from the grant of such other Awards or
awards.
(ii) Limits
on Transfer of Awards.
4
(A) 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) No
Award and no right under any such Award may be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by a Participant otherwise
than by will or by the laws of descent and distribution and any such purported
assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall
be void and unenforceable against the Company or any
Affiliate.
(iii) Common
Unit Certificates. All certificates
for Common 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 Common 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.
(iv) Consideration
for Grants. Awards may be
granted for no cash consideration payable by a Participant or for such
consideration payable by a Participant as the Committee determines including,
without limitation, services or such minimal cash consideration as may be
required by applicable law.
(v) Delivery
of Common Units or other Securities and Payment by Participant of
Consideration. No Common 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
required 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, withholding of Common 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 property so tendered
to, or withheld by, 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.
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:
(i) Amendments
to the Plan. Except as
required by applicable law or the rules of the principal securities exchange on
which the Common Units are traded and subject to Section 7(ii) below, the
Board or the Committee may amend, alter, suspend, discontinue, or terminate the
Plan without the consent of any partner, Participant, other holder or
beneficiary of an Award, or other Person.
(ii) 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(iii), in any Award shall materially reduce the benefit to
Participant without the consent of such Participant.
(iii) Adjustment
or Termination of Awards Upon the Occurrence of Certain Events. The Committee is
hereby authorized to make adjustments in the terms and conditions of, and the
criteria (if any) included in, Awards in recognition of unusual or significant
events (including, without limitation, the events described in Section 4(c)
of the Plan) affecting the Partnership or the financial statements of the
Partnership, of changes in applicable laws, regulations, or accounting
principles, or a change in control of the Company (as determined by its Board)
or the Partnership (as determined by the Committee), 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. Such adjustments may include, without limitation, accelerating
the exercisability of an Award, accelerating the date on which the Award will
terminate and/or canceling Awards by the issuance or transfer of Common Units
having a value equal to the Option’s positive “spread.”
Section 8. General
Provisions.
5
(a) No
Rights to Awards. No Person shall
have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Participants. The terms and conditions of Awards need
not be the same with respect to each recipient.
(b) Termination
of Employment. For purposes of
the Plan, unless the Award agreement provides to the contrary, a Participant
shall not be deemed to have terminated employment with the Company and its
Affiliates or membership from the Board until such date as the Participant is no
longer either an Employee of the Company or an Affiliate or a Director, i.e., a
change in status from Employee to Director or Director to Employee shall not be
a termination.
(c) No Right
to Employment or Services. 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, to continue services as a Consultant
or to remain a Director, as applicable. Further, the Company or an Affiliate may
at any time dismiss a Participant from employment or terminate a consulting
relationship, free from any liability or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award agreement. Nothing in
the Plan or any Award agreement shall operate or be construed as constituting an
employment agreement with any Participant and each Participant shall be an “at
will” employee, unless such Participant has entered into a separate written
employment or other agreement with the Company or an
Affiliate.
(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, without giving effect to principles of
conflicts of 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 Common Units or other consideration under an
Award if, in its sole discretion, it determines that the issuance or transfer or
such Common Units or such other consideration might violate any applicable law
or regulation, the rules of any securities exchange, 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 Fund Created; Unsecured Creditors. 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 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 Affiliate pursuant to an Award, such
right shall be no greater than the right of any general unsecured creditor of
the Company or the Affiliate.
(h) No
Fractional Common Units. No fractional
Common Units shall be issued or delivered pursuant to the Plan or any Award, and
any such fractional Common Units or any rights thereto shall be canceled,
terminated, or otherwise eliminated, without the payment of any consideration
therefor.
(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.
6
(j) Tax
Withholding. The Company or
any Affiliate is authorized to withhold from any Award, from any payment due or
transfer made under any Award or from any compensation or other amount owing to
a Participant the amount (in cash, Common Units 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 or the Affiliate to satisfy its withholding obligations for the
payment of such taxes.
