August 27, 2009
Richard K. McGee
Houston, TX 77056
Pursuant to our discussions, the following shall set forth the employment agreement (this Agreement) between Plains All American GP LLC (the Company) and Richard K. McGee (Employee).
1. Employees position will be Vice President Special Projects and Legal of PAA/Vulcan Gas Storage, LLC (PVGS) with responsibility for the management of PVGSs legal matters, acquisitions efforts, business development opportunities and other special projects (as directed by the President of PVGS). The primary reporting relationship will be to the President of PVGS; however, certain activities and legal services will be closely coordinated with and at times directed by officers of the Company.
2. Compensation will include:
3. Monthly expense reimbursements will include reasonable and legitimate business travel and entertainment expenses including membership dues at one country club or athletic club.
4. Other benefits will include: (i) four weeks paid vacation, (ii) up to 10 days sick leave with pay, (iii) participation in the Companys 401(K) Plan and (iv) participation in the Companys insurance benefit program.
5. Contemporaneously with the execution of this Agreement, Employee and the Company shall execute a Confidential Information and Non-Solicitation Agreement (the Confidentiality Agreement) substantially in the form of Exhibit A attached hereto. The rights and obligations set forth in the Confidentiality Agreement shall survive the termination of this Agreement.
6. Employment shall commence on September 15, 2009 and this Agreement shall terminate
upon the termination of Employees employment with the Company.
7. Employee represents that (i) execution of this Agreement will not violate the terms of any Agreement to which Employee is currently bound, and (ii) Employee is not subject to an existing confidentiality, non-compete or similar type Agreement that would prevent, limit or otherwise encumber Employees ability to perform his job with the Company.
8. Upon termination of this employment for any reason, Employee shall promptly return to Company all copies of any Company data, records, or materials of whatever nature or kind, including all materials incorporating the proprietary information of Company.
9. This Agreement shall be interpreted and administered in a manner so that any amount or benefit payable hereunder shall be paid or provided in a manner that is either exempt from or compliant with the requirements of Section 409A of the Internal Revenue Code and applicable Internal Revenue Service guidance and Treasury Regulations issued thereunder. If the parties determine that any payments or benefits to be made or provided hereunder do not comply with Section 409A, the parties agree to amend this Agreement or take such other actions as reasonably necessary or appropriate to comply with Section 409A while preserving the economic agreement of the parties.
10. Notwithstanding the foregoing, this Agreement is subject to and contingent upon a satisfactory background check in which information that Employee has provided regarding items such as education, work experience, criminal record and professional credentials will be verified. Employee may be asked to provide additional information or assist in the process if Company encounters any difficulties in the verification of this information. If any of the information is found to be untrue or misrepresented, this offer will be withdrawn, or, if employed, Employees employment will be terminated.
11. By accepting this offer, Employee agrees that he shall at all times:
If the foregoing meets with your understanding of our agreement, please execute, date and return one original Agreement for our files.
Agreed to and accepted
this 27th day of August, 2009
AND NON-SOLICITATION AGREEMENT
This AGREEMENT is effective as of the 15th day of September, 2009, between Plains All American GP LLC for itself and on behalf of its affiliates including PAA/Vulcan Gas Storage, LLC (all referred to as the Company), and Richard K. McGee (the Employee).
WHEREAS, the Companys business includes the purchase, sale, exchange, trading, storage and gathering of crude oil and the storage of natural gas in the United States and Canada (including offshore production) and in Federal Waters in the Gulf of Mexico, (the Region); and
WHEREAS, the Companys (i) natural gas storage development and operating techniques and (ii) relationship with its customers is special and unique and is based upon valuable and confidential information concerning such customers, the decision processes used by such customers, the storage use patterns of such customers, special contract requirements of such customers, and other special information concerning such customers; all of which were developed by the Company over time and at substantial expense to the Company, and all of which, except for information that is known generally by the public (other than as a result of unauthorized disclosure by the Employee), constitute trade secrets of the Company (Trade Secrets); and
WHEREAS, contemporaneously with the execution of this Agreement, the Company and Employee have entered into that certain Letter Agreement dated August 27, 2009 regarding the employment of Employee by the Company (the Employment Agreement);
NOW, THEREFORE, in consideration of the Company entering into the Employment Agreement, the Employee and the Company agree as follows:
1. Confidentiality. Recognizing that the success of the Companys business will depend upon the protection of the Trade Secrets and that the Employee now has, and during the course of his employment may develop, Trade Secrets for the benefit of the Company or other information and data of a secret or proprietary nature of the Company that the Company wishes to keep confidential, the Employee agrees that:
(a) The Company has exclusive property rights to all Trade Secrets. Except as required in the performance of his duties to the Company, the Employee will not at any time during or after the term of his employment, directly or indirectly (i) communicate, disclose or disseminate any Trade Secrets or any other information of a secret, proprietary, confidential or generally undisclosed nature relating to the Company, its customers, business methods and services
(Confidential Information) to any person other than officers and employees of the Company who are authorized to receive such information or (ii) use any Trade Secrets or Confidential Information other than as may be necessary for the Employee to perform his duties for the Company.
