Exhibit 10.1


 


September 27, 2010


 


HAND DELIVERED


 


WITHOUT
PREJUDICE


 


Paul Amirault


83 Woodhaven Road
SW,


Calgary, AB. 
T2W 5P2


 


Dear Mr. Amirault:


 


Re:          Settlement Agreement


 


Further to our
recent discussions, and our meeting on September 15, 2010
we confirm that Niska Partners Management ULC, including Niska Gas Storage
Partners LLC, and its related and affiliated entities, (collectively, the “Company”) is prepared to make a without prejudice offer of
settlement with respect to the termination of your employment on the terms and
conditions as outlined below (the “Settlement Agreement”):


 


1.                                       Your employment with the
Company will terminate on November 15, 2010 (the “Termination
Date”).


 


2.                                       The Company will pay you
all accrued vacation pay, wages and benefits owed, less the applicable
statutory deductions, up to and including the Termination Date.


 


3.                                       The Company will pay you a
lump sum amount of $300,000.00, less applicable statutory deductions, payable
on January 4, 2011 in lieu of any and all further amounts owing to you for
any severance or any other payments related to the termination of your
employment with the Company.


 


4.                                       The Company will agree to
allow you to keep your “B Unit” ownership of 21,624.8 units comprised of 7,564.8 units of Niska GS Holdings US L.P. and 14,060.0 units
of Niska GS Holdings Canada, L.P. and covenants that it shall not seek to
unilaterally repurchase such B Units. 
The Company will also agree to allow you to keep your “A Unit” ownership
of 1632.29 units comprised of 482.14 units of Niska GS Holdings
US L.P. and 1150.15 units of Niska GS Holdings Canada, L.P. and covenants that it
shall not seek to unilaterally repurchase such A Units (paragraph 2, 3 and 4
herein collectively referred to as the (the “Settlement
Payment”);


 


5.                                       You will be required to
return all Company property to Darren Brown, HR Manager, by the close of
business on the Termination Date.


 

















 


6.                                       In consideration for the
Settlement Payment, you acknowledge and agree that for eighteen (18) months
following the Termination Date, you will not, without the prior written consent
of the Company, for any reason, either directly or indirectly, either alone or
in conjunction with any other person or persons:


 


(i)                       initiate contact with any
current or former customer or supplier of the Company for the purpose of
soliciting, inducing, or attempting to solicit or induce, such customers or
suppliers to become a customer or supplier of any business venture which
directly or indirectly competes with the Business of the Company; or


 


(ii)                    initiate contact with any
employee, executive or independent contractor of the Company, or any person who
held such position in the 12 months immediately preceding the Termination Date,
for the purpose of offering employment or business opportunities with any
person or entity other than the Company; or


 


(iii)                 enter into, participate in,
or otherwise take part in the conduct, consulting, operation or management of
any business that carries on or is engaged in, any business that is the same or
substantially similar to the Business of the Company, or advise, consult,
participate in or permit your name to be used or employed by any person engaged
in or concerned with or interested in any business that is the same as or
substantially similar to the Business of the Company.  For clarity, it is permitted that you
participate in or otherwise take part in the conduct, consulting, operation or
management of businesses carried on by a person that also owns, directly or
indirectly, businesses the same or substantially similar to the Business of the
Company, provided that you do not participate or take part in those businesses
that are the same or substantially similar to the Business of the Company.


 


For purposes hereof, the “Business  of  the  Company” shall mean the business relating to development,
operation, ownership, management or oversight of natural gas storage facilities
and natural gas storage projects (whether in development or in operation) in
the Province of Alberta and the State of California, carried on by the Company
or any of its parent(s), owners, affiliates or related entities.


 


7.                                       You agree that all
restrictions contained in Section 6 are reasonable, valid and necessary
protections of the Company’s proprietary business interests and hereby waive
any and all defences to the strict enforcement thereof by the Company.  Further, you acknowledge and agree that the
Company will suffer irreparable harm if you breach any of the obligations under
Section 6 of this Settlement Agreement, and that monetary damages would be
impossible to quantify and inadequate to compensate the Company for such a
breach.  Accordingly, you agree that in
the event of a breach, or a threatened breach, by you of any of the provisions
of Section 6, the Company shall be entitled to obtain, in addition to any
other rights, remedies or damages available to the Company at law or in equity,
an interim and permanent injunction, without having to prove damages, in order 


 


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to prevent or restrain any such breach, or
threatened breach, by you, or by any or all of your partners, employers,
employees, servants, agents, representatives and any other persons directly or
indirectly acting for, or on behalf of, or with, you, and that the Company
shall be entitled to all of its costs and expenses incurred in obtaining such
relief including actual solicitor and client legal costs and disbursements.