(k) 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 and its Affiliates shall be relieved of any further liability for
payment of such amounts.
(l) Participation
by Affiliates. In making Awards
to Employees employed by an Affiliate of the Company, the Committee shall be
acting on behalf of the Affiliate, and to the extent the Partnership has an
obligation to reimburse the Affiliate for compensation paid to Employees for
services rendered for the benefit of the Partnership, such payments or
reimbursement payments may be made by the Partnership directly to the Affiliate,
and, if made to the Company, shall be received by the Company as agent for the
Affiliate.
Section 9. Term of
the Plan; Unitholder Approval. The Plan shall
be effective on the date of its approval by the Unitholders of the Partnership
and shall continue until the earliest of (i) all available Common Units
under the Plan have been paid to Participants, (ii) the termination of the
Plan by action of the Board or the Committee or (iii) the
10th anniversary of the date of the approval by the Unitholders of this
Plan. 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.
Section 10. Section 409A. Notwithstanding
anything in this Plan to the contrary, if any Plan provision or Award under the
Plan would result in the imposition of an additional tax under Code
Section 409A and related regulations and United States Department of the
Treasury pronouncements (“Section 409A”), that Plan provision or Award will
be reformed to the extent practicable to avoid imposition of the applicable tax
and no action taken to comply with Section 409A shall be deemed to
adversely affect the Participant’s rights to an Award or require the consent of
the Participant. Notwithstanding any provisions in the Plan to the contrary, to
the extent that the Participant is a “specified employee” (as defined in
Section 409A of the Code and applicable regulatory guidance) subject to the
six month delay under Section 409A in distributions under the Plan, no
distribution or payment that is subject to Section 409A of the Code shall
be made hereunder on account of such Participant’s “separation from service” (as
defined in Section 409A of the Code and applicable regulatory guidance)
before the date that is the first day of the month that occurs six months after
the date of the Participant’s separation from service (or, if earlier, the date
of death of the Participant or any other date permitted under Section 409A
of the Code and applicable regulatory guidance). Any such amount that is
otherwise payable within the six-month period following the Participant’s
separation from service will be paid in a lump sum without
interest.
| 7 |
EXHIBIT
4.2
Restricted
Unit Grant
under
the
2008 Enterprise Products Long-Term
Incentive Plan
|
Date
of Grant:
|
||||||||||
|
Name
of Grantee:
|
||||||||||
|
Number
of Units Granted:
|
||||||||||
|
Restricted
Unit Grant Number:
|
R-
|
|||||||||
EPCO,
Inc. (the “Company”) is pleased to inform you that you have been granted the
number of Restricted Units set forth above under the 2008 Enterprise Products
Long-Term Incentive Plan (the “Plan”). A Restricted Unit is a Common Unit of
Enterprise Products Partners L.P. (the “Partnership”) that is subject to the
forfeiture and non-transferability provisions set forth below in this Agreement
(the “Restrictions”). The terms of the grant are as follows:
1. The
Restricted Units shall become fully vested, i.e., not restricted, on the earlier
of (i) the fourth anniversary of the Date of Grant set forth above (the
“Vesting Date”) or (ii) a Qualifying Termination (as defined below). In the
event your employment with the Company and its Affiliates is terminated prior to
the Vesting Date for any reason other than as provided in Section 4 below, the
Restricted Units shall automatically and immediately be forfeited and cancelled
without payment on the date of such termination of employment.
2. The
Restricted Units will be evidenced, at the sole option and in the sole
discretion of the Committee, either (i) in book-entry form in your name in
the Unit register of the Partnership maintained by the Partnership’s transfer
agent or (ii) a unit certificate issued in your name. You shall have voting
rights and shall be entitled to receive all distributions made by the
Partnership on such Restricted Units free and clear of any Restrictions. If the
Restricted Units are evidenced by a certificate, the certificate shall bear the
following legend:
The
Units evidenced by this certificate have been issued pursuant to an agreement
made as of ,
200 , a copy
of which is attached hereto and incorporated herein, between the Company and the
registered holder of the Units, and are subject to forfeiture to the Company
under certain circumstances described in such agreement. The sale, assignment,
pledge or other transfer of the shares of Units evidenced by this certificate is
prohibited under the terms and conditions of such agreement, and such Units may
not be sold, assigned, pledged or otherwise transferred except as provided in
such agreement.
