EMPLOYMENT AGREEMENT
This
Employment Agreement (“Agreement”) is entered into as of June 22, 2007 by and
between J. Xxxxx Xxxxxxxx (“Executive”) and Talen Marine and Fuel, Inc., a
Louisiana corporation (the “Company”). This Agreement shall become effective as
a valid and binding contract as of the date first above written, provided that
the operative provisions hereof shall not become effective until the Closing
(as
defined in that certain Stock Purchase and Sale Agreement dated as of June
22,
2007, by and among the Company, Allegro Biodiesel Corporation (“Parent”) and
certain other parties (the “Stock Purchase Agreement,” and such Closing being
hereinafter referred to as the “Effective Date”)).
In the
event that the Stock Purchase Agreement is terminated or the transactions
contemplated by the Stock Purchase Agreement are abandoned, this Agreement
shall
be null and void ab
initio
and
shall have no force and effect.
WHEREAS,
in
connection with the transactions contemplated by the Stock Purchase Agreement,
the Company desires to employ Executive to provide personal services to the
Company, and wishes to provide Executive with certain compensation and benefits
in return for Executive’s services; and
WHEREAS,
Executive wishes to be employed by the Company and provide personal services
to
the Company in return for certain compensation and benefits.
NOW,
THEREFORE,
in
consideration of the mutual promises and covenants contained herein, it is
hereby agreed by and between the parties hereto as follows:
ARTICLE
I
DEFINITIONS
For
purposes of the Agreement, the following terms are defined as
follows:
1.1 “Affiliate”
means,
with respect to any party, any corporation, limited liability company,
partnership, joint venture, firm and/or other entity which Controls, is
Controlled by or is under common Control with such party.
1.2 “Board”
means
the Board of Directors of the Company.
1.3 “Business”
means
the business of the Company, which is engaged in the distribution of fuel ,
lubricant and related materials, including but not limited to, storage and
transportation, and wholesale and retail distribution of diesel, bio-diesel
and
bio-diesel blends, and any other business activity or service in which the
Company or any Affiliate of the Company is engaged or making an active effort
to
develop business at the time of termination of Executive’s employment with the
Company or any Affiliate of the Company. Executive agrees that the Company
may
periodically revise the description of the Business of the Company to reflect
changes in the Company’s business. Executive acknowledges and agrees that as
consideration for executing this Agreement, Executive agrees to sign addenda
to
this Agreement which update the description of the Business of the Company
as
revised by the Company.
1.4 “Cause”
means:
(a) Executive’s
willful
failure to substantially perform the duties assigned to Executive in accordance
with the Agreement or Executive’s breaching in any material respect any
provisions of this Agreement or the employee policies and procedures of the
Company;
(b) Executive’s
failure to carry out, or comply with, in any material respect any lawful
directive of the Board or the appropriate individual to whom Executive
reports;
(c) Executive’s
commission at any time of any act or omission that results in, or that may
reasonably be expected to result in, a conviction, plea of no contest or
imposition of unadjudicated probation for any felony or crime involving moral
turpitude;
(d) Executive’s
unlawful use (including being under the influence) or possession of illegal
drugs on the Company’s premises or while performing Executive’s duties and
responsibilities under this Agreement;
(e) Executive’s
violation of the Company’s drug and alcohol free workplace policy;
(f) Executive’s
commission at any time of any act of fraud, embezzlement, material
misappropriation, material misconduct, or breach of fiduciary duty against
the
Company; or
(g) Executive’s
violation in any material respect of any federal, state or local law applicable
to the Company or any Affiliate of the Company.
1.5 “Confidentiality
Agreement”
means
the Company’s form of Proprietary Information and Invention Assignment Agreement
to be executed by Executive contemporaneously with the execution of this
Agreement and that is attached hereto as Annex A.
1.6 “Control”
means
(i) in the case of corporate entities, direct or indirect ownership of at least
fifty percent (50%) of the stock or participating assets entitled to vote for
the election of directors; and (ii) in the case of non-corporate entities (such
as individuals, limited liability companies, partnerships or limited
partnerships), either (A) direct or indirect ownership of at least fifty percent
(50%) of the equity interest, or (B) the power to direct the management and
policies of the non-corporate entity.
1.7 “Covered
Entity”
means
every Affiliate of Executive, and every business, association, trust,
corporation, partnership, limited liability company, proprietorship or other
entity in which Executive has invested (whether through debt or equity
securities), or has contributed any capital or made any advances to, or in
which
any Affiliate of Executive has an ownership interest or profit sharing
percentage, or a firm from which Executive or any Affiliate of Executive
receives or is entitled to receive income, compensation or consulting fees
in
which Executive or any Affiliate of Executive has an interest as a lender (other
than solely as a trade creditor for the sale of goods or provision of services
that do not otherwise violate the provisions of this Agreement); provided,
however, that only entities whose management decisions are influenced by
Executive shall be considered Covered Entities for purposes of this Agreement.
The agreements of Executive contained herein specifically apply to each entity
which is presently a Covered Entity or which becomes a Covered Entity subsequent
to the date of this Agreement, and in both cases is a Covered Entity at the
time
of a violation of Article V of this Agreement. Notwithstanding anything
contained in the foregoing provisions to the contrary, the term “Covered Entity”
shall not include the Company or any Affiliate of the Company.
2
1.8 “Disability”
means
a
determination that Executive is unable or unwilling to substantially perform
the
material duties and responsibilities contemplated by this Agreement as a result
of a disability within the meaning of the Company’s disability insurance plan,
which inability continues for a period exceeding ninety (90) consecutive days
or
shorter periods exceeding ninety (90) days in the aggregate during any twelve
(12) month period.
1.1 “Involuntary
Termination Without Cause”
means
either Executive’s dismissal or discharge by the Company for any reason other
than for Cause or
Executive’s resignation within 12 months after a Sale of the Company as a result
of a material diminution in Executive’s duties or responsibilities. The
termination of Executive’s employment as a result of Executive’s death or
Disability shall not be deemed to be an Involuntary Termination Without
Cause.
1.2 “Restricted
Area”
means
each and every state, county, parish, city or other political subdivision or
geographic location in the United States or in any other territory or
jurisdiction outside the United States, in which the Company or any Affiliate
of
the Company is engaged in or conducts the Business. The Restricted Area includes
the geographic territory specifically set forth in Annex
C
of this
Agreement. Executive agrees that the Company may periodically revise the
Restricted Area to reflect any changes in the geographic territory in which
the
Company is conducting Business. Executive acknowledges and agrees that as
consideration for this Agreement, Executive agrees to sign addenda to this
Agreement which update the Restricted Area to reflect the geographic territory
in which the Company conducts its Business as revised by the Company.
1.3 “Restricted
Period”
means
the period commencing on the Effective Date and continuing until the second
anniversary of Executive’s termination (whether voluntary or not) of employment
with the Company and all Affiliates of the Company.
1.4 “Sale
of the Company”
means
the consummation of any of the following: (i) the closing of a business
combination (e.g., merger) of the Company with any other corporation or other
type of business entity, which results in the voting securities of the Company
outstanding immediately prior thereto not continuing to represent at least
fifty
percent (50%) of the total voting power represented by the voting securities
of
the Company or such controlling surviving entity outstanding immediately after
such business combination; or (ii) the sale or other transfer or disposition
by
the Company of all or substantially all of the Company’s assets by value; or
(iii) an acquisition of any voting securities of the Company by any “person” (as
the term “person” is used for purposes of Section 13(d) or Section 14(d) of the
Securities Exchange Act of 1934, as amended (the “1934 Act”)) immediately after
which such person has “beneficial ownership” (within the meaning of Rule 13d-3
promulgated under the 0000 Xxx) of fifty percent (50%) or more of the combined
voting power of the Company’s then outstanding voting securities.
3
1.5 “Section
409A”
means
Section 409A of the Internal Revenue Code of 1986, as amended and the Department
of Treasury Regulations and other interpretive guidance issued thereunder.
1.6 “Stock
Plan”
means
Parent’s 2006 Incentive Compensation Plan, as may be amended from time to
time.
