Exhibit 10.8


 


EXECUTIVE
EMPLOYMENT AGREEMENT


 


MEMORANDUM
OF AGREEMENT made as of the 20th day of August, 2006.


 


BETWEEN:


 


NISKA GAS STORAGE, a
body Corporate having its head office in Calgary, Alberta, (hereinafter called
the “Company”)


 


OF THE FIRST PART


 


- and –


 


DAVID POPE, an
individual resident in Calgary, Alberta, (hereinafter called the “Executive”)


 


OF THE SECOND PART


 


WHEREAS the
Company desires to employ the Executive pursuant to the terms and conditions
herein, and for the consideration set out in this Agreement, and the Executive
desires to enter into the employ of the Company pursuant to such terms and
conditions and for such consideration;


 


AND
WHEREAS the Company believes it is fair and reasonable to
the Company that the Executive receive fair treatment on the basis set out
herein in the event of the termination of the employment of the Executive;


 


NOW
THEREFORE this Agreement witnesseth that in consideration of
the covenants, agreements and payments herein set out and provided for and
other good and valuable consideration (the receipt and sufficiency of which is
hereby acknowledged and agreed to by the parties), the parties hereto covenant
and agree as follows:


 


1.1                               Definitions


 


For the purposes of this Agreement, the following terms shall have the
following meanings, respectively:


 


(a)                                 “Agreement”
means this agreement and all schedules attached hereto, and in each case as
they may be amended or supplemented from time to time in accordance with the
terms and conditions set out herein, and the expressions “hereof”, “herein”, “hereto”,
“hereunder”, “hereby” and similar expressions refer to this agreement and,
unless otherwise indicated, references to articles, sections and subsections
are to articles, sections and subsections in this agreement;


 


(b)                                 “Effective
Date”
means the date specified in any notice of termination or intended termination
of the Executive’s employment with the Company (whether such notice is given by
the Company or the Executive) upon which the termination of the Executive’s employment
is to take effect.


 

















 


(c)                                  “Good
Reason”
means any of the following, unless the Executive shall have given the Executive’s
express written consent thereto:


 


(i)                                     Inconsistent Duties.  The Company requires the Executive to devote
the majority of his time to the performance of duties that are materially and
substantially inconsistent with the status of Executive’s position with the
Company or amount to a material and substantial alteration of Executive’s
reporting relationships that exist as of the date hereof;;


 


(ii)                                  Reduced Salary.  A reduction by the Company by 20% or more
of  the Executive’s Annual Base Salary in
effect on the date hereof or the failure by the Company to grant the Executive
Base Salary increases at a rate generally commensurate with the percentage Base
Salary increases accorded to other similarly performing, similarly situated
executives of the Company;


 


(iii)                               Relocation.  The Company’s relocation of the Executive’s
primary work location by more than 50 miles from the Executive’s primary work
location, such that the Executive is required to relocate the Executive’s
permanent residence in order to continue rendering service to the Company;;


 


(iv)                              Incentive Compensation Plans.  The failure by the Company to permit the
Executive to participate in incentive compensation plans which are reasonably
comparable, in the aggregate, to incentive compensation plans in which the
Executive was a participant upon the termination of his employment at
Seminole;;


 


(v)                                 Employment Benefits and
Perquisites.  The failure by the Company to
provide the Executive with the opportunity to participate in employment benefit
programs, subject to applicable eligibility requirements, that are reasonably
comparable, in the aggregate, to those in which the Executive was a participant
upon the termination of his employment at Seminole.   Such programs include any pension plan,
benefit plan or any retirement arrangement established for the Executive, or
any of the Company’s life insurance, medical, health and accident, disability
or savings plans in which the Executive was participating;


 


(d)                                 “Just
Cause”
includes, without in any way limiting its definition under common laws, any
improper conduct by the Executive which is materially detrimental to the
Company, its business, its employees or its standing in the community, a wilful
failure of the Executive to properly carry out his duties, any conviction of
the Executive of a criminal offence, and any theft, conversion or
misappropriation, or attempted theft, conversion or misappropriation of any of
the Company’s property, clients, business or business opportunities.


 


2

















 


1.2                               Employment
of the Executive


 


The Company shall employ the Executive, and the Executive shall serve
the Company in the position of President, on the terms and conditions and for
the remuneration hereinafter set forth.


