CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES
AGREEMENT (Agreement) is made as of April 1, 2008 by and between Regency
GP LLC, a Delaware limited liability company (“Company”), and Xxxxx X. Xxxx,
having an address at 0000 Xxxxxxxxx, Xxxxxx, Xxxxx 00000 (hereinafter called
“Consultant”).
RECITALS
As a
former chief executive officer of the Company, Consultant will provide
management consulting and advisory services with respect to the business and
affairs of the Company.
Company
has requested Consultant to perform these services on an as needed basis,
subject to the terms and conditions in this Agreement.
Consultant
agrees to perform such consulting and advisory services as an independent
consultant (and not as an employee) on and subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for and in
consideration of the mutual covenants herein set forth and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE
1
NATURE
OF WORK
1.1 Consultant
shall perform any and all such management consulting and advisory services for
the Company and any one or more of its subsidiaries (“Consulting Services”), as
may from time to time be designated by the Chief Executive Officer of the
Company, being the Company’s authorized representative in this
regard. The Consulting Services shall be provided under the direction
of the Company’s authorized representative. Consultant shall perform
the Consulting Services with due diligence at all times acting in the best
interests of the Company and its subsidiaries. Consultant shall use
his best professional judgment and discretion in determining the manner in which
services are performed for the Company.
1.2 Consultant
shall not have the authority to hire outside contractors for work under this
Agreement without the prior written approval of the Company.
1.3 Company
agrees to provide Consultant with such information, materials and supplies
necessary to perform Consultant’s duties at Company’s expense.
1.4 Consultant
shall perform the duties required hereunder in compliance with the Company’s
Code of Business Conduct, a copy of which has been provided to
Consultant.
ARTICLE
2
PAYMENT
TO CONSULTANT
2.1 In full
and complete consideration for Consultant (i) making available the Consulting
Services to the Company, whether or not requested by the Company, and (ii) the
release and waiver provided for in Section 5.1, the Company shall pay to
Consultant the consulting fees specified in Section 2.3 and make available the
benefits set forth in Section 2.4.
2.2
Consultant and the Company agree that the Company shall have the right to call
upon up to 8 hours of Consultant’s time each week, exclusive of Saturdays,
Sundays and Company holidays, during the Term of this
Agreement. Company may not require any Consulting Services to be
performed that require more than 8 hours in any week without the consent of
Consultant.
2.3
Subject to Section 5.1, the Company shall pay Consultant for the Consulting
Services, whether or not requested by the Company, at a rate of $33,500.00 per
calendar month, commencing with the month of April 2008. Any time
expended by Consultant in excess of 8 hours in any week shall be authorized in
writing by Company’s authorized representative and shall be compensated at the
rate of $1,000.00 per hour. Any excess time accrued during the Term
hereof shall be billed by Consultant with supporting documentation on a monthly
basis.
2.4 The
Company shall reimburse Consultant for all reasonable expenses, including travel
at first class air fare and reasonable accommodations for out-of-town travel
requested and approved by the Company in advance. Invoices for
expenses chargeable to the Company hereunder shall be supported by appropriate
receipts. Any expenses not submitted to Company within sixty (60)
days after incurrence shall not be reimbursed by the Company unless specifically
authorized by the Company’s authorized representative.
2.5
Consultant shall submit invoices not more often than monthly, and, subject to
Section 5.1, the Company shall pay the amount owed within thirty (30) days from
the Company’s receipt of the invoice. All invoices and xxxxxxxx under
this Agreement shall be submitted to:
Regency
GP LLC
0000
Xxxxxxx Xxx., Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention: Xxxxx
X. Xxxxxx, President & Chief Executive Officer
Phone: 000-000-0000
Fax: 000-000-0000
All
payments under this Agreement shall be made to Consultant at the account
currently designated in writing by Consultant for direct payment .
2.6 The
Company shall have the right at its sole discretion and upon ten (10) days
written notice to Consultant to audit all charges made by Consultant pursuant to
this Agreement.
2.7 It is
intended that the consulting fees paid hereunder shall constitute earnings from
self-employment income. The Company will not withhold any amounts
therefrom as US federal income tax withholdings from wages or as employee
contributions under the US Federal
Insurance
Contributions Act or make employer contributions thereunder with respect
thereto. Consultant shall be solely responsible for the reporting,
estimation and payment of all income taxes, fees and other contributions on or
attributable to self-employment income attributable to the fees payable
hereunder.
