EXHIBIT 10.57
EMPLOYMENT AGREEMENT
AGREEMENT (the Agreement) dated as of November 20, 2003, and effective on the
Effective Date (as defined herein below in Section 1), by and between Radnor
Holdings Corporation (the Company) and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the Executive).
W I T N E S S E T H :
WHEREAS, the Executive is presently employed as Chairman of the Board of
Directors (the Board), Chief Executive Officer and President of the Company;
WHEREAS, the Company, through its Board, considers it in the best interests
of its stockholders to secure the continued employment of Executive in his
present capacity, and desires to retain and continue to retain the Executive in
his present employment and current positions, subject to certain terms and
conditions as set forth more fully below;
WHEREAS, Executive is willing to continue his employment and remain in his
current positions, subject to certain terms and conditions as set forth more
fully below;
WHEREAS, the Company and the Executive wish to enter into an employment
agreement whereby the Executive will be employed by the Company in accordance
with the terms and conditions stated below; and
WHEREAS, the Board (exclusive of the Executive, who has abstained from the
relevant proceedings) has specifically authorized the Company to enter into this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and conditions herein
set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
agree as follows:
1. Term. The initial term of this Agreement shall be effective upon the
closing of the initial public offering of the Company (the Effective Date) and
shall continue, unless terminated in accordance with Paragraph 4 herein or as
otherwise provided in this Agreement, until the third anniversary of the
Effective Date or, if later, December 31, 2006 (the InitialTerm). At the end of
the Initial Term, the term of this Agreement shall be automatically extended for
an additional 12 months absent written notice of non-renewal given by the
Executive or the Company to the other party hereto at least 90 days prior to the
relevant expiration date (the Initial Term, as may be extended, the Term).
2. Duties and Authority. During the Term, the Executive agrees to serve the
Company as Chairman, Chief Executive Officer, President and a member of the
Board. In serving in the aforementioned positions, the Executive shall report
directly to the Board and shall have such authority and responsibilities as is
customarily attendant to such positions and as may be specified from time to
time by the Board (including, without limitation, the right to consult with the
Board or any committee thereof on the compensation and benefits to be paid to
other members of the Company's senior management). Except as otherwise permitted
by the Board, the Executive shall devote substantially all of his business time
(excluding periods of vacation and sick leave) and efforts to the performance of
his functions and responsibilities for the Company and its affiliates. Executive
will also serve, without additional compensation, on such boards of directors of
the Company's subsidiaries as the Board may request from time to time. Executive
agrees that he will not serve on
the boards of unaffiliated for-profit companies (and other entities) without the
prior consent of the Board. Notwithstanding the foregoing, the Executive may
manage his personal and family investments and affairs and may serve on the
boards of civil and charitable organizations, provided that such activities do
not unreasonably interfere with his duties and responsibilities hereunder.
3. Place of Performance. In connection with his employment during the Term,
unless otherwise agreed in writing by the Executive, the Executive shall be
principally employed at the Company's headquarters in Radnor, Pennsylvania. The
Executive will undertake reasonable business travel on behalf of the Company, at
Company expense, as provided hereinbelow.
4. Compensation and Benefits. In full consideration for all services rendered
by the Executive during the Term, the Executive will receive the following
compensation and benefits:
(a) Base Salary. The Executive shall receive an annual base salary of one
million dollars ($1,000,000) for the calendar year 2004 and not less than one
million dollars ($1,000,000) for each subsequent calendar year during the Term
(the Base Salary) payable in accordance with the customary payroll practices of
the Company. During the Term, the Executive's Base Salary will be reviewed at
least annually by the Board and may be adjusted upward (but not downward) to
reflect the Executive's performance and responsibilities.
