EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), entered into as of
January 1, 1998 (the "Effective Date"), by and among MARKET HUB PARTNERS, L.P.,
a Delaware limited partnership which is an owner of several other discrete
business entities (hereinafter collectively referred to as "MHP"), MARKET HUB
PARTNERS STORAGE, L.P., a Delaware limited partnership (the "Company"), MARKET
HUB PARTNERS STORAGE, L.L.C., the general partner of the Company (the "General
Partner") and XXXXXXX XXXXX (the "Executive"),
W I T N E S S E T H:
WHEREAS, MHP and the General Partner desire to employ and secure
on behalf of the Company the experience, abilities, and service of Executive
upon the terms and conditions specified herein; and
WHEREAS, Executive is willing to enter into this Agreement upon
the terms and conditions specified herein;
NOW THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the performance
thereof, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT.
The Company hereby employs the Executive, and the Executive
hereby accepts such employment, all upon the terms and conditions set forth
herein.
SECTION 2. TERM.
Subject to the terms and conditions of this Agreement, the
Executive shall be employed by the Company for a period commencing on the
Effective Date through December 31, 2000 (the "Contract Term") unless sooner
terminated pursuant to Section 5 of this Agreement.
SECTION 3. DUTIES AND RESPONSIBILITIES.
A. CAPACITY. The Executive shall serve in the capacity of Vice
President, Business Development for the Company. The Executive shall be
responsible for such general management activities as are consistent with the
responsibilities of said office and such other activities as may hereafter be
assigned to him by the Company. All such duties shall be performed in accordance
with any written or oral direction from time to time furnished to the Executive
by the President and the Executive Vice President and the Executive shall report
to the Executive Vice President of the Company.
B. Full-time Duties. The Executive shall devote his full
business time, attention, and energies to the business of the Company and the
General Partner and shall not be engaged in any other business activity, whether
or not pursued for gain, profit or other pecuniary advantage, which would impair
his ability to fulfill his duties to the Company under this Agreement, without
the prior written consent of the President. The Executive shall be allowed, to
the extent such activities do not substantially interfere with the performance
by the Executive of his duties and responsibilities hereunder, to (a) manage the
Executive's personal affairs, and (b) (i) serve on boards or committees of civic
or charitable organizations or trade associations, and (ii) serve on the board
of directors of any corporation; provided, however, that the Executive shall
advise the President in writing of any such corporate directorship under clause
(b)(ii) and, if requested by the President, the Executive shall first
demonstrate, to the reasonable satisfaction of the President, that any such
directorship does not detract from the Executive's performance of his duties and
responsibilities under this Agreement. Nothing contained in this paragraph B
shall prevent the Executive from passively investing his assets in such a form
or manner as will not conflict with the terms of this Agreement and will not
require services on the part of the Executive in the operation of the business
of the companies or other enterprises in which such investments are made.
C. Standard of Performance. The Executive will perform his
duties under this Agreement with fidelity and loyalty, to the best of his
ability, experience, and talent, and in a manner consistent with his fiduciary
responsibilities.
D. Location. The Executive's primary place of employment shall
be at MHP's official offices in Houston, Texas. As consideration for the
Executive's commitment to relocate to the Houston area, the Company shall pay
the Executive the amount of $60,000.00 to cover usual and customary moving
expenses associated with the relocation. After relocating to the Houston area,
the Executive shall not be required to relocate again without his consent.
SECTION 4. COMPENSATION.
A. Base Salary. During the term of this Agreement, the Company
shall pay the Executive a salary (the "Base Salary") of $120,000 per annum,
prorated for partial years of employment. The Base Salary shall be payable twice
monthly in accordance with the general payroll practices of the Company in
effect from time to time.
