GENESIS
ENERGY
AMENDED
AND RESTATED
SEVERANCE
PROTECTION PLAN
ARTICLE
I
ESTABLISHMENT
AND AMENDMENT OF PLAN
As
of the
Effective Date, Genesis Energy, Inc. (the "Company") hereby establishes a
severance compensation plan known as the Genesis Energy Severance Protection
Plan (the "Plan"), as set forth in this document. This Plan is intended to
be a
“Severance Plan” within the meaning of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") and the applicable regulations promulgated
thereunder.
As
of the
December 12, 2006, the Company amended the Plan to reflect changes to the
participants classified as Investment Committee Members or Management Group
Employees in the Plan.
ARTICLE
II
DEFINITIONS
As
used
herein, the following words and phrases shall have the following respective
meanings unless the context clearly indicates otherwise.
Section
2.1 Administrator. The Board or any committee thereof as may be appointed
from
time to time by the Board to supervise the administration of the Plan.
Section
2.2 Affiliate. With respect to a specified person, a person that directly
or
indirectly through one or more intermediaries, controls, is controlled by,
or is
under common control with the specified person.
Section
2.3 Base Salary. The amount a Participant is entitled to receive as wages
or
salary on an annualized basis, calculated on the basis of their salary rate
on
either the date immediately prior to a Change in Control or their Termination
Date, whichever amount is higher.
Section
2.4 Board. The Board of Directors of the Company.
Section
2.5 Bonus Amount. An amount equal to fifty percent (50%) of the total amount
of
bonuses awarded to the Participant during the twenty-four months prior to
the
date of the Change in Control.
Section
2.6 Cause. An Employer shall have "Cause" to terminate a Participant if the
Participant (i) willfully and continually fails to substantially perform
his
duties with the Employer (other than a failure resulting from the Participant's
incapacity due to physical or mental illness) which failure continues for
a
period of at least thirty (30) days after a written notice of demand for
substantial performance has been delivered to the Participant specifying
the
manner in which the
Participant
has failed to substantially perform, or (ii) willfully engages in conduct
which
is demonstrably and materially injurious to the Employer, monetarily or
otherwise; provided, however, that no termination of the Participant's
employment shall be deemed for Cause for purposes of this Plan until there
shall
have been delivered to the Participant a copy of a written notice specifying
in
detail the particulars of the Participant's conduct which violates either
(i) or
(ii) above. No act, nor failure to act, on the Participant's part, shall
be
considered "willful" unless he has acted or failed to act with an absence
of
good faith and without a reasonable belief that his action or failure to
act was
in the best interest of the Employer. Notwithstanding anything contained
in this
Plan to the contrary, no failure to perform by the Participant after Notice
of
Termination is given by or to the Participant shall constitute Cause.
Section
2.7 Change in Control. A "Change in Control" shall mean any one of the
following:
(a)
"Continuing Directors" no longer constitute a majority of the Board of Directors
of the “Ultimate Parent”; the term "Continuing Director" means any individual
who has served in such capacity for one year or more; and the term “Ultimate
Parent” means Denbury Resources, Inc. and any entity that becomes the beneficial
owner of the predecessor Ultimate Parent pursuant to a reorganization in
which
the stockholders of such entity immediately after such reorganization are
substantially identical to the stockholders of the predecessor Ultimate Parent.
(b)
after
the date of adoption of the Plan, any person or group of persons acting together
as an entity (other than the Ultimate Parent and its Affiliates) become (i)
the
beneficial owners (as defined in Rule 13d-3 under the Securities Exchange
Act of
1934, as amended (the “Exchange Act”)) directly or indirectly, of shares of
common stock representing thirty percent (30%) or more of the voting power
of
the Ultimate Parent’s then outstanding securities entitled generally to vote for
the election of the Ultimate Parent’s directors, and (ii) the largest beneficial
owner directly or indirectly of the Ultimate Parent’s then outstanding
securities entitled generally to vote for the election of the Ultimate Parent’s
directors;
(c)
the
merger, consolidation, share exchange or similar transaction to which the
Ultimate Parent is a party if (i) the stockholders of the Ultimate Parent’s
immediately prior to the effective date of such transaction have beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act) of less than
forty
percent (40%) of the combined voting power to vote for the election of directors
of the surviving corporation or other entity following the effective date
of
such transaction; or (ii) fifty percent (50%) or more of the individuals
constituting the members of the Investment Committee of the Ultimate Parent
are
terminated due to the Change in Control; or
(d)
the Company and/or other wholly-owned (directly or indirectly) subsidiaries
of
the Ultimate Parent cease to own more than 50% of the general partner interest
of the Partnership, or the sale, including by merger, consolidation, share
exchange or similar reorganization of all or substantially all, of the
assets of
the Partnership or the liquidation or dissolution of the Partnership, other
than
a sale to a wholly-owned subsidiary of the Ultimate Parent.
Notwithstanding
the foregoing provisions of this Section 2.7, if a Participant's employment
with
the Employer is terminated by the Employer other than for "Cause" within
six
months prior to
the
date
on which a Change in Control occurs, such termination shall be deemed to
have
occurred immediately following a Change in Control.
Notwithstanding
anything herein to the contrary, under no circumstances except those expressly
provided above will a change in the constitution of the board of directors
of
any Subsidiary, a change in the beneficial ownership of any Subsidiary, the
merger, consolidation, share exchange or similar reorganization of a Subsidiary
with any other entity, the sale of all or substantially all of the assets
of any
Subsidiary or the liquidation or dissolution of any Subsidiary constitute
a
"Change in Control" under this Plan.
Section
2.8 Common Shares. “Common Shares” shall mean shares of common stock, $.001 par
value of the Company.
Section
2.9 Company. Genesis Energy, Inc., a Delaware corporation.
Section
2.10 Effective Date. The date the Plan is approved by the Board or such other
date as the Board shall designate in its resolution approving the Plan.
Section
2.11 Employer. “Employer” shall mean the Company and any Subsidiary which adopts
this Plan as a Participating Employer. With respect to a Participant who
is not
an employee of the Company, any reference under this Plan to such Participant's
"Employer" shall refer only to the employer of the Participant, and in no
event
shall be construed to refer to the Company as well.
Section
2.12 Good Reason. "Good Reason" shall mean the occurrence of any of the
following events or conditions:
(a)
a
change in the Participant's status, title, position or responsibilities
(including reporting responsibilities) which, in the Participant's reasonable
judgment, represents a substantial reduction of the status, title, position
or
responsibilities as in effect immediately prior thereto; the assignment to
the
Participant of any duties or responsibilities which, in the Participant's
reasonable judgment, are inconsistent with such status, title, position or
responsibilities; or any removal of the Participant from, or failure to
reappoint or reelect him to, any such position with the Employer, including,
but
not limited to corporate officer positions or positions as a member of the
Investment Committee, except in connection with the termination of his
employment for Cause or by the Participant other than for Good Reason;
(b)
a
reduction in the Participant's Base Salary, as such base salary may be increased
from time to time thereafter, or the failure by the Employer to provide the
Participant with compensation and benefits at least equal (in terms of benefit
levels and/or reward opportunities) to those provided for under each employee
benefit plan, program and practice as in effect immediately prior to the
Change
in Control (or as in effect following the Change in Control, if greater),
including, but not limited to, any stock option plan, stock purchase plan,
pension plan, life insurance plan, stock appreciation plan, phantom rights
plan,
health and accident plan or disability plan;
(c)
the
Employer's requiring the Participant (without the consent of the Participant)
to
be based at any place outside a twenty-five (25) mile radius of his place
of
employment immediately prior to a Change in Control, except for reasonably
required travel on the Employer's business which is not materially greater
than
such travel requirements prior to the Change in Control, or, in the event
the
Participant consents to any relocation beyond such 25 mile radius, the failure
by the Employer to pay (or reimburse the Participant) for all reasonable
moving
expenses incurred by him relating to a change of his principal residence
in
connection with such relocation and to indemnify the Participant against
any
loss (defined as the difference between the actual sale price of such residence
and the higher of (i) his aggregate investment in such residence or (ii)
the
fair market value of such residence as determined by a real estate appraiser
designated by the Participant and reasonably satisfactory to the Employer)
realized on the sale of the Participant's principal residence in connection
with
any such change of residence;
(d)
any
material breach by the Employer of any provision of this Plan;
(e)
any
purported termination of the Participant's employment for Cause by the Employer
which does not otherwise comply with the terms of this Plan; or
(f)
in
the case of a Change in Control pursuant to Section 2.7(d), the failure of
the
Company to obtain the assumption of, or the agreement to perform, this Agreement
by the purchaser or purchasers of the Company's assets as contemplated in
Article VII.
Section
2.13 Investment Committee. Each employee of the Employer who has been designated
by his Employer as a member of the Investment Committee, as the membership
of
such Committee may be changed from time to time. Members of the Investment
Committee as of the date of the Plan's execution are listed on Schedule A
attached hereto.
Section
2.14 Management Group Employee. Each employee of the Employer who has been
designated by his Employer as a "Management Group Employee", as may be
designated from time to time by the Board. Management Group Employees as
of the
date of the Plan's execution are listed on Schedule B attached hereto.