(b) Annual Bonus. For calendar year 2004, the Executive shall be entitled to
receive (i) a minimum guaranteed annual bonus, payable in cash (unless the
Executive otherwise elects as provided hereinbelow in this Section 4(b)) no
later than March 31, 2004, equal to 100% of Executive's Base Salary (the
Guaranteed Bonus) and (ii) such additional bonus (if any) as the Board or the
compensation committee of the Board (the Committee) shall determine in its
discretion, but subject, in any event, to a maximum bonus for calendar year 2004
(including the Guaranteed Bonus) of 200% of Executive's Base Salary. All bonuses
(other than the Guaranteed Bonus) payable during, or in respect of, the Term
shall be set by the Committee based upon reasonable performance criteria
established by such Committee no later than March 31 of the year to which it
relates and after consultation with the Executive. All annual bonuses (other
than the Guaranteed Bonus) shall be paid no later than the time annual bonuses
are paid generally to other senior executives of the Company, but in no event
later than March 31 of the calendar year following the calendar year in respect
of which such bonus was earned. The Executive shall have the right to elect
whether to receive any bonus which may become payable (including the Guaranteed
Bonus) in the form of cash or shares of the Company's common stock (Shares). If
the Term is not extended for any reason, Executive shall be eligible to receive
any bonus earned in respect of such final year of employment even if he is no
longer employed on the date of payment of such bonus.
(c) Restricted Stock. On the Effective Date, the Executive shall be granted
70,000 shares of restricted Shares of the Company which shall cease to be
subject to forfeiture ratably in equal installments on each of the first three
anniversaries of the Effective Date (the Initial Award) provided that the
Executive remains in continuous employment with the Company (except as otherwise
provided herein) through each relevant anniversary date.
(d) Other Equity Grants. In addition to the Initial Award, the Executive
shall be eligible to receive equity grants (including, without limitation,
restricted Shares and stock options) during the Term in such form and amount and
on such terms as the Board or Committee, as applicable, shall determine. The
Board or the Committee, as applicable, shall consider, at least annually as part
of its annual review of the Executive's compensation, whether the Executive
shall receive an equity grant for that year.
(e) Expense Reimbursement. The Company will reimburse the Executive for all
business and travel expenses reasonably incurred in the performance of the
Executive's duties in accordance with the Company's standard procedures in
effect for the senior most executives of the Company and consistent with past
practice.
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(f) Employee and Executive Benefits. In addition to the compensation
described in this Section 4 and subject to all of the provisions of this Section
4, the Company will make or cause to be made available to the Executive and, his
spouse other eligible dependents, subject to the terms and conditions of the
applicable plans, including, without limitation, the eligibility rules,
participation in all employee pension, health, welfare and benefit plans,
including all 401(k) plans, employee retirement income and welfare benefit
policies, plans, programs, or arrangements, in which senior executives of the
Company participate from time to time, including any stock purchase, savings,
pension, supplemental executive retirement or other retirement income or welfare
benefit, disability, salary continuation, and any other deferred compensation,
group and/or executive life, health, medical/hospital, or other insurance
(whether funded by actual insurance or self-insured by the Company or an
affiliate), expense reimbursement, or other employee benefit policies, plans,
programs, or arrangements. Nothing paid to the Executive under any plan or
arrangement presently in effect or made available in the future shall be deemed
to be in lieu of the Base Salary payable to the Executive pursuant to Section
4(a). Any payments or benefits payable to the Executive under this Section 4(f)
in respect of any calendar year during which the Executive is employed by the
Company for less than the entire such year shall, unless otherwise provided in
the applicable plan or arrangement, be prorated in accordance with the number of
days in such calendar year during which he is so employed.
(g) Vacation and Fringe Benefits. During the Term, the Executive shall be
entitled to vacation, paid holidays and other personal days in such amounts as
shall be available under the Company's normal vacation policies applicable to
senior executives (but not less than six weeks' vacation per annum), as in
effect from time to time, such vacation to be taken in accordance with such
normal vacation policies; and the Executive shall be entitled to the perquisites
and other fringe benefits made available to senior executives of the Company,
commensurate with his position and level of responsibility with the Company, and
to such other perquisites and fringe benefits as currently provided to him on
the date of execution of this Agreement consistent with past practice.
