RETIREMENT, RELEASE AND CONSULTING SERVICES AGREEMENT
WHEREAS,
▇▇▇▇ ▇. ▇▇▇▇▇ (“▇▇▇▇▇”) is currently employed by CPNO Services, L.P.
(“CPNO”);
WHEREAS,
▇▇▇▇▇ desires to retire and therefore resign his employment and any and all
positions he has held with CPNO and Copano Energy, L.L.C. (“Copano”) and certain
of its subsidiaries and to terminate his employment with CPNO effective August
2, 2010;
WHEREAS,
CPNO and ▇▇▇▇▇ are parties to an employment agreement dated August 1, 2005 and
amended November 19, 2008 (the “Employment Agreement”), pursuant to which ▇▇▇▇▇
and Copano agreed to the terms and conditions of ▇▇▇▇▇’▇ employment with
CPNO;
WHEREAS,
CPNO wishes to engage ▇▇▇▇▇ as a Senior Advisor to provide advisory and
consulting services to CPNO and its affiliates, including but not limited to
Copano and its subsidiaries (collectively, the “Service
Recipients”);
WHEREAS,
CPNO wishes to enter into this Retirement, Release and Consulting Services
Agreement (the “Agreement”) with ▇▇▇▇▇ as a Senior Advisor to provide advisory
and consulting services to CPNO and its affiliates, including but not limited to
Copano and its subsidiaries (collectively, the “Service Recipients”) as
consideration (along with other valuable consideration identified below) for a
release and waiver of all claims by ▇▇▇▇▇, for ▇▇▇▇▇’▇ acknowledgment and
agreement with respect to Confidential Information as set forth herein, and for
▇▇▇▇▇’▇ agreement not to compete with any Service Recipient and not to solicit
any of the customers or employees of any Service Recipient during the time that
this Agreement is in effect and for a one-year period following the termination
of this Agreement; and
WHEREAS,
▇▇▇▇▇ acknowledges that as a Senior Advisor and consultant and a former employee
he will continue to be bound by certain of Copano’s employment practices
policies and to the terms of Copano’s Code of Business Conduct and
Ethics (the “Code”);
NOW
THEREFORE, CPNO and ▇▇▇▇▇ enter into this Agreement and agree as
follows:
1. Termination
of Employment. ▇▇▇▇▇ will resign from any and all positions he
has held with the Service Recipients and his employment with CPNO will terminate
effective August 2, 2010 (the “Resignation Date”). In addition
to any amounts owed to him by CPNO for unpaid salary through the date of his
resignation, CPNO offers ▇▇▇▇▇ continued participation for him and his
dependents who currently have coverage under the Company’s medical, dental, and
vision plans at the Company’s expense through February 28, 2012. ▇▇▇▇▇
acknowledges and agrees that this is good and valuable consideration for all the
promises made by him in this Agreement.
2. Forfeiture
of Award Opportunity under the Deferred Compensation
Plan. ▇▇▇▇▇ acknowledges that, upon the Resignation Date, he
will forfeit his rights to the award opportunity granted pursuant to the Copano
Energy, L.L.C. Deferred Compensation Plan.
3. Release
and Waiver of Claims. CPNO is making the payments hereunder and providing
▇▇▇▇▇ with the other valuable consideration identified in Paragraph 1 and
acknowledged by ▇▇▇▇▇ hereby in consideration of ▇▇▇▇▇’▇ acknowledgement and
agreement with respect to Confidential Information (defined below); ▇▇▇▇▇’▇
agreement not to compete with any Service Recipient and not to solicit any of
the customers or employees of any Service Recipient during the time that this
Agreement is in effect and for a one-year period following the termination of
this Agreement; and ▇▇▇▇▇’▇ acknowledgement and agreement (on behalf of himself,
his affiliates, heirs, agents, and assigns) that he knowingly, voluntarily and
irrevocably releases CPNO and Copano and all of their affiliated entities and
personnel, including but not limited to their respective past, present and
future directors, managers, officers, agents and employees (collectively, the
“Released Parties”) from any and all claims, rights, actions, causes of action,
demands, suits, agreements, obligations or liabilities of whatever kind or
nature, known or unknown, liquidated or non-liquidated, contingent or absolute,
arising out of federal, state, local or at common law, which ▇▇▇▇▇ ever had, now
has or may have against the Released Parties, arising out of or relating in any
way to ▇▇▇▇▇’▇ employment with, previous work for, or separation from, CPNO or
any of the Released Parties.