2.8 It is
understood and agreed that this Agreement does not create the relationship of
employer and employee between the Company and the
Consultant. Consultant is an independent contractor with the
responsibility for, and control over, the details and means of performing the
Consulting Services. Nothing contained in this Agreement shall be
construed as constituting Consultant as agent, representative or employee of the
Company, and Consultant shall not represent to the contrary to any person,
unless expressly authorized by the Company’s authorized
agent. Consultant shall not be entitled to any benefits afforded to
employees of the Company or any partner of the Company. Attached as
Appendix A is a Notice and Verification of Independent Contractor
Status.
ARTICLE
3
TERM
3.1 Subject
to Section 5.1, the term (“Term”) of this Agreement is April 1, 2008 through
December 31, 2008.
3.2 Consultant’s
engagement shall terminate on the occurrence of any of the following
events:
(i) Death of
Consultant;
(ii) written
notice given by the Company of a material violation by Consultant of any
provisions of this Agreement terminating this Agreement fifteen (15) days
thereafter; or
(iii) On
December 31, 2008.
ARTICLE
4
COMPANY'S
INDEMNITY OF CONSULTANT FOR COMPANY'S NEGLIGENCE.
4.1 The
Company agrees to indemnify and save the Consultant harmless from and against
any and all losses that Consultant may hereafter suffer, incur, or pay, as a
result of any injury, any bodily injury, including death, to any person or
damage (including loss of use) to the property of Consultant or others to the
extent that such losses arise out of or in connection with the negligent
performance of the Company, any of its subsidiaries or any of its or their
employees, officers, agents, or representatives. Upon the request of
the Consultant, the Company shall promptly defend any such demand, claim, cause
of action or suit.
ARTICLE
5
RELEASE
5.1 Notwithstanding
anything in this Agreement to the contrary, Consultant shall not be entitled to
receive any payments provided under this Agreement unless, (i) he executes
the
general
release and waiver agreement attached as Attachment B to this Agreement and (ii)
such release has become nonrevocable by Consultant.
ARTICLE
6
CONFIDENTIAL
INFORMATION
6.1 The
parties hereto acknowledge that certain financial, technical and other business
information that is either nonpublic, confidential or proprietary in nature may
be provided to Consultant in the course of the performance of Consulting
Services. Any such correspondence, documents, drawings, maps,
reports, analyses, compilations, studies, notes, specifications, computer
printouts, data, or other information relating to or generated by the work
performed pursuant to this Agreement (“Confidential Information”) shall, at all
times, belong to the Company and shall be usable at any time by the Company for
any purpose, without payment or charge. Consultant covenants that he
will not at any time use or permit others to use said documents or information,
or copies thereof, relating to the work performed under this Agreement for his
or their personal benefit during the term of this Agreement or for a period of
twelve (12) months following the expiration thereof.
6.2 The
Consulting Services to be performed hereunder by Consultant are of a
confidential nature, and Consultant covenants that any developments resulting
from Consultant’s work for the Company shall be considered the sole proprietary
information of the Company.
6.3 The
Consultant shall not, during the term of this Agreement or for a period of
twelve (12) months following the expiration thereof, disclose to any third party
any Confidential Information, whether written or oral, (i) that Consultant may
acquire or has previously acquired from the Company or about the Company or (ii)
the work performed pursuant to this Agreement. Confidential
Information shall not include any information that (i) is required by law to be
disclosed (provided, however, that, prior to such disclosure, Consultant shall
give reasonable notice to the Company of the information required to be
disclosed), (ii) has become part of the public domain other than by acts or
omissions of Consultant or (iii) was or is in the possession of Consultant prior
to the date of disclosure by Company (whether that date is before or after the
date of this Agreement).
6.4 As of the
date of termination of this Agreement, the Consultant shall remit and surrender
at the Company’s offices, without any cost to the Company, all Confidential
Information, together with all copies thereof, relating to the work that has
been provided to or performed by Consultant and that Consultant has in his
possession or is within his power to acquire possession at that
time.
