Exhibit 10.24
EMPLOYMENT AGREEMENT
Between
Rentech, Inc.
and
Richard T. Penning
THIS AGREEMENT is entered into as of
January 22, 2007 and made effective as of January 15,
2007 between Rentech, Inc. (the “ Company ”) and
Richard T. Penning (“ Executive ”).
In consideration of the mutual
covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Employment . The
Company shall employ Executive, and Executive hereby accepts
employment with the Company, upon the terms and conditions set
forth in this Agreement, for the period beginning on
January 15, 2007 (the “ Commencement Date
”) and ending as provided in Section 4 hereof (the
“ Employment Period ”).
2.
Position and Duties .
(a) During the Employment
Period, Executive shall serve as Executive Vice President of
Commercial Affairs of the Company. During the Employment Period,
Executive shall render such administrative, financial and other
executive and managerial services to the Company and its affiliates
(the “ Company Group ”) as are consistent with
Executive’s position and the by-laws of the Company and as
the Chief Executive Officer (“ CEO ”) may from
time to time reasonably direct. Executive shall also serve
for no additional compensation or remuneration as an officer or
director of such subsidiaries of the Company as may from time to
time be designated by the CEO or the Board of Directors of the
Company (the “ Board ”).
(b) During the Employment
Period, Executive shall report to the CEO and shall devote his best
efforts and his full business time and attention (except for
permitted vacation periods and reasonable periods of illness or
other incapacity) to the business and affairs of the Company.
Executive shall perform his duties, responsibilities and functions
to the Company hereunder to the best of his abilities in a
diligent, trustworthy, professional and efficient manner and shall
comply with the Company’s policies and procedures in all
material respects. In performing his duties and exercising
his authority under this Agreement, Executive shall support and
implement the business and strategic plans approved from time to
time by the Board and shall support and cooperate with the
Company’s efforts to operate in conformity with the business
and strategic plans approved by the Board. During the
Employment Period, Executive shall not serve as an officer or
director of, or otherwise perform services for compensation for,
any other entity without the prior written consent of the Board
which shall not be unreasonably withheld. Executive may serve
as an officer or director of or otherwise participate in purely
educational, welfare, social, religious and civic organizations so
long as such activities do not interfere with Executive’s
regular performance of duties and responsibilities hereunder in any
material respect. Nothing contained herein shall preclude
Executive from (i) engaging in charitable and community
activities, (ii) participating in industry and trade
organization activities, (iii) completing his external
consulting project underway on the Commencement Date (provided that
such project requires no material work time from Executive, and
will in any event be completed no later than March 15, 2007),
and (iv) managing his and his family’s personal
investments and affairs; provided , that Executive shall not
have any ownership interest (of record or beneficial) in any firm,
corporation, partnership, proprietorship or other business that
competes directly with the Company’s Fischer-Tropsch business
except for (x) an investment of not more than 1.0% of
the
outstanding securities of a company traded on a public securities
exchange or (y) investments made through public mutual
funds.
3.
Compensation and Benefits .
(a) The Company shall pay
Executive an annual salary (the “ Base Salary ”)
at the rate of $265,000 in regular installments in accordance with
the Company’s ordinary payroll practices (in effect from time
to time), but in any event no less frequently than monthly.
Beginning October 1, 2007, and each October 1 thereafter
during the Employment Period, Executive’s Base Salary shall
automatically be increased by the percentage increase in the
Consumer Price Index for all Urban Consumers (“ CPI-U
”) as published by the U.S. Department of Labor for the
immediately preceding August compared to the CPI-U for the month of
August one year earlier. Executive shall also be eligible for an
annual review of his Base Salary based on performance as determined
by the Board in its sole discretion.
(b) Bonuses and Incentive
Compensation .
(i)
Annual Bonus . For each fiscal year ending during the
Employment Period, Executive will be eligible to earn an annual
bonus based on achievement of performance criteria established by
the Board as soon as administratively practicable following the
beginning of each such fiscal year (the “ Annual Bonus
”). The target amount (the “ Target Bonus
”) of Executive’s Annual Bonus shall equal 50% of
Executive’s Base Salary (at the annual rate in effect at the
start of the fiscal year), with a maximum Annual Bonus in an amount
equal to 100% of Executive’s Base Salary (at the annual rate
in effect at the start of the fiscal year). The Company shall pay
the Annual Bonus for each fiscal year in cash or equity awards, as
determined by the Board, after the end of the Company’s
fiscal year in accordance with procedures established by the Board,
but in no event later than two and a half months following the end
of such fiscal year. To be eligible for an Annual Bonus pursuant to
this Section 3(b), Executive must be an employee on the last
day of the relevant fiscal year. For the fiscal year ending
September 30, 2007, the Target Bonus amount shall be
(A) based on the Executive’s Base Salary on the
Commencement Date and (B) pro –rated to 75% of the
amount otherwise earned.