Without limitation, this release and
waiver of claims includes (i) all claims under Title VII of the Civil Rights Act
of 1964; the Civil Rights Act of 1991; the Employee Retirement Income Security
Act of 1974; the Fair Labor Standards Act of 1938, as amended; the Age
Discrimination in Employment Act; the Older Workers Benefit Protection Act; the
Americans with Disabilities Act; the Family and Medical Leave Act; the Labor
Management Relations Act; the Texas Commission on Human Rights Act; the Texas
Workers’ Compensation Act; the Texas Labor Code; any other relevant state law;
the Occupational Safety and Health Act; (ii) all other federal, state or local
constitutional, statutory or common law claims or actions that are permitted to
be waived in this context and that in any way refer to or arise out of ▇▇▇▇▇’▇
employment with, previous work for, or separation from CPNO or any of the
Released Parties; (iii) all claims of breach of contract, sounding in tort, or
of wrongful discharge; and (iv) all claims to any compensation, including but
not limited to any rights to any salary, bonus or severance
payments.
By
signing this Agreement, ▇▇▇▇▇ expressly agrees and understands that he is giving
to the Released Parties a general release and waiver of any and all such claims
that ▇▇▇▇▇ may have against any of the Released Parties.
4. No Suits
or Proceedings. ▇▇▇▇▇ agrees not to file any suit or institute
any other type of proceeding against the Released Parties in any local, state or
federal court or agency under these or any other laws or applicable regulations,
arising out of or relating in any way to ▇▇▇▇▇’▇ employment with, previous work
for, or separation from CPNO or any of the Released Parties.
This
release does not apply to any claims for unemployment compensation or any other
claims or rights which, by law, cannot be waived, including the right to file an
administrative charge or participate in an administrative investigation or
proceeding; provided, however
that ▇▇▇▇▇ disclaims and waives any right to share or participate in any
monetary award resulting from the prosecution of such charge or investigation or
proceeding.
5. Representation
Regarding Proceedings. ▇▇▇▇▇ represents and warrants that he
has not made, filed or lodged any complaints, charges, or lawsuits or otherwise
directly or indirectly commenced any proceeding against the Released Parties
with any governmental agency, department, or official, any regulatory authority,
or any court, other tribunal, or other dispute resolution body. ▇▇▇▇▇
further represents and warrants that he has not previously assigned or
transferred to any other person or entity any claims or rights that are the
subject of the waivers and releases contained in this Agreement.
6. Time in
Which to Consider Agreement; Revocation of Agreement. ▇▇▇▇▇ acknowledges and understands
that he has twenty-one (21) calendar days to consider this Agreement prior to
signing it. ▇▇▇▇▇ further acknowledges that he has seven (7) calendar
days following delivery of the fully signed Agreement to revoke or rescind the
Agreement, and further acknowledges and understands that the Agreement will not
be effective or enforceable until such seven (7) day period has expired and
▇▇▇▇▇ has not revoked the Agreement during such period.
7. Confidential
Information. ▇▇▇▇▇ acknowledges that, during the course of his
engagement, he will have access to highly confidential information about the
Service Recipients’ business, including but not limited to (i) information and
records about customers, partners, business methods or practices, (ii) finances,
(iii) accounting, (iv) pricing or pricing strategies, (v) contracts, (vi)
vendors, (vii) computer hardware, software, and operating systems and (viii)
training programs (collectively “Confidential Information”). ▇▇▇▇▇ acknowledges
that the Confidential Information is constantly revised and
updated. ▇▇▇▇▇ further acknowledges that he needs the Confidential
Information to perform his consulting duties for the Service Recipients.
Notwithstanding any provision of this Agreement to the contrary, Confidential
Information does not include any information which: (i) at the time of
disclosure to ▇▇▇▇▇ or thereafter is in the public domain (other than as a
result of a disclosure directly or indirectly by ▇▇▇▇▇), (ii) was available to
▇▇▇▇▇ on a non-confidential basis from a source other than the Service
Recipients, provided that such source was not bound by a duty of confidentiality
to the Service Recipients or (iii) is independently acquired or developed by
▇▇▇▇▇ without violating any of ▇▇▇▇▇’▇ obligations hereunder.
▇▇▇▇▇
acknowledges that the Confidential Information that the Service Recipients
promise to provide him constitutes a valuable, special, and unique asset of the
Service Recipients. ▇▇▇▇▇ acknowledges that all Confidential
Information is and shall at all times remain the property of the Service
Recipients. ▇▇▇▇▇ further acknowledges that except as required by his
duties to the Service Recipients, he will not, at any time during or after
termination of this Agreement, directly, indirectly, or otherwise, use,
disseminate, or disclose the Confidential Information without having first
obtained written permission from the Service Recipients. ▇▇▇▇▇ agrees
that any Confidential Information in his possession or control, as well as any
other materials or items owned by the Service Recipients, whether or not they
constitute Confidential Information, shall be returned to the Service Recipients
immediately upon the termination of this Agreement.