 


1.3                               Duties


 


The Executive shall, during the term of this Agreement:


 


(a)                                 perform the duties and
responsibilities of President of the Company, including all those duties and
responsibilities customarily performed by a person holding the same or
equivalent position, or performing duties similar to those to be performed by
the Executive, in companies carrying on a similar business and of a similar size
to the Company in Canada, as well as such other related duties and
responsibilities as may be assigned to the Executive by the Board of Directors
from time to time;


 


(b)                                 accept such other office or
offices to which he may be elected or appointed by the board of directors of
the Company (the “Board of Directors”)
in addition to those of President of the Company provided that performance of
the duties and responsibilities associated with such office or offices shall be
consistent with the duties provided for in Section 1.3(a);


 


(c)                                  in performing his duties,
agree to observe and follow the policies and procedures established by the
Company, which are subject to change by the Company from time to time; and


 


(d)                                 agree to devote his full-time
and to provide exclusive services to the Company hereunder.


 


1.4                               Term


 


This Agreement shall continue in full force and effect from the date
hereof and for a period of indefinite term unless earlier terminated in
accordance with the provisions of Article 1.7.


 


1.5                               Remuneration


 


(a)                                 In consideration for his
services to be performed under this Agreement, the Executive shall receive in
addition to all other benefits provided for in this Agreement an aggregate
annual salary (the “Annual Base Salary”)
of not less than $ 450,000.00 CDN payable by the Company in semi-monthly
instalments on such basis as is generally established for executives of the
Company from time to time;


 


(b)                                 In addition to the annual
salary payable to the Executive, the Executive shall be entitled to allocate to
himself and the Niska staff  a cash bonus
pool of 3% of the first $80 million of the Company’s earnings before interest,
taxes, depreciation


 


3

















 


and amortization (“EBITDA”) and an
additional 8% on all EBITDA in excess of $80 million;


 


(c)                                  The Executive shall be
entitled to a grant from the Company’s long-term Incentive Plan which shall be
no less than equal to a 2% equity interest of all Class “C” shares.


 


(d)                                 The company will pay a signing bonus of
$62,500 to cover the tax expense associated with early exercise of stock
options required on leaving Semgroup LP.


 


1.6                               Benefits
and Perquisites


 


The Executive shall be entitled to the following benefits (the “Benefits”):


 


(a)                                 the Company shall pay the
Executive and allowance of $24,000 per year for expenses related to home
computers, annual membership fees of the a golf club, and other personal
expenses;


 


(b)                                 the Company shall pay an
allowance of $6000 per year as a supplemental executive health allowance;


 


(c)                                  an automobile allowance of
$2,000.00 Cdn. per month, pro-rated for the periods of partial service;


 


(d)                                 annual paid vacation of 4
weeks provided that used vacation may not be carried over to a subsequent year
nor may it be returned to the Company for cash;


 


(e)                                  the Executive will be entitled
to participate in the Company’s RRSP Plan/Non —Registered Employee Savings Plan
which is to be initiated immediately. 
The Executive will receive a company contribution of 8% per annum and
the Executive will also be eligible for a Niska corporate match of up to 5% per
annum provided the Executive contributes up to 5% - 25% contributions (ie:  if the Executive contributes 10%, the Company
will match up to 5% in either plan);


 


(f)                                   On the date hereof,
Semmanagement L.L.C. shall be deleted as owner and beneficiary of the Life
Insurance Policy  (the “Policy”) and the Company
shall become the owner and beneficiary of the Policy.  The Company shall be responsible for fully
funding the Policy on or before September 1, 2008, such that the Executive
will receive an annual retirement amount of US$250,000.00 for a period of 10
years upon reaching the age of 65 or a pre-retirement death benefit of
US$1,500,000.00 in the event the Executive dies prior to reaching the age of
65.  All retirement benefits to which the
Executive is entitled to pursuant to this clause 1.6(f) shall be fully
vested, and transferable to the Executive upon his election at any time;


 


(g)                                  On the date hereof, the Company shall
become responsible for payments under the Critical illness policy #0209646807,
that had been established by Semgroup LP.


 


4

















 


(g)                                  the Company shall pay or
reimburse the Executive for all reasonable out of pocket business expenses
payable or incurred by the Executive in connection with the proper discharge of
his duties under this Agreement;


 


(h)                                 the Executive shall be
entitled to participate and to receive all rights and benefits under any life
insurance, disability, medical, dental, health and accidents plans maintained
by the Company for its employees generally and for its executive officers
specifically;


 


(i)                                     the Executive will receive
company paid parking.  In accordance with
CCRA legislation, Company allocated parking is coded as a taxable benefit and
will be reflected as such for payroll purposes; and


 


(j)                                    such other benefits as the
Company may subsequently confer upon the Executive.


 


1.7                               Termination


 


(a)                                 Termination of Employment by
the Company for Just Cause.  The Company
may terminate this Agreement and the Executive’s employment with the Company at
any time without notice, further payment or further obligations to the
Executive for reasons of Just Cause.


 


(b)                                 Termination of Employment
without Just Cause.  If the
Executive’s employment is terminated (a) by the Company other than for
Just Cause, or (b) by the Executive for a Good Reason thirty (30) or more
days after the date the Good Reason has taken effect and the Company has not
cured the Good Reason within 14 days of the Executive providing notice to the
Company of the Good Reason, then the Executive shall be entitled to receive,
and the Company shall pay to the Executive, within thirty (30) days of the
failure to cure the Good Reason, a cash amount in Canadian dollars of $900,000
Cdn less required statutory deductions and withholdings.  Payment of the amount required by
subparagraph (i) shall:


 


(i)                                     constitute the Company’s sole
obligation to the Executive arising out of, or related to, the termination;


 


(ii)                                  constitute the Executive’s
sole right against the Company in respect of termination;


 


(iii)                               be deemed by both the
Executive and the Company to be full and final payment in lieu of any and all
reasonable notice period required to be given to the Executive at common law;


 


(iv)                              be deemed by both the
Executive and the Company to include full and final payment of and for any and
all statutory obligations arising out of, or related to the termination, any
and all bonuses, any and all Benefits. 
Other than the foregoing, the Executive expressly waives any other
claim, complaint or cause of action he may have pursuant to statute or common


 


5

















 


law of Alberta arising out of, or in any
way related, to the termination of the Executive’s employment.


 


(c)                                  Resignation or Retirement.  The Executive may, without Good Reason,
terminate this Agreement and the Executive’s employment with the Company at any
time by giving thirty (30) days written notice of termination to the Company,
and this Agreement and the employment of the Executive shall terminate
automatically in the event of the Executive’s death or mental or physical
incapacity to discharge his duties and obligations hereunder, in any of the
foregoing circumstances of termination, the Company shall have no further
obligation to the Executive under this Agreement or pursuant to the Executive’s
employment, and not other compensation shall be payable to the Executive after
termination.


 


Subsection 1.7(b) does not apply in the event of termination of
the employment of the Executive as a result of the death, disability or
retirement of the Executive.


 


1.8                               Resignations
and Release


 


If the employment of the Executive is terminated for any of the reasons
set forth in Article 1.7 hereof, the Executive shall immediately tender
his resignation from any position he may hold as an officer or director of the
Company.  The Executive further agrees to
provide the Company, prior to any payments hereunder, with an executed Release
in a form satisfactory to the Company, with respect to all matters arising out
of this Agreement, the termination of this Agreement and the termination of the
employment relationship.


 


1.9                               No
Obligation to Mitigate


 


The Executive shall not be required to mitigate the amount of any
payment or benefit provided for in this Agreement by seeking other employment
or otherwise, nor shall the amount of any payment provided for in this
Agreement be reduced by any compensation earned by the Executive as a result of
employment by another employer after termination or otherwise.


 


1.10                        Confidentiality


 


(a)                                 The Executive acknowledges
that he will acquire information about certain matters and things which are
confidential to the Company, and which information is exclusive property of the
Company, including without limit:


 


(i)                                     names and addresses, buying
habits and preferences of present customers of the Company as well as
perspective customers;


 


(ii)                                  pricing and sales policies,
techniques and concepts;


 


(iii)                               trade secrets; and


 


(iv)                              other confidential information
concerning the business operations or financing of the Company.


 


6

















 


(b)                                 The Executive acknowledges
that the information referred to in subsection 1.11(a)) could be used to the
detriment of the Company, and accordingly the Executive undertakes not to
disclose such information to any third party either during the term of his
employment, except as may be necessary to properly discharge his employment
duties hereunder, or after the termination of his employment, however such
termination shall occur, except with the written permission of the Company.


