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EXHIBIT 10.29
EMPLOYMENT AND NON-COMPETE AGREEMENT
THIS EMPLOYMENT AND NONCOMPETE AGREEMENT (the "Agreement") is entered
into this ____ day of __________, 1999, by and between TEXAS EASTERN PRODUCTS
PIPELINE COMPANY, ("TEPPCO") a Delaware corporation with its principal executive
offices in Houston, Texas and _________________ ("Executive").
WHEREAS, TEPPCO desires to employ Executive to serve as
the _______________ of TEPPCO Crude Oil, LLC ("TCO"), a subsidiary of TEPPCO
Partners, L.P., ("Partnership") of which TEPPCO is the sole general partner, and
Executive desires to accept that position and serve in such capacity; and,
WHEREAS, the parties desire that this Agreement set forth the terms and
conditions of Executive's employment by TEPPCO and that it represents the entire
agreement of the parties with respect to that subject;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Employment. TEPPCO hereby employs Executive, and Executive hereby
accepts such employment, upon the terms and conditions set forth herein.
2. Position and Duties.
(a) Duties. Executive is employed by TEPPCO to serve as
the ______________________ of TCO.
As __________________ of TCO, Executive shall perform
such duties as the _______________________ of
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TEPPCO ("CEO") may prescribe. Executive shall report
directly to the CEO.
(b) Engaging in Other Employment. While employed by
TEPPCO, Executive shall devote full time and
attention to TCO and shall not be employed by any
other person or entity. Executive may reasonably
participate as a member in community, civic or
similar organizations and may pursue personal
investments that do not interfere with the normal
business activities of Partnership or TCO.
(c) Loyal and Conscientious Performance. Executive shall
act at all times in compliance with the policies,
rules and decisions adopted from time-to-time by
TEPPCO and/or TCO and perform all duties and
obligations required of him by this Agreement in a
loyal and conscientious manner.
3. Term of Employment. The term of employment pursuant to this
Agreement shall commence as of January 1, 1999 and shall continue until
terminated as hereinafter provided.
4. Base Compensation. Executive's base annual salary is $_________.
This base compensation will be payable in equal installments as specified by the
policies of TEPPCO and subject to applicable state and federal income tax and
social security tax withholding requirements. Executive's base annual salary may
be increased by the Compensation Committee of the Board of Directors of TEPPCO,
who shall review Executive's salary and total compensation periodically.
5. Bonus. Executive shall be eligible to participate in the annual
bonus program for employees of TEPPCO primarily engaged in performing services
for TCO. Such bonus shall be
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determined under the terms of the Crude Oil Bonus Plan ("COBP") which shall be
approved by the Compensation Committee of TEPPCO's Board of Directors each year.
6. Phantom Unit Grants. TEPPCO shall grant Executive _______ phantom
units which units shall vest in equal shares of _______ units each over a period
of four (4) years on such terms and conditions as set forth in the specific
grant award agreement between the parties. Rights to any unvested units upon
termination of Executive's employment with TEPPCO shall be exclusively
determined pursuant to the specific grant award agreement.
7. Employee Benefits. Executive shall participate in all benefit plans
that are available to officers of TEPPCO who are primarily engaged in performing
services for TCO. The availability and terms of such employee benefits are set
by the Compensation Committee of the Board of Directors of TEPPCO and are
subject to change from time-to-time. There is no assurance that the employee
benefits will not be changed or eliminated. For purposes of determining
Executive's vacation benefits, Executive shall be credited with all continuous
service with any Duke Energy Corporation subsidiary or affiliate. Executive
shall also be eligible to participate in the Duke Energy Executive Cash Balance
and Executive Savings Plans if such plans are made available to the officers of
TEPPCO.
8. Noncompetition by Executive.
(a) Executive agrees that during his employment by TEPPCO
and for a period of one (1) year after his
termination of employment for any reason without
TEPPCO's prior written consent he will not, directly
or indirectly, either as principal, agent, manager,
employee, partner, shareholder, director, officer,
consultant or otherwise, (i) become engaged or
involved in any business (other than as a less than
5% equity owner of any corporation
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traded on any national, international or regional
stock exchange or over-the-counter market), that
competes with TCO or any person or entity that
controls, is controlled by or is under common control
with TCO (collectively, the "Company Affiliates") in
the mid-stream business of transportation,
distribution, gathering, or sale of crude oil and/or
natural gas liquids; or (ii) induce or attempt to
induce any customer, supplier, or employee of TEPPCO,
TCO or any Company Affiliates to reduce, terminate,
restrict, or otherwise alter its business
relationship with TEPPCO, TCO or any Company
Affiliates. If any provision or part of this Section
8 is held to be unenforceable because of the duration
of such provision or the area covered thereby, the
parties hereto agree to modify such provision, or
that the court making such determination shall have
the power to modify such provision, to reduce the
duration or area of such provision or both, or to
delete specific words or phrases herefrom
("blue-penciling"), and in its reduced or
blue-penciled form, such provision shall then be
enforceable and shall be enforced. If Executive
violates any of the restrictive covenants set forth
in this Section 8, then the time limitation otherwise
applicable shall be extended for a period of time
equal to the period of time during which such breach
or breaches occurred. The Parties intend the above
restrictions on competition to be completely
severable and independent, and any invalidity or
unenforceability of any one or more of such
restrictions shall not render invalid or
unenforceable any one or more of the other
restrictions. Notwithstanding the above, this
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restrictive covenant is not intended to restrict the
ability of Executive to compete with any TEPPCO or
Partnership subsidiary or affiliate with which he had
no connection or involvement during his employment by
TEPPCO.