8. Non-Solicitation
of Employees. In consideration of the Service Recipients’
promise to provide Confidential Information to ▇▇▇▇▇ and in consideration of his
engagement with the Service Recipients, ▇▇▇▇▇ agrees that for a one-year period
following the termination of this Agreement Services, ▇▇▇▇▇ shall not, directly
or indirectly, jointly or individually, through other entities or persons or
either on his own behalf or in the service of others, encourage or induce any
then current employee of a Service Recipient or former employee of a Service
Recipient employed by a Service Recipient at any time during the twelve (12)
month period prior to the termination of this Agreement, to leave the employment
of the Service Recipients or offer employment, retain, hire or assist in the
hiring of any such employees by any person, association, or entity not
affiliated with the Service Recipients.
9. Non-Solicitation
of Customers. In consideration of the Service Recipients’
promise to provide Confidential Information and in consideration of his
engagement with the Service Recipients, ▇▇▇▇▇ agrees that for a one-year period
following the termination of this Agreement, ▇▇▇▇▇ shall not, directly or
indirectly, jointly or individually, solicit or otherwise try to obtain the
business of customers of the Service Recipients that conduct business in the
counties in which the Service Recipients conduct business or assist in the
solicitation of such business by any person, association, or entity not
affiliated with the Service Recipients.
10. Covenant
Not to Compete. In consideration of the Service Recipients’
promise to provide Confidential Information to ▇▇▇▇▇ and in consideration of his
employment with the Service Recipients, ▇▇▇▇▇ agrees that during the term of
this Agreement and for a one-year period following termination of this
Agreement, ▇▇▇▇▇ shall not, directly or indirectly, jointly or individually,
through other entities or persons or either on his own behalf or in the service
of others, practice or attempt to compete with any Service Recipient or work
with or for any person or entity that provides the same services or engages in
the same business as any Service Recipient or in any county where a Service
Recipient does business at the time of termination of this Agreement. ▇▇▇▇▇
hereby agrees that the provisions of this paragraph are reasonable in time,
area, and scope, and that in the event of ▇▇▇▇▇’▇ breach of the covenants set
forth in paragraph 7, 8, 9 or 10, the Service Recipients shall be entitled to
injunctive and/or monetary relief.
11. Acknowledgements. ▇▇▇▇▇
acknowledges that he was advised to consult an attorney about the contents and
meaning of this Agreement and that ▇▇▇▇▇’▇ decision whether or not to consult an
attorney was made independently by ▇▇▇▇▇. ▇▇▇▇▇ also acknowledges
that he has carefully read and understands all of the provisions of this
Agreement, including, without limitation, the waiver and release provisions
contained herein, that this Agreement is made with ▇▇▇▇▇’▇ full knowledge and
consent, that it was not procured by fraud, duress or mistake and that ▇▇▇▇▇ is
not relying upon any statement or representation of any of the Released Parties
except as expressly contained in this Agreement. ▇▇▇▇▇ also
acknowledges that he is not relying upon any oral or written representations of
the Released Parties in signing this Agreement.
▇▇▇▇▇
acknowledges and agrees that the releases, waivers and covenants contained in
this Agreement shall be and remain in effect even if ▇▇▇▇▇ later discovers facts
relating to the Released Parties, his employment, or separation from employment
that are in addition to or different from what ▇▇▇▇▇ knows now. ▇▇▇▇▇
acknowledges and agrees that the releases and covenants provided in this
Agreement shall be binding, unconditional and final upon the effectiveness of
this Agreement.
12. Non-disparagement. ▇▇▇▇▇
shall at all times conduct himself in a manner that will not in any way impair,
harm or prejudice the name, reputation or business interests of the Service
Recipients and their respective owners, officers, directors, employees, and
agents. CPNO and Copano shall at all times conduct themselves in a manner that
will not in any way impair, harm or prejudice the name, reputation or business
interests of ▇▇▇▇▇. The parties’ non- disparagement obligations shall survive
the expiration or any termination of this Agreement.
13. Services
to be Provided By ▇▇▇▇▇. ▇▇▇▇▇ agrees to provide such advisory
and consulting services as are requested by Copano’s President and Chief
Executive Officer, including but not limited to services related to long-term
strategic planning and various corporate development activities, including
acquisitions and organic growth projects (“Services”). ▇▇▇▇▇ shall make himself
reasonably available to perform Services requested by the Service Recipients
during the Term of the Agreement in an amount no greater than forty (40) hours
per month, exclusive of travel time. Services will be provided by telephone and
electronic mail and, if necessary, at in-person meetings at a location mutually
agreeable and convenient to ▇▇▇▇▇ and Service Recipients. Service Recipients
will provide ▇▇▇▇▇ with such access and equipment necessary to perform the
Services hereunder.
