EXHIBIT 10.4
RESTRICTIVE COVENANT AGREEMENT
This RESTRICTIVE COVENANT AGREEMENT ("Agreement") is by and between
____________________ ("Executive") and Compass Minerals International, Inc. by
and on behalf of itself and any parent companies, successor companies,
affiliated companies, and assigns (hereinafter referred to collectively as
"Company").
In consideration of the employment/continued employment of Executive by
Company and as a condition of Executive's eligibility for a Change In Control
Agreement, Executive agrees as follows.
1. NON-SOLICITATION AGREEMENT.
a. ACKNOWLEDGMENTS. Executive acknowledges Company's confidential/trade
secret information and relationships with its customers, clients, Executives,
and other business associations are among Company's most important assets.
Executive further acknowledges that, in his/her employment with Company, he/she
will have access to such information/relationships and be responsible for
developing and maintaining such information/relationships.
b. NON-SOLICITATION OF EXECUTIVES. Executive agrees that, during
Executive's employment with Company and for a period of 2 year(s) after
termination of Executive's employment with Company for any reason (regardless of
who initiates such termination), Executive will not directly or indirectly,
whether for Executive's benefit or for the benefit of a third party, recruit,
solicit, or induce, or attempt to recruit, solicit, or induce: (1) anyone
employed by Company to terminate employment with, or otherwise cease a
relationship with, Company; or (2) anyone employed by Company at any time during
the immediately preceding 12 months to provide services of any kind to a
competitor of Company. Executive further agrees that, in the event any
individual within the groups defined by (1) and (2) of this paragraph 1.b.
approaches Executive about providing services to a Company competitor, Executive
shall reject such approach and not hire/otherwise engage/supervise such
individual.
c. NON-SOLICITATION OF CUSTOMERS. Executive agrees that, during
Executive's employment with Company and for a period of 2 year(s) after
termination of Executive's employment with Company for any reason (regardless of
who initiates such termination), Executive will not directly or indirectly
solicit, divert, or take away, or attempt to solicit, divert, or take away, the
business or patronage of any of the clients, customers, or accounts, or
prospective clients, customers, or accounts, of Company. Executive further
agrees Executive will not, for the period specified in this paragraph 1.c., do
business in any way with any entity covered by this paragraph 1.c.
2. NON-COMPETITION AGREEMENT
a. ACKNOWLEDGMENTS. Executive acknowledges Company's confidential/trade
secret information and relationships with its customers, clients, Executives,
and other business associations are among Company's most important assets.
Executive further acknowledges that,
in his/her employment with Company, he/she will have access to such
information/relationships and be responsible for developing and maintaining such
information/relationships.
B. RESTRICTION ON COMPETITION. Executive agrees that, during Executive's
employment with Company and for a period of 2 year(s) after termination of
Executive's employment with Company for any reason (regardless of who initiates
such termination), Executive will not directly or indirectly compete with the
business of Company. This agreement not to compete means Executive will not,
among other things, whether as an Executive, independent contractor, consultant,
owner, officer, director, stockholder, partner, or in any other capacity (1) be
affiliated with any business competitive with Company; (2) solicit orders for
any product or service that is competitive with the product or services provided
by Company; or (3) accept employment with a business that sells or buys products
or services competitive with the products or services of Company. The
restriction on competition in this paragraph extends to all geographic areas
serviced by Company.