(ii)
Equity Grant . The Company shall grant Executive
275,000 restricted stock units (“ Restricted Stock
Units ”) that are to be settled in common stock of the
Company (“ Common Stock ”). Such Restricted
Stock Units will vest over a three-year period such that one-third
of Restricted Stock Units will vest and be settled within
30 days on each of (i) the one-year anniversary of the
Commencement Date, (ii) the two-year anniversary of the
Commencement Date, and (iii) the three-year anniversary of the
Commencement Date. Such Restricted Stock Units shall be referred to
as the “ Executive LTIP ”. The terms and
conditions of the Executive LTIP shall be governed by and subject
to the award agreement to be entered into between Executive and the
Company, substantially in the form of Exhibit A (the
“ LTIP Award Agreement ”). Executive shall be
eligible to be granted additional equity compensation awards on a
basis no less frequent than similarly situated executives;
provided , however , that the ultimate amount of any
such award(s) to Executive shall be determined by the Board in its
sole discretion.
(iii)
Commencement Payment . Within 30 days of the
Commencement Date, the Company shall make a one-time payment to
Executive of $15,000.
(c) Expenses . During
the Employment Period, the Company shall (i) reimburse
Executive for all reasonable business expenses incurred by him in
the course of performing his duties and responsibilities under this
Agreement in accordance with the Company’s policies in effect
from time to time with respect to travel, entertainment and other
business expenses for senior executives and (ii) pay to
Executive a monthly automobile allowance of $1,000.
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(d) Other Benefits .
Executive shall also be entitled to the following benefits during
the Employment Period, unless otherwise modified by the
Board:
(i) participation
in the Company’s retirement plans, health and welfare plans,
disability insurance plans and other benefit plans of the Company
as in effect from time to time, under the terms of such plans and
to the same extent and under the same conditions such participation
and coverages are provided generally to other senior executives of
the Company;
(ii) coverage
for services rendered to the Company, its subsidiaries and
affiliates while Executive is a director or officer of the Company,
or of any of its subsidiaries or affiliates, under director and
officer liability insurance policy(ies) maintained by the Company
from time to time; and
(iii) five
weeks of vacation per year.
4. Termination . The
Employment Period shall end on the second anniversary of the
Commencement Date; provided , however , that the
Employment Period shall be automatically renewed for successive
one-year terms thereafter on the same terms and conditions set
forth herein unless either party provides the other party with
notice that it has elected not to renew the Employment Period at
least 90 days prior to the end of the initial Employment
Period or any subsequent extension thereof. Notwithstanding
the foregoing, (i) the Employment Period shall terminate
immediately upon Executive’s resignation (with or without
Good Reason, as defined herein), death or Disability (as defined
herein) and (ii) the Employment Period may be terminated by
the Company at any time prior to such date for Cause (as defined
herein) or without Cause. Except as otherwise provided
herein, any termination of the Employment Period by the Company
shall be effective as specified in a written notice from the
Company to Executive, but in no event more than 90 days from
the date of such notice. The termination of the Employment
Period shall not affect the respective rights and obligations of
the parties which, pursuant to the terms of this Agreement, apply
following the date of Executive’s termination of employment
with the Company.
5. Severance .
(a) Termination Without
Cause, Non-Renewal or for Good Reason . In the event of
Executive’s termination of employment with the Company
(1) by the Company without Cause (as defined herein),
(2) by reason of the Company electing not to offer to renew
the Agreement on terms that are based on competitive practices for
companies of comparable size and standing in the same industry (it
being understood, however, that in any event such renewal must
include a cash severance benefit no less favorable than that
included herein to satisfy the requirements of this clause (2)), or
(3) by Executive for Good Reason (as defined herein), subject
to execution and non-revocation of a Release substantially in the
form attached as Exhibit B , Executive shall be
entitled to the benefits set forth below in this
Section 5(a).