 


1.11                        Non-Competition


 


(a)                                 The Executive acknowledges and
agrees that this Agreement confers additional rights and privileges to the
Executive, and for that consideration the Executive agrees with and for the
benefit of the Company that for a period of twelve (12) months from the date of
termination of the Executive’s employment, he will not for any reasons,
directly or indirectly, either as an individual or as a partner or joint
venturer or as an employee, principal, consultant, agent, shareholder, officer,
director, or salesperson for any person, company, association, organization,
syndicate, company or corporation, or in any manner carry on, be engaged in, or
concerned with, interested in, advice, lend money to, guarantee the debts or
obligations of, permit his name or any part of it to be used or employed by any
persons, business, firm, association, syndicate, organization or company
concerned with or engaged or interested in the gas storage, transportation and
marketing business (the “Business of the Company”) which competes directly with
the Company, within the province of Alberta; PROVIDED THAT the Executive shall
be entitled, for investment purposes, to purchase and trade shares of any
public company which is listed and posted for trading on a recognized stock
exchange the business of which may be in competition with the Business of the
Company, PROVIDED FURTHER THAT the Executive shall not own, directly or
indirectly, more than 5% of the issued share capital of such public company, or
participate in its management of operations or in any advisory capacity.  This subsection 1.11(a) shall not apply
if the termination of the Executive is:  (a) for
cause or (b) follows a change of control resulting from a sale,
amalgamation, merger or other consolidation of the Company with another
corporation that is not approved (as demonstrated by a resolution of the Board
of Directors or recommended by the Board of Directors).


 


(b)                                 The Executive further agrees
that, during his employment pursuant to this Agreement and for a period of six
months following termination of employment, he will not solicit the employment
of any employee of the Company.


 


(c)                                  The Executive hereby agrees
that all restrictions in this Article 1.11 are reasonable and valid and
all defences to the enforcement thereof by the Company are hereby waived by the
Executive.  The provisions of this Article 1.11
will not in any way derogate or limit the exercise of the Executive’s right to
engage in subsequent employment and to use information properly in the public
domain and his own knowledge, skill and experience commonly held with others in
similar


 


7

















 


positions of business and are only intended
to safeguard against the Executive’s participation in direct competitive
endeavours against the Company.


 


(d)                                 The parties acknowledge and
confirm that:


 


(i)                                     they have each been
independently advised by counsel in respect of the provisions of this
Agreement, or having had the opportunity to seek independent advice, have
voluntarily and without coercion determined not to seek such advice;


 


(ii)                                  they have negotiated the
provisions hereof on an equal footing based on equal bargaining power at the
time of entering into this Agreement; and


 


(iii)                               neither party was required or
coerced to enter into this Agreement.


 


(e)                                  The Executive acknowledges and
agrees that without prejudice to any and all other rights of the Company, in
the event of his or her violation or attempted violation of the agreement
contained in this clause, an injunction or any other like remedy shall be
necessary and essential to protect the Company’s rights, property, and clients,
and that an interim injunction may be granted immediately on the commencement
of any suit. Should such action be necessary, the Executive also agrees to pay
the Company’s legal costs on a solicitor and its own client basis for all legal
costs incurred in prosecuting a law suit against the Executive for breach of
the agreement contained in this clause.


 


1.12                        Indemnification
and Insurance


 


(a)                                 To the extent that it is
lawfully able to do so, the Company shall indemnify the Executive and his
heirs, and legal representatives against all liability, costs, charges and
expenses (including any amounts paid to settle any actions or satisfy any
judgment) reasonably incurred by the Executive in respect of any civil,
criminal or administrative action or proceeding to which he has been made a
party by reason of being or having been an employee, director, or officer of
the Company if the Executive acted honestly and in good faith with the view to
the best interests of the Company;


 


(b)                                 The Company agrees to maintain
directors and officers liability insurance for the benefit of the Executive
while the Executive remains an officer of the Company or any other entity
within the Company and shall, at the Executive’s option or direction, provide
such insurance for the Executive on a run-off basis upon termination of the
Executive’s employment with the Company pursuant to this Agreement, for a
period of three (3) years from the Termination Date, on commercially
reasonable terms; and


 


(c)                                  The provisions of this
Agreement shall remain in full force and effect notwithstanding the termination
of this Agreement for any reason.


 


8

















 


1.13                        Enurement


 


This Agreement shall enure to the benefit of and be enforceable by the
Executive’s successors or legal representatives but otherwise it is not assignable.