3. GENERAL PROVISIONS.
a. LEGAL AND EQUITABLE RELIEF. Executive specifically acknowledges and
agrees that, in interpreting/enforcing this Agreement, a court should honor the
parties' intent to the maximum extent possible. As such, Executive specifically
acknowledges and agrees (1) the restrictions in paragraphs 1-2 are necessary for
the protection of the legitimate business interests, goodwill, and Confidential
Information of Company; (2) the duration and scope of the restrictions in
paragraphs 1-2 are reasonable as written; (3) in any action to enforce this
Agreement, Executive shall not challenge the restrictions in paragraphs 1-2 as
unenforceable; (4) if a court of competent jurisdiction determines the
restrictions in paragraphs 1-2 are overbroad, then such court should modify
those restrictions so as to be enforceable rather than void the restrictions
regardless of any law or authority to the contrary, it being the parties' intent
in this Agreement to restrain unfair competition; and (5) in the event of any
actual or threatened breach, Company shall, to the maximum extent allowed, have
the right to suspend bonus payments, benefits, and/or any exercise of stock
options. Executive further specifically acknowledges and agrees any breach of
paragraphs 1-2 will cause Company substantial and irrevocable damage and,
therefore, in addition to such other remedies that may be available, including
the recovery of damages from Executive, Company shall have the right to
injunctive relief to restrain or enjoin any actual or threatened breach of the
provisions of paragraphs 1-2. Executive further specifically acknowledges and
agrees that, if Company prevails in a legal proceeding to enforce this
Agreement, then Company shall be entitled to recover its costs and fees
incurred, including its attorney's fees, expert witness fees, and out-of-pocket
costs, in addition to any other relief it may be granted.
b. SEVERABILITY. The terms and provisions of this Agreement are
severable in whole or in part. If a court of competent jurisdiction
determines any term or provision of this Agreement is invalid, illegal, or
unenforceable, then the remaining terms and provisions shall remain in full
force and effect.
c. ASSIGNMENT. Executive may not assign this Agreement. Company
may assign this Agreement in its discretion, including but not limited to any
parent/subsidiary company or successor in interest to the business, or part
thereof, of Company.
d. GOVERNING LAW AND CONSENT TO JURISDICTION.
Interpretation/enforcement of this Agreement shall be subject to and governed by
the laws of the State of Kansas, irrespective of the fact that one or both of
the parties now is or may become a resident of a different state and
notwithstanding any authority to the contrary. Executive hereby expressly
submits and consents to the exclusive personal jurisdiction and exclusive venue
of the federal and state courts of competent jurisdiction in the State of
Kansas, notwithstanding any authority to the contrary. Executive further agrees
that, in any action to interpret/enforce this Agreement, Executive will not
challenge the provisions of this paragraph 3.d.
e. NO CONFLICTING AGREEMENTS. Executive represents to Company (1) there
are no restrictions, agreements, or understandings whatsoever to which Executive
is a party that would prevent or make unlawful Executive's execution or
performance of this Agreement or employment with Company and (2) Executive's
execution of this Agreement and employment with Company does not constitute a
breach of any contract, agreement, or understanding, oral or written, to which
Executive is a party or by which Executive is bound.
f. DISCLOSURE OF AGREEMENT. In the event Company has reason to believe
Executive has breached or may breach this Agreement, Executive agrees Company
may disclose this Agreement, without risk of liability, to a current or
prospective employer of Executive or other business entity.
g. SURVIVAL. The obligations contained in this Agreement survive the
termination, for any reason whatsoever, of Executive's employment with Company
(regardless of who initiates such termination) and shall thereafter remain in
full force and effect as written. The obligations contained in this Agreement
also survive the promotion, transfer, demotion, and/or other change to the
terms/conditions of Executive's employment, regardless of reason, and shall
thereafter remain in full force and effect as written.
h. NATURE OF AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to its subject matter and supersedes all prior
agreements or understandings, if any, between the parties with respect to such
matters. This Agreement may be modified or amended only by an agreement in
writing signed by both parties. This is not an employment agreement. Executive's
employment with Company is and shall be at will for all purposes.
i. NO WAIVER. The failure of either party to insist on the performance of
any of the terms or conditions of this Agreement, or failure to enforce any of
the provisions of this Agreement, shall not be construed as a waiver or a
relinquishment of any such provision. Any waiver or failure to enforce on any
one occasion is effective only in that instance, and the obligations of either
party with respect of any provision in this Agreement shall continue in full
force and effect.
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Date [Executive]
COMPASS MINERALS INTERNATIONAL
---------------------- By:
Date ----------------------------------------
Title:
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