(b) The provisions of Section 8(a) shall be limited in
scope and effective only within the States of
Oklahoma, Colorado, Texas and Louisiana. The parties
intend these geographic areas to be completely
severable and independent, and any invalidity or
unenforceability of this Agreement with respect to
any one area shall not render this Agreement
unenforceable as applied to any one or more of the
other areas.
(c) Executive acknowledges that TEPPCO may have no
adequate means to protect its rights under this
Section 8 other than by securing an injunction (a
court order prohibiting Executive from violating this
Agreement). Executive agrees that TEPPCO may enforce
this Agreement by obtaining a preliminary injunction
and any other appropriate equitable relief in any
court of competent jurisdiction. Executive
acknowledges that the recovery of damages will not be
an adequate means to redress a breach of this
Agreement, but nothing in this Section 8 shall
prohibit TEPPCO from pursuing any remedies in
addition to injunctive relief, including recovery of
damages.
(d) Executive acknowledges and agrees that TEPPCO would
not agree to hire Executive without the covenants
made by Executive in this Section 8, and that the
compensation and benefits provided in this Agreement
constitute
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adequate and sufficient consideration for the
covenants made by Executive in this Section 8 and in
the remainder of this Agreement.
(e) Except as otherwise expressly provided herein,
Executive's obligations under this Section 8 shall
survive any termination of his employment.
9. Confidentiality. Executive shall not, at any time, use (other than
in the ordinary course of fulfilling his duties as an employee of TEPPCO),
divulge or otherwise disclose, either directly or indirectly, any confidential
or proprietary information (including without limitation any customer or
prospect list, supplier list, acquisition or merger targets, business plans or
strategies, data, records, or financial information) concerning the business,
policies or operations of TEPPCO, Partnership, TCO or Company Affiliates, which
Executive may have learned on or prior to the date hereof or during the term of
Executive's employment by TEPPCO (as employee, consultant, shareholder, officer,
controlling person, agent or otherwise) and which information is not generally
known to the public. Executive's obligations under this Section 9 shall survive
any termination of his employment.
10. Termination.
(a) Notwithstanding anything to the contrary contained
herein, Executive may terminate his employment at any
time by resigning, and Executive's employment may be
terminated by TEPPCO as follows:
(i) due to the death of Executive;
(ii) due to a disability which prevents Executive
from performing the essential functions of
his full duties for a period of ninety (90)
consecutive business days;
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(iii) for cause, which shall mean (w) the willful
and continued failure by Executive to
substantially perform his duties with
TEPPCO, TCO or Company Affiliates (other
than any such failure resulting from his
incapacity due to physical or mental
illness) after demand for substantial
performance is delivered to him by the CEO
which specifically identifies the manner in
which the CEO believes the Executive has not
substantially performed his duties, (x) the
willful engaging by the Executive in gross
misconduct materially and demonstrably
injurious to the property or business of
TEPPCO, Partnership, TCO or any Company
Affiliates, (y) willful material violation
of the provisions of Section 8 and 9 hereof,
or (z) fraud, misappropriation or commission
of a felony. For purposes of this
subsection, no act or failure to act on the
Executive's part will be considered
"willful" unless done or omitted to be done,
by him not in good faith and without
reasonable belief that his action or
omission was in the best interest of the
TEPPCO, Partnership, TCO or Company
Affiliates or not opposed to the interests
of TEPPCO, Partnership, TCO or Company
Affiliates; or
(iv) for any reason other than death, disability
or for cause.
(b) In the event of Executive's resignation of employment
or TEPPCO's termination of Executive's employment
pursuant to subsections 10(a)(i), (ii) or (iii)
above, Executive shall be entitled only to his base
salary earned through the date of termination.
Executive's rights to any bonus shall be
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forfeited, but the termination shall not affect any
rights of Executive that have become vested under any
employee benefit plan or arrangement. In the event
that TEPPCO terminates Executive pursuant to
subsection 10(a)(iv) above, Executive shall be
entitled to his base salary earned through the date
of termination plus a severance payment calculated in
accordance with the provisions of Section 11(a)
hereof.
(c) This Agreement does not create any obligation on the
part of TEPPCO or Executive for continued employment
for a fixed period of time and in that regard,
Executive shall be an employee-at-will whose
employment can be terminated at any time for any
reason by TEPPCO or Executive. If TEPPCO decides to
terminate Executive, TEPPCO will cooperate with
Executive in determining when and how to announce
such termination. Executive shall not receive any
compensation for any period of time post-termination,
except for the severance payment calculated in
accordance with the provisions of Section 11(a)
hereof.