1.7 “Term”
means
the period commencing on the Effective Date and terminating on the second
(2nd)
anniversary thereof, subject to earlier termination pursuant to the provisions
of Article IV hereof.
ARTICLE
II
EMPLOYMENT
BY THE COMPANY
2.1 Position
and Duties. During
the Term, the Company hereby agrees initially to employ Executive in the
position of Senior Vice President Operations and Executive hereby agrees to
provide services for the Company, on such terms and conditions as provided
in
this Agreement. Executive shall perform such duties as are customarily
associated with the position of Senior Vice President Operations and such other
duties as are commensurate with Executive’s position and are assigned to
Executive by the Company. Executive understands and agrees that the Company
may
change Executive’s position and/or duties from time to time in its sole
discretion (provided, however, that any change in Executive’s position or duties
that requires the Executive to relocate to any location that represents a
material change in the geographical location where Executive must perform
services (within the meaning of Section 409A) and is more than 30 miles from
each of Lafayette LA, Baton Rouge LA and New Orleans LA to which the Executive
does not consent shall constitute an Involuntary Termination Without Cause).
While Executive is employed by the Company during the Term, Executive shall
devote Executive’s efforts and substantially all of Executive’s business time
and attention (except for vacation periods and reasonable periods of illness
or
other incapacities permitted by the Company’s general employment policies or as
otherwise set forth in this Agreement) to the business of the Company. Except
with the prior written consent of the Company, Executive shall not during the
Term undertake or engage in any other employment, occupation or business
enterprise, other than ones which do not detract from Executive’s business time
and attention devoted to the Company (if Executive is employed by the Company
at
such time) or in which Executive is a passive investor and are not in violation
of the provisions in Article V. Executive may engage in civic and not-for-profit
activities so long as such activities do not materially interfere with the
performance of Executive’s duties hereunder.
2.2 Employment
Policies. The
employment relationship between the parties shall also be governed by the
employment policies of the Company, including but not limited to, those relating
to protection of confidential information and assignment of inventions, except
that when the terms of this Agreement differ from or are in conflict with the
Company’s employment policies, this Agreement shall control.
4
ARTICLE
III
COMPENSATION
3.1 Base
Salary.
During
the Term, Executive
shall receive for services to be rendered hereunder an annual base salary of
$125,000 (as may be increased from time to time, the “Salary”), payable
on the regular payroll dates of the Company as may be in effect from time to
time.
Subject
to Executive’s continued employment hereunder, Salary shall be increased to
$135,000 on the first anniversary of the Effective Date. Thereafter, Salary
shall be adjusted from time to time as determined by, and in the sole discretion
of, the person to whom Executive then reports or the Board of
Directors.
3.2 Signing
Bonus.
As soon
as administratively practicable following the Effective Date, the Company shall
pay $15,000 to Executive in a cash lump sum, subject to applicable tax and
other
withholdings.
3.3 Target
Bonus.
During
the Term, Executive shall be eligible for a target bonus of fifty percent (50%)
of Executive’s Salary (the “Target Bonus”) and a stretch bonus of up to an
additional fifty percent (50%) of Executive’s Salary (the “Stretch Bonus”) based
on the Company’s financial performance as determined by the Board of Directors,
in its sole discretion, pro-rated for a partial year and/or less-than-full-time
employment and subject to Executive’s continued employment with the Company or
an Affiliate of the Company through the applicable payment date; provided,
that
the minimum Target Bonus payable to Executive for fiscal year 2007 shall be
$25,000.
3.4 Stock
Option.
