CONSULTING SERVICES AGREEMENT
Exhibit 10.1
THIS CONSULTING SERVICES
AGREEMENT (Agreement) is made as of May 15, 2008 by and between Regency
GP LLC, a Delaware limited liability company (“Company”), and Xxxxxxx X. Xxxx
III, having an address at 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxx 00000
(hereinafter called “Consultant”).
RECITALS
As the
former chief legal and administrative 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 he shall perform such consulting and advisory services as an independent
contractor (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 Board of Directors of the Company or
the Chief Legal 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 as
are 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.
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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 4.1, the Company shall pay to
Consultant the consulting fees specified in Section 2.3.
2.2 Consultant
and the Company agree that the Company shall have the right to call upon up to
16 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 16 hours
in any week without the consent of Consultant.
2.3 Subject
to Section 4.1, the Company shall pay Consultant for the Consulting Services,
whether or not requested by the Company, at a rate of $17,900.00 per calendar
month (prorated for any partial month), commencing on May 15,
2008. Any time expended by Consultant in excess of
16 hours in any week shall be authorized in writing by Company’s
authorized representative and shall be compensated at the rate of $200.00 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 business expenses that are
incurred in accordance with the Company’s general policies and are 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 the 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 If
Consultant shall timely elect COBRA continuation coverage, the monthly premium
for such COBRA continuation coverage during the Term of this Agreement shall be
the monthly premium charged to an active employee for similar coverage based on
Consultant’s elected coverage tier status.
2.6 Consultant
shall submit invoices not more often than monthly, and, subject to Section 4.1,
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: Xxx
X. Xxxxxxxx, Chief Legal 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.
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2.7 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.
2.8 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 taxes, fees
and other contributions on or attributable to the fees and business expense
reimbursements paid hereunder. Consultant hereby fully indemnifies
the Company against all such taxes and fees and any penalties or interest
thereon. Attached as Attachment A is a Notice and Verification of
Independent Contractor Status.
2.9 It is
understood and agreed by Consultant that this Agreement is not intended to and
does not create the relationship of employer and employee between the Company
and 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 an 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 agrees and acknowledges that he shall not be
entitled to any benefits, perquisites or compensation afforded to employees of
the Company or any partner of the Company, even if it is subsequently held or
determined that Consultant is an employee of the Company rather than an
independent contractor.
ARTICLE
3
TERM
3.1 Subject
to Section 4.1, the term (“Term”) of this Agreement is May 15, 2008 through
November 15, 2008, subject to its earlier termination pursuant to Section
3.2.
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; or
(iii) on
November 15, 2008.
ARTICLE
4
RELEASE
4.1 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.
Exhibit 10.1 -
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ARTICLE
5
CONFIDENTIAL
INFORMATION
5.1 The
parties hereto acknowledge that certain financial, technical and other business
information that is eithernonpublic, 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 at any time
following the expiration thereof.
5.2 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.
5.3 The
Consultant shall not, during the term of this Agreement or 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 the
Company (whether that date is before or after the date of this
Agreement).
5.4 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. Consultant shall not retain copies of any Confidential
Information.
5.5 Without
prejudice to the rights and remedies otherwise available to the Company,
Consultant agrees that the Company shall be entitled to equitable relief by way
of injunction or otherwise if Consultant breaches or threatens to breach any of
the provisions of this Agreement, and Consultant hereby waives any requirement
for the Company to post bond (or any other security) to obtain such equitable
relief.
5.6 The terms
and conditions of this Article 5 shall survive the termination of this
Agreement.
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ARTICLE
6
NOTICES
6.1 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
7
GENERAL
7.1 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.
7.2 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.
7.3 This
Agreement shall inure to the benefit and be binding upon the parties hereto and
their heirs, descendants, successors and permitted assigns.
7.4 The
headings herein are for convenience of reference only and shall not affect the
meaning or interpretation of this Agreement.
7.5 Time
shall be of the essence hereof.
7.6 This
Agreement contains the entire understanding of the parties hereto pertaining to
the subject matter contained herein and replaces and supersedes all previous and
contemporaneous contracts, agreements and understandings (written or oral),
among the parties hereto pertaining to the matters contained
herein.
7.7 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.
7.8 This
Agreement may be amended only by written contract signed by both of the parties
hereto.
7.9 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.
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7.10 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.
7.11 The
Company and Consultant agree to the resolution by binding arbitration of all
claims, demands, causes of action, disputes, controversies or other matters in
question (“claims”) arising out of, based upon or related this Agreement,
whether in contract, tort or otherwise and whether provided by statute or common
law, that the Company may have against Consultant or that Consultant may have
against the Company or its parents, subsidiaries and affiliates, and each of the
foregoing entities’ respective officers, directors, employees or agents in their
capacity as such or otherwise; except that this agreement to arbitrate shall not
limit the Company’s right to seek equitable relief, including injunctive relief
and specific performance. The arbitrator may make an interim award
granting equitable relief to either party and such award may be enforced like a
final award. The Company and Consultant agree that any arbitration
shall be in accordance with the Federal Arbitration Act (“FAA”) and, to the
extent an issue is not addressed by the FAA, with the then-current National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association (“AAA”) or such other rules of the AAA as applicable to the claims
being arbitrated. The arbitration shall be conducted by a single
arbitrator, who shall be selected by agreement of the parties or if they do not
agree on an arbitrator within 15 days after either the Company or Consultant has
made a demand for arbitration then the arbitrator will be selected pursuant to
the rules of the AAA. If a party refuses to honor its obligations
under this Agreement to arbitrate, the other party may compel arbitration in
either federal or state court. The arbitrator shall apply the
substantive law of the State of Texas (excluding Texas choice-of-law principles
that might call for the application of some other state’s law), or federal law,
or both as applicable to the claims asserted. The arbitrator shall
have exclusive authority to resolve any dispute relating to the interpretation,
applicability, enforceability or formation of this Agreement to arbitrate,
including any claim that all or part of this Agreement is void or voidable and
any claim that an issue is not subject to arbitration. The parties
agree that the exclusive venue for arbitration will be in the county in which
the Company’s headquarters are then located, and that any arbitration commenced
in any other venue will be transferred to such county upon the written request
of any party to this Agreement. If permitted by law, the party in
whose favor the arbitrator renders the award may, in the discretion of the
arbitrator, also be awarded all costs and expenses actually incurred, including
reasonable attorneys’ fees, and costs, but excluding expert witness
fees. Any and all of the arbitrator’s orders, decisions and awards
may be enforceable in, and judgment upon any award rendered by the arbitrator
may be confirmed and entered by, any federal or state court having
jurisdiction. All proceedings conducted pursuant to this agreement to
arbitrate, including any order, decision or award of the arbitrator, shall be
kept confidential by all parties except to the extent such disclosure is
required by law, or in a proceeding to enforce the rights
hereunder. THE PARTIES ACKNOWLEDGE THAT, BY SIGNING THIS AGREEMENT,
THEY ARE WAIVING ANY RIGHT THAT THEY MAY HAVE TO A JURY TRIAL OR A COURT TRIAL
OF ANY CLAIM.
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: Xxxxxxx
X. Xxxx III
Title: Chairman,
President &
CEO Title: Consultant
Date: May
15,
2008 Date: May
15, 2008
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Attachment
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 am and will
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
I
understand and agree that in providing Consulting Services to Regency, I will
read and abide by the provisions of the Regency Code of Business Conduct, a copy
of which l acknowledge receiving.
Date: Signed:
