Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement"), effective as of January
1, 2007, (the "Effective Date"), is made and entered into by and between Quest
Midstream GP, LLC, a Delaware Limited Liability Company (the "Company") and
Xxxxxxx Xxxxxx Xxxxxx, an individual resident of 0000 Xxxxxxxx Xxxxx Xxxx.,
Xxxxxxx, Xxxxx, 00000 (the "Executive").
RECITALS
WHEREAS, the Company desires to obtain the services of the Executive, and the
Executive desires to be employed by the Company, upon the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and agreements contained in
this Agreement and other good and valuable consideration, the parties agree as
follows:
ARTICLE 1
EMPLOYMENT
The Company agrees to and does hereby employ the Executive, and the Executive
agrees to and does hereby accept employment by the Company, as the President and
Chief Operating Officer of the Company, subject to the supervision and direction
of the Board of Directors of the Company (the "Board of Directors"), as herein
set forth for the Term of this Agreement.
ARTICLE 2
DUTIES OF THE EXECUTIVE
During the Term of this Agreement, the Executive will perform and have the
duties, responsibilities and authority that are typical with the position of
President and Chief Operating Officer and as described in the bylaws of the
Company, and such other duties, responsibilities and authority as may be
assigned from time to time by the Board of Directors. The Executive will devote
most of his productive time, ability and attention to the business of the
Company, will perform all duties in a professional, ethical and businesslike
manner, and shall report directly to the Board of Directors. The Executive will
not, during the Term of this Agreement, directly or indirectly engage in any
other business, either as an employee, employer, principal, advisor, or in any
other capacity, without the prior approval of the Board of Directors. The
foregoing shall not be construed as preventing Executive from making personal
investments in other businesses or enterprises or from engaging in charitable or
civic activities, provided any such investment or activity does not require the
provision of substantial services by Executive to the operations or the affairs
of such businesses or enterprises and provided, further, that the provision
thereof does not interfere in any respect with the performance of Executive's
duties hereunder or violate the provisions of Section 7.4 hereof with respect to
noncompetition. The Executive agrees that he will devote such time, attention
and energy to the affairs of the Company as will be reasonably required to
perform his duties hereunder, and, in pursuance of
1
the policies and directions of the Company and its Board of Directors, the
Executive will use his reasonable efforts to promote the business and affairs of
the Company.
ARTICLE 3
COMPENSATION
3.1 Base Compensation. As base compensation for the Executive's services
hereunder, during the Term of this Agreement, the Company shall pay the
Executive (i) for the portion of the calendar year in which the Effective Date
falls from the Effective Date until the end of that calendar year, a base salary
at the rate per full year of Three Hundred Forty-Two Thousand Five Hundred
Dollars ($342,500.00) (gross); and (ii) for each calendar year or portion of a
calendar year thereafter, a base salary at the rate per full year determined by
the Board of Directors, but not less than Three Hundred Forty-Two Thousand Five
Hundred Dollars ($ 342,500.00) (gross) per full year. The base compensation
shall be payable in accordance with the Company's payroll policies.
3.2 Incentive Compensation. Provided that the Executive has duly
performed in all material respects his obligations pursuant to this Agreement,
he shall be eligible to receive, as additional compensation for the services to
be rendered by him under this Agreement, incentive compensation with regard to
each calendar year, or portion of a calendar year, during the Term of this
Agreement. The maximum bonus amount of such incentive compensation shall be 100%
of the base salary under paragraph 3.1 for the calendar year (prorated for
partial calendar years), as such plan or program is established annually by the
Board of Directors (or the Company's Compensation Committee). Executive's actual
bonus level will be contingent upon the Company achieving predetermined
financial results and the Board's (and/or Compensation Committee's) approval,
including approval of any components based on Company or individual performance.
Executive acknowledges that actual payouts under the plan may be more or less
than Executive's target level based on the performance of the Company against
plan criteria and Executive's performance against any individual objectives. The
bonus amount shall be determined by the Board of Directors based on the
Executive's performance and contributions to the Company's success relative to
the established objectives and shall be payable within 15 days after the
financial statements for each year are completed and audited.