The
Company shall grant to Executive under the Stock Plan an option to purchase
250,000 shares of common stock of Allegro Biodiesel Corporation (the “Stock
Option”). The Stock Option shall have an exercise price equal to the per share
price at which Allegro Biodiesel Corporation raises equity financing in
connection with its acquisition of the Company. The Stock Option shall vest
as
to one-sixth (1/6th)
of the
shares subject thereto on each of January 1, 2008 and January 1, 2009, subject
to Executives continued employment with the Company or an Affiliate of the
Company hereunder. The Stock Option shall further vest as to one-third
(1/3rd)
of the
shares subject thereto on each of January 1, 2008 and January 1, 2009, subject
to Executive’s continued employment with the Company or an Affiliate of the
Company hereunder and the Company’s achievement of the performance criteria set
forth in Annex B. The Stock Option shall become exercisable as it vests and
remain exercisable until the date that is two and one-half months after the
last
day of the calendar year in which the relevant Stock Option vests (that is,
March 15, 2009 and March 15, 2010, respectively, in the case vesting were to
occur on January 1, 2008 and January 1, 2009). The parties acknowledge and
agree
that they each intend the vesting and exercise provisions of the Stock Option
to
be made in a manner compliant with the provisions of Section 409A of the
Internal Revenue Code.
3.5 Standard
Company Benefits.
During
the Term, Executive
shall be entitled to all rights and benefits under the terms and conditions
of
the standard Company benefits and compensation practices that may be in effect
from time to time and are provided by the Company to similarly situated
employees generally. Such benefits shall include, without limitation, (i) a
car
allowance of $750 per month or provision of a mutually-agreed vehicle, (ii)
maintenance and upkeep (including repairs) on Executive’s vehicle (other than
power train) and (iii) provision of or reimbursement for fuel used in
Executive’s vehicle in connection with the Company’s business.
5
ARTICLE
IV
TERMINATION
4.1 Termination
for Cause; Resignation.
In the
event that the Company terminates Executive’s employment for Cause or Executive
resigns for any reason other than in an Involuntary Termination without Cause,
the Company shall have no obligation to Executive except for payment of any
Salary, vacation and expense reimbursement accrued and unpaid through the
effective date of termination and except as otherwise required by law
(collectively, the “Accrued Obligations”). Termination of Executive’s employment
for Cause shall be communicated by delivery to Executive of a written notice
from the Company stating that Executive’s employment will be terminated for
Cause, specifying the particulars thereof and the effective date of such
termination. The date of a resignation by Executive shall be the date specified
in a written notice of resignation from Executive to the Company, provided
that
Executive shall provide at least sixty (60) days’ advance written notice of his
resignation. In the event Executive resigns his employment pursuant to this
Section 4.1, the Company may, at its sole discretion, relieve Executive of
some
or all of his duties prior to the effective date of the resignation. Company
shall pay Executive the Accrued Obligations through the effective date of the
resignation, but shall thereafter have no further obligation to
Executive.
4.2 Involuntary
Termination Without Cause.
In the
event that, prior to the expiration of the Term, Executive’s employment
terminates due to an Involuntary Termination Without Cause, (a) Executive shall
receive payment of his Accrued Obligations, and (b) subject to Executive’s
delivery and nonrevocation of an executed, effective general release of
employment-related claims against the Company and the Affiliates of the Company,
Executive shall be entitled to (i) severance consisting of a lump sum cash
payment equal to six (6) months of Executive’s Salary and (ii) 100% of
Executive’s outstanding options to purchase common stock of Allegro Biodiesel
Corporation shall become vested and exercisable. Except as provided in this
Section 4.2 or as otherwise required by applicable law, Executive shall have
no
right under this Agreement or otherwise to receive any other compensation or
to
participate in any other plan, program or arrangement, including, without
limitation, any employee benefit plans, after an Involuntary Termination Without
Cause with respect to the year of such termination and later years. The date
of
Executive’s Involuntary Termination Without Cause shall be the date specified in
a written notice of termination to Executive.
4.3 Termination
Due to Disability.
In the
event of Executive’s Disability, the Company shall be entitled to terminate his
employment upon written notice by the Company to Executive. In the case that
the
Company terminates Executive’s employment due to Disability, the Company shall
have no further obligations to Executive, except for payment of the Accrued
Obligations through the date of termination and the vesting of all Stock Options
as described in Section 3.4 of this Agreement on a pro rata basis based on
the
length of employment at the time of termination of Executive’s employment due to
Disability.
4.4 Termination
Upon Death.