 


Please note that
this settlement offer, including the Settlement Payment outlined above, is
conditional on your execution of this Settlement Agreement and the attached
Release & Confidentiality Agreement (the “Release”),
thereby releasing the Company from any and all claims, causes of action,
demands, obligations, agreements, promises, liability, damages, costs and fees
arising out of or relating to your employment. 
This Release includes the termination of your employment and the
termination of all benefits relating to your employment.  Please note that the Company’s direct
contributions to your benefit provider will cease as of the Termination
Date.  You will be solely responsible for
arranging for continued coverage by contacting Sun Life
at 1-877-893-9893 to discuss health care options and
Sun Life Financial at 1-866-733-8612 to discuss your Sun life Financial options.


 


This Settlement
Agreement and the attached Release shall be construed and enforced in
accordance with the laws of the Province of Alberta and constitute the entire
agreement between you and the Company, superseding and replacing any and all
prior agreements, undertakings, representations or negotiations pertaining to
the subject matter of this settlement.


 


Please take the
opportunity to review this letter and the attached Release with counsel.  By executing this letter you hereby
acknowledge and agree that you have read and understand the terms of this
letter and that you have had an opportunity to seek independent legal advice
prior to entering into this Settlement Agreement.


 


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The Company’s offer
of settlement remains open until September 30, 2010 at
4:00 p.m. Mountain Time.  You can
elect to accept the settlement conditions contained in this Settlement
Agreement by executing a copy of this letter and the attached Release, and
returning them to Darren Brown, HR Manager, by the above noted date.


 


	
  Yours truly,

  	
   

  
	
   

  	
   

  
	
  Niska
  Partners Management ULC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jason
  A. Dubchak

  	
   

  
	
  Jason
  A. Dubchak

  	
   

  
	
  VP,
  General Counsel & Corporate Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Niska GS Holdings Canada, L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jason
  A. Dubchak

  	
   

  
	
  Jason
  A. Dubchak

  	
   

  
	
  VP,
  General Counsel & Corporate Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Niska GS Holdings US L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Jason
  A. Dubchak

  	
   

  
	
  Jason
  A. Dubchak

  	
   

  
	
  VP,
  General Counsel & Corporate Secretary

  	
   

  



 


“I accept the terms
and conditions of settlement contained in this Settlement Agreement and the
attached Release & Confidentiality Agreement.


 


Dated the 27th day of September,
2010.”


 


 


	
  /s/ Paul
  Amirault

  	
   

  
	
  Paul
  Amirault

  	
   

  



 


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RELEASE
AND CONFIDENTIALITY AGREEMENT


 


1.                                       RELEASE


 


IN CONSIDERATION of (i) the sum of $300,000.00, less applicable statutory deductions, payable
on January 4, 2011; (ii) the retention of your existing B Unit
ownership of 21,624.8 B Units comprised of 7,564.8 units of
Niska GS Holdings US L.P. and 14,060.0 units of Niska GS Holdings Canada, L.P.;
and (iii) the retention of your existing A Unit ownership of 1632.29 A Units comprised of 482.14 Units of Niska GS Holdings US L.P. and 1150.15 Units of
Niska GS Holdings Canada, L.P.; and other good and valuable consideration, paid to
me by NISKA PARTNERS MANAGEMENT ULC, I,
Paul Amirault,  of Calgary, Alberta, do for
myself, and my heirs, executors, administrators, trustees, successors and
assigns, (hereinafter collectively referred to as “I”),
forever release, remise and discharge NISKA PARTNERS MANAGEMENT
ULC, its parent companies, subsidiaries and affiliates and all
associated officers, directors, employees, agents, insurers, predecessors,
successors and assigns (hereinafter collectively referred to as the “Company”), jointly and severally from any and all actions,
causes of actions, contracts, (whether express or implied), claims and demand
for damages, loss or injury, suits, debts, sums of money, expenses, interest,
costs and claims of any and every kind and nature whatsoever, at law or in
equity, which against the Company, I ever had, now have, or can hereafter
have by reason of or existing out of any causes whatsoever existing up to and
inclusive of November 15, 2010 (the “Termination Date”),
including but without limiting the generality of the foregoing:


 


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(a)                                  my employment with the
Company;


 


(b)                                 my ceasing to be employed
with the Company; and


 


(c)                                  any and all claims for
damages, salary, wages, termination pay, severance pay, vacation pay,
commissions, bonuses, expenses, allowances, incentive payments, insurance or
any other benefits arising out of my employment with the Company.


 


Notwithstanding the
foregoing, excepted from this Release and Confidentiality Agreement is any
claim I might have for indemnification for any claims made against me by third
parties solely as a result of my position as a senior officer of the Company;
or pursuant to the provisions of any policy of insurance obtained by the
Company for providing coverage for errors and omissions claims made against its
officers and directors.  All such claims
shall be excepted to the extent that such claims would be covered by the
Company’s errors and omissions insurance coverage and excepted only to the
extent that such actions were conducted by me in the course and scope of my
employment.


 


2.                                       NO ADMISSION


 


I acknowledge that
the satisfactory arrangements made between me and the Company do not constitute
any admission of liability by or on behalf of the Company.


 


3.                                       EMPLOYMENT
STANDARDS


 


I acknowledge
receipt of all wages, overtime pay, vacation pay and general holiday pay and I
further reconfirm that there are no entitlements, overtime pay or wages due and
owing to myself by the Company.