(h) Office and Support Staff. During the Term, the Executive shall be
entitled to an appropriate office and furnishings and other appointments, and to
secretarial and other assistance, as provided to other key employees of the
Company and otherwise commensurate with his positions, duties and
responsibilities hereunder.
5. Termination of the Executive's Employment.
(a) Death. Upon a termination of Executive's employment due to his death, the
Executive's estate shall be entitled to (i) any accrued but unpaid annual bonus
for the calendar year prior to the calendar year in which such termination is
effective and the target annual bonus for the year in which death occurs
prorated to the date of employment termination (or, if no target bonus has been
established, the most recent bonus paid or awarded); (ii) all accrued but unpaid
Base Salary, vacation days and benefits to the date of employment termination,
including, but not limited to, entitlements under the Company's retirement,
disability and life insurance plans, if any; and (iii) full vesting of the
Initial Award to the extent not then already vested.
(b) Disability. If, as a result of the Executive's incapacity due to physical
or mental illness (a Disability), the Executive shall have been absent from his
duties hereunder on a full-time basis for the entire period of six consecutive
months, and within thirty (30) days after written notice of termination is given
(which may occur before or after the end of such six-month period) the Executive
shall not have returned to the performance of his duties hereunder on a
full-time basis, the Company may terminate the Executive's employment hereunder.
Upon a termination of Executive's employment due to Disability, the Executive or
his legal representative, as the case may be, shall be entitled to (i) any
accrued but unpaid annual bonus for the calendar year prior to the calendar year
in which such termination is effective and the target annual bonus for the year
in which Executive's termination due to disability occurs prorated to the date
of employment termination (or, if no target bonus has been established, the most
recent bonus paid or awarded); (ii) all accrued but unpaid Base Salary, vacation
days and benefits to the date of employment termination, including, but not
limited
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to, entitlements under the Company's retirement, disability and life insurance
plans, if any; and (iii) full vesting of the Initial Award to the extent not
then already vested.
(c) For Cause/Without Good Reason. If the Executive's employment is
terminated by the Company for Cause (as defined below) or by the Executive
without Good Reason, (as defined in Section 5(d) below) the Executive shall
receive all accrued but unpaid Base Salary and benefits to the date of
employment termination, including any accrued but unpaid annual bonus for the
calendar year prior to the calendar year in which such termination is effective.
For purposes hereof, "Cause" shall be defined as (i) the Executive's conviction
of a felony under the laws of the United States or any state thereof or any
other jurisdiction in which the Company or any of its affiliates conducts
business or the entering of a plea of nolo contendere to such a felony charge;
and (ii) Executive's gross negligence or wilful misconduct which is materially
injurious to the financial condition of the Company. For purposes of this
Section, no act or failure to act on the part of the Executive shall be deemed
"willful" if it was due primarily to an error in judgment or negligence, but
shall be deemed "willful" only if done or omitted to be done by the Executive
not in good faith and without reasonable belief that the Executive's action or
omission was in the best interest of the Company. The Executive shall
have thirty (30) days following the receipt of notice from the Company of the
existence of circumstances constituting Cause (under clause (ii) of the
preceding sentence) to correct such circumstances. Notwithstanding the
foregoing, the Executive shall not be deemed to have been terminated for Cause
hereunder unless and until (1) there shall have been delivered to the Executive
a written notice from the Company stating that it has determined that the
Executive had committed an act constituting Cause as herein defined and
specifying the particulars thereof in detail, (2) the Executive shall have had
the opportunity to appear before the Board (with counsel if he so elects) to
respond to such particulars and (3) at least 75% of the members of the Board
(not including the Executive) shall have voted to terminate his employment for
Cause. Nothing herein will limit the right of the Executive or the Executive's
beneficiaries to contest the validity or propriety of any such determination.
