EXHIBIT 10.1
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[Date}
Dear [__________]:
We value your contributions and are therefore pleased to grant you the award of performance- based Phantom Units (the “PA”) described below. The PA is granted under the Western Gas Partners, LP 2017 Long-Term Incentive Compensation Plan (the “Plan”) and is subject to all terms and conditions of the Plan and the provisions of this agreement (this “Award Agreement”). Unless defined herein, capitalized terms shall have the meaning assigned to them under the Plan. For the avoidance of doubt, references in the Plan to (i) the “Company” mean Western Midstream Holdings, LLC and (ii) the “Partnership” mean Western Midstream Partners, LP.
Effective [Grant Date], (“Grant Date”), you have been granted an award of PA units in a targeted amount of [XX,XXX] (“Target”). The value of this PA, if any, will be dependent upon the Partnership’s relative total unitholder return (“TUR”) over the specified three-year performance period that begins January 1, 2023 and ends December 31, 2025 (the “Performance Period”).
The maximum number of Partnership common units (“Common Units”) issuable under this PA will be calculated as follows [XX,XXX] x 200%, with actual payout based on the Partnership’s TUR percentile ranking relative to a predetermined peer group during the Performance Period. The TUR measure provides an external comparison of the Partnership’s performance in generating value for its equity holders and will be calculated as follows:
Average closing Common Unit Price for the last 30 trading days of the Performance Period
Minus
Average closing Common Unit Price for the 30 trading days preceding the beginning of the Performance Period
Plus
Distributions paid per Common Unit over the Performance Period (based on ex-dividend date)
Total Above Divided By
Average closing Common Unit Price for the 30 trading days preceding the beginning of the Performance Period
The actual number of Common Units that will be issuable is based upon the Partnership’s relative TUR percentile ranking as follows:
| | | | | | | | | | | |
| WES TUR Payout Schedule |
| 3 Year TUR Performance | ≥ 25th Percentile | ≥ 50th Percentile | ≥ 75th Percentile |
| Payout Percentage of Target | 50% | 100% | 200% |
For example, if you were awarded 1,000 target PA units and the Partnership’s relative percentile ranking for the Performance Period is the 25th percentile, you will receive 500 PA units (1,000 x 50%) at the end of the Performance Period (subject to the other terms and conditions of this Award Agreement).
In addition to Western Midstream Partners, LP, the peer group for the Performance Period includes Antero Midstream Corporation, Enterprise Products Partners L.P., Magellan Midstream Partners LP, Targa Resources Corp., Crestwood Equity Partners LP, Equitrans Midstream Corporation, MPLX LP, The Williams Companies, Inc., Energy Transfer LP, Genesis Energy LP, ONEOK, Inc., EnLink Midstream LLC, Kinetik Holdings Inc., and Plains All American Pipeline, L.P.. If at any time during the Performance Period, a member of the peer group files for bankruptcy or fails to meet the listing requirements of the securities exchange on which such peer company is listed, then such member shall be deemed to fall to the bottom of the relative TUR percentile ranking for the Performance Period. If at any time during the Performance Period, a member of the peer group is acquired, ceases to exist, ceases to be a publicly traded partnership, spins off 25% of more of its assets, or sells all or substantially all of its assets, then the Committee may, in its discretion, (i) drop such company out of the peer group and recalculate the results, (ii) applying conventions the Committee deems appropriate under the circumstances, calculate such company’s ranking position at the time of such event and freeze its relative TUR percentile ranking, or (iii) drop such company to the bottom of the relative TUR ranking.
After the end of the Performance Period, payment for PA units will be made in Common Units, which will be issued to you as promptly as practicable after the Board of Director’s certification of attainment of the TUR (which such payment and certification shall occur no later than 70 days following the end of the Performance Period), and in any event no later than the 15th day of the third month following the end of the first taxable year in which the PA units are no longer subject to a substantial risk of forfeiture.
The number of PA units that vest shall be paid in the form of Common Units and such Common Units shall be delivered to you into a Fidelity brokerage account, provided, however, that the number of Common Units delivered to you will be reduced by applicable payroll and other tax withholdings unless you have elected to make a cash payment to the Company or the Employer to satisfy such withholdings or have made other arrangements acceptable to the Company and the Employer (defined below) in accordance with Section 8(b) of the Plan; provided further, however, if you are subject to Section 16 of the Exchange Act, such other arrangements must be approved by the Committee. As used herein, “Employer” means the Partnership or any of its subsidiaries that employs you at the relevant time, and “Employer Group” means the Partnership and its subsidiaries, collectively.