6.5 Without
prejudice to the rights and remedies otherwise available to Company, Consultant
agrees that the Company shall be entitled to equitable relief by way of
injunction or otherwise if the Consultant breaches or threatens to breach any of
the provisions of this Agreement, and Consultant hereby waives any requirement
for Company to post bond (or any other security) to obtain such equitable
relief.
6.6 The terms
and conditions of this Article 5 shall, to the extent expressly provided herein,
survive the termination of this Agreement.
ARTICLE
7
EMPLOYMENT
AGREEMENT
7.1 That
certain Executive Employment Agreement dated as of December 1, 2004 by and
between Regency Gas Services LLC and Xxxxx X. Xxxx is terminated and rendered of
no further force or effect as of April 1, 2008 except for the provisions of
Section 6 (Confidential Information) and Section 9 (Non-Competition and
Non-Solicitation), which shall remain in force until January 1,
2009. Consultant agrees and acknowledges that he is not entitled to
any severance pay or benefits under such employment agreement.
ARTICLE
8
NOTICES
8.1 Unless
otherwise specifically provided in this Agreement, any written notice or other
communication given pursuant to this Agreement shall be sufficiently delivered
if delivered personally or mailed or if given by telegram, fax, or similar means
of visual data transmission to the parties at the addresses set forth herein or
at such other address as may be designated from time to time by any party by
written notice to each other; and if mailed, such notice shall be deemed
received on the fifth business day following the date on which the same is
mailed by registered or certified mail, postage prepaid, and properly
addressed. If delivered personally or by telegram, fax, or similar
means of visual data transmission, then such notice shall be deemed delivered
when transmitted and such transmission has been confirmed received.
ARTICLE
9
GENERAL
9.1 This
Agreement shall be construed under the laws of the State of Texas, disregarding
any conflicts of laws or principles that would cause the laws of a different
jurisdiction to apply hereto. If any provision of this Agreement is
illegal or unenforceable under the laws of the State of Texas, such provision
shall be severable and the remainder of this Agreement shall continue in full
force and effect.
9.2 This
Agreement requires personal services of Consultant and, accordingly, is not
assignable in whole or in part by Consultant without the prior written consent
of the Company.
9.3 This
Agreement shall inure to the benefit and be binding upon the parties hereto and
their heirs, descendants, successors and permitted assigns.
9.4 The
headings herein are for convenience of reference only and shall not affect the
meaning or interpretation of this Agreement.
9.5 Time
shall be of the essence hereof.
9.6 This
Agreement contains the entire understanding of the parties hereto pertaining to
the subject matter contained herein and replaces and supersedes all previous
contracts written or oral, among the parties hereto pertaining to the matters
contained herein.
9.7 No waiver
by any party or any default by any other party in the performance of any
provision, condition or requirement herein shall be deemed to be a waiver of, or
in any manner release the other party from, performance of any tougher
provision, condition or requirement herein.
9.8 This
Agreement may be amended only by written contract signed by both of the parties
hereto.
9.9 If any
litigation is commenced against any party hereto with respect to the subject
matter contained in this Agreement, the party prevailing in such litigation
shall be entitled, in addition to such other relief as may be granted in such
proceeding, to a reasonable sum from the non-prevailing parties for attorney’s
fees in such litigation, which sum shall be determined in such litigation or in
a separate action for such purpose.
9.10 No
presumption shall operate in favor of or against any party hereto as a result of
any responsibility that any party may have had for drafting this
Agreement.
9.11 If any
Consulting Services, as defined herein, were performed by Consultant under oral
agreement prior to the date hereof, this Agreement shall apply thereto as if
this Agreement were executed by the parties prior to the date such Consulting
Services were performed.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
Regency
GP LLC
By:
Name: Xxxxx
X.
Xxxxxx Name: Xxxxx
X. Xxxx
Title: Chairman,
President &
CEO Title: Consultant
Appendix
A
Notice and Verification of
Independent Contractor Status
It is
understood and agreed that in providing services to Regency GP LLC and its
affiliates (hereinafter collectively referred to as “Regency”), I remain at all
times an independent contractor and no relationship of employer and employee is
thereby created between Regency and me.
Date: Signed:
Safety and
Health
It is
understood and agreed that in providing services to Regency GP LLC and its
affiliates (hereinafter collectively referred to as “Regency”), I will read and
abide by the provisions of the Regency Code of Business Conduct, a copy of which
I acknowledge receiving.
Date: Signed:
