Attached files
file | filename |
---|---|
8-K - FORM 8-K - ENTERPRISE PRODUCTS PARTNERS L.P. | h78310e8vk.htm |
EX-10.2 - EXHIBIT 10.2 - ENTERPRISE PRODUCTS PARTNERS L.P. | h78310exv10w2.htm |
EX-10.3 - EXHIBIT 10.3 - ENTERPRISE PRODUCTS PARTNERS L.P. | h78310exv10w3.htm |
Exhibit 10.1
RETENTION AGREEMENT
This Retention Agreement (Agreement) is made and entered into effective December 1, 2010
between Enterprise Products Company (Company) and Michael A. Creel (Employee).
WHEREAS, Company desires to enter into this Agreement with Employee to provide a retention
payment to encourage Employee to remain employed with Company, perform in a highly effective
manner, and proactively execute the strategy that the Company and its Company Affiliates (defined
below) employ;
NOW, THEREFORE, in consideration thereof and of the covenants hereafter set forth, the parties
hereby agree as follows:
1. Retention Payment.
A. Following the completion of 48 months of continuous employment by Employee with Company
from the effective date of this Agreement (Retention Period), Employee will receive from Company
a lump sum payment in the gross amount of ten million dollars and no cents ($10,000,000.00), less
any applicable withholding taxes on such payment (Retention Payment). The Retention Payment
shall be paid within seven (7) business days after the completion of the Retention Period.
B. Notwithstanding the Retention Period set forth in Section 1.A. above, Employee shall
receive, or in the event of the Employees death, the designated beneficiary of Employee shall
receive, unless otherwise required under Section 5.E., the Retention Payment within thirty (30)
days of a Qualifying Termination (as defined below). A Qualifying Termination means (i) a
termination of the Employees employment with the Company and any Company Affiliate (as defined in
Section 1.E.) prior to the end of the Retention Period, which termination constitutes a separation
from service as such term is defined by the regulations under Section 409A of the Internal Revenue
Code of 1986, as amended (Section 409A), due to (a) Employees death or (b) Employees Disability
as defined in Section 2 of this Agreement; or (ii) a termination of the Employees employment with
the Company and any Company Affiliate by the Company other than for Cause as defined in Section 2
of this Agreement prior to the end of the Retention Period, which termination constitutes an
involuntary separation from service as such term is defined by the regulations under Section
409A, due to (a) Employees job elimination by Company; (b) a business reorganization of Company;
or (c) a sale of Company or Enterprise Products Partners L.P., a Delaware limited partnership
(EPD).
C. The Retention Payment is in addition to any discretionary incentive compensation that the
Company or any Company Affiliate may, in its sole discretion, grant or have in place from time to
time, including participation in a performance-based annual incentive plan and a long term
incentive (LTI) program for executives.
D. Any question as to whether there has been a termination of Employees employment, and the
cause associated with such termination, shall be determined by the Board of Directors of the
general partner of EPD.
2. Termination of Employment.
Termination for Cause under this Agreement shall mean a determination in good faith by the
Board of Directors of the general partner of EPD that Cause exists to terminate the Employee.
Cause
shall mean (i) an act of willful misconduct or gross negligence in the performance of Employees
duties resulting in damage or injuries to Company or Company Affiliates, (ii) the appropriation (or
attempted appropriation) of a business opportunity of Company or Company Affiliates, including
attempting to secure or securing any personal gain in connection with any transaction entered into
on behalf of Company or Company Affiliates, (iii) the misappropriation (or attempted
misappropriation) of any of the funds or property of Company or Company Affiliates, (iv) willful
and continued failure to perform any substantial duties of Employees position (other than any such
failure resulting from Employees incapacity due to physical or mental illness or disability) that
is not cured within 30 days following written notice of such failure to perform from Company to the
Employee, or (v) the conviction of, indictment for (or its procedural equivalent), or the entering
of a guilty plea or plea of no contest, with respect to a felony or other crime of moral turpitude.
Company Affiliate under this Agreement shall mean and include (i) EPCO Holdings, Inc., (ii)
Enterprise Products OLPGP, Inc., (iii) EPD, (iv) Enterprise Products Holdings LLC, (v) Enterprise
Products Operating LLC, (vi) DEP Holdings LLC, (vii) Duncan Energy Partners L.P. (DEP), (viii)
the respective subsidiaries or affiliates of any of the foregoing entities, (ix) any other entity
(A) which is controlled, directly or indirectly, individually, collectively or in any combination,
by the Company or any of the foregoing entities or (B) in which any of the Company or any of the
foregoing entities has a direct or indirect ownership interest, (x) any other entity (a) which is
controlled, directly or indirectly, by the Estate of Dan L. Duncan, Deceased, his spouse, his
descendants or any trusts for any of their respective benefit, individually, collectively or in any
combination, or (b) in which any of them has a direct or indirect ownership interest and (xi) any
predecessors, subsidiaries, related entities, officers, directors, shareholders, parent companies,
agents, attorneys, employees, successors, or assigns of any of the foregoing.
Disability under this Agreement shall mean the state or condition pursuant to which the
Employee is, by reason of a medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not less than three months under an
accident and health plan covering employees of the Company.
3. Non-solicitation of Company Employees
In the event Employee has been paid the Retention Payment pursuant to Section 1.B., Employee
agrees that, for a period equal to the lesser of (i) 18 months after the date of the event which
gives rise to the payment of such portion of the Retention Payment or (ii) the remainder of the
Retention Period as if this Agreement were in full force and effect for the full Retention Period,
Employee will not solicit or induce, either directly or indirectly, any employees of the Company or
any Company Affiliate to cease employment with the Company or any Company Affiliate and will not
assist any other person or entity in such a solicitation. Employee and Company agree that
employees of the Company or any Company Affiliate may respond to open advertisements of employment
with a future employer of Employee without inducement from Employee. Such voluntary actions by
employees of the Company or any Company Affiliate do not violate this non-solicitation provision.
Employee agrees that the restrictions in this Section 3 are reasonable and necessary to protect the
Companys investment in human resources and shall survive the termination of this Agreement.
4. Term of Agreement.
This Agreement shall terminate (subject to the survival of Section 3 hereof pursuant to the
last sentence of Section 3) on the earliest of (i) the date of payment of the Retention Payment to
Employee or
Retention 2010
2
his designated beneficiary if a Qualifying Termination occurs prior to the end of the
Retention Period; (ii) the date of Employees termination of employment which does not constitute a
Qualifying Termination; or (iii) December 1, 2014.
5. Miscellaneous.
A. Neither Employee, nor any person claiming under Employee, shall have the power to
anticipate, encumber or dispose of any right, title, interest or benefit hereunder in any manner or
any time, until the same shall have been actually distributed free and clear of the terms of this
Agreement.
B. This Agreement shall be binding upon and inure to the benefit of any successors to Company
and all persons lawfully claiming under Employee. Nothing in this Agreement shall confer on
Employee any right to continued employment or affect in any way the right of Company to terminate
Employees employment at any time.
C. The payments under this Agreement are neither intended nor should be construed as being
additions to base salary or included in calculations of salary increases.
D. This Agreement shall be governed by and construed in accordance with the laws of the State
of Texas, notwithstanding any conflict of law principles, and without regard to the place of
execution or performance of employment duties, or residence of the parties. The exclusive venue
for any dispute relating to this Agreement shall be Harris County, Texas.
E. If the Retention Payment becomes payable by reason of a Qualifying Termination and fails to
satisfy the requirements of the short-term deferral exception under Section 409A and/or otherwise
constitutes nonqualified deferred compensation subject to Section 409A, and if Employee is a
specified employee within the meaning of Section 409A (as determined by the Company in accordance
with any method permitted under section 409A), then notwithstanding any provision of this Agreement
to the contrary, such Retention Payment shall be paid on the first day of the seventh
(7th) calendar month beginning after the date on which the Qualifying Termination
occurs. This Agreement is intended, and its terms shall be interpreted as necessary, to comply
with Section 409A.
F. This Agreement constitutes the entire agreement of the parties with regard to the specific
subject matter hereof and contains all of the covenants, promises, representations, warranties and
agreements between the parties with respect to such subject matter, and supersedes, replaces and
terminates any prior employment or retention agreement between the undersigned and the Company or
Company Affiliates. Each party to this Agreement acknowledges that no representation, inducement,
promise or agreement, oral or written, has been made by either party with respect to such subject
matter, which is not embodied herein, and that no agreement, statement or promise relating to the
subject matter that is not contained in this Agreement shall be valid or binding. Any modification
of this Agreement will be effective only if it is in writing and signed by each party whose rights
hereunder are affected thereby, provided that any such modification must be further authorized or
approved by the Board of Directors of the general partner of EPD.
[Signature Page to Follow]
Retention 2010
3
IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be executed and
effective on the day and year first above written.
COMPANY | EMPLOYEE | |||||||
Enterprise Products Company | ||||||||
By: |
/s/ Gary P. Smith | /s/ Michael A. Creel | ||||||
Name:
|
Gary P. Smith | Name: Michael A. Creel | ||||||
Title:
|
Senior Vice President, Human Resources | This 9th day of December, 2010 | ||||||
This 9th day of December, 2010 |
Retention 2010
4