The
Company may cause the certificate to be delivered upon issuance to the Secretary
of the Company as a depository for safekeeping until the forfeiture occurs or
the Restrictions lapse pursuant to the terms of this Agreement. Upon request of
the Company, you shall deliver to the Company a unit power, endorsed in blank,
relating to the Restricted Units then subject to the Restrictions. Upon the
lapse of the Restrictions without forfeiture, the Company shall, upon your
request, cause a certificate or certificates to be issued without legend in your
name evidencing the Restricted Units.
3. None
of the Restricted Units are transferable (by operation of law or otherwise) by
you, other than by will or the laws of descent and distribution. If, in the
event of your divorce, legal separation or other dissolution of your marriage,
your former spouse is awarded ownership of, or an interest in, all or part of
the Restricted Units granted hereby to you (the “Awarded Units”), the Awarded
Units shall automatically and immediately be forfeited and cancelled without
payment on such date.
4. If
your employment with the Company and its Affiliates is terminated (a “Qualifying
Termination”) due to your (i) death, (ii) being disabled and entitled
to receive long-term disability benefits under the
Company’s
long-term disability plan or (iii) retirement with the approval of the
Company on or after reaching age 60, the Restricted Units shall automatically
vest in full upon such termination.
5. In
the event your employment with the Company and its Affiliates terminates for any
reason other than as provided in Section 4 above, your Restricted Units
automatically shall be forfeited without payment on such
termination.
6. Nothing
in this Agreement or in the Plan shall confer any right on you to continue
employment with the Company or its Affiliates or restrict the Company or its
Affiliates from terminating your employment at any time. Employment with an
Affiliate shall be deemed to be employment with the Company for purposes of the
Plan. Unless you have a separate written employment agreement with the Company
or an Affiliate, you are, and shall continue to be, an “at will”
employee.
7.
No issuance of an unrestricted Unit shall be made pursuant to this Agreement
until you have paid or made arrangements approved by the Company or the
Affiliate to satisfy in full any applicable tax withholding obligations pursuant
to applicable law. For purposes of this paragraph, unless you make other
arrangements or are subsequently notified to the contrary, the Company will
satisfy your obligations with respect to any applicable tax withholding by
withholding from the issuance under this Agreement a number of vested Common
Units having a then-fair-market value equal to such tax withholding obligations,
based on the closing price per Common Unit as reported on the New York Stock
Exchange (or other principal stock exchange on which the Common Units are then
listed) on the date of vesting. The Committee has determined that it intends
that the Plan meet the requirements of Rule 16b-3 under the Exchange Act
and that the transactions of the type specified in Rule 16b-3 by
non-employee directors and by officers of the Company (whether or not they are
directors) pursuant to the Plan, including the foregoing net settlement
procedure, will be exempt from the operation of Section 16(b) of the Exchange
Act.
8. Notwithstanding
any other provision of this Agreement, the Company shall not be obligated to
deliver to you any unrestricted Units if counsel to the Company determines such
delivery would violate any law or regulation of any governmental authority or
agreement between the Company or the Partnership and any national securities
exchange upon which the Units are listed or any policy of the Company or any
Affiliate of the Company.