 


1.14                        Entire
Agreement


 


Except as specifically excepted herein, this Agreement constitutes the
entire agreement between the parties hereto pertaining to the subject matter
hereof.  No amendment or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby.


 


1.15                        Provisions
Which Operate Following Termination


 


Notwithstanding
any termination of this Agreement for any reason whatsoever and with or without
cause, the provisions of Articles 1.7, 1.8, 1.9, 1.10, 1.11, 1.13 and 1.16, and
any of the provisions of this Agreement necessary to give efficacy thereto,
shall continue in full force and effect following such termination.


 


1.16                        Headings


 


The headings of the articles, sections and paragraphs herein are inserted
for convenience of cross reference only and shall not effect the meaning or
construction hereof.


 


1.17                        Severability


 


If any provision contained herein is determined to be void or
unenforceable in whole or in part, it shall be and be deemed to be severed from
this Agreement without effecting or impairing the validity of any other
provisions herein.


 


1.18                        Choice of
Law


 


This Agreement shall be governed and interpreted in accordance with the
laws of Province of Alberta.  The courts
of the Province of Alberta shall be the exclusive and proper forum with respect
to any claims, actions or suits arising from, in any way related to, or brought
with respect to this Agreement and the parties to this Agreement do hereby
irrevocably attorn to the jurisdiction of the courts of the Province of Alberta
for that purpose.


 


1.19                        Headings


 


The headings in this Agreement are inserted for convenience and ease of
reference only, and shall not effect the construction or interpretation of this
Agreement.


 


1.20                        Non-assignment


 


This Agreement is a personal services agreement and may not be assigned
by either Party without the prior consent of the other Party.


 


9

















 


1.21                        Notices


 


Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be prepaid first-class mail, by
facsimile or other means of electronic communication or by hand-delivery as
hereinafter provided.  Any such notice or
other communication, if mailed by prepaid first-class mail at any time other
than during a general discontinuance of postal service due to strike, lockout
or otherwise, shall be deemed to have been received on the fourth business day
after the post-marked date thereof, or if sent by facsimile or other means of electronic
communication, shall be deemed to have been received at the time it is
delivered to the applicable address noted below either to the individual
designated below or to an individual at such address having apparent authority
to accept deliveries on behalf of the addressee.  Notice of change of address shall also be
governed by this section.  In the event
of a general discontinuance of postal service due to strike, lock-out or
otherwise, notice or other communications shall be delivered by hand or sent by
facsimile or other means of electronic communication and shall be deemed to
have been received in accordance with this section.  Notices and other communications shall be
addressed as follows:


 


(a)                                 if to the Executive:|


 


David F. Pope


35 Coulee Ridge


Calgary, AB  T3Z 1A6


 


(b)                                 if to the Company:


 


Niska Gas Storage


Bankers Hall-East Tower


1200, 855-2nd Street S.W.


Calgary, AB T2P 4Z5


Phone:  (403) 513-8622


 


With a copy of any notice of default to:


 


c/o Riverstone Holdings, LLC


712 Fifth Avenue


New York, NY 10019


U.S.A.


Attn:  Andrew Ward


Phone: (212 993-0081


 


1.22                        Privacy


 


The Executive acknowledges and agrees that the Executive will take all
necessary steps to protect and maintain Personal Information of the employees,
consultants or customers of the Company obtained in the course of the Executive’s
employment with the Company.  The
Executive shall at all times comply, and shall assist the Company to comply,
with all applicable privacy laws.


 


10

















 


The Executive acknowledges and agrees that the disclosure of the
Executive’s personal information may be required as part of a potential
business or commercial transaction or as part of the Company’s management of
the employment relationship, and the Executive hereby grants consent as may be
required by applicable law to the disclosure of personal information for the
purposes of any potential business or commercial transaction and the ongoing
management of the employment relationship by the Company.


 


1.23                        Copy of
Agreement


 


The Executive hereby acknowledges receipt of a copy of this Agreement
duly signed by the Company.


 


IN
WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Agreement.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Jen Johnson

  	
   

  	
   

  
	
  Witness

  	
   

  	
  Per:

  	
  /s/ David Pope

  
	
   

  	
   

  	
  Name:

  	
  DAVID F. POPE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NISKA GAS STORAGE

  
	
   

  	
   

  	
   

  
	
  Witness

  	
   

  	
   

  
	
   

  	
   

  	
  Per:

  	
   

  
	
   

  	
   

  	
  Name:

  



 


11