The PA will have tandem distribution equivalent rights (“DERs”) in respect of any distribution paid to holders of Common Units during the period beginning on the Grant Date and ending on the earlier of (x) the date Common Units are issued to you in settlement of this PA and (y) the forfeiture of this PA, as described below. With respect to any such distribution paid to holders of Common Units, an unvested amount of cash on each Phantom Unit then outstanding equal to the distribution paid to holders of Common Units will accrue, without interest, and will be paid out at the same time that the underlying Common Units are delivered to you in respect of the settlement of this PA. With respect to DERs, the Company shall pay to you a cash amount equal to (x) the sum of the aggregate amount of such DERs
accrued in accordance with the preceding sentence, multiplied by (y) the payout as percent of Target earned. For example, if you accrue $1,000 in DERs during the Performance Period, and the Partnership’s relative percentile ranking for the Performance Period is 5th, you will receive $1,840 ($1,000 x 184%) with respect to your DERs (subject to the other terms and conditions of this Award Agreement). Any accrued DERs attributable to PA units that are canceled or forfeited will not be paid and are immediately forfeited upon cancelation of the related PA units.
The grant of this Award requires your acceptance of the PA and its terms and conditions. By acknowledging receipt of this grant agreement and signifying acceptance online through your Fidelity account, you accept and agree to abide by the terms and conditions under the Plan and the provisions of this Award Agreement. If you fail to accept the PA, then, notwithstanding any other provision of this Award Agreement, you shall forfeit all rights under the PA (including all units and any DERs with respect thereto) and the PA will become null and void.
All of your unvested PA units (and any DERs relating to your unvested PA units) will be immediately forfeited if your employment with the Employer Group terminates for any reason prior to settlement or, if earlier, a Change of Control, except as provided in the paragraphs below.
In the event your employment with the Employer Group terminates due to (i) your death or (ii) the Employer terminates your employment due to your disability (as determined by the applicable long-term disability program in which you participate or were eligible to participate) (“Disability”), the PA units will be paid to you (or, in the case of your death, your beneficiary) pursuant to the terms and conditions above based on the level of achievement of TUR through the end of the Performance Period or the date of a Change of Control, as applicable, as if you had remained employed through the settlement date.
If (x) your employment with the Employer Group is terminated by the Employer without Cause or (y)you voluntarily resign from employment with the Employer Group with the consent of the Company under circumstances the Company, in its sole discretion, determines at the time of such resignation to constitute “Retirement” for purposes of this Award (“Retirement”) (each of the foregoing, a “Pro-Rata Vesting Event”), then a pro-rata portion of the PA units (equal to the number obtained by multiplying the Target by a fraction, the numerator of which is the number of days between the beginning of the Performance Period and the Pro-Rata Vesting Event and the denominator of which is the total number of days in the Performance Period) shall remain eligible to vest as if you had remained employed through the settlement date, and will be paid to you pursuant to the terms and conditions above based on the level of achievement of TUR through the end of the Performance Period or the date of a Change of Control, as applicable, and all other PA units shall be immediately forfeited.