9. These
Restricted Units are subject to the terms of the Plan, which is hereby
incorporated by reference as if set forth in its entirety herein, including,
without limitation, the ability of the Company, in its discretion, to amend your
Restricted Unit award without your approval. In the event of a conflict between
the terms of this Agreement and the Plan, the Plan shall be the controlling
document. Capitalized terms that are used, but are not defined, in this Option
grant award have the respective meanings provided for in the Plan. The Plan, as
in effect on the Date of Grant, is attached hereto as
Exhibit A.
|
EPCO,
INC.
|
||||||
|
By:
|
||||||
|
[Name,
Title]
|
||||||
EXHIBIT
4.3
Option
Grant under the
Amended
and Restated 2008 Enterprise Products Long-Term Incentive Plan
|
Date
of Grant:
|
____________________,
200__
|
|
Name
of Optionee:
|
__________________________
|
|
Option
Exercise Price per Common Unit:
|
$_________
(“Exercise Price”)
|
|
Number
of Options Granted (One
Option
equals the Right to
Purchase
One Common Unit):
|
_________
|
|
Option
Grant Number:
|
O08-_______
|
EPCO,
Inc. (the “Company”) is pleased to inform you that you have been granted options
(the “Options”) under the Amended and Restated 2008 Enterprise
Products Long-Term Incentive Plan (the “Plan”) to purchase units
representing limited partner interests (“Common Units”) of Enterprise Products
Partners L.P. (the “Partnership”) as follows:
1.
You are hereby granted the number of Options to acquire a Common Unit set forth
above, each such Option having the option exercise price set forth
above.
2.
The Options shall become fully vested (exercisable) on the earlier of (i) the
date that is four years after the Date of Grant set forth above (the “Vesting
Date”) and (ii) a Qualifying Termination. A “Qualifying Termination”
means your employment with the Company and its Affiliates is terminated due to
your (a) death, (b) receiving long-term disability benefits under the
Company’s long-term disability plan provided such disability qualifies as a
“disability” under Section 409A of the Internal Revenue Code of 1986, as amended
(“Section 409A”), or (c) retirement with the approval of the Company on or after
reaching age 60.
3.
Subject to the further provisions of this Agreement and the Plan, the Options,
to the extent vested, may be exercised (in whole or in part or in two or more
successive parts) during your employment with the Company and its Affiliates
only during the month of February, May, August or November (a “Qualified Month”)
in the first (1st) calendar year following the year in which the Vesting
Date occurs (and the Option will expire at the end of such year if it is not so
exercised). In the event your employment with the Company and its
Affiliates is terminated prior to the Vesting Date for any reason other than a
Qualifying Termination, the Options shall automatically and immediately be
forfeited and cancelled unexercised on the date of such termination of
employment. For purposes of this Option grant award, the term “year” shall mean
a period comprised of 365 (or 366, as appropriate) days beginning on a day
of a calendar year and ending on the day immediately preceding
the corresponding day of the next calendar year. For example, if the Date
of Grant of an Option grant award is May 20, 2008, one year after the Date of
Grant would be May 20, 2009, the Vesting Date would be May 20, 2012
(assuming no earlier Qualifying Termination) and the calendar year in which the
Options could be exercised (except as described in Sections 7 and 8 hereof)
would be 2013.
4.
To the extent vested and subject to the procedures set forth in Addendum
No. 2, the Options may be exercised by submitting the “Options
Transaction Clearance Request and Tax Withholding Election” (“Transaction
Request”) with respect to such exercise which references the Option Grant Number
set forth above and the number of Options (or Common Units relating thereto)
which are being exercised. Such Transaction Request shall be delivered or mailed
to the Company at its corporate offices in Houston, Texas, as
follows:
Mailing Address:
EPCO, Inc., P.O. Box 4324, Houston, Texas 77210-4324, Attention: Sr. Vice President, Human
Resources
Delivery Address:
EPCO, Inc., 1100 Louisiana, 10th Floor, Houston, Texas 77002, Attention: Sr.
Vice President, Human
Resources
An
election to exercise shall be made in accordance with Addendum
No. 2 and shall be irrevocable. If you are an employee of the Company or
an Affiliate and such exercise occurs other than in a Qualified Month, it shall
be deemed exercised in the next Qualified Month.
5.