(i) The
Company shall pay Executive an amount equal to one times
Executive’s Base Salary plus one times Executive’s
Target Bonus (as in effect on the date of Executive’s
termination). The severance amount described in the previous
sentence shall be paid as follows: (A) the continuation of
Base Salary shall be paid over a period of one year from the date
of termination in accordance with the payroll practices of the
Company in effect from time to time and (B) the Target Bonus
shall be paid on the date that executive bonuses are paid generally
for the fiscal year in which the date of termination took place,
which shall, in any event, be no later than two and one-half months
after the end of such fiscal year (the “ Bonus Payment
Date ”); provided , however , that, in the
event that Executive is considered a “Specified
Employee” as defined in proposed or final Treasury
Regulations promulgated under Section 409A (“
Section 409A ”) of the Internal Revenue Code of
1986, as amended
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(the
“ Code ”), and payments under this
Section 5(a) are considered “deferred
compensation” under Section 409A, the first payment
shall be delayed for six months, in which event Executive shall
receive on the first business day that is at least six months and
one day after the date of termination a lump sum equal to all
payments otherwise due during such six month period pursuant to
this Section 5(a)(i), along with interest at a floating rate
equal to LIBOR from the date such payments were otherwise due to
the date of payment, and the remainder of such severance amount
shall be paid in equal installments over a period of
six months thereafter in accordance with the ordinary payroll
practices of the company (in effect from time to time). For the
avoidance of doubt, if Executive is a “Specified
Person” and the Bonus Payment Date occurs during the six
months after the date of such date of termination, such bonus shall
instead be paid on the first business day that is at least six
months and one day after the date of termination with interest from
the date otherwise payable.
(ii) The
Executive LTIP shall be governed by the terms of any applicable
LTIP Award Agreement(s) and related plan(s).
(iii) The
Company shall pay Executive the amounts described in
Section 5(d) within 14 days of the date of
termination.
(iv)
(v) Executive
shall be entitled to benefits mandated under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“
COBRA ”), under Section 4980B of the Code, or any
replacement or successor provision of United States tax law, with
the premium paid at the Company’s expense until the first to
occur of (A) eighteen months from the date of termination or
(B) such date that Executive becomes covered by successor
group health coverage.
(b) Termination for Cause or
Voluntary Resignation . In the event that
Executive’s employment with the Company is terminated
(i) by the Board for Cause or (ii) by Executive’s
resignation from the Company for any reason other than Good Reason
or Disability (as defined herein), subject to applicable law, the
Company agrees to the following:
(i) The
Executive LTIP shall be governed by the terms of any applicable
LTIP Award Agreement(s); and
(ii) The
Company shall pay Executive the amounts described in
Section 5(d) within 14 days of the date of
termination.
For
purposes of this Agreement, Executive’s voluntary resignation
or retirement shall be considered Executive’s resignation
from the Company without Good Reason.
(c) Death or Disability
. In the event that Executive’s employment with the
Company is terminated as a result of Executive’s death or
Disability, the Company agrees to the following:
(i) The
Executive LTIP shall be governed by the terms of any applicable
LTIP Award Agreement(s); and
(ii) The
Company shall pay Executive the amounts described in
Section 5(d) within 14 days of the date of
termination.
(d) Payments Upon Termination of
Employment . In the case of any termination of
Executive’s employment with the Company, Executive or his
estate or legal representative shall be
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entitled
to receive, to the extent permitted by applicable law, from the
Company (i) Executive’s Base Salary through the date of
termination to the extent not previously paid, (ii) to the
extent not previously paid, the amount of any bonus, incentive
compensation, and other compensation earned or accrued by Executive
as of the date of termination under any compensation and benefit
plans, programs or arrangements maintained in force by the Company
for any fiscal year of the Company ended prior to the date of
termination that is then unpaid, (iii) any vacation pay,
expense reimbursements and other cash entitlements accrued by
Executive, in accordance with Company policy for senior executives,
as of the date of termination to the extent not previously paid,
(iv) any Restricted Stock Units and other equity awards
outstanding under any Company long term incentive plans or
arrangements (other than the Executive LTIP), in accordance with
the terms of the plans or arrangements under which such awards were
created or maintained, and (v) all benefits accrued by
Executive under all benefit plans and qualified and nonqualified
retirement, pension, 401(k) and similar plans and arrangements of
the Company, in such manner and at such times as are provided under
the terms of such plans and arrangements.