(b) With respect to Trade Secrets and other Confidential Information, the Employees obligations under paragraph 1(a) shall continue until the earlier of two years after the Employees termination of employment (whether during the term of the Employment Agreement or thereafter) with the Company or such information has been made available generally to the public either by the Company or by a third party with the Companys consent.
(c) All documents, records, notebooks, notes, memoranda and similar repositories of, or containing, Trade Secrets or Confidential Information made or compiled by the Employee at any time or made available to him prior to or during the term of his employment by the Company, including any and all copies thereof, shall be the property of the Company, shall be held by the Employee in trust solely for the benefit of the Company, and shall be delivered to the Company by the Employee on the termination of his employment or at any other time on the request of the Company.
(d) Without limiting the foregoing, the Employee may, following the termination of his employment with the Company, use the general skills, knowledge and experience that he learned or developed during his employment by the Company.
2. Non-solicitation. If the Employee chooses to leave the Company or if his employment with the Company is terminated for any reason, (whether during the term of the Employment Agreement or thereafter) the Employee will not for a period of two years following such termination, directly or indirectly, either as an employee, employer, consultant, agent, principal, partner, stockholder, corporate officer, director or in any other individual or representative capacity (i) solicit or assist in the solicitation of marketing of natural gas storage services to any customer of the Company during the one year period prior to the termination of the Employees employment with the Company or (ii) take away, employ, or endeavor to employ any person who is an employee of the Company or any of its subsidiaries or affiliates. During any period in which the Employee is in breach of this covenant, the time period of this covenant shall be extended for the amount of time during which such breach continues.
3. Employment Agreement. In the event (i) Company terminates Employees employment for reason other than Cause (defined below), or (ii) Employee terminates his employment with the Company due to a material reduction in the Employees responsibilities; then this Agreement shall not be effective unless at least 50% of the Phantom Units (described in paragraph 2 of the Employment Agreement) have vested; provided that in the event such units have not vested, Company, in its sole discretion may accelerate the vesting of a sufficient quantity of units to equal 50% and trigger the
effectiveness of this Agreement. For purposes of this Agreement termination Cause shall mean termination due to: (i) gross negligence or willful misconduct by the Employee, (ii) a breach of the confidentiality provisions of this Agreement, or (iii) a breach of any of the provisions of paragraph 11 of the Employment Agreement.
4. Ancillary Agreement. The Employee acknowledges and represents to the Company that the agreement in paragraph 2 is ancillary to the agreement in paragraph 1, and the restrictions contained in paragraph 2 do not impose a greater restraint than is necessary to protect the interest of the Company in securing its Trade Secrets and Confidential Information.
5. Specific Enforcement; Legal Fees. The Employee acknowledges that a breach of this Agreement is likely to result in irreparable and unreasonable harm to the Company, and that injunctive relief, as well as damages, would be appropriate. In the event of litigation between the parties as to which a breach of this Agreement is pleaded as a claim or defense, the prevailing party shall be entitled (in addition to any other relief to which it may be entitled) to an award of costs of court and reasonable attorneys fees and expenses incurred in such litigation.
6. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the heirs, legal representatives, successors and assigns of the parties hereto.
7. Prior Agreements; Severability. This Agreement supersedes those provisions of any prior agreement that covers the same subject matters as this Agreement. Wherever there is any conflict between any provision of this Agreement and any statute, law, regulation or judicial precedent, the latter shall prevail, but in such event the provisions of this Agreement thus affected shall be curtailed and limited only to the extent necessary to bring it within the requirement of the law. In the event that any paragraph or clause of this Agreement shall be held by a court of proper jurisdiction to be indefinite, invalid or otherwise unenforceable, the entire Agreement shall not fail on account thereof, but the balance of the Agreement shall continue in full force and effect unless such construction would clearly be contrary to the intention of the parties or would result in an unconscionable injustice.
8. Governing Law. This agreement shall be interpreted and enforced in accordance with the laws of the State of Texas applicable to agreements entered into and performed entirely in Texas by residents of Texas.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered effective as of the day and year first above written.