 


4.                                       EMPLOYMENT
INSURANCE


 


I confirm and agree
that I have not received any Employment Insurance benefits from Human Resources
and Development Canada, and I further confirm that there are no 


 


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amounts owed or
outstanding by myself or the Company for Employment Insurance benefits.  I hereby agree to indemnify and hold harmless
the Company for any amounts owing for Employment Insurance.


 


5.                                       HUMAN
RIGHTS


 


I acknowledge that
this Release and Confidentiality Agreement applies to any and all claims I have
or may have pursuant to the Alberta Human Rights Act or
any other applicable human rights legislation and further acknowledge or
promise that I have or will abandon, quit and withdraw any complaint filed by
me.


 


6.                                       BENEFITS
AND INSURANCE CLAIMS


 


I acknowledge and
agree that all of my employment benefits ceased as at the date of my
termination, I have received all benefit entitlements, including insurance
benefits to date, and have no further claim against the Company for
benefits.  I fully accept sole
responsibility to replace those benefits that I wish to continue and to exercise
conversion privileges, where applicable, with respect to benefits.  In the event that I become disabled, I
covenant not to sue the Company for insurance or other benefits, or for loss of
benefits.  I hereby release the Company
from any further obligations or liabilities arising from my employment
benefits.


 


7.                                       NON-DISCLOSURE


 


I agree that I will
not divulge or disclose, directly or indirectly, the contents of this Release
and Confidentiality Agreement, or the terms of settlement relating to my ceasing
to be employed by the Company, to any person including, but without limiting
the generality of the foregoing, to employees or former employees of the
Company, except my legal and financial advisors on the condition that they
maintain the confidentiality thereof, or as required by law.


 


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8.                                       PRIVACY


 


I understand that the Company has collected, used
and disclosed personal information (as defined in the Alberta Personal Information Protection Act) about me during the
term of my employment with the Company, including health information shared
with the Company’s insurer for the purposes of managing my potential disability
claims with the Company and the Company’s insurer. I hereby confirm that all
such disclosures were made with my express consent.  I further acknowledge and agree that this Release
and Confidentiality Agreement applies to any and all claims or complaints that
I have or may have pursuant to any applicable privacy legislation and further
acknowledge or promise that I have or will abandon, quit and withdraw any
complaint filed by me.


 


9.                                       CONFIDENTIALITY


 


I recognize and
acknowledge that during my employment with the Company I had access to certain
confidential and proprietary information, the disclosure of which could be
harmful to the interests of the Company. 
As used herein, “Confidential  Information” shall include, but not be limited to,
information, in whatever form kept or recorded, pertaining to: inventions,
discoveries, know-how, ideas, computer programs, designs, algorithms, process
and structures; product information; research and development information;
client information; financial information; business process and methodology;
strategic litigation information; information respecting the Company’s
business, its shareholders, officers, directors, employees, projects,
opportunities, operations, properties or assets, or any other financial
information of the Company whatsoever and any other technical and business
information of the Company which is confidential, trade secret/or proprietary
character.  I acknowledge and agree that
I have taken and will in future take appropriate precautions to safeguard the
Confidential Information.


 


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10.                                 INDEMNITY
REGARDING TAX


 


I further agree to
indemnify and save harmless the Company and shall be liable to the Company for
any claims in regards to non-deduction or insufficient deduction of taxes or
employment insurance monies in regards to the settlement agreed to herein,
including any legal costs, interest or penalties as may be assessed or alleged
against the Company.


 


11.                                 RETURN
OF COMPANY PROPERTY


 


I agree to
immediately return to the Company all Company property in my possession or
control, if I have not done so already. 
Without limiting my obligation, Company material includes all manuals,
vehicles, communications equipment, product information, price lists, displays
and promotional material.


 


12.                                 UNDERSTANDING


 


I declare that I
have had the opportunity to seek independent legal advice with respect to the
matters addressed in this Release and Confidentiality Agreement and the terms
of settlement which have been agreed to by myself and the Company.  I fully understand this Release and
Confidentiality Agreement and the terms of settlement.  I have not been influenced by any
representations or statements made by or on behalf of the Company.  I voluntarily accept these terms for the purpose
of making full and final compromise, adjustments and settlement of all claims
as aforesaid.


 


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13.                                 COMPLETE
AGREEMENT


 


I understand and
agree that this Release and Confidentiality Agreement, and the settlement
letter to which this Release and Confidentiality Agreement has been attached,
contain the entire agreement between the Company and me, that such agreement
may not be modified except by mutual written agreement of me and the Company,
and that the terms of this Release and Confidentiality Agreement are
contractual and not a mere recital.


 


DATED at the City of Calgary, in
the Province of Alberta, this 27th day of September, 2010.


 


 


	
   

  	
  /s/ Jason A.
  Dubchak

  	
   

  	
  /s/ Paul Amirault

  
	
   

  	
  Witness

  	
  Paul Amirault

  



 


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