This
Agreement shall immediately terminate without action or notice by either party
upon the death of Executive and without further obligation by the Company,
except for payment of the Accrued Obligations through the effective date of
termination and the vesting of all Stock Options as described in Section 3.4
of
this Agreement on a pro rata basis based on the length of employment at the
time
of termination of Executive’s employment due to death.
6
ARTICLE
V
COVENANTS
OF EXECUTIVE
5.1 Confidentiality
Agreement. Executive
hereby acknowledges that he has executed and delivered to the Company,
contemporaneously with the execution and delivery of this Agreement, the
Confidentiality Agreement. Executive hereby acknowledges and understands that
the provisions of the Confidentiality Agreement shall survive any termination
of
this Agreement or of Executive’s employment relationship with the Company as set
forth in the Confidentiality Agreement.
5.2 Non-Solicitation. During
the Restricted Period, Executive shall not, either directly or indirectly,
either on Executive’s own account or jointly with or as a manager, agent,
officer, employee, consultant, independent contractor, partner, joint venturer,
owner, financier, shareholder, or otherwise on behalf of any other person,
firm,
corporation or entity, offer employment to, solicit, or attempt to solicit
away
from the Company or any of its Affiliates any of their officers or employees
or
offer employment to any person who, during the six (6) months immediately
preceding the date of such solicitation or offer, is or was an officer or
employee of the Company or any of its Affiliates.
5.3 Non-Competition.
Executive agrees that at all times during the Restricted Period, Executive
shall
not, directly or indirectly, whether personally or through agents, associates,
or co-workers, whether individually or in connection with any corporation,
partnership, or other business entity, and whether as an employee, member,
owner, partner, financier, joint venturer, shareholder, officer, manager, agent,
independent contractor, consultant, or otherwise, establish, carry on, or engage
in a Business similar to or the same as that of the Company or any of its
Affiliates, in the Restricted Area. This prohibition includes, without
limitation, that Executive will not perform the following in the Restricted
Area:
(a) Solicit
or take any action intended to solicit, or provide, directly or indirectly,
services similar to or the same as the Business, to any persons or entities
who
are or were customers of the Company or any of its Affiliates at any time prior
to Executive’s separation from employment;
(b) Establish,
own, become employed with, consult on business matters with, or participate
in
any way in a business or enterprise providing services similar to or the same
as
the Business; and
(c) Provide
consulting services for, invest in, become employed by, or otherwise become
associated from a business perspective with competitors of the Company or any
of
its Affiliates in the pursuit of work similar to or the same as the
Business.
7
This
prohibition does not preclude Executive from engaging in a business or
enterprise solely within an area or areas not contained in the Restricted Area,
so long as that business or enterprise does not provide, in the Restricted
Area,
services similar to or the same as the Business.
5.4 Enforcement;
Remedies.
Executive hereby agrees and acknowledges that the Company has a valid and
legitimate business interest in protecting the Business in the Restricted Area
from any activity prohibited by Article V hereof. Executive acknowledges that
Executive’s position and expertise in the Business is of a special and unique
character which gives this expertise a particular value, and that a breach
of
the covenants in Article V hereof by Executive will cause serious and
irreparable harm to the Company. Executive therefore acknowledges that a breach
of any or all of the covenants in Article V hereof by Executive cannot be
adequately compensated in an action for damages at law, and, in addition to
any
other legal remedy it may be entitled to, equitable relief would be necessary
to
protect the Company from a violation of this Agreement and from the harm which
this Agreement is intended to prevent. By reason thereof, Executive acknowledges
that the Company is entitled, in addition to any other legal remedies it may
have under this Agreement or otherwise, to preliminary and permanent injunctive
and other equitable relief to prevent or curtail any breach of this Agreement
without any requirement to prove actual damages or post a bond and without
the
necessity of proving irreparable injury. Executive acknowledges that no
specification in this Agreement of a particular legal or equitable remedy may
be
construed as a waiver of or prohibition against pursuing other legal or
equitable remedies in the event of a breach of this Agreement by
Executive.