B. Bonuses.
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(1) The Executive shall receive a performance bonus for each
calendar year during the Contract Term. The actual bonus paid shall depend upon
MHP actual before tax income for the relevant calendar year, all as shown on its
"Combined Statement of Operations" as published by MHP and as modified in the
manner described herein (the "Actual Net Income"). For the purposes of
establishing MHP's Actual Net Income, such before tax income shall include the
before tax income of MHP and all of its subsidiary entities, and MHP shall not
purchase or transfer ownership of a subsidiary entity or its assets for the
purpose of avoiding all or any portion of the bonus payments required by this
provision. In addition, (i) bonuses and incentive compensation payments made
under any agreement entered into prior to this Agreement with any other employee
or consultant of MHP or its subsidiary entities, (ii) bonuses and incentive
compensation payments made under any agreement entered into subsequent to this
Agreement with any person not listed on Schedule 4(B) hereto, and (iii) any
extraordinary expense items recognized in 1998 and resulting from the retirement
of the Senior Notes issued on July 3, 1996 by Xxxx Bluff Hub Partners, L.P. and
Xxxx Hub Partners, L.P. shall not reduce, or otherwise adversely impact, the
amount of Actual Net Income used in calculating the performance bonus provided
for herein. The targeted bonus amount (the "Target Bonus") shall be an amount
equal to one percent (1%) of MHP's Actual Net Income for the relevant calendar
year. If MHP achieves Actual Net Income of (i) at least ninety percent (90%) but
not in excess of one hundred ten percent (110%) of the budgeted before tax
income for the relevant calendar year, as established by Market Hub Partners,
Inc., its general partner ("Budgeted Net Income"), the Executive shall be
entitled to receive one hundred percent (100%) of the Target Bonus, (ii) less
than ninety percent (90%) of the Budgeted Net Income, the Executive shall be
entitled to receive sixty-five percent (65%) of the Target Bonus, or (iii) in
excess of one hundred ten percent (110%) of the Budgeted Net Income, the
Executive shall be entitled to receive one hundred thirty-five percent (135%) of
the Target Bonus. This performance bonus shall be paid within thirty (30) days
after the end of the relevant calendar year.
(2) Other special compensation may be awarded at the sole
discretion of the General Partner from time to time.
C. Incentive Compensation.
(1) In the event of a Change in Control (as hereinafter
defined) that occurs during the Contract Term, the Executive shall be due from
the Company an amount (the "Incentive Compensation") equal to one percent (1%)
of the increase in value of MHP. The Incentive Compensation will be paid in
accordance with the provisions of this Agreement within forty-five (45) days of
the date of the Change in Control. The increase in value of MHP is calculated by
subtracting the value of MHP as of January 1, 1998, from the value of MHP as
determined in accordance with Section 4.C.(2) below. In any calculation of the
increase in the value of MHP under this provision, the parties shall include the
increase in value of all subsidiary
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entities, including the increase in value of all subsidiary entities acquired or
established hereafter, from the date of acquisition or establishment to the date
of calculation.
For the sole purposes of this paragraph C, the value of the Company as of
January 1, 1998, shall be determined based upon earnings before interest, taxes,
depreciation and amortization ("EBITDA") for 1997 and an EBITDA multiple of ten
(10).
(2) The value of MHP will be as agreed to by MHP and the
Executive. If MHP and the Executive fail to reach agreement within thirty days
of the Change in Control event requiring the valuation, the Chief Financial
Officer of MHP will retain the services of an investment banker to prepare a
determination of value of MHP as of the date necessary to carry out the intent
of this Agreement. The investment banker shall determine the value of MHP in a
manner consistent with the methodology used to determine the value of MHP as of
January 1, 1998, using the EBITDA of MHP based upon the four fiscal quarters
immediately preceding the event requiring valuation. In determining the
appropriate EBITDA multiplier the investment banker shall take into account
MHP's operations history, asset value, business prospects, any EBITDA multiplier
used to value comparable companies or to derive the value of any interest in MHP
sold in connection with the Change in Control and in any other recent
arm's-length transaction, and other factors deemed to relevant by the investment
banker to determine enterprise value. In either case, in determining the value
of MHP, appropriate adjustments will be made to take into account any capital
contributions by its partners to MHP and distributions by MHP to its partners
since January 1, 1998. For example, the amount of a capital contribution made to
fund a shortfall in working capital might be deducted from the value otherwise
determined, while the amount of a capital contribution made to fund a redemption
by MHP of outstanding equity interests might not be so deducted. The value of
MHP shall not be less than the value determined on the basis of the value
established in the transaction resulting in the Change in Control.
(3) A "Change in Control" shall mean (i) a sale, transfer or
other disposition or a series of sales, transfers or other dispositions
occurring during the Contract Term of an aggregate of more than 50% of the
beneficial ownership interest in the equity of MHP by the holders of equity
interests in MHP as of January 1, 1998 (the "Original Partners"), (ii) the
issuance by MHP during the Contract Term of any new equity interest that, in the
aggregate, exceeds 50% of the total equity interest in MHP, to any one or more
individuals, entities or groups that were not Original Partners, (iii) a sale,
transfer or disposition, or a series of sales, transfers or dispositions during
the Contract Term by MHP of assets of MHP constituting, in the aggregate, more
than 50% of the value of the assets of MHP, or (iv) a change in more thin 50% of
the members of the Board of Directors of MHP during the Contract Term as a
result of any sale, transfer or other disposition or a series of sales,
transfers or other disposition, or a series of sales, transfers or other
dispositions of the legal or beneficial ownership interest in the equity of MHP,
including any transfer to an Original Partner.
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D. Benefits.
(1) The Executive shall be entitled to reimbursement from
the Company for reasonable travel and other out-of-pocket business expenses
incurred by him in the course of the performance of his duties hereunder, upon
the submission of an itemized account of such expenditures in accordance with
the expense reimbursement policies applicable to executives as adopted by the
Company from time to time.
(2) If and to the extent that the Company maintains employee
benefit plans (including, but not limited to, pension, profit-sharing,
disability, accident, medical, life insurance, and hospitalization plans) (it
being understood that the Company may but shall not be obligated to do so), the
Executive shall be entitled to participate therein in accordance with the
Company's regular practices with respect to its executives. The Company will
have the right to amend or terminate any such benefit plans it may choose to
establish.
(3) The Executive shall be entitled to three (3) weeks of
vacation, together with holidays and other paid or unpaid leaves of absence as
are consistent with the Company's normal policies or as are otherwise approved
by the General Partner.
E. Payments. All payments to the Executive provided for under
this Agreement shall be paid in cash from the general funds of the Company and,
in the event the Company fails to satisfy its obligations hereunder, such
obligations shall be satisfied by MHP by cash payment from the general funds of
MHP. No special or separate funds shall be established and no other segregation
of assets shall be made to assure payment. The Executive shall have no right,
title, or interest whatsoever in or to any investments that the Company or MHP
may make to aid it in meeting its obligations hereunder. To the extent that any
person acquires a right to receive payments from the Company or MHP hereunder,
such right shall be no greater than the right of an unsecured creditor of the
Company or MHP.
SECTION 5. TERMINATION OF EMP1OVMENT
A. Termination without Cause; Resignation for Good Reason.
(1) General. If, prior to the expiration of the Contract
Term, the Executive's employment is terminated by the Company without Cause (as
defined in Section 5.C), or if the Executive resigns from his employment
hereunder for Good Reason (as defined in Section 5.D), the Company shall pay the
Executive his Base Salary as then in effect through and including the date of
termination or resignation, and sixty-five percent (65%) of the Target
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Bonus for the calendar year pro-rated for the number of days in the year prior
to the termination date. In the event of involuntary termination during the
Contract Term by the Company without Cause or upon involuntary termination of
the Executive's employment by the Company without Cause as of the expiration of
the Contract Term, the Executive shall receive a lump sum cash payment equal to
two year's Base Salary as severance and relocation allowance, in addition to any
amounts set forth in the preceding sentence. With the exception of health care
coverage under the applicable laws, the Executive shall have no further right to
receive any other compensation, or to participate in any other plan,
arrangement, or benefit, after such termination or resignation of employment.
(2) Date of Termination. The date of termination of employment
without Cause shall be the date specified in a written notice of termination to
the Executive. The date of resignation for Good Reason shall be the date
specified in the written notice of resignation from the Executive to the
Company; provided, however, that no such written notice shall be effective
unless the cure period specified in Section 5.D has expired without the
Company's having corrected, to the reasonable satisfaction of the Executive, the
event or events subject to cure. If no date of resignation is specified in the
written notice from the Executive to the Company, the date of termination shall
be the first day following such expiration of such cure period.
B. Termination for Cause; Resignation without Good Reason.
(1) General. If, prior to the expiration of the Employment
Term, the Executive's employment is terminated by the Company for Cause, or if
the Executive resigns from his employment hereunder other than for Good Reason,
the Executive shall be entitled only to payment of the Base Salary earned as
then in effect through and including the date of termination or resignation.
With the exception of health care coverage under the applicable laws, the
Executive shall have no further right to receive any other compensation, or to
participate in any other plan, arrangement, or benefit, after such termination
or resignation of employment.
(2) Date of Termination. The date of termination for Cause
shall be the date provided for in Section 5.C. The date of resignation without
Good Reason shall be the date specified in the written notice of resignation
from the Executive to the Company, or if no date is specified therein, 10
business days after receipt by the Company of written notice of resignation from
the Executive.
C. Cause. Termination for "Cause" shall mean termination of the
Executive's employment because of:
(1) any act or omission which is willful and wrongful and is
materially injurious to the financial condition or business reputation of the
General Partner or the Company
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or any subsidiary thereof, unless such act or omission was reasonably believed
by the Executive in good faith to be in the best interest of the General Partner
or the Company or any subsidiary thereof; or
(2) the failure or refusal of the Executive substantially to
perform the material duties of his position with the Company or any of its
subsidiaries.
In each case, an act or omission that may constitute cause under
C.(2) above must be confirmed by directors of the General Partner (the "Board")
representing stockholders which stockholders represent voting percentages of at
least 80% in the aggregate. The Company must give the Executive written notice
of its objection to such act or omission within ninety days after the Company
learns of such event. The Executive shall have thirty days from receipt of said
notice to correct the act or omission. In the event the Executive fails to
correct the cause as outlined in said notice, the Company shall notify the
Executive that the Company intends to terminate the Executive's employment for
Cause under this Section 5.C (the "Confirmation Notice"). The Confirmation
Notice shall specify the act, or acts, upon the basis of which the majority of
the Board has so confirmed the existence of Cause. If the Executive notifies the
Company in writing (the "Opportunity Notice") within five days after the
Executive has received the Confirmation Notice, the Executive shall be provided
one opportunity to meet with the Board (or a sufficient quorum thereof) to
discuss such act or acts. Such opportunity to meet shall be fixed and shall
occur on a date selected by the Board (such date being not less than five or
more than forty-five days after the Company receives the Opportunity Notice
from the Executive). Such meeting shall take place at the principal offices of
the Company. The Executive may accompanied by his legal counsel. During the
period commencing on the date of Confirmation Notice and ending on the date next
succeeding the date on which such meeting between the Board (or a sufficient
quorum thereof) and the Executive is scheduled to occur, the Executive shall be
suspended with pay from his employment with the Company and the Board may,
during such suspension period, reasonably limit the Executive's access to the
principal offices of the Company or the General Partner or any of their
respective assets, and during suspension period, the Executive shall not have
the authority to bind the Company or act on its behalf. If the Board properly
sets the date of such meeting and if the Board (or a sufficient quorum thereof)
attends such meeting and does not rescind its confirmation at such meeting or if
the Executive fails to attend such meeting for any reason, the Executive's
employment by the Company shall, immediately upon the closing of such meeting,
be terminated for Cause under this Section 5.C. If the Executive does not
respond in writing to the Confirmation Notice in the manner and within the time
deadline specified in this Section 5.C, the Executive's employment with the
Company shall, on the sixth business day after the receipt by the Executive of
Confirmation Notice, be terminated for Cause under this Section 5.C.
D. Good Reason. For purposes of this Agreement, "Good Reason"
shall mean any of the following (without the Executive's prior written consent):
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(1) any decrease in the Executive's base rate of
compensation or a failure by the Company or any of its subsidiaries promptly to
pay compensation due and payable to the Executive in connection with his
employment;
(2) a diminution of the responsibilities or title of the
Executive with the Company or any of its subsidiaries;
(3) the creation by the Company of a working environment
which materially and adversely prejudices the Executive's ability to perform his
duties hereunder;
(4) the Company's requiring the Executive to be based at any
office or location more than thirty miles from his principal employment location
as agreed to in this Agreement; or
(5) a material breach by the Company of any term or
provision of this Agreement;
provided, however, that no event or condition described in clauses (1) through
(5) of this Section 5.D shall constitute Good Reason unless (X) the Executive
gives the Company written notice of his objection to such event or condition
within ninety days after the date the Executive learns of such event, (Y) such
event or condition is not corrected by the Company within thirty days of its
receipt of such notice and (Z) the Executive resigns his employment with the
Company and its subsidiaries not more than thirty days following the expiration
of the thirty day period described in the foregoing clause (Y).
SECTION 6. DEATH OR DISABILITY.
In the event of termination of employment by reason of death or
disability, the Executive (or his estate, as applicable) shall be entitled to
Base Salary through the date of termination and the Target Bonus for the
calendar year of termination, pro-rated for the number of days in the year prior
to the termination date. Other benefits shall be determined in accordance with
the benefit plans maintained by the Company, and the Company shall have no
further obligation hereunder.
SECTION 7. CONFIDENTIAL INFORMATION.
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A. Nondisclosure. The Executive hereby acknowledges that it will
be necessary in connection with the performance of services hereunder to provide
or make available to the Executive certain confidential and proprietary
information, including, but not limited to, business and financial information,
technological information, customer lists and financial information on
customers, intellectual property, trade secrets, and other information relating
to the businesses, products, technology, services, customers, methods, or
tactics of MHP, the General Partner, the Company, or their affiliates (any such
confidential or proprietary information being hereinafter referred to as
"Confidential Information"). The Executive further acknowledges that the
Confidential Information includes certain protected trade secrets and agrees
that any such trade secrets shall remain the property of MHP, the General
Partner, the Company or its affiliates at all times during the term of this
Agreement and following the expiration or termination hereof. The Executive
shall not publish, disseminate, distribute, disclose, sell, assign, transfer,
copy, remove from the premises of MHP, the General Partner or the Company,
commercially exploit, or otherwise make use of any Confidential Information to
or for the use or benefit of the Executive or any other person, firm,
corporation, or entity, except as specifically authorized in writing by the
President or as required for the due and proper performance of his duties and
obligations under this Agreement. In addition, the Executive shall employ all
necessary safeguards and precautions in order to ensure that unauthorized access
to the Confidential Information is not afforded to any person, firm,
corporation, or entity. Upon any expiration or termination of this Agreement, or
if the President so requests at any time, the Executive shall promptly return to
MHP, the General Partner, or the Company all Confidential Information in the
Executive's possession, whether in writing, on computer disks, or other media,
without retaining any copies, extracts, or other reproductions thereof.
Notwithstanding the foregoing, nothing contained in this paragraph A shall
prevent the publishing, dissemination, distribution, disclosure, sale,
assignment, transfer, copying, removal, commercial exploitation, or other use by
the Executive of any information which (i) is generally available to the public
(other than through a breach on the part of the Executive of any of the terms or
provisions hereof), (ii) is lawfully obtained by the Executive from a source
other than MHP, the General Partner, the Company or their affiliates, directors,
officers, employees, agents, or other representatives provided, however, that
such source is not bound by a confidentiality agreement with MHP, the General
Partner, the Company or any of their affiliates and is not otherwise under an
obligation of secrecy or confidentiality to any of them), or (iii) is required
to be disclosed by judicial or administrative process or, in the opinion of
counsel, by the requirements of applicable law, (provided, however, that the
Executive complies fully with the provisions of paragraph C below).
B. Exclusive Property. The Executive confirms that all
confidential information is and shall remain the exclusive property of MHP, the
General Partner, the Company or its affiliates. All business records, papers and
documents kept or made by the Executive relating to the business of MHP, the
General Partner or the Company shall be and remain the property of MHP, the
General Partner, the Company or its affiliates.
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C. Requests for Disclosure. If the Executive is requested
(whether by oral questions, interrogatory, request for documents, subpoena,
civil investigative demand, or other legal process) to disclose any part of the
Confidential Information, the Executive shall (i) give prompt written notice to
the President of the existence of, and the circumstances attendant to, such
request, (ii) consult with the President as to the advisability of taking
legally available steps to resist or narrow any such request or otherwise to
eliminate the need for such disclosure, and (iii) if disclosure is required,
cooperate with the President in obtaining a protective order or other reliable
assurance in form and substance satisfactory to the President that confidential
treatment will be accorded to such portion of the Confidential Information as is
required to be disclosed.
SECTION 8. COVENANT NOT TO COMPETE.
A. Non-Competition. The Executive hereby agrees that during the
"Non-Competition Period" (as hereinafter defined), he will not, directly or
indirectly (whether acting alone or through any of his affiliates, as a member
of a company or a joint-venture or an investor in, or a holder of securities of,
any corporation or other entity, or otherwise), engage in any of the following
activities in a substantive and ongoing manner: (i) conduct or participate in
any business or enterprise involved in the line of business of MHP, the General
Partner or the Company; or (ii) solicit, in competition with MHP, the General
Partner, the Company or any of their affiliates, or their respective successors,
the business of any customer of MHP, the General Partner, the Company or any of
their affiliates. Notwithstanding anything to the contrary in this Section 8,
the Executive may own, for investment purposes only, up to five percent of the
stock of any publicly-held corporation whose stock is either listed on a
national securities exchange or on the NASDAQ National Market System if the
Executive is not otherwise affiliated with such corporation. The Executive
acknowledges that (i) the provisions set forth in this Section 8 are for the
benefit of MHP, the General Partner, the Company and their affiliates, (ii) his
agreement to such provisions is an express condition to his employment by the
Company, and (iii) such provisions are reasonably necessary to protect the
goodwill and other business interests of MHP, the General Partner, the Company
and their affiliates. The Executive agrees that, if he engages in any activity
in violation of this Section 8, the Non-Competition Period shall automatically
be extended in such a way that the Executive will be subject to the restrictions
imposed by this Section 8 until the expiration of two years from the date he
ceases to be engaged in any activity in violation hereof. The "Non-Competition
Period" shall be the term of the Executive's employment hereunder.
B. Reformation of Scope. If any of the provisions of this Section
8 is found to be unreasonably broad, oppressive, or unenforceable in an action,
suit, or proceeding before any federal or state court, such court (i) shall
narrow the Non-Competition Period or shall otherwise endeavor to reform the
scope of such agreements in order to ensure that the application thereof is not
unreasonably broad, oppressive, or unenforceable and (ii) to the fullest extent
permitted by law, shall enforce such agreements as so reformed.
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SECTION 9. NONSOLICITATION.
The Executive shall not, directly or indirectly, during the
Non-Competition Period, (a) take any action to solicit or divert any business
(or potential business) or customers (or potential customers) away from MHP, the
General Partner, the Company or their affiliates, (b) induce customers,
potential customers, suppliers, agents, or other persons under contract or
otherwise associated or doing business with MHP, the General Partner, the
Company or their affiliates to terminate, reduce, or alter any such association
or business with or from MHP, the General Partner, the Company or their
affiliates or (c) induce any person in the employment of MHP, the General
Partner, the Company or their affiliates or any consultant to MHP, the General
Partner, the Company or their affiliates to (i) terminate such employment or
consulting arrangement, (ii) accept employment, or enter into any consulting
arrangement, with anyone other than MHP, the General Partner, the Company or
their affiliates, or (iii) interfere with the customers, suppliers, or clients
of MHP, the General Partner, the Company or their affiliates in any manner or
the business of MHP, the General Partner, the Company or their affiliates in any
manner. For purposes of this Section 9, a "potential customer" shall mean a
person or entity that MHP, the General Partner, the Company or their affiliates,
(A) as of the date the Executive's employment terminates, is soliciting or
considering soliciting (or has targeted for solicitation), or (B) has, at any
time or from time to time, within the 12-month period prior to the date the
Executive's employment terminates, been soliciting for or in respect of any
current, actively pending, or contemplated business.