3.3 Status of the Executive. The parties expressly acknowledge that the
Executive, in the performance of services hereunder, is an employee of the
Company. Accordingly, the Company shall deduct from all compensation paid to the
Executive pursuant to this Agreement any sums for income tax, unemployment
insurance, social security or any other withholding required by any law or other
requirement of any governmental body.
ARTICLE 4
BENEFITS
The Company will provide the following benefits to the Executive during the Term
of this Agreement:
2
(a) Life, Health and Disability Insurance (WIP). In addition to
the compensation provided for in Article 3 above, or as otherwise provided
herein, the Company shall pay for comprehensive and usual insurance for the
Executive and his dependants as is provided to other executives within the
Company.
(b) Paid Time Off. The Executive shall be entitled to Paid Time
Off of four (4) weeks per calendar year, which Paid Time Off shall be scheduled
at such time or times as the Board of Directors in consultation with the
Executive may reasonably determine. Unused Paid Time Off days may be carried
over from one year to the next but not for more than twelve (12) months after
the end of a year.
(c) Expense Reimbursement. The Company shall pay or reimburse the
Executive for all reasonable and necessary business expenses, including travel
and entertainment, incurred by him in connection with his duties hereunder, upon
submission by the Executive to the Company of such reasonable evidence of the
expenses as the Company may require and approved in accordance with customary
procedures.
(d) Bonus Units. As additional consideration for the services
the Executive will render under this Agreement, on the effective date of this
Agreement, the Company will award the Executive 75,000 common units ("Bonus
Units") of Quest Midstream, L.P. (the "MLP"), to be issued and to vest in
accordance with the following schedule: (1) the later to occur of a Liquidity
Event or one year of employment -25,000 Bonus Units; (2) the later to occur of a
Liquidity Event or two years of employment -25,000 Bonus Units; and (3) the
later to occur of a Liquidity Event or three years of employment -25,000 Bonus
Units.
Notwithstanding the foregoing vesting schedule, the Company shall also
pay Executive, at the same time as any distributions are paid on the common
units of the MLP, an amount equal to the distribution that would have been paid
on any unvested (and unforfeited) Bonus Units if such Bonus Units had been
vested and issued.
If Executive's employment is terminated without Good Cause (as defined
in Section 5.2(e) below) or if Executive terminates his employment with Good
Reason (as defined in Section 5.2(f), all Bonus Units not vested at the time of
such termination shall issue and vest as if no termination had occurred (subject
to the possible six-month distribution time limitation set forth in this Section
below).
If Executive's employment terminates for any other reason prior to such
time that the Bonus Units are fully vested, any non-vested Bonus Units shall be
forfeited.
Except as set forth herein, the Bonus Units shall be subject to the
terms and conditions of any plan or program adopted by the company with respect
to common units of the MLP.
For purposes of this Section, a "Liquidity Event" shall mean the first
to occur of (i) the expiration of any "lock-up agreement" entered into by
Executive in connection with an Initial Public Offering (as defined in the
Amended and Restated Agreement of Limited Partnership of the MLP dated as of
December 22, 2006) or (ii) a sale, in a single transaction, of all or
substantially all of either (a) the assets of the MLP, or (b) the partnership
interests in the MLP.
3
If the severance payments provided for herein together with the vesting
upon termination of Bonus Units as provided above would cause such payments to
not meet the exemption under the Section 409A regulations (for example, the
severance pay exceeds the two times annual salary or Section 401(a)(17) limit),
then (i) the issuance of the Bonus Units and the commencement of the monthly
severance payments will be deferred for six (6) months (at which time the Bonus
Units will be issued and the Executive shall receive a lump sum amount equal to
the monthly payments that would have been paid during such six (6) month period
but for this sentence) and (ii) the payment of Executive's pro rata portion of
any annual bonus or other compensation to which he would have been entitled for
the year during which the termination occurred will be made at such time that
bonuses are paid to all employees or, if later, six (6) months after Employee's
termination of employment (unless an exception to Section 409A applies).
(e) Participation in Stock Plans. In addition to the stock award
described above, the Executive shall be eligible to participate in any stock
incentive plans adopted by the Company for executives at his level of employment
subject to the terms and conditions of any such plans.
ARTICLE 5
TERM AND TERMINATION
5.1 Term. The initial term ("Initial Term") of the Executive's
employment shall commence on January 1, 2007 (the "Start Date") and end on
December 31, 2009. Commencing on January 1, 2010 (the "Initial Renewal Date"),
and on each subsequent anniversary date of the Initial Renewal Date (the
"Anniversary Date"), the Executive's employment shall, unless earlier terminated
as provided in Section 5.2 of this Agreement below, automatically be extended
for one (1) additional year, subject to the terms and conditions hereof, unless,
no later than one hundred twenty (120) days before the Initial Renewal Date or a
subsequent Anniversary Date, either party shall have given written notice to the
other that it does not wish to extend this Agreement. The Initial Term and any
renewal years shall be collectively referred to herein as the "Term." Any
employment following the receipt of written notice described above and
subsequent expiration of the Term shall be on an "at will" basis, terminable
with or without Good Cause or Good Reason by either Party, and the provisions of
Sections 5.2(a) through 5.2(g) shall no longer be in effect.
5.2 Termination. This Agreement will be terminated by any of the
following events:
(a) Termination by Agreement. This Agreement may be terminated in
writing by mutual agreement of the parties hereto.
(b) Termination Upon the Executive's Death. The death of the
Executive shall immediately terminate this Agreement, and the Executive shall be
entitled to the compensation and benefits that accrued and vested through the
date of termination.
(c) Termination Upon the Executive's Disability. If, as a result
of incapacity due to physical or mental illness or injury, the Executive shall
4
fail to render services of the character contemplated by this Agreement for
three (3) consecutive months or for an aggregate period of one hundred and
eighty (180) calendar days during any twelve (12) month period, then thirty (30)
days after receiving written notice (which notice may occur before or after the
end of such three (3) or twelve (12) month period, but which shall not be
effective earlier than the last day of such three (3) or twelve (12) month
period), the Company may terminate the Executive's employment hereunder provided
the Executive is unable to resume his full-time duties as contemplated by this
Agreement at the conclusion of such notice period. Also, the Executive may
terminate his employment hereunder if his health should become impaired to an
extent that makes the continued performance of his duties hereunder hazardous to
his physical or mental health or his life; provided, that the Executive shall
have furnished the Company with a written statement from a qualified doctor to
such effect. In the event this Agreement is terminated as a result of the
Executive's disability, (i) the Executive shall receive from the Company, in a
lump-sum payment due within thirty (30) days of the effective date of
termination, the sum equal to Three Hundred Forty Two Thousand Five Hundred
Dollars 00/100 ($342,500.00), and (ii) all compensation and benefits that
accrued and vested as of the date of Termination. In order to, and to the extent
necessary to, comply with Section 409A, all cash amounts due under this Section
5.2(c) shall be payable to Executive in a lump-sum cash payment on the six-month
anniversary of the date of Executive's termination of employment.
(d) Termination by the Company for Good Cause. The Company may
terminate this Agreement upon a showing of "Good Cause" by a majority vote
(excluding the Executive) of the Board of Directors. "Good Cause" is defined in
this Agreement as the occurrence of one of the following: (i) the Executive's
material breach of this Agreement; (ii) failure or refusal by the Executive to
perform his duties and responsibilities required hereunder to the reasonable
satisfaction of the Board; (iii) the Executive's gross negligence in the
performance or intentional nonperformance of any of his material duties and
responsibilities hereunder; (iv) the Executive's commission of any act of
dishonesty, theft, fraud or misconduct with respect to the business or affairs
of the Company; (v) the Executive's conviction (or entering into a plea bargain
admitting criminal guilt or plea of nolo contrendre) in any felony or
misdemeanor criminal proceeding involving moral turpitude; (vi) violation of a
rule or policy of the Company that states that a violation may result in
termination of employment; or (vii) any conduct that is materially detrimental
to the operations, financial condition or reputation of the Company; provided,
however, the occurrence of those events set forth in clauses (i), (ii), (iii) or
(vi), shall be deemed "Good Cause" to the extent and only to the extent that
such breach or nonperformance remains uncorrected for thirty (30) days following
Company's reasonably detailed written notice to Executive of such breach or
nonperformance; provided, however, that a repeated breach after notice and cure
of any provision of clauses (i), (ii), (iii) or (vi) involving the same or
substantially similar actions or conduct, shall be grounds for termination for
"Good Cause" without any additional notice from the Company. If this Agreement
is terminated for Good Cause, as herein enumerated, the Executive shall have no
right to any severance compensation, and shall be entitled only to the
compensation and benefits that accrued and vested through the date of
termination.