(d) Without Cause/Good Reason Termination. If the Executive's employment is
terminated by the Company without Cause or by the Executive for Good Reason,
then, subject to execution by the Company and the Executive of customary
releases of the other party hereto on mutually satisfactory terms agreed to in
good faith by the Company and the Executive, the Executive shall be entitled to
the following:
(1)all accrued but unpaid Base Salary through the date of termination,
plus two times the Executive's then current Base Salary (increased to
three times if Executive's employment termination occurs within two
years following a Change of Control), such amount to be payable in a
lump sum within five business days following Executive's Termination
of employment;
(2)two times the Executive's target bonus (or, if no such target bonus
award has been established for such year, the most recent annual bonus
paid or awarded to the Executive) amount (increased to three times if
Executive's employment termination occurs within two years following a
Change of Control), such amount to be payable in a lump sum within
five business days following Executive's termination of employment;
(3)all accrued but unpaid entitlements and benefits from the Company,
including, but not limited to, entitlements under the Company's
retirement,
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deferred compensation, disability and life insurance plan and
programs, if any, payable in accordance with the respective terms of
such plans and programs;
(4)at the Company's expense, full benefit coverage for the Executive, his
spouse and other eligible dependents under each of the Company's
medical, dental, life insurance, disability, accidental death and
dismemberment and other Executive welfare plans and programs in which
Executive, his spouse and such dependents were participating at the
time of Executive's termination of employment for a period of two
years (increased to three years' coverage if Executive's employment
termination occurs within two years following a Change of Control)
from the date of Executive's termination, provided that if the
Company's health and welfare programs do not permit continuation of
coverage for the Executive, his spouse or any eligible dependents,
such individuals will be provided with comparable insurance
(determined on an after-tax basis) at the Company's expense; and
(5)the Initial Award shall vest to the extent not already vested.
"Good Reason" shall be defined as (i) any reduction in Executive's base salary
or any material reduction in Executive's annual bonus opportunity (it being
understood that the Guaranteed Bonus shall not be determinative, for this
purpose, of the Executive's annual bonus opportunity); (ii) a substantial
diminution of the Executive's position, including status, offices, titles and
reporting relationships; (iii) a relocation of the Company's office by more than
35 miles; (iv) the breach by the Company of any material terms of the employment
agreement; (v) the Company's failure to obtain the express written assumption of
Executive's employment agreement by any successor to the Company; and (vi) the
Executive's voluntary termination of employment for any reason within a 60-day
window period commencing upon the first anniversary of a Change of Control (as
defined below); provided, however, that "Good Reason", for purposes of clauses
(i)-(v) of this sentence, shall not include any event as to which the Executive
has directly consented in writing in advance of the occurrence thereof.
(e) Change of Control.
For purposes hereof, a "Change of Control" shall be deemed to have occurred
upon the occurrence of one or more of the following events:
(i) the purchase or other acquisition by any person, entity, or group of
persons, within the meaning of section 13(d) or 14(d) of the Exchange Act or any
comparable successor provisions (excluding, for this purpose, (A) the Company,
(B) any employee benefit plan sponsored or
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maintained by the Company or any corporation controlled by the Company, and (C)
the Executive or his family, including any trust established for the benefit of
the Executive or his family and further including any person, entity or group
who has made such purchase or acquisition from the Executive, his family or any
trust established for the benefit of the Executive of his family), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 30% or more of either the outstanding Stock or the combined voting power of
the Company's then outstanding Shares entitled to vote generally. For purposes
of the foregoing, the term "family" shall include the following persons: spouse,
child and any other lineal descendant;
(ii) the consummation of a reorganization, merger, or consolidation the
effect of which in each case, is that the persons who were stockholders of the
Company immediately prior to such reorganization, merger or consolidation will
not, immediately thereafter, own more than 50% of the combined voting power
entitled to vote generally in the election of directors of the reorganized,
merged or consolidated company's then outstanding securities;
(iii) a liquidation or dissolution of the Company;
(iv) the sale of all or substantially all of the Company's assets to an
unrelated third party; or
(v) during any period of two consecutive years (not including any period
prior to the Effective Date, individuals who at the beginning of such period
constitute the Board and any new director designated by a person, group or
entity who has entered into an agreement with the Company to effect a
transaction described in clause (i), (ii) or (iv) of this Section 5(e)) whose
election by the Board or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof.