SECTION 10. REMEDIES.
The Executive hereby agrees that a violation of the provisions of
Section 7, 8, or 9 hereof would cause irreparable injury to MHP, the General
Partner, the Company and their affiliates for which they would have no adequate
remedy at law. Accordingly, in the event of any such violation, MHP, the General
Partner and the Company shall be entitled to preliminary and other injunctive
relief without necessity of complying with any requirement as to the posting of
a bond or other security (it being understood that the Executive hereby waives
any such requirement). Any such injunctive relief shall be in addition to any
other remedies to which MHP, the General Partner, and the Company may be
entitled at law or in equity, or otherwise.
SECTION 11. AMENDMENT: WAIVER.
The terms and provisions of this Agreement may be modified or
amended only by a written instrument executed by each of the parties hereto, and
compliance with the terms and provisions hereof may be waived only by a written
instrument executed by each party entitled to the benefits thereof. No failure
or delay on the part of any party in exercising any right, power, or privilege
granted hereunder shall constitute a waiver thereof, nor shall any single or
partial
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exercise of any such right, power, or privilege preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege granted
hereunder.
SECTION 12. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes any and all
prior written or oral agreements, arrangements, or understandings between MHP,
the General Partner, the Company and the Executive.
SECTION 13. NOTICES.
All notices or communications hereunder shall be in writing,
addressed as follows, or to any other address subsequently provided to the other
party:
To the Company:
Market Hub Partners Storage, LP.
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
To the Executive:
Xx. Xxxxxxx Xxxxx
All such notices shall be conclusively deemed to be received and shall be
effective, (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy
or facsimile transmission, upon confirmation of receipt by the sender of such
transmission, or (iii) if sent by registered or certified mail, on the fifth day
after the day on which such notice is mailed.
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SECTION 14. SEVERABILITY.
In the event that any term or provision of this Agreement is
found to be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining terms and provisions hereof shall not be in any
way affected or impaired thereby, and this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision had never been contained
therein.
SECTION 15. BINDING EFFECT; ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns (it being understood and
agreed that, except as expressly provided herein, nothing contained in this
Agreement is intended to confer upon any other person or entity any rights,
benefits, or remedies of any kind or character whatsoever). Neither party may
assign this Agreement without the prior written consent of the other party;
provided, however, that the Company may assign this Agreement to any of its
affiliates or to any successor (whether by operation of law or otherwise) to all
or substantially all of its business and assets without the consent of the
Executive.
SECTION 16. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas (except that no effect shall be given to any
conflicts of law principles thereof that would require the application of the
laws of another jurisdiction).
SECTION 17. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
SECTION 18. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
SECTION 19. APPROVALS.
This Agreement is made and entered into, and the Company agrees
to employ the Executive and the Executive agrees to accept such employment,
subject to the approval of this
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Agreement by the Board of Directors of the General Partner and Market Hub
Partners, Inc. Without such approval and ratification, this Agreement shall be
void and of no further effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the ________ day of , _____ to be effective as of the date first above written.
MARKET HUB PARTNERS, L.P.
By: Market Hub Partners, Inc.,
its General Partner
By:/s/ ____________________________
Xxxxxx X. Xxxxxxx, President
MARKET HUB PARTNERS STORAGE, L.L.C
By:/s/ ____________________________
Xxxxxx X. Xxxxxxx, President
MARKET HUB PARTNERS STORAGE, L.P
By: Market Hub Partners Storage,
L.L.C., its General Partner
By:/s/ ____________________________
Xxxxxx X. Xxxxxxx, President
"EXECUTIVE"
__________________________________
Xxxxxxx Xxxxx
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