(e) Termination Without
Cause, Non-Renewal or for Good Reason Following a Change in
Control . In the event of Executive’s termination
of employment with the Company (1) by the Company without
Cause, (2) as a result of the Company electing not to offer to
renew the Agreement on terms that are consistent with competitive
practices for companies of comparable size and standing in the same
industry (it being understood, however, that in any event such
renewal must include a cash severance benefit no less favorable
than that included herein to satisfy the requirements of this
clause (2)), or (3) by Executive for Good Reason, in any case,
during the period beginning three months before and ending two
years following a Change in Control (as defined herein) of the
Company, subject to Executive’s execution and non-revocation
of a Release substantially in the form attached as
Exhibit B , Executive shall be entitled to the benefits
set forth below in this Section 5(e).
(i) The
Company shall pay Executive the payments set forth in
Section 5(a)(i); provided , however , that in
determining the amount of payment due under Section 5(a)(i),
Executive’s actual Annual Bonus for the year preceding the
Change in Control shall be used, if higher than his Target Bonus;
and provided , further , that payment shall be made
in a lump sum on the later of the date of the Change in Control or
10 business days after Executive’s termination of
employment except that, in the event Executive is considered a
“Specified Employee” as defined in proposed or final
Treasury Regulations promulgated under Section 409A, and payments
under this Section 5(e) are considered “deferred
compensation” under Section 409A, Executive shall instead
receive on the first business day that is at least six months and
one day after the date of termination a lump sum equal to all
payments otherwise due pursuant to this Section 5(e)(i), along
with interest at a floating rate equal to LIBOR from the date of
Executive’s termination of employment to the date of
payment.
(ii) The
Executive LTIP shall be governed by the terms of any applicable
LTIP Award Agreement(s).
(iii) The
Company shall pay Executive the amounts described in
Section 5(d).
(f) Excess Parachute
Payments .
(i) In
the event any payment granted to Executive pursuant to the terms of
this Agreement or otherwise (a “ Payment ”) is
determined to be subject to any excise tax (“ Excise
Tax ”) imposed by Section 4999 of the Code (or any
successor to such Section), the Company shall pay to Executive, no
later than the time any Excise Tax is payable with respect to such
Payment (through withholding or otherwise), an additional amount (a
“ Gross-Up Payment ”) which, after the
imposition of all income, employment, excise and other taxes,
penalties and interest thereon, is equal to the sum of
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(A) the Excise Tax on such Payment plus (B) any penalty
and interest assessments associated with such Excise Tax.
(ii) The
determinations to be made with respect to this
Section 5(f) shall be made by a certified public
accounting firm designated by the Company and reasonably acceptable
to Executive and Executive may rely on such determination in making
payments to the Internal Revenue Service.
(g) No Other Payments
. Except as provided in Sections 5(a), (b), (c), (d),
(e) and (f) above, all of Executive’s rights to
salary, bonuses, employee benefits and other compensation hereunder
which would have accrued or become payable after the termination or
expiration of the Employment Period shall cease upon such
termination or expiration, other than those expressly required
under applicable law (such as COBRA).
(h) No Mitigation, No
Offset . In the event of Executive’s termination of
employment for whatever reason, Executive shall be under no
obligation to seek other employment, and there shall be no offset
against amounts due him under this Agreement or otherwise on
account of any remuneration attributable to any subsequent
employment or claims asserted by the Company or any affiliate;
provided , that this provision shall not apply with respect
to any amounts that Executive owes to the Company or any member of
the Company Group on account of any loan, advance or other payment,
in respect of any of which Executive is obligated to make repayment
to the Company or any member of the Company Group.
(i) Definitions .
For purposes of this Agreement, the following terms shall have the
following meanings:
(i)
“ Cause ” shall mean one or more of the
following:
(A) the
conviction of, or an agreement to a plea of nolo contendere to, a
crime involving moral turpitude or any felony;
(B) Executive’s
willful refusal substantially to perform duties as reasonably
directed by the CEO under this or any other agreement;
(C) in
carrying out his duties, Executive engages in conduct that
constitutes fraud, willful neglect or willful misconduct which, in
either case, would result in demonstrable harm to the business,
operations, prospects or reputation of the Company;
(D) a
material violation of the requirements of the Sarbanes-Oxley Act of
2002 (“ SOX ”) or other federal or state
securities law, rule or regulation; or
(E) any
other material breach of this Agreement.
For
purpose of this Agreement, the Company is not entitled to assert
that Executive’s termination is for Cause unless the Company
gives Executive written notice describing the facts which are the
basis for such termination and such grounds for termination (if
susceptible to correction) are not corrected by Executive within
30 days of Executive’s receipt of such notice to the
reasonable, good faith satisfaction of the Board.