(e) Termination by the Company Without Good Cause. The Company
may at any time terminate this Agreement without Good Cause. If the Company
terminates this Agreement without Good Cause, as herein provided, the Executive
shall receive from the Company the Executive's base salary for the remainder of
5
the Term that would have been paid to Executive if no termination had occurred).
Further, if the Executive is terminated without Good Cause, the Company shall
(1) pay Executive's COBRA health insurance premium payments (for the same
coverage that Executive had in place prior to his termination) for the duration
of the COBRA continuation period, or if earlier, until the Executive becomes
eligible for health insurance because of employment with a different employer;
and (2) pay Executive his pro rata portion of any annual bonus and other
incentive compensation to which he would have been entitled for the year during
which the termination occurred and, (3) vest Executive in all unvested Bonus
Units, if any, in accordance with Section 4(d) of this Agreement, and (4) the
Executive shall be entitled to receive all other unpaid benefits due, owing or
accrued through his last day of employment.
(f) Termination by the Executive for Good Reason. The Executive
may terminate this Agreement with "Good Reason" by giving thirty (30) days
written notice to the Company. For purposes of Article 5, "Good Reason" means
any of the following: (i) The Company's failure to pay timely any amounts due
under Article 3 or 4 hereof (unless the payment is not material and is being
contested by the Company, in good faith) or other substantial and material
breach of this Agreement; or (ii) the assignment of the Executive without his
consent to a position, responsibilities, or duties of a substantially and
materially lesser status or degree of responsibility than his position,
responsibilities, or duties at the Effective Date or later as agreed to by
Executive and the Company; or (iii) the relocation of the Company's principal
executive offices outside the metropolitan Houston, Texas area; or (iv) the
requirement by the Company that the Executive be based anywhere other than the
Company's principal executive offices (with the understanding that substantial
travel may be required for Executive's position); or (v) removal of the
Executive from his seat as a Director, and in any of those cases without the
Executive's consent; provided, however, the occurrence of those events set forth
in clauses (i)-(v) shall be deemed "Good Reason" to the extent and only to the
extent that such breach or nonperformance remains uncorrected for thirty (30)
days following Executive's reasonably detailed written notice to the Company of
such breach or nonperformance; provided, however, that a repeated breach after
notice and cure of any provision of clauses (i)-(v) involving the same or
substantially similar actions or conduct, shall be grounds for termination for
"Good Reason" without any additional notice from Executive. In such event, the
Executive shall receive from the Company the Executive's base salary for the
remainder of the Term that would have been paid to Executive if no termination
had occurred. Further, if the Executive terminates his employment hereunder with
"Good Reason," the Company shall (1) pay Executive's COBRA health insurance
premium payments (for the same coverage that Executive had in place prior to his
termination) for the duration of the COBRA continuation period, or if earlier,
until the Executive becomes eligible for health insurance because of employment
with a different employer, and (2) pay Executive his pro rata portion of any
annual bonus and other incentive compensation to which he would have been
entitled for the calendar year during which the termination occurred, and (3)
vest Executive in all unvested Bonus Units, if any, in accordance with Section
4(d) of this Agreement, and (4) provide the Executive with all other unpaid
benefits due, owing or accrued through his last day of employment.
(g) Termination by the Executive Without Good Reason. The
Executive may resign or otherwise terminate this Agreement without Good Reason
by giving ninety (90) written notice to the Company. In such event, the
6
Executive shall receive no severance compensation, and shall be entitled only to
the compensation and benefits that accrued and vested through the date of
termination.