6. Certain Additional Payments by the Company.
(a) Subject to Section 6(h) hereof, if it is determined (as hereafter
provided) that any payment or distribution by the Company, any person whose
actions result in a Change of Control or any affiliate of the Company or such
persons, to or for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise pursuant to or by reason of any other agreement, policy, plan,
program, or arrangement, including, without limitation, any stock option, stock
appreciation right, or similar right, or the lapse or termination of any
restriction on or the vesting or exercisability of any of the foregoing (each a
"Payment", and all such Payments, excluding the Gross-Up Payments (as defined
below), the Total Payments)), would be subject to the excise tax imposed by
Section 4999 of the Code (or any successor provision thereto) by reason of being
considered "contingent on a change in ownership or control" of the Company,
within the meaning of Section 280G of the Code (or any successor provision
thereto) or to any similar tax imposed by state
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or local law, or any interest or penalties with respect to such tax or taxes,
together with any such interest and penalties, are hereafter collectively
referred to as the Excise Tax), then the Executive will be entitled to receive
an additional payment or payments (collectively, a Gross-Up Payment) in an
amount such that, after payment by the Executive of all taxes (including any
interest or penalties imposed with respect to such taxes), including any Excise
Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 6(f) hereof, all determinations
required to be made under this Section 6, including whether an Excise Tax is
payable by the Executive and the amount of such Excise Tax and whether a
Gross-Up Payment is required to be paid by the Company to the Executive and the
amount of such Gross-Up Payment, will be made by a nationally recognized firm of
certified public accountants (the Accounting Firm) selected by the Executive in
his sole discretion. The Executive will direct the Accounting Firm to submit its
determination and detailed supporting calculations to both the Company and the
Executive within 15 calendar days after the Executive's termination, if
applicable, and any other such time or times as may be requested by the Company
or the Executive. If the Accounting Firm determines that any Excise Tax is
payable by the Executive, the Company will pay the required Gross-Up Payment to
the Executive within five business days after receipt of such determination and
calculations with respect to any Payment to the Executive. If the Accounting
Firm, after taking into account Section 6(h) of this Agreement, determines that
no Excise Tax is payable by the Executive, it will, at the same time as it makes
such determination, furnish the Company and the Executive an opinion that the
Executive has substantial authority not to report any Excise Tax on the
Executive's federal, state, local income or other tax return. Any determination
by the Accounting Firm as to the amount of the Gross-Up Payment will be binding
upon the Company and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code (or any successor provision thereto) and
the possibility of similar uncertainty regarding applicable state or local tax
law at the time of any determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments that will not have been made by the Company
should have been made (an Underpayment), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts or fails
to pursue its remedies pursuant to Section 6(f) hereof and the Executive
thereafter is required to make a payment of any Excise Tax, the Executive will
direct the Accounting Firm to determine the amount of the Underpayment, if any,
that has occurred and to submit its determination and detailed supporting
calculations to both the Company and the Executive as promptly as possible. Any
such Underpayment will be promptly paid by the Company to, or for the benefit
of, the Executive within five business days after receipt of such determination
and calculations.
(c) The Company and the Executive will each provide the Accounting Firm
access to and copies of any books, records, and documents in the possession of
the Company or the Executive, as the case may be, reasonably requested by the
Accounting Firm, and otherwise cooperate with the Accounting Firm in connection
with the preparation and issuance of the determinations and calculations
contemplated by Section 6(b) hereof.