Section
2.15 Notice of Termination. A notice which indicates the specific provisions
in
this Plan relied upon as the basis for any termination of employment which
sets
forth in reasonable detail the facts and circumstances claimed to provide
a
basis for termination of the Participant's employment under the provision
so
indicated; no purported termination of employment shall be effective without
such Notice of Termination.
Section
2.16 Officer. Each employee of the Employer that is a corporate officer and
is
so designated from time to time pursuant to the Company's Bylaws.
Section
2.17 Participant. “Participant” shall mean any individual who meets the
eligibility requirements of Article III.
Section
2.18 Participating Employer. A Subsidiary of the Company which adopts this
Plan
in accordance with Section 8.4 below, and listed on Schedule D attached hereto,
and as may be amended from time to time pursuant to Article VIII of the Plan.
Section
2.19 Partnership. Genesis Energy, L.P., a Delaware limited
partnership.
Section
2.20 Payment Date. For a Participant, the fifteenth (15th) day after the
event
triggering the right of that Participant to a Severance Benefit, provided,
that,
if the Board (or its delegate) determines in its discretion that a Participant
is a “specified employee” (as defined in Section 409A(a)(2)(B)(i) of the
Internal Revenue Code of 1986, as amended (the “Code”)) as of the date of such
Participant’s termination of employment and that Section 409A applies with
respect to a payment to the Participant, then the Payment Date shall be
the
six-month anniversary of the date of the Participant’s termination of
employment.
Section
2.21 Severance Benefit. The benefits payable in accordance with Article IV
of
the Plan.
Section
2.22 Severance Units. A Participant who is neither a member of the Investment
Committee, nor a Management Group Employee shall receive one (1) Severance
Unit,
to be used in calculating his Severance Benefit, for (i) each ten thousand
dollars ($10,000) of his Base Salary plus Bonus Amount, and (ii) each twelve
months of employment by the Company or an Employer; the sum of any partial
Severance Units under (i) and (ii) shall be rounded to the nearest higher
whole
number of Severance Units. However, the maximum number of Severance Units
that
may be granted to a Participant is eighteen (18), and each Participant shall
be
granted at least four (4) Severance Units.
Section
2.23 Subsidiary. Any subsidiary of the Company or the Partnership, and any
wholly or partially owned partnership, joint venture, limited liability company,
corporation and other form of investment by the Company or the Partnership
in
which the Company has exclusive control.
Section
2.24 Termination Date. In the case of the Participant's death, the Participant's
Termination Date shall be his date of death. In all other cases, the
Participant's Termination Date shall be the date specified in the Notice
of
Termination subject to the following:
(a)
If
the Participant's employment is terminated by the Employer for Cause, the
date
specified in the Notice of Termination shall be at least thirty (30) days
from
the date the Notice of Termination is given to the Participant; and
(b)
If
the Participant terminates his employment for Good Reason, the date specified
in
the Notice of Termination shall not be more than sixty (60) days from the
date
the Notice of Termination is given to the Employer.
ARTICLE
III
ELIGIBILITY
AND PARTICIPATION
Section
3.1 Participation. Once a person is employed by their Employer they shall
automatically become a Participant in the Plan.
Section
3.2 Duration of Participation. A Participant shall cease to be a Participant
in
the Plan upon the first to occur of: (i) the date he ceases to be an employee
of
the Employer at any time prior to the date which is six months prior to a
Change
in Control, (ii) the date his employment is terminated following a Change
in
Control under circumstances where he is not entitled to a Severance Benefit
under the terms of this Plan, or (iii) the date on which he has received
all of
the benefits to which he is entitled under this Plan.
ARTICLE
IV
SEVERANCE
BENEFITS
Section
4.1 Right to Severance Benefit.
(a)
After
a Change in Control has occurred, a Participant shall be entitled to receive
from the Employer a Severance Benefit in the amount provided in Sections
4.2 and
4.3 if his employment is terminated during the period beginning six months
prior
to a Change of Control and ending two years after a Change of Control, for
any
reason other than (i) termination by the Employer for Cause or (ii) termination
by the Participant for other than Good Reason.
(b)
A
Participant shall be entitled to a Severance Benefit if that individual
satisfies all of the conditions under the Plan required to qualify as a
Participant and he or she is not otherwise disqualified or excluded from
eligibility under the terms of the Plan.
(c)
Notwithstanding any other provision of the Plan, the sale, divestiture or
other
disposition of a Subsidiary (except as expressly contemplated by Section
2.7)
shall not be deemed to be a Change in Control and the employees employed
by such
Subsidiary shall not be entitled to benefits from the Company or any
Participating Employer under this Plan as a result of such sale, divestiture,
or
other disposition, or as a result of any subsequent termination of employment.