Notwithstanding the preceding provisions of this Award Agreement, the following provisions shall apply in the event a Change of Control occurs prior to the end of the Performance Period and while your PA units remain outstanding, subject to the Committee’s discretion to take any other action with respect to the PA units in accordance with Section 7(c) of the Plan:
(i) The Partnership’s relative TUR percentile ranking shall be determined as if the date upon which the Change of Control occurs (the “Change of Control Date”) is the last day of the Performance Period, and a calculation of the value of the earned PA units for the Performance Period will be made as of such date (the “PA Unit Amount”), which amount will be equal to your Target multiplied by the applicable percentage under the “Payout as % of Target” column of the table above based on the Partnership’s relative TUR percentile ranking for the shortened Performance Period;
(ii) Without limiting Section 7(c) of the Plan, prior to the Change of Control Date, the Committee, in its discretion, may determine that the PA Unit Amount shall be converted on the Change of Control Date into restricted equity units in respect of the common equity security of the successor or surviving entity (the “Surviving Company”), the number of which shall be
determined equitably and in good faith by the Committee based on the relative equity values of the Partnership and the Surviving Company, and the terms of which shall include the following:
a. Subject to the provisions of clauses (b), (c) and (d) below, (1) each such restricted equity unit shall vest subject to continued employment through the last day of the Performance Period (determined without regard to the occurrence of the Change of Control) and shall be paid in the form of (x) a cash amount equal to the fair market value of the common equity security of the Surviving Company as of the last day of the Performance Period, (y) unrestricted equity of the Surviving Company or (z) a combination thereof, as determined by the Committee, (2) such payment amount, less applicable withholding taxes, shall be paid to you within 10 days after the end of the Performance Period (determined without regard to the occurrence of the Change of Control); and (3) an amount of cash equal to all DERs accrued during the Performance Period multiplied by the applicable percentage under the “Payout as % of Target” column of the table above based on the Partnership’s relative TUR percentile ranking for the Performance Period shall be paid to you, less applicable withholding taxes, within 10 days after the end of the Performance Period;
b. If following a Change of Control, your employment is terminated by the Employer without Cause, you resign from your employment for Good Reason, you die or your employment terminates due to your Disability, then (i) any restricted equity units into which the PA Unit Amount has been converted shall immediately vest and be paid to you, less applicable withholding taxes, within 10 days following such termination (with each vested restricted equity unit payable in (x) a cash amount equal to the fair market value of the common equity security of the Surviving Company as of the date of termination, (y) unrestricted equity of the Surviving Company or (z) a combination thereof, as determined by the Committee), and (ii) an amount of cash equal to all DERs accrued during the Performance Period multiplied by the applicable percentage under the “Payout as % of Target” column of the table above based on the Partnership’s relative TUR percentile ranking for the shortened Performance Period determined as if the Change of Control Date is the last day of the Performance Period, shall be paid to you, less applicable withholding taxes, within 10 days following such termination;
c. In the event of your Retirement after the Change of Control Date, (i) a pro- rated portion of any restricted equity units into which the PA has been converted shall immediately vest and be paid to you, less applicable withholding taxes, within 10 days following the effective date of your Retirement (in cash, unrestricted equity or a combination thereof in the same manner as contemplated in clause (b) above), and (ii) a pro-rated cash payment in respect of DERs accrued during the Performance Period multiplied by the applicable percentage under the “Payout as % of Target” column of the table above based on the Partnership’s relative TUR percentile ranking for the shortened Performance Period determined as if the Change of Control Date is the last day of the Performance Period. The pro-rated portion described in the foregoing sentence shall be based on a fraction, the numerator of which is the number of days between the first day of the Performance Period (the “Vesting Start Date”) and the Retirement date and the denominator of which is the number of days between the Vesting Start Date and the end of the Performance Period (determined without regard to the Change of Control); and
d. Except as set forth in clauses (b) and (c) above, if your employment terminates after a Change of Control but before the end of the Performance Period (determined without regard to the Change of Control), then any restricted equity units into which the PA Unit Amount has been converted will be immediately forfeited.
(iii) If prior to a Change of Control, your employment terminated due to your death, Disability or Retirement, then (i) any unvested PA units (in the case of your death or Disability) or the pro-rata portion of your unvested PA units (in the case of your Retirement) that remained outstanding
and eligible to vest based on actual performance will be paid within 10 days following the Change of Control Date based on the Partnership’s relative TUR percentile ranking for the shortened Performance Period determined as if the Change of Control Date is the last day of the Performance Period in accordance with clause (i) above; and (ii) an amount of cash equal to all DERs accrued during the Performance Period (in the case of your death or Disability) or the pro-rata portion of your unvested DERs (in the case of your Retirement) multiplied by the applicable percentage under the “Payout as % of Target” column of the table above based on the Partnership’s relative TUR percentile ranking for the shortened Performance Period determined as if the Change of Control Date is the last day of the Performance Period in accordance with clause (i), above, shall be paid to you, less applicable withholding taxes, within 10 days following such Change of Control Date.