No exercise shall be effective until you have made arrangements acceptable to
the Company and in accordance with the Plan to satisfy the aggregate Exercise
Price and all applicable tax withholding requirements of the Company, if any,
with respect to such exercise.
6.
None of the Options are transferable (by operation of law or otherwise) by you,
other than by will or the laws of descent and distribution. If, in the event of
your divorce, legal separation or other dissolution of your marriage, your
former spouse is awarded ownership of, or an interest in, all or part of the
Options granted hereby to you (the “Awarded Options”), (i) to the extent the
Awarded Options are not fully vested, the Awarded Options shall automatically
and immediately be forfeited and cancelled unexercised as of the original date
of the award thereof and (ii) to the extent the Awarded Options are fully
vested, the Company, in its sole discretion, may at any time thereafter, during
the period in which the Awarded Options are exercisable under the terms of the
domestic relations order providing for the assignment, cancel the Awarded
Options by delivering to such former spouse Common Units having an aggregate
Fair Market Value on the payment date equal to the excess of the aggregate Fair
Market Value of the Common Units subject to the Awarded Options over their
aggregate Exercise Price.
7.
In the event you terminate employment with the Company and its Affiliates for
any reason (which termination is a “separation from service” under Section 409A
of the Internal Revenue Code) other than a Qualifying Termination, the Options,
if fully vested, may be exercised by you (or, in the event of your death, by the
person to whom your rights shall pass by will or the laws of the descent and
distribution (“Beneficiary”)) only during the Qualified Month next following
your employment termination date. If you cease to be an “active,
full-time employee”, as determined by the Company in its sole discretion,
without regard as to how your status is treated by the Company for any of its
other compensation or benefit plans or programs, you will be deemed to have
terminated employment with the Company and its Affiliates for purposes of this
Agreement.
8.
In the event of a Qualifying Termination or an “unforeseeable emergency” (as
defined in Section 409A) which is approved by the Company, the vested portion of
the Options may be exercised by you only during the Qualified Month next
following such event. Notwithstanding the above, in the event such Qualifying
Termination is due to your death, the vested portion of the Options may be
exercised by your Beneficiary only during the second Qualified Month next
following such event.
9.
Nothing in this Agreement or in the Plan shall confer any right on you to
continue employment with the Company or its Affiliates or restrict the Company
or its Affiliates from terminating your employment at any time. Unless you have
a separate written employment agreement with the Company or an Affiliate, you
are, and shall continue to be, an “at will” employee.
-2-
10.
Notwithstanding any other provision of this Agreement, the Options shall not be
exercisable, and the Company shall not be obligated to deliver to you any Common
Units, if counsel to the Company determines such exercise or delivery, as the
case may be, would violate any law or regulation of any governmental authority
or agreement between the Company and any national securities exchange upon which
the Common Units are listed or any policy of the Company or any Affiliate of the
Company.
11.
Notwithstanding any other provision of this Agreement, if you give notice of
exercise within a “quiet period,” as provided in Addendum
No. 1 hereto, the timing of the delivery of Common Units pursuant to your
exercise shall be governed by the terms of Addendum
No. 1. Further, the Company shall have no liability to you for any loss
you may suffer (whether by a decrease in the value of the Common Units, failure
or inability to receive Partnership distributions or otherwise) from any delay
by the Company in delivering to you Common Units in connection with the whole or
partial exercise by you of the Options.
12.
These Options are subject to the terms of the Plan, which is hereby incorporated
by reference as if set forth in its entirety herein, including, without
limitation, the ability of the Company, in its discretion, to accelerate the
termination of the Option and to amend your Option grant award without your
approval. In the event of a conflict between the terms of this Agreement and the
Plan, the Plan shall be the controlling document. Capitalized terms that are
used, but are not defined, in this Option grant award have the respective
meanings provided for in the Plan. The Plan, as in effect on the Date of Grant,
is attached hereto as Exhibit
A.
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EPCO,
Inc.