Section
4.2 Amount of Severance Benefit. If a Participant is entitled to a Severance
Benefit under Section 4.1, the Employer shall pay to the Participant, on
the
Payment Date, an amount in cash equal to one of the following amounts:
(a)
for
the members of the Investment Committee, three (3) times the sum of the
Participant's Base Salary and Bonus Amount;
(b)
for
all members of the Management Group, two (2) times the sum of the Participant's
Base Salary and the Bonus Amount;
(c)
for
all other employees, one-twelfth (1/12) of the sum of the Participant's Base
Salary and Bonus Amount multiplied by the Participant's Severance
Units.
Notwithstanding
the foregoing, any severance payments made to a Participant under this
Plan may
first be used to satisfy any obligations an Employer may have under the
Worker
Adjustment and Retraining Act of 1988 or similar statute or regulations
of any
jurisdiction relating to any plant closing or mass lay-off or as otherwise
required by law.
Section
4.3 Further Benefits. If a Participant is entitled to a Severance Benefit
under
Section 4.1, such Participant shall also be entitled to:
(a)
Continuation at the Employer's expense, on behalf of the Participant and
his
dependents and beneficiaries, of all medical, dental, vision, and health
benefits and insurance coverage which were being provided to the Participant
at
the time of termination of employment for a period of time subsequent to
the
Participant's termination of employment. This period of time shall be equal
to
fifty percent (50%) of the number of months of compensation represented by
the
Participant’s Severance Benefit, with the number of months of compensation to be
based upon the Participant's monthly Base Salary immediately prior to the
Termination Date. The benefits provided in this Section 4.3(a) shall be no
less
favorable to the Participant, in terms of amounts and deductibles and costs
to
him, than the coverage provided the Participant under the plans providing
such
benefits at the time of termination of Participant's employment. An Employer
may
pay the employee's cost of benefits provided pursuant to Consolidated Omnibus
Budget Reconciliation Act of 1986 and allowed under the Employer's benefit
plans
for the applicable period of time in order to satisfy its obligation under
this
provision.
(b)
The
Employer's obligation hereunder to provide a benefit shall terminate if the
Participant obtains comparable coverage under a subsequent employer's benefit
plan. For purposes of the preceding sentence, benefits will not be comparable
during any waiting period for eligibility for such benefits or during any
period
during which there is a preexisting condition limitation on such benefits.
The
Employer also shall pay a lump sum equal to the amount of any additional
income
tax payable by the Participant and attributable to the benefits provided
under
subparagraph (a) of this Section at the time such tax is imposed upon the
Participant. At the end of the period of coverage set forth above, the
Participant shall have the option to have assigned to him at no cost to the
Participant and with no apportionment of prepaid premiums, any assignable
insurance owned by the Employer and relating specifically to the Participant,
and the Participant shall be entitled to all health and similar benefits
that
are or would have been made available to the Participant under law.
Section
4.4 Mitigation or Set-off of Amounts Payable Hereunder. The Participant shall
not be required to mitigate the amount of any payment provided for in this
Article IV by seeking other employment or otherwise, nor shall the amount
of any
payment provided for in this Article IV be reduced by any compensation earned
by
the Participant as the result of employment by the Company or any successor
after the Payment Date or by another employer after the Termination Date,
or
otherwise. The Employer's obligations hereunder also shall not be affected
by
any set-off, counterclaim, recoupment, defense or other claim, right or action
which the Employer may have against the Participant.
Section
4.5 Company Guarantee of Severance Benefit. In the event a Participant becomes
entitled to receive from the Employer a Severance Benefit under this Article
IV
above and such Employer fails to pay such Severance Benefit, the Company
shall
assume the obligation of such Employer to pay such Severance Benefit. In
consideration of the Company's assumption of the obligation to pay such
Severance Benefit provided under this Plan, the Company (as the source of
payment of benefits under the Plan) shall be subrogated to any recovery
(irrespective of whether there is recovery from the third party of the full
amount of all claims against the third
party)
or
right to recovery of either a Participant or his legal representative against
the Employer or any person or entity. The Participant or his legal
representative shall cooperate in doing what is reasonably necessary to assist
the Company in exercising such rights, including but not limited to notifying
the Company of the institution of any claim against a third party and notifying
the third party and the third party's insurer, if any, of the Company's
subrogation rights. Neither the Participant nor his legal representative
shall
do anything after a loss to prejudice such rights. In its sole discretion,
the
Company reserves the right to prosecute an action in the name of the Participant
or his legal representative against any third parties potentially liable
to the
Participant. The Company shall have the absolute discretion to settle
subrogation claims on any basis it deems warranted and appropriate under
the
circumstances. If a Participant or his legal representative initiates a lawsuit
against any third parties potentially liable to the Participant, the Company
shall not be responsible for any attorney's fees or court costs that may
be
incurred in such liability claim. The Company shall be entitled, to the extent
of any payments made to or on behalf of a Participant or a dependent of the
Participant, to be paid first from the proceeds of any settlement or judgment
that may result from the exercise of any rights of recovery asserted by or
on
behalf of a Participant or his legal representative against any person or
entity
legally responsible for the injury for which such payment was made. The right
is
also hereby given the Company to receive directly from the Employer or any
third
party(ies), attorney(s) or insurance company(ies) an amount equal to the
amount
paid to or on behalf of the Participant.
