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Exhibit
10.28
THIRD AMENDED AT WILL
EMPLOYMENT, CONFIDENTIAL INFORMATION,
INVENTION ASSIGNMENT,
NONCOMPETITION AND ARBITRATION AGREEMENT
THIS THIRD AMENDED AT WILL
EMPLOYMENT, CONFIDENTIAL INFORMATION, INVENTION ASSIGNMENT,
NONCOMPETITION AND ARBITRATION AGREEMENT (the “Third Amended
Agreement”) is made as of this 31 st
day of July
2006, between RASER TECHNOLOGIES, INC. (“Company”) and
William Dwyer (“Employee”).
RECITALS
WHEREAS, Company and Employee
entered into a certain At Will Employment, Confidential
Information, Invention Assignment, Noncompetition and Arbitration
Agreement (the “Agreement”) on July 8, 2004,
entered into the First Amended Agreement on July 9, 2005, and
entered into the Second Amended Agreement (Agreement, First Amended
Agreement and Second Amended Agreement hereafter referred to as
“Agreement”) on January 31, 2006, and
WHEREAS, the Company has not
declared an open trading window in which to permit Employee to
adopt a 10b5-1 trading plan prior to the commencement of share
delivery anticipated in the Second Amended Agreement, the parties
now desire to mutually amend the Agreement in this Third Amended
Agreement as set forth below;
NOW, THEREFORE, in view of
the foregoing recitals which are incorporated as a part of this
Third Amended Agreement, and in consideration of the terms and
conditions of this Third Amended Agreement, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as
follows:
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1. |
Paragraph 2 of the Agreement is amended as follows: |
Paragraph 2 of the Agreement
is amended to delay delivery of 75,000 shares that vested on
August 1, 2005 and would issue from August 1, 2006
through November 30, 2006, and 100,000 shares that vested on
August 1, 2006 and would issue from August 2, 2006
through December 19, 2006, as follows: 175,000 registered
shares that would issue under the Agreement according to the
attached delivery schedule.
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2. |
If the Company conducts a Secondary Public Offering prior to
November 1, 2006, Employee will be offered a right to sell up
to 100,000 common shares in the Secondary Public Offering. If the
Secondary Public Offering is not closed prior to November 1,
2006, Employee shall continue to receive the shares per columns 1
through 4 of the attached Schedule A, and Employee shall no longer
be entitled to participate in the Secondary Public Offering.
Company and Employee may, however, mutually agree to include any or
all shares held by Employee in any public offering conducted after
November 1, 2006. |
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3. |
If Employee resigns or is terminated for any reason except
gross negligence or criminal conduct prior to the delivery of any
shares pursuant to Schedule A, the remaining shares will continue
to be delivered as set forth in Schedule A until all shares have
been delivered. If Employee resigns or is terminated for gross
negligence or criminal conduct prior to the first business day of
August, 2007, Employee shall be entitled to receive the undelivered
shares per the attached schedules, and to receive a prorated number
of shares equal to 8,333 per month for every full month
Employee has been employed by the Company from August 1, 2006
to July 31, 2007 per the schedule in column 3 of the
Second Amended Agreement. |
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4. |
The Company recognizes that the Employee intends to enter into
a 10b5-1 trading plan to sell a portion of the shares being
delivered on each date in order to manage the Employee’s tax
liability arising from the delivery schedule. |
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5. |
The Company makes no representations to Employee regarding any
tax implications of this Third Amended Agreement. The Company also
does not represent that the share price on any given date shall be
the same price of the shares when Employee may have otherwise been
entitled to receive shares. |
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6. |
All other provisions of the Agreement shall remain in full
force and effect. To the extent any provisions of the Agreement
conflict with the provisions of this Third Amended Agreement, this
Third Amended |
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