ARTICLE
VI
GENERAL
PROVISIONS
6.1 Notices. All
notices and other communications under or in connection with this Agreement
shall be in writing and shall be deemed given (i) if delivered personally,
upon delivery, (ii) if delivered by registered or certified mail (return
receipt requested), upon the earlier of actual delivery or
three (3) business days after being mailed, (iii) if given by
overnight courier with receipt acknowledgment requested, the next business
day
following the date sent, or (iv) if given by facsimile or telecopy, upon
confirmation of transmission by facsimile or telecopy, in each case to the
parties at the following addresses:
| To the Company: |
Talen
Marine & Fuel, Inc.
000
Xxxxxxxx Xxxxxx Xxxx Xxxxxx, XX 00000Facsimile:
(000)000-0000
Attention:
Xxxx
Xxxxxx
|
8
| with a copy to: |
Xxxxxx
& Xxxxxxx LLP
000
Xxxxx Xxxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Attention:
Xxxxxx X. Xxxxx, Esq.
|
| To Executive: |
Xxxxx
Xxxxxxxx
000
Xxxxxxxx Xxxxx
Xxxxxxxxx,
XX 00000
|
6.2 Severability.
If a
court of competent jurisdiction or arbitrator(s) finds any covenant or provision
of the Agreement to be invalid or unenforceable as to any person, circumstance,
scope or geographic area, such finding shall not render that covenant or
provision invalid or unenforceable as to any other persons, circumstances,
scope
or geographic area. If feasible, any such offending covenant or provision shall
be deemed to be modified to be within the limits of enforceability or validity;
however, if the offending covenant or provision cannot be so modified, it shall
be stricken and all other covenants and provisions of this Agreement in all
other respects shall remain valid and enforceable.
6.3 Modifications;
Waivers. Waivers
or modifications of this Agreement, or of any covenant, provision, condition,
or
limitation contained herein, are valid only if in writing duly executed by
the
parties hereto. If
either
party should waive any breach of any provisions of this Agreement, they shall
not thereby be deemed to have waived any preceding or succeeding breach of
the
same or any other provision of this Agreement.
6.4 Entire
Agreement.
(a) This
Agreement (including any attachments and exhibits hereto) contains the parties’
sole and entire agreement regarding the subject matter hereof, and supersedes
any and all other agreements, understandings, statements and representations
of
the parties, including, but not limited to, any employment agreement or other
agreement regarding Executive’s compensation or terms of employment entered into
prior to the Effective Date.
(b) The
parties acknowledge and agree that, except for those representations
specifically referenced herein, no party has made any representations (i)
concerning the subject matter hereof or (ii) inducing the other party to execute
and deliver this Agreement. The parties have relied on their own judgment in
entering into this Agreement.
6.5 Counterparts. This
Agreement may be executed in one or more separate counterparts, including
electronically transmitted counterparts, any one of which need not contain
signatures of more than one party, but all of which shall be deemed an original
and taken together will constitute one and the same Agreement.
6.6 Headings. The
headings of the sections hereof are inserted for convenience only and shall
not
be deemed to constitute a part hereof nor to affect the meaning
thereof.
9
6.7 Successors
and Assigns. This
Agreement is intended to bind and inure to the benefit of and be enforceable
by
Executive and the Company, and their respective successors, assigns, heirs,
executors and administrators, except that Executive may not assign any of
Executive’s duties hereunder and Executive may not assign any of Executive’s
rights or other interest herein (except in connection with any assignment of
rights to receive consideration hereunder by or to Executive’s estate made upon
the death of Executive) to any party without the prior written consent of the
Company, and any such purported assignment shall be null and void.
Notwithstanding the foregoing, the Company may, without obtaining the consent
of
Executive, assign any or all of its rights and obligations under this Agreement
to any of its Affiliates; provided, however, that any such assignment shall
not
expand the obligations or restrictions of Executive.
6.8 Survival
of Rights and Obligations.
The
rights and obligations of the parties as stated herein shall survive the
termination of this Agreement. This specifically includes, but is not limited
to, the covenants and provisions set forth in Article V of this Agreement
regarding Confidentiality, Non-Competition, Non-Solicitation and all related
provisions.
6.9 Joint
Preparation.
All
parties to this Agreement have negotiated it at length, and have had the
opportunity to consult with and be represented by their own competent counsel.