Section
4.6 Agreement to Plan. By acceptance of any Severance Benefit from the
Plan, the
Participant shall be deemed to have agreed to adhere to all terms of the
Plan.
A Participant who is entitled to severance benefits
under an employment agreement or other arrangement with
the Employer may elect, in writing within ten (10) days after his Termination
Date, to receive the severance benefits provided under this Plan in lieu
of, but
not in addition to, such other severance benefits as may be provided by
such
other agreement. In the event that no election is made, the Participant
shall
forego his right to receive the severance benefits provided under this
Plan.
Section
4.7 Forfeiture of Severance Benefits. A Participant shall forfeit any and
all
entitlement to any Severance Benefit if the Administrator determines that
the
Participant has failed to fulfill any requirement of the Plan.
Section
4.8 Payment after Death. If a Participant dies before his or her Severance
Benefits have been paid in full, the remaining Severance Benefits will be
paid
to the beneficiaries named in such Participant's last will and testament,
or if
no will or beneficiary exist then to such Participant's heirs at law. The
Plan
shall be discharged fully and completely to the extent of any payment made
to
any such beneficiaries or heirs at law.
ARTICLE
V
TERMINATION
OF EMPLOYMENT
Section
5.1 Written Notice Required. Any purported termination of employment, either
by
the Employer or by the Participant, shall be communicated by written Notice
of
Termination to the other.
ARTICLE
VI
ADDITIONAL
PAYMENTS BY THE COMPANY
Section
6.1 Gross-Up Payment. In the event it shall be determined that any payment
or
distribution of any type by the Employer to or for the benefit of an Officer,
whether paid or payable or distributed or distributable pursuant to the terms
of
this Plan or otherwise (the "Total Payments"), would be subject to the excise
tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest
and
penalties, are collectively referred to as the "Excise Tax", then the Officer
shall be entitled to receive an additional payment (a "Gross-Up Payment")
in an
amount such that at the time of payment by the Officer of all taxes (including
additional excise taxes under said Section 4999 and any interest, and penalties
imposed with respect to any taxes) imposed upon the Gross-Up Payment, the
Officer shall have an amount of the Gross-Up Payment equal to the Excise
Tax
imposed upon the Total Payments. The Company shall pay the Gross-Up Payment
to
the Officer within twenty (20) business days after the Payment Date or the
Termination Date whichever is applicable.
Section
6.2 Determination by Accountant. All determinations required to be made under
this Article VI, including whether a Gross-Up Payment is required and the
amount
of such Gross-Up Payment, shall be made by the independent accounting firm
retained by the Company on the date of Change in Control (the "Accounting
Firm"), which shall provide detailed supporting calculations both to the
Company
and the Officer within fifteen (15) business days of the Payment Date or
Termination Date, whichever is applicable, or such earlier time as is requested
by the Company. If the Accounting Firm determines that no Excise Tax is payable
by the Officer, it shall furnish the Officer with an opinion that he has
substantial authority not to report any Excise Tax on his federal income
tax
return. Any determination by the Accounting Firm shall be binding upon the
Company and the Officer. As a result of the uncertainty in the application
of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that a Gross-Up Payment which will
not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 6.3 and the Officer thereafter
is required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit
of the
Officer.