(d) The federal, state, and local income or other tax returns filed by the
Executive will be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
the Executive. The Executive will make proper payment of the amount of any
Excise Tax, and at the request of the Company, provide to the Company true and
correct copies (with any amendments) of the Executive's federal income tax
return as filed with the Internal Revenue Service and corresponding state and
local tax returns, if relevant, as filed with the applicable taxing authority,
and such other documents reasonably requested by the Company, evidencing such
payment. If prior to the filing of the Executive's federal income tax return, or
corresponding state or local tax return, if relevant, the Accounting Firm
determines that the amount of the Gross-Up Payment should be reduced, the
Executive will within five business days pay to the Company the amount of such
reduction.
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(e) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by Sections
6(b) and (d) hereof will be borne by the Company.
(f) The Executive will notify the Company in writing of any claim by the
Internal Revenue Service or other taxing authority that, if successful, would
require the payment by the Company of a Gross-Up Payment. Such notification will
be given as promptly as practicable but no later than ten (10) business days
after the Executive actually receives notice of such claim and the Executive
will further apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid (in each case, to the extent known by
the Executive). The Executive will not pay such claim prior to the earlier of
(a) the expiration of the 30-calendar-day period following the date on which the
Executive gives such notice to the Company, and (b) the date that any payment of
amount with respect to such claim is due. If the Company notifies the Executive
in writing prior the expiration of such period that it desires to contest such
claim, the Executive will:
(i)provide the Company with any written records or documents in the
Executive's possession relating to such claim reasonably requested by
the Company;
(ii)take such action in connection with contesting such claim as the
Company will reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney competent in respect of the
subject matter and reasonably selected by the Company;
(iii)cooperate with the Company in good faith in order to effectively
contest such claim; and
(iv)permit the Company to participate in any proceedings relating to such
claim;
provided, however, that the Company will bear and pay directly all costs and
expenses (including interest and penalties) incurred in connection with such
contest and will indemnify and hold harmless the Executive, on an after-tax
basis, from and against any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of this
Section 6(f), the Company will control all proceedings taken in connection with
the contest of any claim contemplated by this Section 6(f) and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim
(provided, however, that the Executive may participate therein at the
Executive's own cost and expense) and may, at its option, either direct the
Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in
any permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction, and in one or more appellate courts, as the Company will
determine; provided, however, that if the Company directs the Executive to pay
the tax claimed and ▇▇▇ for a refund, the Company will advance, to the extent
any such advancement is not in violation of any law applicable to the Company,
the amount of such payment to the Executive on an interest-free basis and will
indemnify and hold the Executive harmless, on an after-tax basis, from any
Excise Tax or income or other tax, including interest or penalties with respect
thereto, imposed with respect to such advance; and provided further, however,
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which the contested amount
is claimed to be due is limited solely to such contested amount. Furthermore,
the Company's control of any such contested claim will be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and the Executive
will be entitled to settle or contest, as the case may be, any other issue
raised by the Internal Revenue Service or any other taxing authority.
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(g) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 6(f) hereof, the Executive receives any refund with
respect to such claim, the Executive will (subject to the Company's complying
with the requirements of Section 6(f) hereof) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
any taxes applicable thereto). If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 6(f) hereof, a determination
is made that the Executive will not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial or refund prior to the expiration of thirty (30)
calendar days after such determination, then such advance will be forgiven and
will not be required to be repaid and the amount of such advance will offset, to
the extent thereof, the amount of the Gross-Up Payment required to be paid by
the Company to the Executive pursuant to this Section 6.
(h) Notwithstanding the foregoing provisions of this Section 6, if it shall
be determined that the Executive is entitled to a Gross-Up Payment, but the
Total Payments do not exceed 110% of the greatest amount (the Reduced Amount)
that could be paid to the Executive such that the receipt of the Total Payments
would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to
the Executive and the Total Payments, in the aggregate, shall be reduced to the
Reduced Amount. If a reduction is so required, the Executive and the Company
shall determine, after consultation, which payments and or benefits shall be
waived, reduced or forfeited to accomplish the reduction with the intention of
providing the greatest possible after-tax benefit to the Executive.