This Agreement is therefore deemed to have been jointly prepared by the parties,
and any uncertainty or ambiguity existing in it shall not be interpreted against
any party, but rather shall be interpreted according to the rules generally
governing the interpretation of contracts.
6.10 Third-Party
Beneficiaries.
No term
or provision of this Agreement is intended to be, or shall be, for the benefit
of any person, firm, organization, corporation or entity not a party hereto,
and
no such other person, firm, organization, corporation or entity shall have
any
right or cause of action hereunder.
6.11 Withholding.
The
Company shall be entitled to withhold from any amounts payable under this
Agreement any federal, state, local or foreign withholding or other taxes or
charges which the Company is required to withhold. The Company shall be entitled
to rely on an opinion of counsel if any questions as to the amount or
requirement of withholding shall arise.
6.12 Attorneys’
Fees.
If
either
party hereto brings any action to enforce rights hereunder, fees shall be
recoverable by the prevailing party.
6.13 Choice
of Law. All
questions concerning the construction, validity and interpretation of this
Agreement will be governed by the laws of the State of Louisiana without regard
to the conflicts of law provisions thereof.
6.14 Internal
Revenue Code Section 409A.
(a) Notwithstanding
any provision to the contrary in the Agreement, if the Executive is deemed
at
the time of his separation from service to be a “specified employee” for
purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed
commencement of any portion of the benefits to which Executive is entitled
under
this Agreement is required in order to avoid a prohibited distribution under
Section 409A(a)(2)(B)(i) of the Code, such portion of Executive’s benefits shall
not be provided to Executive prior to the earlier of (a) the expiration of
the
six-month period measured from the date of the Executive’s “separation from
service” with the Company (as such term is defined in the Treasury Regulations
issued under Section 409A of the Code) or (b) the date of Executive’s death.
Upon the expiration of the applicable Code Section 409A(a)(2)(B)(i) period,
all
payments deferred pursuant to this Section 6.14 shall be paid in a lump sum
to
the Executive, and any remaining payments due under the Agreement shall be
paid
as otherwise provided herein.
10
(b) The
parties acknowledge and agree that, to the extent applicable, this Agreement
shall be interpreted in accordance with, and the parties agree to use their
best
efforts to achieve timely compliance with Section 409A, including, without
limitation, any such regulations or other guidance that may be issued after
the
Effective Date. Notwithstanding any provision of this Agreement to the contrary,
in the event that the Company determines that any amounts payable hereunder
would otherwise be taxable to Executive under Section 409A, the Company may
adopt such amendments to this Agreement and appropriate policies and procedures,
including amendments and policies with retroactive effect, that the Company
determines in its sole discretion are necessary or appropriate to comply with
the requirements of Section 409A and thereby avoid the application of penalty
taxes under such Section.
(Signature
page follows)
11
IN
WITNESS WHEREOF,
the
parties have executed this Employment Agreement on the day and year first
above
written.
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TALEN
MARINE AND FUEL, INC.
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| By: /s/ X.X. Xxxxx | ||
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Name:
X.X. Xxxxx
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Title:
President
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EXECUTIVE
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/s/
J.
Xxxxx Xxxxxxxx
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J.
Xxxxx Xxxxxxxx
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ANNEX
A
[PROPRIETARY
INFORMATION AND INVENTIONS ASSIGNMENT AGREEMENT]
ANNEX
B
Performance
Criteria
For
the
each vesting date, the performance criteria shall be considered satisfied upon
the attainment by the Company of financial performance metrics as of the fiscal
year end immediately preceding such vesting date which are no less favorable
than the financial performance metrics for the Company for fiscal year 2006,
as
determined by the Board of Directors, in its sole discretion.
ANNEX
C
The
Restricted Area includes the following geographical territory:
The
following counties and parishes within Louisiana:
Xxxxxxxxx
Xxxxx
Xxxxxxx
Vermilion
Calcasieu
Terrebonne
Lafourche
Parish
Iberville
Parish
Plaquemine
Parish
West
Baton Rouge Parish
Texas
The
following counties within Texas:
Jefferson
County
Galveston
County