For purposes of this Award Agreement, “Good Reason” means (i) your duties and responsibilities as an employee are materially and adversely diminished in comparison to the duties and responsibilities enjoyed immediately prior to the Change of Control, (ii) your base salary is materially reduced in comparison to the base salary enjoyed immediately prior to the Change of Control, (iii) the aggregate value of your base salary plus target incentive compensation (target annual bonus plus target annual long-term incentive award opportunity) is materially reduced in comparison to the aggregate value of your base salary plus target incentive compensation immediately prior to the Change of Control, (iv) you are required to be based at a location more than 25 miles from the primary location where you were based and performed services immediately prior to the Change of Control, (v) you are required by the Employer to take an assignment or position that requires you to travel on frequent overnight trips resulting in extended stays away from home on a consistent basis and to a substantially greater extent than was required immediately prior to the Change of Control (this provision excludes assignments or positions that might require temporary travel for a specified, short duration of time, regardless of whether such assignment or position is the result of circumstances related to the Change of Control) or (vi) you are required, without your consent, to perform in a job position, or substantial job assignment, for which you are not skilled or trained.
For purposes of this Award Agreement, “Cause” means (a) your conviction of any felony or of a misdemeanor involving moral turpitude, (b) your willful failure to perform your duties or responsibilities, (c) your engaging in conduct which is injurious (monetarily or otherwise) to the Employer, the Company, the Partnership or any of their Affiliates (including, without limitation, misuse of funds or other property), (d) your engaging in business activities which are in conflict with the business interests of the Partnership and its Affiliates, (e) your insubordination, (f) your engaging in conduct which is in violation of any applicable policy or work rule of the Employer or its Affiliates, (g) your engaging in conduct which is in violation of the Employer’s (or its Affiliates’) applicable safety rules or standards or which otherwise causes or may cause injury to another employee or any other person or (h) your engaging in conduct which is in violation of any applicable Code of Business Conduct and Ethics or which is otherwise inappropriate in the office or work environment. For purposes of clause (b) above, no act or failure to act, on your part, shall be considered “willful” unless it is done, or omitted to be done, by you in bad faith or without reasonable belief that your action or omission was in the best interests of the Partnership and its Affiliates. Any act, of failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of legal counsel for the Company or its Affiliates shall be conclusively presumed to be done, or omitted to be done, by you in good faith and in the best interests of the Partnership and its Affiliates.
Notwithstanding the foregoing, if at any particular time you are subject to an effective employment agreement or change in control agreement with the Company, the Employer or any of their Affiliates, then, in lieu of the foregoing definition, “Good Reason” and “Cause” shall at that time have such meaning as may be specified in such employment agreement or change in control agreement, as applicable.
For purposes of this Award Agreement, “Change of Control” does not have the meaning set forth in the Plan and instead means, and shall be deemed to have occurred upon, any of the following events: (i) any “person” or “group” within the meaning of those terms as used in Sections 13(d) and 14(d)(2) of the
Exchange Act, other than an Excluded Person (defined below), shall become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act), by way of merger, consolidation, recapitalization, reorganization or otherwise, of more than 50% of the combined voting power of the equity interests in the Company, unless as a result of such transaction, more than 50% of the outstanding voting power or the outstanding voting securities of the ultimate parent (the “Ultimate Parent”) of the surviving or resulting entity of the Company immediately after such transaction (the “Surviving Entity”) (or, if no Ultimate Parent exists, then the Surviving Entity) is, or will be, owned, directly or indirectly, by the Persons who were holders of the Company’s voting securities immediately before such transaction (such transaction, an “Excluded Business Combination”), (ii) the equity holders of the Partnership approve, in one or a series of transactions, a plan of complete liquidation of the Partnership, (iii) the sale, transfer or other disposition by the Partnership of all or substantially all of its assets in one or more transactions to any Person other than an Affiliate of the Company or the Partnership, unless such sale, transfer or disposition is an Excluded Business Combination, or (iv) the Company or an Affiliate of the Company ceases to be the general partner of the Partnership and a single “person” or “group” within the meaning of those terms as used in Sections 13(d) and 14(d)(2) of the Exchange Act, other than an Excluded Person, beneficially owns more than 50% of the combined voting power of the equity interests in the entity that is or becomes the general partner of the Partnership. Notwithstanding the foregoing, (A) with respect to a 409A Award where a Change of Control would accelerate the timing of payment thereunder, the term “Change of Control” shall mean a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company as defined in Section 409A of the Code and the 409A Regulations, but only to the extent inconsistent with the above definition, and only to the minimum extent necessary to comply with Section 409A of the Code and the 409A Regulations as determined by the Committee and (B) in no event will any sale, transfer or other disposition by Occidental Petroleum Corporation (“Oxy”) or its Affiliates of Common Units (or other limited partner interests in the Partnership), regardless of amount, constitute a Change of Control hereunder (whether or not such sale, transfer or disposition would otherwise constitute a Change of Control). “Excluded Person” means the Partnership, the Company, Oxy or any respective Affiliate of the Company, the Partnership or Oxy.