7. Registration Rights.
(a) Demand Registration Rights. From and after the date hereof, on two
occasions, if the Company shall receive written notice from the Executive
which:
(i) requests that the Company take action to effect any registration
with respect to any shares of common stock now owned or hereafter
acquired by the Executive, pursuant to the Initial Award, an option or
otherwise (the Shares); and
(ii) specifies the number of proposed Shares intended to be offered
and sold for the account of the Executive, and describes the proposed
nature or method of the offer and sale of such Shares;
then, subject to the conditions, qualifications and limitations set forth in a
registration rights agreement, to be entered between the Company and the
Executive (the Registration Rights Agreement), the Company shall cause to be
prepared and filed, and use its best efforts to cause to become effective under
the Securities Act of 1933, as amended (the "1933 Act"), and to be maintained in
effect for a period of not less than sixty (60) days, a registration statement
(including a related prospectus) in such applicable form under the 1933 Act as
the Company, in its sole discretion, determines to be appropriate, covering the
public offer and sale of the number of Shares specified in the notice.
Notwithstanding anything to the contrary herein, the foregoing rights shall not
apply to any Shares if such notice is first provided by the Executive at any
time two years or more following the date of the termination of the Executive's
employment for any reason whatsoever.
(b) Piggyback Registration Rights.
(i) The Registration Rights Agreement shall also provide that, if the
Company proposes at any time to file with the SEC a registration
statement under the 1933 Act on Form ▇-▇, ▇-▇ or S-3 or other comparable
form relating to the sale of common stock by the Company or any affiliate
thereof (other than through the distribution of rights to purchase common
stock to its stockholders generally), then
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the Company shall give written notice to the Executive at least fifteen
(15) days prior to the filing of such registration statement of its
intention to do so.
(ii) Subject to the conditions, qualifications and limitations set
forth in the Registration Rights Agreement, if the Executive delivers a
written notice to the Company, within ten (10) days after delivery of
the foregoing notice, of his desire to have any of the Shares included
in a registration statement, such shares shall be included in any
registration statement so filed and shall not constitute an occasion on
which the Executive requests the Company to take action to effect any
registration with respect to any Shares now owned or hereafter acquired
by the Executive, pursuant to an option or otherwise, as provided by
Section 7(a).
8. Restrictive Covenants.
(a) Acknowledgement. The Executive agrees and acknowledges that in the course
of rendering services to the Company and its client and customers he has
acquired and will acquire access to and become acquainted with confidential
information about the professional, business and financial affairs of the
Company, its subsidiaries and affiliates that is non-public, confidential or
proprietary in nature. The Executive acknowledges that the Company is engaged in
a highly competitive business and the success of the Company in the marketplace
depends upon its good will and reputation for quality and dependability. The
Executive agrees and acknowledges that reasonable limits on his ability to
engage in activities competitive with the Company are warranted to protect its
substantial investment in developing and maintaining its status
in the marketplace, reputation and good will. The Executive recognizes that in
order to guard the legitimate interests of the Company, it is necessary for it
to protect all confidential information. The existence of any claim or cause of
action by Executive against the Company shall not constitute and shall not be
asserted as a defense to the enforcement by the Company of this Agreement.
(b) Confidentiality. The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any affiliated companies, and their respective
businesses, which shall have been obtained by Executive during the Executive's
employment by the Company and which shall not be or become public knowledge.