Section
6.3 Notification Required. The Officer shall notify the Company in writing
of
any claim by the Internal Revenue Service that, if successful, would require
the
payment by the Company of the Gross-Up Payment. Such notification shall be
given
as soon as practicable but no later than ten (10) business days after the
Officer knows of such claim and shall apprise the Company of the nature of
such
claim and the date on which such claim is requested to be paid. The Officer
shall not pay such claim prior to the expiration of the thirty (30) day period
following the date on which it gives such notice to the Company (or such
shorter
period ending on the date that any payment of taxes with respect to such
claim
is due). If the Company notifies the Officer in writing prior to the expiration
of such period that it desires to contest such claim, the Officer shall:
(a)
give
the Company any information reasonably requested by the Company relating
to such
claim,
(b)
take
such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company,
(c)
cooperate with the Company in good faith in order to effectively contest
such
claim,
(d)
permit the Company to participate in any proceedings relating to such claim,
provided, however, that the Company shall bear and pay directly all costs
and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Officer harmless, on an
after-tax basis, for any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation
and
payment of costs and expenses. Without limitation on the foregoing provisions
of
this Section 6.3, the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Officer to pay the tax claimed and sue for a refund, or contest the claim
in
any permissible manner, and the Officer agrees to prosecute such contest
to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Officer to
pay
such claim and sue for a refund, the Company shall advance the amount of
such
payment to the Officer, on an interest-free basis and shall indemnify and
hold
the Officer harmless, on an after-tax basis, from any Excise Tax or income
tax,
including interest or penalties with respect thereto, imposed with respect
to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Officer with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited
to
issues with respect to which a Gross-Up Payment would be payable hereunder
and
the Officer shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
Section
6.4 Repayment. If, after the receipt by the Officer of an amount advanced
by the
Company pursuant to Section 6.3, the Officer becomes entitled to receive
any
refund with respect to such claim, the Officer shall (subject to the Company's
complying with the requirements of Section 6.3) promptly pay to the Company
the
amount of such refund (together with any interest paid or credited thereon
after
taxes applicable thereto). If, after the receipt by the Officer of an amount
advanced by the Company pursuant to Section 6.3, a determination is made
that
the Officer shall not be entitled to any refund with respect to such claim
and
the Company does not notify the Officer in writing of its intent to contest
such
denial of refund prior to the expiration of thirty days after such
determination, then such advance shall be forgiven and shall not be required
to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
ARTICLE
VII
SUCCESSORS
TO COMPANY
Section
7.1 Successors. This Plan shall bind any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially
all of
the business and/or assets of the Company, in the same manner and to the
same
extent that the Company would be obligated under this Plan if no succession
had
taken place. In the case of any transaction in which a successor would not,
by
the foregoing provision or by operation of law, be bound by this Plan, the
Company shall require such successor expressly and unconditionally to assume
and
agree to perform the Company's obligations under this Plan, in the same manner
and to the same extent that the Company would be required to perform if no
such
succession had taken place. Failure of the Company to obtain such agreement
prior to the effectiveness of any such succession shall be a breach hereof
and
shall entitle the Participant to compensation from the Company in the same
amount and on the same terms as the Participant would be entitled hereunder
if
the Participant terminated his employment for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Termination Date. As used herein, "the
Company" shall mean the Company as hereinbefore defined and any successor
to its
business and/or assets as aforesaid which executes and delivers the agreement
provided for in this Section 7.1 or which otherwise becomes bound by all
the
terms and provisions hereof by operation of law.
ARTICLE
VIII
DURATION,
AMENDMENT, PLAN TERMINATION
AND
ADOPTION BY SUBSIDIARIES
Section
8.1 Duration. This Plan shall continue in effect until terminated in accordance
with Section 8.2. If a Change in Control occurs, this Plan shall continue
in
full force and effect, and shall not terminate or expire, until after all
Participants who have become entitled to a Severance Benefit hereunder shall
have received all of such benefits in full.
Section
8.2 Amendment and Termination. The Plan and its attached Schedules may be
terminated or amended in any respect by resolution adopted by two-thirds
of the
Board; provided, however, that no such amendment or termination of the Plan
may
be made if such amendment or termination would adversely affect any right
of a
Participant who became a Participant prior to the later of (i) the date of
adoption of any such amendment or termination, or (ii) the effective date
of any
such amendment or termination; and, provided further, that the Plan no longer
shall be subject to amendment, change, substitution, deletion, revocation
or
termination in any respect whatsoever following a Change in Control.
Section
8.3 Form of Amendment. The form of any amendment or termination of the Plan
shall be a written instrument signed by a duly authorized officer or officers
of
the Company, certifying that the amendment or termination has been approved
by
the Board.
Section
8.4 Adoption by Subsidiaries. Any Subsidiary may, with the approval of the
Board
adopt and become an Employer under this Plan by executing and delivering
to the
Company an appropriate instrument agreeing to be bound as an Employer by
all of
the terms of the Plan with respect to its eligible employees. The adoptive
instrument may contain such changes and
amendments
in the terms and provisions of the Plan as adopted by such Subsidiary as
may be
desired by such Subsidiary and acceptable to the Company. The adoptive
instrument shall specify the effective date of such adoption of the Plan
and
shall become as to such adopting Subsidiary a part of this Plan.