(ii)
“ Change in Control ” shall mean the first to
occur of any of the following events:
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(A) A
transaction or series of transactions (other than an offering of
Common Stock to the general public through a registration statement
filed with the Securities and Exchange Commission) whereby any
“person” or related “group” of
“persons” (as such terms are used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”)) (other than the Company, any
of its subsidiaries, an employee benefit plan maintained by the
Company or any of its subsidiaries or a “person” that,
prior to such transaction, directly or indirectly controls, is
controlled by, or is under common control with, the Company)
directly or indirectly acquires beneficial ownership (within the
meaning of Rule 13d-3 under the Exchange Act) of securities of
the Company possessing more than 50% of the total combined voting
power of the Company’s securities outstanding immediately
after such acquisition; or
(B) During
any twelve-month period, individuals who, at the beginning of such
period, constitute the Board together with any new director(s)
(other than a director designated by a person who shall have
entered into an agreement with the Company to effect a transaction
described in Section 5(i)(ii)(A) or Section 5(i)(ii)(C))
whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least a
majority of the directors then still in office who either were
directors at the beginning of the twelve-month period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or
(C) The
consummation by the Company (whether directly involving the Company
or indirectly involving the Company through one or more
intermediaries) of (x) a merger, consolidation,
reorganization, or business combination or (y) a sale or other
disposition of all or substantially all of the Company’s
assets in any single transaction or series of related transactions
or (z) the acquisition of assets or stock of another entity,
in each case other than a transaction:
(1) Which
results in the Company’s voting securities outstanding
immediately before the transaction continuing to represent (either
by remaining outstanding or by being converted into voting
securities of the Company or the person that, as a result of the
transaction, controls, directly or indirectly, the Company or owns,
directly or indirectly, all or substantially all of the
Company’s assets or otherwise succeeds to the business of the
Company (the Company or such person, the “ Successor
Entity ”)) directly or indirectly, at least a majority of
the combined voting power of the Successor Entity’s
outstanding voting securities immediately after the transaction,
and
(2) After
which no person or group beneficially owns voting securities
representing 35% or more of the combined voting power of the
Successor Entity; provided, however, that no person or group
shall be treated for purposes of this Section 5(i)(ii)(C)(2)
as beneficially owning 35% or more of combined voting power of the
Successor Entity solely as a result of the voting power held in the
Company prior to the consummation of the transaction; or
(D) The
Company’s stockholders approve a liquidation or dissolution
of the Company.
The
Board shall have full and final authority, which shall be exercised
in its discretion, to determine conclusively whether a Change in
Control of the Company has occurred pursuant to the above
definition, and the date of the occurrence of such Change in
Control and any incidental matters relating thereto.
(iii)
“ Disability ” shall mean Executive’s
being unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months.
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(iv)
“ Good Reason ” shall mean Executive’s
resignation from employment with the Company prior to the end of
the Employment Period as a result of one or more of the following
reasons:
(A) the
Company reduces the amount of Executive’s then current Base
Salary or the target for his Annual Bonus (it being understood that
Executive shall not have a basis to resign for Good Reason if no
bonus is paid, or the amount of the bonus is reduced as a result of
the failure of Executive or the Company to achieve applicable
performance targets for such bonus);
(B) a
material diminution in Executive’s title, authority, duties
or responsibilities or the assignment of duties to Executive which
are materially inconsistent with his position; provided ,
however , that, following a Change in Control, any
diminution of Executive’s title, duties or responsibilities
shall constitute Good Reason;
(C) the
failure of the Company to obtain in writing the obligation to
perform this Agreement by any successor to the Company or a
purchaser of all or substantially all of the assets of the Company
within 15 days after a merger, consolidation, sale or similar
transaction;
(D) the
failure of the Company to grant Executive the Executive LTIP within
30 days after the Effective Date;
(E) material
breach of this Agreement by the Company; or
(F) the
requirement that Executive move his principal place of business by
more than 50 miles from that previously the case without his
consent.