11. Severance Payment.
(a) In the event that within twelve (12) months after a
change of control occurs as set forth in subsection
11(b), Executive's employment shall be involuntarily
terminated or Executive shall have a reduction in
responsibility, he shall be entitled to a lump sum
severance payment equal to two (2) times his base
annual salary plus two (2) times bonus. For the
purposes of this Section 11(a), bonus is calculated
as 45% of Executive's base salary.
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(b) For the purposes of this Section 11, a "change in
control" shall be deemed to have occurred if:
(i) any person becomes the beneficial owner,
directly or indirectly, of securities of
Partnership representing 66 2/3% or more of
the Partnership's then outstanding units of
limited partnership interests (the "Units");
or
(ii) any person becomes the beneficial owner,
directly or indirectly, of 50% or more of
the Units and TEPPCO delivers notice of
withdrawal or is otherwise removed as the
general partner of the Partnership; or
(iii) the merger or consolidation of Partnership
with one or more corporations, business
trusts, common law trusts or unincorporated
businesses, including, without limitation, a
general partnership or limited partnership,
pursuant to a written agreement of merger or
consolidation in accordance with Article 16
of the Second Amended and Restated Agreement
of Limited Partnership of TEPPCO Partners,
L.P., dated November 30, 1998, as may from
time-to-time be amended and TEPPCO delivers
notice of withdrawal or is otherwise removed
as the general partner of the Partnership;
or
(iv) any person is or becomes the beneficial
owner, directly or indirectly, of securities
of TEPPCO representing more than 50% of
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the combined voting power of TEPPCO's then
outstanding voting securities; or
(v) all or substantially all of the assets and
business of TEPPCO, Partnership, TCO or
TCTM, L.P. ("Operating Partnership") are
sold, transferred or assigned to, or
otherwise acquired by, any other person or
persons; or
(vi) any person is or becomes the beneficial
owner, directly or indirectly, of the
membership interest in TCO.
(vii) the dissolution or liquidation of TCO,
Partnership, Operating Partnership, or
TEPPCO; or
(viii) adoption by the Board of Directors of TEPPCO
of a resolution to the effect that any
person has acquired effective control of the
business and affairs of TEPPCO, Partnership,
Operating Partnership or TCO.
(c) The term "beneficial owner" shall have the meaning
set forth in Section 13(d) of the Securities Exchange
Act of 1934, as amended and in the regulations
promulgated thereunder. The term "person" shall mean
an individual, corporation, partnership, limited
liability company, trust, unincorporated
organization, association or other entity, provided
that the term "person" shall not include (i) Duke
Energy Corporation ("Duke"), (ii) any affiliate of
Duke, or (iii) any employee benefit plan maintained
by Duke or any affiliate of Duke. The term
"affiliate" means when used with respect to a
specified person or entity, any other person or
entity directly
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or indirectly controlled by, controlling, or under
direct or indirect common control with the specified
person or entity. The term "control" or "controlled"
when used with respect to any specified person or
entity means the power to direct the management and
policies of the person or entity whether through the
ownership of voting securities, membership interest
or by contract.
12. Notice. Any notice to be given hereunder by either party to the
other party may be effectuated either by personal delivery in writing or by
mail, registered or certified, postage prepaid, with return receipt requested.
Mailed notices shall be addressed to the parties at the following addresses:
If to TEPPCO, TCO or any Company Affiliate:
Xx. Xxxxxxx X. Xxxxxxx
President & CEO
Texas Eastern Products Pipeline Company
0000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
If to Executive:
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13. Waiver of Breach. The waiver by any party to a breach of any
provision in this Agreement cannot operate or be construed as a waiver of any
subsequent breach by a party.
14. Severability. The invalidity or unenforceability of any particular
provision in this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if the invalid or
unenforceable provision were omitted.
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15. Entire Agreement. Except as otherwise provided herein, this
Agreement contains the entire understanding of the parties as to the employment
of Executive, superseding all prior understandings and agreements, and no
modifications or amendments of the terms and conditions herein shall be
effective unless in writing and signed by the parties or their respective duly
authorized agents.
16. Governing Law. This Agreement shall be interpreted, construed and
governed according to the laws of the State of __________, without reference to
conflicts of law principles thereof.
17. Dispute Resolution. In the event any dispute arises concerning the
provisions of this Agreement or Executive's employment with TEPPCO, the parties
agree that such dispute shall be resolved in accordance with the Employment
Dispute Resolution procedures of the American Arbitration Association and that
any arbitration pursuant to such procedures shall be held in _________________,
___________.
18. Consent to Jurisdiction. Employee hereby consents to the
nonexclusive jurisdiction of any state court within ______________, _________ or
any federal court located within the same city for any proceeding instituted
hereunder or arising out of or in connection with this Agreement.
19. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their permitted successors,
assigns, legal representatives and heirs, but neither this Agreement nor any
rights hereunder shall be assignable by Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
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TEXAS EASTERN PRODUCTS PIPELINE COMPANY
By:
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President and Chief Executive Officer
EXECUTIVE
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