ARTICLE
IX
CLAIMS
AND APPEAL PROCEDURES
Section
9.1 Claims Procedure. With respect to any claim for Severance Benefits under
the
Plan, the Administrator will issue a decision on whether the claim is denied
or
granted within fifteen (15) days after receipt of the claim by the
Administrator, unless special circumstances require an extension of time
for
processing the claim, in which case a decision will be rendered not later
than
twenty (20) days after receipt of the claim. Written notice of the extension
will be furnished to the Participant prior to the expiration of the initial
fifteen (15) day period and will indicate the special circumstances requiring
an
extension of time for processing the claim and will indicate the date the
Administrator expects to render its decision. If the claim is denied in whole
or
in part, the decision in writing by the Administrator shall include the specific
reasons for the denial and reference to the Plan provisions on which the
denial
is based. The decision also shall include a description of any additional
information which the Participant needs to submit in order to refile the
claim,
along with an explanation of why such additional information is necessary
and
how the procedure for reviewing claims works.
Section
9.2 Appeals Procedure. If his claim is denied in whole or in part, a Participant
may appeal in writing a denial of the claim, in part or in whole, and request
a
review by the Administrator. The appeal must be submitted within sixty (60)
days
after notice of the denial of the claim. The Participant may request in writing
to review copies of pertinent Plan documents in connection with the appeal.
The
Administrator will review the appeal and notify the Participant of the final
decision within fifteen (15) days after receiving the request for review
unless
the Administrator requires an extension due to special circumstances, in
which
case the final decision will be made within twenty (20) days after the
Administrator receives the request for review. The notice of the final decision
must include the specific reasons for the decision and specific references
to
the pertinent Plan provisions on which the Administrator's decision is based.
Section
9.3 Exclusive Initial Remedy. No action may be brought for benefits provided
by
this Plan or to enforce any right hereunder until after a claim has been
submitted to and determined by the Administrator and all appeal rights under
the
Plan have been exhausted. Thereafter, the Participant may bring an action
for
benefits provided by this Plan or to enforce any right hereunder. The
Participant's beneficiary should follow the same claims procedure in the
event
of the Participant's death.
ARTICLE
X
PLAN
ADMINISTRATION
Section
10.1 In General. The general administration of the Plan and the duty to carry
out its provisions shall be vested in the Administrator, which shall be the
"Plan Administrator" as that
term
is
defined in section 3(16)(A) of ERISA. The Plan and Severance Benefits under
the
Plan shall be administered by the Administrator appointed from time to time
by
the Company. The Plan Administrator is the Compensation Committee. The
Administrator may, in its discretion, secure the services of other parties,
including agents and/or employees to carry out the day-to-day functions
necessary to an efficient operation of the Plan. The Administrator's
interpretations, decisions, requests and exercises of power and responsibilities
shall not be subject to review by anyone and shall be final, binding, and
conclusive upon all persons. The Administrator shall, in its sole and absolute
discretion, have the exclusive right to interpret all of the terms of the
Plan,
to determine eligibility for coverage and benefits, to resolve disputes as
to
eligibility, type, or amount of benefits, to correct any errors or omissions
in
the form or operation of the Plan, to make such other determinations with
respect to the Plan, and to exercise such other powers and responsibilities
as
shall be provided for in the Plan or as shall be necessary or helpful with
respect thereto. The Administrator under and pursuant to this Plan shall
be the
named fiduciary for purposes of section 402(a) of ERISA with respect to all
powers and duties expressly or implicitly assigned to it hereunder. Any
determination or decision by the Company made under or with respect to any
provision of the Plan shall be in the Company's sole and absolute discretion,
shall not be subject to review by anyone and shall be final, binding and
conclusive upon all persons.
Section
10.2 Reimbursement and Compensation. The Administrator shall receive no
compensation for its services as Administrator, but it shall be entitled
to
reimbursement for all sums reasonably and necessarily expended by it in the
performance of such duties.
Section
10.3 Rulemaking Powers. The Administrator shall have the power to make
reasonable and uniform rules and regulations required in the administration
of
the Plan, to make all determinations necessary for the Plan's administration,
except those determinations which the Plan requires others to make, and to
construe and interpret the Plan wherever necessary to carry out its intent
and
purpose and to facilitate its administration.
ARTICLE
XI
SOURCE
OF SEVERANCE PAYMENT
Section
11.1 No Separate Fund Established. All Severance Benefits shall be paid in
cash
from the general funds of the Company or an Employer, and no special or separate
fund shall be established. Nothing contained in the Plan shall create or
be
construed to create a trust of any kind. To the extent that any person acquires
a right to receive Severance Benefits from the Company or an Employer under
the
Plan, such right shall be no greater than the right of any unsecured general
creditor of the Company or Employer. For purposes of the Code, the Company
intends this Plan to be an unfunded, unsecured promise to pay on the part
of the
Company.