5.3 Effects of Termination. Any payment made to the Executive under this
Article 5 is conditioned upon the execution by the parties of a full and final
mutual release in a form reasonably acceptable to the Company and the Executive,
provided, however, that any such release (i) shall not affect either party's
post-employment obligations under this Agreement, including but not limited to
those contained in Article 7, below; and (ii) shall not release the Executive
from any claims or liabilities for fraud, theft, embezzlement, malfeasance, or
intentional breach of fiduciary duty or contribution action(s) in connection
with any such claims or liabilities, whether brought by the Company or any other
entity or person. Upon termination of this Agreement, neither party shall have
any further obligation hereunder except for (i) obligations contained above in
Article 5.2, (ii) obligations accruing prior to the date of termination and
(iii) obligations, promises or covenants contained herein which are expressly
made to extend beyond the Term of this Agreement, including, without limitation,
confidentiality of information and indemnities.
ARTICLE 6
[Intentionally omitted]
ARTICLE 7
CONFIDENTIALITY OF INFORMATION; NONCOMPETITION
7.1 Confidential Information. The Executive agrees at all times during
the Term of this Agreement and thereafter, to hold in strictest confidence, and
not to use, disclose or permit to be disclosed except for the benefit of the
Company, to any person, firm or Company without the express written
authorization of the Company, any Confidential Information of the Company. For
purposes of this Agreement, "Confidential Information" shall include, but not be
limited to, any proprietary information, technical data, trade secrets or
know-how belonging or pertaining to the Company, including, but not limited to
any and all records, notes, memoranda, data, ideas, personnel information and
office manuals, customer information, forms, plans, or any other information of
whatever nature in the possession or control of the Company that is not
generally known or available to members of the general public or is generally
known or available to the public because of a violation of this Agreement or
other wrongful act of the Executive or of others who were under confidentiality
obligations as to the item or items involved. If the Executive is requested or
becomes legally compelled to disclose any such Confidential Information,
Executive shall provide the Company with prompt written notice so that the
Company may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement and the Executive shall
reasonably cooperate with the Company in any effort the Company undertakes to
obtain a protective order or other remedy. If such a protective order or other
remedy is not obtained, or the Company waives compliance with this Agreement,
the Executive shall furnish only that portion of such information that is
7
legally required and shall exercise all reasonable efforts to obtain reliable
assurance that confidential treatment will be accorded the information to be
disclosed.
7.2 Third Party Information. The Executive recognizes that the Company
has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company's part
to maintain the confidentiality of such information and to use it only for
certain limited purposes. The Executive agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to
any person, firm or Company or to use it except as necessary in carrying out
work for the Company consistent with the Company's agreement with such third
party.
7.3 Returning Corporate Documents. The Executive agrees that if his
employment hereunder terminates for any reason, he will leave with and/or return
to the Company and will not take originals or copies of, any records, papers,
programs, computer software or documents or any other matter of whatever nature
that contains Confidential Information or any equipment or other physical
property furnished to the Executive by the Company, all of which shall be and
remain the sole and exclusive property of the Company.
7.4 Noncompetition; Nonsolicitation. For the duration of his employment
with the Company and, in the event that Executive terminates his own employment
other than for Good Reason or is terminated by the Company for Good Cause prior
to the expiration of the Term, for an additional period equal to one (1) year,
Executive, without the prior written permission of the Company, shall not, in
any geographical area in which the Company does business, (i) be employed by, or
render any services to, any person, firm or corporation engaged in any business
which is directly or indirectly in competition with the Company ("Competitive
Business"); (ii) engage in any Competitive Business for his or its own account;
(iii) be associated with or interested in any Competitive Business as an
individual, partner, shareholder, creditor, director, officer, principal, agent,
employee, trustee, consultant, advisor or in any other relationship or capacity;
(iv) employ or retain, or have or cause any other person or entity to employ or
retain, any person who was employed or retained by the Company as of the date,
or within the twelve months prior to the date, of Executive's termination of
employment; or (v) solicit, interfere with, or endeavor to entice away from the
Company, for the benefit of a Competitive Business, any of the Company's
customers, clients or other persons with whom the Company has a contractual
relationship as of the date, or within the twelve months prior to the date, of
Executive's termination of employment. Notwithstanding the foregoing, nothing in
this Agreement shall preclude Executive from investing his personal assets in
the securities of any corporation or other business entity which is engaged in a
Competitive Business if such securities are traded on a national stock exchange
or in the over-the-counter market and if such investment does not result in his
beneficially owning, at any time, more than 4.9% of the publicly-traded equity
securities of such Competitive Business.