Notwithstanding
the foregoing, Executive agrees that he shall not be entitled to
terminate his employment for Good Reason in the event he is subject
to any unintended or adverse tax consequences under
Section 409A or he is required to forfeit incentive or other
compensation pursuant to Section 304 of SOX. For
purposes of this Agreement, Executive is not entitled to assert
that his termination is for Good Reason unless Executive gives the
Board written notice describing the event or events which are the
basis for such termination within 90 days after the event or
events occur and such grounds for termination (if susceptible to
correction) are not corrected by the Company within 30 days of
the Company’s receipt of such notice to the reasonable, good
faith satisfaction of Executive.
6.
Insurance; Indemnification and
Advancement of Expenses .
(a) Insurance . The
Company agrees to maintain director’s and officer’s
liability insurance covering the Executive for services rendered to
the Company, its subsidiaries and affiliates while Executive is a
director or officer of the Company or any of its subsidiaries or
affiliates.
(b) Indemnification and
Advancement of Expenses . Executive shall be entitled to the
benefits of Articles Thirteen and Fourteen of the Company’s
Amended and Restated Articles of Incorporation and the Company
shall not amend such provisions during the Employment Period
without advance written notice to Executive. The Company shall not
during the Employment Period enter into any supplemental
indemnification agreement with its directors or executive officers,
as such, unless Executive is offered an agreement containing terms
pertaining to indemnification and advancement of expenses that are
substantially identical to the most favorable indemnification and
advancement of expenses terms provided to such directors or
executive officers (excepting standard “Side A” and
similar arrangements customarily provided solely to non-employee
directors), which agreement may not be amended without advance
written notice to Executive.
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7.
Confidential Information
. Executive agrees to enter into the Company’s form of
Confidentiality and Invention Assignment Agreement attached hereto
as Exhibit C simultaneously with the execution of this
Agreement.
8.
Non-Solicitation .
(a) During the Employment Period
and for one year thereafter (the “ Restricted Period
”), Executive shall not directly or indirectly through
another person or entity (i) induce, solicit, encourage or
attempt to induce, solicit or encourage any employee of the Company
to leave the employ of the Company, or in any way interfere with
the relationship between the Company and any employee thereof; or
(ii) induce, solicit, encourage or attempt to induce, solicit
or encourage any customer, supplier, licensee, licensor, franchisee
or other business relation of the Company to cease doing business
with the Company, or in any way interfere with the relationship
between any such customer, supplier, licensee or business relation
of the Company (including, without limitation, making any negative
or disparaging statements or communications regarding the Company).
The Company covenants that it will not, and it will advise members
of senior management of the Company and the Board not to, make any
negative or disparaging statements or communications regarding
Executive.
(b) If, at the time of
enforcement of this Section 8, a court shall hold that the
duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances
shall be substituted for the stated duration, scope or area and
that the court shall be allowed to revise the restrictions
contained herein to cover the maximum period, scope and area
permitted by law. Executive acknowledges that the
restrictions contained in this Section 8 are reasonable and
that he has reviewed the provisions of this Agreement with his
legal counsel.
(c) Executive acknowledges that
in the event of the breach or a threatened breach by Executive of
any of the provisions of this Section 8, the Company would
suffer irreparable harm, and, in addition and supplementary to
other rights and remedies existing in its favor, the Company shall
be entitled to specific performance and/or injunctive or other
equitable relief from a court of competent jurisdiction in order to
enforce or prevent any violations of the provisions hereof (without
posting a bond or other security). In addition, in the event of a
breach or violation by Executive of Section 8 (a), the
Restricted Period shall be automatically extended by the amount of
time between the initial occurrence of the breach or violation and
when such breach or violation has been duly cured.
9.
Executive’s
Representations . Executive hereby represents and
warrants to the Company that (i) the execution, delivery and
performance of this Agreement by Executive do not and shall not
conflict with, breach, violate or cause a default under, any
contract, agreement, instrument, order, judgment or decree to which
Executive is a party or by which he is bound which has not been
waived; (ii) Executive is not a party to or bound by any
employment agreement, noncompete agreement or confidentiality
agreement with any other person or entity (except for a
confidentiality agreement with a former employer that the Executive
represents will not limit his services under this Agreement); and
(iii) on the Commencement Date, this Agreement shall be the
valid and binding obligation of Executive, enforceable in
accordance with its terms. Executive represents and agrees that
he fully understands his right to discuss all aspects of this
Agreement with his private attorney, and that to the extent, if
any, that he desired, he availed himself of such right. Executive
further represents that he has carefully read and fully understands
all of the provisions of this Agreement, that he is competent to
execute this Agreement, that his agreement to execute this
Agreement has not been obtained by any duress and that he freely
and voluntarily enters into it,
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