ARTICLE
XII
MISCELLANEOUS
Section
12.1 Participant's Legal Expenses. The Company agrees to pay, upon written
demand therefor by the Participant, fifty percent (50%) of all legal fees
and
expenses which the
Participant
may reasonably incur in order to collect amounts to be paid or obtain benefits
to be provided to such Participant under the Plan, plus in each case interest
at
the "applicable Federal rate" (as defined in Section 1274(d) of the Code).
In
any such action brought by a Participant for damages or to enforce any
provisions hereof, he shall be entitled to seek both legal and equitable
relief
and remedies, including, without limitation, specific performance of the
Company's obligations hereunder, in his sole discretion. However, in any
instance where a Participant receives, as the result of a final, nonappealable
judgment of a court of competent jurisdiction or a mutually agreed upon
settlement with the Company, Severance Benefits greater than those first
offered
by the Company or its successor to the Participant, then the Company shall
pay
one hundred percent (100%) of all such legal fees and expenses incurred by
the
Participant.
Section
12.2 Employment Status. Regardless of whether a Participant is employed
“at
will” or pursuant to a contract, this Plan does not constitute a contract of
employment or impose on the Employer any obligation to retain a Participant
as
an employee, to change the status of a Participant's employment as a Management
Group Employee or in any other position, or the employment arrangement,
or to
change any employment policies of the Employer.
Section
12.3 Validity and Severability. The invalidity or unenforceability of any
provision of the Plan shall not affect the validity or enforceability of
any
other provision of the Plan, which shall remain in full force and effect,
and
any prohibition or unenforceability in any jurisdiction, shall not invalidate
or
render unenforceable such provision in any other jurisdiction.
Section
12.4 The Participant's Heirs, etc. This Agreement shall inure to the benefit
of
and be enforceable by the Participant's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Participant should die while any amounts would still be
payable
to him hereunder as if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms hereof
to
his designee or, if there be no such designee, to his estate.
Section
12.5 Governing Law. To the extent not preempted by federal law, the validity,
interpretation, construction and performance of the Plan shall in all respects
be governed by the laws of the State of Texas.
Section
12.6 Choice of Forum. A Participant shall be entitled to enforce the provisions
of this Plan in any state or federal court located in Harris County, Texas,
in
addition to any other appropriate forum.
Section
12.7 Notice. For the purposes hereof, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been
duly
given when delivered or mailed by United States registered or certified mail,
return receipt requested, postage prepaid, addressed to the Company at its
principal place of business and to the Participant at his address as shown
on
the records of the Employer, provided that all notices to the Company shall
be
directed to the attention of the Chief Executive Officer of the Company with
a
copy to the Secretary of the Company, or to such other in writing in accordance
herewith, except that notices of change of address shall be effective only
upon
receipt.
Section
12.8 Alienation. No benefit, right or interest of any person under the Plan
will
be subject to alienation, anticipation, sale, transfer, assignment, pledge,
encumbrance or charge, seizure, attachment or legal, equitable or other process
or be liable for or subject to, the debts, liabilities or other obligations
of
such persons, except as otherwise required by law. No Participant, dependent
or
their beneficiary shall have any right or claim to benefits from the Plan,
except as specified in the Plan.
Section
12.9 Pronouns. A pronoun or adjective in the masculine gender includes the
feminine gender, and the singular includes the plural, unless the context
clearly indicates otherwise.
Section
12.10 Section 409A of the Code. This Plan is intended to comply with Section
409A of the Code and any guidance and/or interpretive regulations issued
thereunder. To the extent that any terms of the Plan would subject any
Participant to gross income inclusion, interest or additional tax pursuant
to,
or would be prohibited by, Section 409A of the Code, such terms shall be
automatically amended to comply with Section 409A of the Code. Without
limiting
the foregoing, an Employer shall have the right to amend the timing and/or
form
of payment of any Severance Benefit in order to comply with Section 409A
of the
Code.
IN
WITNESS WHEREOF, Genesis Energy, Inc. has caused this Plan to be executed
by its
duly authorized officer on the 12th day of December, 2006.
| |
|
| |
By: |
/s/ Gareth
Roberts |
| |
|
| |
Name:
Gareth Roberts |
| |
Title: Chairman
of the Board |
| |
|
| |
By: |
/s/
Grant
E.
Sims |
| |
Name: Grant E. Sims |
| |
Title:
Chief
Executive Officer |
SCHEDULE
A
"Investment
Committee", as of December 12, 2006
Ross
Benavides
Karen
Pape
SCHEDULE
B
"Management
Group", as of December 12, 2006
Kerry
Mazoch
John
Millar
Danny
Davis
Pat
Hodgins
Joe
Mueller
Tom
Cain
Jim
Buford
Ed
Chamras
Mike
Moore
Neal
Bjorklund
Shane
Schmidt
Doug
Stevens
Paul
Fowler