7.5 The parties agree that the provisions of this Article 7 are
reasonable and necessary for the protection of the business of the Company. If
Executive commits a breach, or threatens to commit a breach, of any of the
provisions of this Article 7, the Company shall have the right and remedy: (i)
to seek to have the provisions of this Agreement specifically enforced and such
injunctive and other equitable relief to enforce its rights hereunder without
the necessity of posting a bond or other security, it being acknowledged and
8
agreed by Executive that the services being rendered hereunder to the Company
are of a special, unique and extraordinary character and that any such breach or
threatened breach will cause irreparable injury to the Company and that money
damages will not provide an adequate remedy to the Company; and (ii) require
Executive to account for and pay over to the Company all monetary damages
suffered by the Company as the result of any transactions constituting a breach
of any of the provisions of this Article 7, and Executive hereby agrees to
account for and pay over such damages to the Company.
7.6 Each of the rights and remedies enumerated in this Article 7 shall
be independent of the other, and shall be severally enforceable, and such rights
and remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or equity.
7.7 If Executive shall violate any covenant contained in this Article 7,
the duration of such covenant so violated shall be automatically extended for a
period of time equal to the period of such violation.
7.8 If any provision of this Article 7 is held to be unenforceable
because of the scope, duration or area of its applicability, the tribunal making
such determination shall have the power to modify such scope, duration, or area,
or all of them, and such provision or provisions shall then be applicable in
such modified form.
7.9 The Executive represents that execution of this Agreement, the
Executive's employment with the Company and the Executive's performance of his
duties to the Company will not violate any obligations that the Executive may
have to any former employer, or other person or entity, including any
obligations to keep confidential any proprietary or confidential information of
any such employer. The Executive has not entered into, and shall not enter into,
any agreement which conflicts with or would, if performed by the Executive,
cause the Executive to breach this Agreement. In the course of performing
Executive's duties to the Company, the Executive shall not utilize any
proprietary or confidential information of any former employer.
7.10 The provisions of this Article 7 shall survive the termination of
this Agreement for any reason.
ARTICLE 8
ARBITRATION
In the event of a dispute between the parties arising out of or relating to this
Agreement, or the breach thereof, the parties shall make every effort to
amicably resolve, reconcile, and settle such dispute between them. If the
dispute is not settled to the satisfaction of either party then the parties
shall proceed to mediation. The parties shall agree on the mediator and the
mediation shall be scheduled and completed within 45 days after mediation is
first requested. The Company shall bear the costs of the mediation and each
party shall be responsible for their respective legal fees. Should the mediator
declare an impasse, then either party may invoke arbitration. All claims,
9
disputes and other matters in controversy arising out of or related to this
Agreement or the performance or breach hereof if not settled informally or
through mediation, shall be decided by binding arbitration in accordance with
the Employment Arbitration Rules of the American Arbitration Association (the
"AAA Rules"), by a panel of three (3) arbitrators, in Houston, Texas. One (1)
such arbitrator shall be appointed by each of the parties within three (3) weeks
after being requested by the other party to make such appointment and the third
(3rd) arbitrator shall be appointed by the two (2) arbitrators appointed by the
parties. In the event that a party does not appoint its arbitrator within such
three (3) week period, or the two (2) arbitrators appointed by the parties shall
fail to agree on the third (3rd) arbitrator, such appointed arbitrator or
arbitrators shall be appointed by the American Arbitration Association in
accordance with the AAA Rules. The award shall state the facts and findings and
shall be rendered with reasons in writing. The arbitrators shall have no
authority or power to alter or modify any express condition or provision of this
Agreement, or to render any award that by its terms shall have the effect of
altering or modifying any express conditions or provisions of this Agreement.
The award rendered by the arbitrators shall be final and judgment may be entered
upon it in any court having jurisdiction thereof. The Company shall bear all
cost and fees of the arbitration process, and each party shall be responsible
for their respective legal fees.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Governing Law. The terms and provisions herein contained and all the
disputes or claims relating to this Agreement shall be governed by, interpreted
and construed in accordance with the internal laws of the State of Texas,
without reference to its conflict of laws principles. Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts in Xxxxxx County, Texas, for the purposes of any action or proceeding
arising out of this Agreement.