14. Compensation
for Services. During the Term of this Agreement, CPNO agrees
to compensate ▇▇▇▇▇ at a rate of $6,000 per month for up to forty (40) hours
(exclusive of travel time) per month. ▇▇▇▇▇ shall be compensated at a rate of
$125 for each hour worked by ▇▇▇▇▇ in excess of forty (40) hours (exclusive of
travel time) in a month. The compensation shall be paid to ▇▇▇▇▇ semi-monthly in
accordance with CPNO’s regular accounts payable practices. ▇▇▇▇▇ agrees to
provide CPNO with such time records as CPNO shall reasonably
require.
15. Reimbursement
for Expenses. CPNO agrees to reimburse ▇▇▇▇▇ for expenses
incurred while performing the Services, provided that such expenses are incurred
at the request of, and are pre-approved by a Service Recipient. In
accordance with Copano’s policy regarding business expenses, all expenses
greater than $50.00 (Fifty Dollars and No Cents) shall be supported by
receipts. ▇▇▇▇▇ shall submit all invoices for such incurred costs to
CPNO no later than 30 days prior to the end of the taxable year following the
taxable year in which they were incurred. CPNO shall reimburse ▇▇▇▇▇
for such costs within 14 days of receipt of such invoices.
16. Indemnity.
CPNO agrees to indemnify ▇▇▇▇▇ for any claims, including associated legal fees
and expenses, that may be asserted against ▇▇▇▇▇ on account of his good-faith
execution of the Services provided pursuant to this Agreement, but only to the
extent that such claims do not arise, directly or indirectly, out of ▇▇▇▇▇'▇
▇▇▇▇▇ negligence or willful misconduct. ▇▇▇▇▇ agrees to cooperate
fully with CPNO in the defense of any claims for which CPNO is obligated to
indemnify ▇▇▇▇▇.
17. Term;
Termination. This Agreement shall be effective as of August 2,
2010 and shall continue until August 1, 2012 unless terminated by either party
as the result of a breach of this Agreement by the other party (the “Term”). In
case of such termination, CPNO shall compensate ▇▇▇▇▇ for the Services provided
before termination of the Agreement.
18. Independent
Contractor. ▇▇▇▇▇ will act as an independent contractor in the
performance of the duties set forth in this Agreement, and shall have no
authority to incur any obligations or liabilities on behalf of the Service
Recipients, and shall not be deemed to be an agent of the Service Recipients.
▇▇▇▇▇ shall be solely responsible for determining the means and methods for
performing the Services. Other than as set forth in this Agreement,
neither CPNO nor any other Service Recipient shall have any obligation to ▇▇▇▇▇
with respect to retirement benefits, health insurance, life insurance or any
other similar benefits, and ▇▇▇▇▇ fully waives and releases any claim to
benefits from any Service Recipient on account of the Services. ▇▇▇▇▇
understands and acknowledges that he is not an employee of CPNO or any other
Service Recipient and that there shall be no employer-employee relationship
between CPNO or any other Service Recipient and ▇▇▇▇▇.
19. Standard
of Performance. ▇▇▇▇▇ agrees to perform the Services with that
standard of care, skill and diligence normally provided by a professional person
in the performance of similar services. Any work prepared by ▇▇▇▇▇
for a Service Recipient shall become the property of the Service Recipient and
shall be provided to such Service Recipient upon termination of this
Agreement. ▇▇▇▇▇ shall comply with all applicable laws and
regulations in performing the Services, as well as with Copano’s Code and other
applicable policies.
20. Taxes. ▇▇▇▇▇
shall be responsible for any and all taxes that may be imposed upon ▇▇▇▇▇ as a
result of providing Services hereunder.
21. Governing
Law. This Agreement shall be governed by, construed, interpreted and
enforced in accordance with the laws of the State of Texas, without reference to
principles of conflicts of law. The parties agree to submit to the
jurisdiction of the courts of ▇▇▇▇▇▇ County, Texas.
22. Miscellaneous.
(a) This
Agreement does not create a joint venture, partnership, or other type of
business entity between any Service Recipient and ▇▇▇▇▇.
(b) ▇▇▇▇▇ may
not assign his rights or obligations hereunder without the prior written consent
of CPNO. This Agreement may be assigned by any Service Recipient to its
affiliate or successor.
(c) This
Agreement represents the entire Agreement between the parties with respect to
the Services, and supersedes all previous agreements between the parties,
whether oral or written, with respect to employment, termination of employment
or the Services, including, without limitation, the Employment
Agreement. This Agreement may not be modified except by the written
agreement of the parties.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
one or more counterparts, attested by the hands of their proper officers duly
authorized in that behalf as of the date first written above.
CPNO SERVICES,
L.P.
By: CPNO Services GP,
L.L.C., general partner
By: /s/ R. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
R.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Accepted
and Delivered this 30 day of July,
2010
▇▇▇▇ ▇.
▇▇▇▇▇
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