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By:_________________________________
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____________, Vice President
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EXHIBIT 5.1
 |
600
Travis, Suite 4200
Houston,
Texas 77002
713.220.4200
Phone
713.220.4285
Fax
andrewskurth.com
|
Austin
Beijing
Dallas
Houston
London
Los
Angeles
New
York
The
Woodlands
Washington,
DC
|
May 6,
2008
Enterprise
Products Partners L.P.
1100
Louisiana, 10th Floor
Houston,
Texas 77002
Ladies
and Gentlemen:
We have acted as counsel to Enterprise
Products Partners
L.P., a Delaware limited partnership (the “Partnership”),
in connection with the preparation of the registration statement on Form
S-8 (the “Registration
Statement”) to be filed with the Securities and Exchange Commission (the
“SEC”)
in connection with the registration by the Partnership under the
Securities Act of 1933, as amended (the “Securities
Act”), of the offer and sale of up to 10,000,000 common units
representing limited partner interests in the Partnership (the “Units”), for issuance
under the Amended and Restated 2008 Enterprise Products Long-Term Incentive
Plan (the “Plan”).
As the basis for the opinion
hereinafter expressed, we have examined: (i) originals, or copies certified or
otherwise identified, of (a) the Plan; (b) the Certificate of Limited
Partnership of the Partnership, as amended to date; (c) the Fifth Amended and
Restated Agreement of Limited Partnership of the Partnership and the First
Amendment to the Fifth Amended and Restated Agreement of Limited Partnership of
the Partnership; (d) the Certificate of Formation of Enterprise Products GP,
LLC, a Delaware limited liability company and the general partner of the
Partnership (the “General Partner”), as
amended to date; (e) the Fifth Amended and Restated Limited Liability Company
Agreement of the General Partner; (f) certain resolutions of the Board of
Directors of the General Partner; (g) certain resolutions of the Audit,
Conflicts and Governance Committee of the Board of Directors of the General
Partner; and (h) such other instruments and documents as we have deemed
necessary or advisable for the purposes of this opinion; and (ii) such statutes,
including the Delaware Revised Uniform Limited Partnership Act (the “Delaware Act”), and
regulations as we have deemed necessary or advisable for the purposes of this
opinion. We have not independently verified any factual matter
relating to this opinion.
Enterprise
Products Partners L.P.
May 6,
2008
Page
2
In making our examination, we have
assumed and have not verified that all signatures on documents examined by us
are genuine, the authenticity of all documents submitted to us as originals and
the conformity with the original documents of all documents submitted to us as
certified, conformed or photostatic copies.
Based on the foregoing and on such
legal considerations as we deem relevant and subject to the qualifications and
limitations set forth below, we are of the opinion that the Units have been duly
authorized and, when issued in accordance with the Plan, will be validly issued,
fully paid and non-assessable.
We express no opinion other than as to
the federal laws of the United States of America and the Delaware Act (including
the statutory provisions, all applicable provisions of the Delaware constitution
and reported judicial decisions interpreting the foregoing). For
purposes of this opinion, we assume that the Units will be issued in compliance
with all applicable state securities or Blue Sky laws.
We hereby consent to the filing of this
opinion as Exhibit 5.1 to the Registration Statement. In giving this
consent, we do not thereby admit that we are included in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the SEC issued thereunder.
Our opinion is rendered as of the date
hereof, and we assume no obligation to update or supplement our opinion to
reflect any change of fact, circumstance or law after such time.
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Very
truly yours,
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/s/
Andrews Kurth LLP
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EXHIBIT
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form
S-8 of our reports relating to the financial statements of Enterprise Products
Partners L.P. and the effectiveness of Enterprise Products Partners L.P.'s
internal control over financial reporting dated February 28, 2008, appearing in
the Annual Report on Form 10-K of Enterprise Products Partners L.P. for the year
ended December 31, 2007.
DELOITTE
& TOUCHE LLP
Houston,
Texas
May 6,
2008