9.2 Benefit/Assignment. Subject to provisions herein to the contrary,
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective legal representatives, successors and assigns;
provided, however, that the Executive may not assign this Agreement or any or
all of his rights or obligations hereunder without the prior written consent of
The Company.
9.3 Representations. The Executive agrees to execute any proper oath or
verify any proper document required to carry out the terms of this Agreement.
Furthermore, the Executive represents that his performance of all the terms of
this Agreement will not breach any agreement to keep in confidence proprietary
information acquired by him in confidence or in trust prior to his employment by
the Company. The Executive has not entered into, and he agrees that he will not
enter into, any oral or written agreement in conflict herewith.
9.4 Waiver of Breach. The waiver by either party of a breach or
violation of any provision of this Agreement shall not operate as, or be
construed to be, a waiver by such party of any subsequent breach of the same or
other provision hereof.
10
9.5 Notices. Any notice permitted, required, or given hereunder shall be
in writing and shall be personally delivered; or delivered by any prepaid
overnight courier delivery service then in general use; or delivered by
facsimile transaction or electronic mail, or mailed, registered or certified
mail, return receipt requested, to the addresses designated herein or at such
other address as may be designated by notice given hereunder:
If to the Company: Xxxxx Xxxx
Quest Midstream GP, LLC
0000 Xxxxx Xxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
If to the Executive: Xxxxxxx Xxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxx.
Xxxxxxx, Xxxxx 00000
Delivery shall be deemed made when actually delivered or sent by facsimile
transmission or electronic mail to the proper facsimile number or email address,
or if mailed, three (3) business days after delivery to a United States Post
Office.
9.6 Severability. In the event all or part of any provision of this
Agreement is held to be invalid, illegal or unenforceable for any reason and in
any respect, such invalidity, illegality or unenforceability shall not affect
the remainder of this Agreement, which shall be in full force and effect,
enforceable in accordance with its terms.
9.7 Section 409A. It is the intention of the Company and the Executive
that this Agreement not result in unfavorable tax consequences to the Executive
under Section 409A. The Company and the Executive acknowledge that Section 409A
of the Code was enacted pursuant to the American Jobs Creation Act of 2004,
generally effective with respect to amounts deferred after January 1, 2005, and
only limited guidance has been issued by the Internal Revenue Service with
respect to the application of Section 409A to certain arrangements, such as this
Agreement. The Internal Revenue Service has indicated that it will provide
further guidance regarding interpretation and application of Section 409A. The
Company and the Executive acknowledge further that the full effect of Section
409A on potential payments pursuant to this Agreement cannot be fully determined
at the time that the Company and the Executive are entering into this Agreement.
The Company and the Executive agree to work together in good faith in an effort
to comply with Section 409A including, if necessary, amending the Agreement
based on further guidance issued by the Internal Revenue Service from time to
time, provided that the Company shall not be required to assume any increased
economic burden.
9.8 Divisions and Headings. The division of this Agreement into sections
and the use of captions and headings in connection therewith is solely for
convenience and shall have no legal effect in construing the provision of this
Agreement.
9.9 Entire Agreement/Amendment. This Agreement supersedes all previous
contracts, and constitutes the entire agreement of whatsoever kind or nature
existing between or among the parties respecting the subject matter hereof, and
no party shall be entitled to other benefits than those specified herein with
the exception of prior grants of stock made by Quest Resource Corporation in the
11
Bonus Shares Award Agreement dated September 23, 2006. The parties understand
and agree that the Bonus Shares Award Agreement shall continue in full force and
effect after the execution of this Agreement. As between or among the parties,
no oral statements or prior written material not specifically incorporated
herein shall be of any force and effect. The parties specifically acknowledge
that, in entering into and executing this Agreement each is relying solely upon
the representations and agreements contained in this Agreement and no others.
Except as otherwise stated herein, all prior representations or agreements,
whether written or oral, not expressly incorporated herein, are superseded and
no changes in or additions to this Agreement shall be recognized unless and
until made in writing and signed by all parties hereto.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the Effective Date.
THE COMPANY: Quest Midstream GP, LLC
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Date: CEO
THE EXECUTIVE: By: /s/ Xxxxxxx Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx Xxxxxx
Date: 2-24-07
13