If the Partnership is required to prepare an accounting restatement due to the material noncompliance of the Partnership, as a result of misconduct, with any financial reporting requirement under the securities laws, and if you knowingly engaged in the misconduct, were grossly negligent with respect to such misconduct, or knowingly or grossly negligently failed to prevent the misconduct (whether or not you are one of the individuals subject to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002, Section 954 of the Dodd- Frank Wall Street Reform and Consumer Protection Act or other applicable law or regulation), the Committee may determine that you shall reimburse the Partnership the amount of any payment in settlement of an Award earned or accrued during the 12-month period following the first public issuance or filing with the United States Securities and Exchange Commission (whichever first occurred) of the financial document embodying such financial reporting requirement.
Common Units issued upon payment of the PA shall be subject to the terms of the Plan and the Second Amended and Restated Agreement of Limited Partnership of Western Midstream Partners, LP, dated as of December 31, 2019, (the “Partnership Agreement”). Upon the issuance of Common Units, you shall, automatically and without further action, (i) be admitted to the Partnership as a Limited Partner (as defined in the Partnership Agreement) with respect to the Common Units, and (ii) become bound, and be deemed to have agreed to be bound, by the terms of the Partnership Agreement. Until Common Units are issued to you upon payment of the PA, you shall have any of the rights or privileges of a holder of Common Units in respect of any Common Units that may become deliverable hereunder.
Notwithstanding anything herein to the contrary, in lieu of delivering Common Units to you upon payment of the PA, the Company may elect at its discretion to pay or cause to be paid some or all of the PA in cash equal to the Fair Market Value of the Common Units that would otherwise be distributed as of the date of payment or vesting.
Notwithstanding anything herein to the contrary, no amounts payable under this Award Agreement shall be paid to you prior to the expiration of the six-month period following your “separation from
service” (within the meaning of Treasury Regulation Section 1.409A- 1(h)) (a “Separation from Service”) to the extent that the Company determines that paying such amounts prior to the expiration of such six-month period would result in a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the first business day following the end of the applicable six-month period (or such earlier date upon which such amounts can be paid under Section 409A of the Code without resulting in a prohibited distribution, including as a result of your death), such amounts shall be paid to you. The intent of the parties is that the payments and benefits under this Award Agreement comply with or be exempt from Section 409A of the Code and, accordingly, to the maximum extent permitted, this Award Agreement shall be interpreted to be in compliance therewith. Nevertheless, to the extent that the Committee determines that the PA or DERs may not be exempt from (or compliant with) Section 409A of the Code, the Committee may (but shall not be required to) amend this Award Agreement in a manner intended to comply with the requirements of Section 409A of the Code or an exemption therefrom (including amendments with retroactive effect), or take any other actions as it deems necessary or appropriate to attempt to (a) exempt the PA or DERs from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the PA or DERs, or (b) comply with the requirements of Section 409A of the Code. To the extent applicable, this Award Agreement shall be interpreted in accordance with the provisions of Section 409A of the Code. For purposes of Section 409A, each of the payments that may be made hereunder is designated as a separate payment. Notwithstanding anything in this Award Agreement to the contrary, to the extent that any payment or benefit hereunder constitutes non-exempt “nonqualified deferred compensation” for purposes of Section 409A of the Code, and such payment or benefit would otherwise be payable or distributable hereunder by reason of your termination of employment, all references to your termination of employment shall be construed to mean a Separation from Service, and you shall not be considered to have a termination of employment unless such termination constitutes a Separation from Service.
If you have any questions on this grant, please contact your HR representative.
Sincerely,
Michael P. Ure