During the Term and after termination of Executive's employment with the
Company, the Executive shall not, without the prior written consent of the
Company or as otherwise may be required by law or legal process (provided, that
the Executive shall give the Company reasonable notice of such process, and the
ability to contest it), communicate or divulge any such information, knowledge
or data to anyone other than the Company and those designated by it. The
Executive also agrees that upon leaving the Company's employ, he will not take
with him, and he will surrender to the Company, any record, list, drawing,
blueprint, specification or other document or property of the Company, its
subsidiaries and affiliates, together with any copy and reproduction thereof,
mechanical or otherwise, which is of a confidential nature relating to the
Company, its subsidiaries and affiliates, or, without limitation, relating to
its or their method of distribution, client relationships, marketing strategies
or any description of formulae or secret processes, or which was obtained by
Executive or entrusted to Executive during the course of his employment with the
Company.
(c) Noncompetition. The Executive agrees that during the Term of his
employment with the Company and for a period of one year after Executive's
termination of employment with the Company, he will not engage in Competition
with the Company. For purposes of Executive's employment agreement,
"Competition" shall mean (i) becoming directly involved, as an owner, principal,
employee, officer, director, independent contractor, consultant, representative,
stockholder, agent, advisor, lender, or in any other capacity, with any entity
located in the United States which competes directly with any product line of or
service offered by the Company which is material to the business of the Company;
provided, that, in no event shall ownership of less than 5%
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of the outstanding capital stock entitled to vote for the election of directors
of a publicly-traded company, in and of itself, be deemed Competition.
(d) Nonsolicitation. The Executive agrees that during the Term of his
employment with the Company and for a period of one year after Executive's
termination of employment with the Company, he will not, either alone or in
concert with others, and will not cause another in any such case directly or
indirectly, (i) to recruit, solicit or induce any Company employees to terminate
their employment with the Company or (ii) to solicit the business of, do
business with, or seek to do business with, any client of the Company.
(e) Nondisparagement. The Company and the Executive shall refrain from
making any statements or taking any action which has the effect of demeaning the
name or reputation of the other, or which is injurious, or could reasonably be
expected to be injurious, to the best interests (economic or otherwise) of the
other. For the purposes of this Section 8(e), the Company shall be deemed to
include its directors and executive officers.
(f) Modification. If at any time there is a judicial determination by any
court of competent jurisdiction that the time period, geographical scope, or any
other restriction contained in this Paragraph 6 is unenforceable against
the Executive, the provisions of this Paragraph 6 shall not be deemed void but
shall be deemed amended to apply as to such maximum time period, geographical
scope and to such other maximum extent as the court may judicially determine or
indicate to be enforceable.
(g) Change of Control/Restriction Inapplicable. Notwithstanding the
foregoing, the provisions of Section 8(c) and 8(d) above will not apply in the
event that the Executive terminates employment with the Company for any reason
following a Change of Control.
9. Miscellaneous.
(a) Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth below, or to such other address as either party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon actual receipt:
To the Company:
Radnor Holdings Corporation
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Executive:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) Legal Fees. The Executive shall be reimbursed for all reasonable legal
fees and expenses incurred by him in seeking to enforce his rights and
entitlements under this Agreement or in defending any legal proceeding or
arbitration brought against him by the Company hereunder provided that he
prevails on any material issue which is a subject of determination in such legal
proceeding or arbitration. In addition, the Company shall pay directly or
reimburse the Executive for all reasonable legal fees and expenses incurred by
the Executive in connection with the preparation and negotiation of this
Agreement, provided that such payment or reimbursement obligation shall not
exceed $25,000 in the aggregate.
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(c) Entire Agreement. This Agreement supersedes any and all existing
agreements between the Executive and the Company relating to the terms and
conditions of the Executive's employment.
(d) Amendments and Waivers. No provisions of this Agreement may be amended,
modified, waived or discharged except as agreed to in writing by the Executive
and the Company. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion will not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
(e) Successors. This Agreement shall be binding upon and inure to the benefit
of the Executive and the Company and its successors and permitted assigns.
Neither this Agreement nor any of the rights of the parties hereunder may be
assigned by either party hereto except that the Company may assign its rights
and obligations hereunder to a corporation or other entity that acquires
substantially all of its assets. Any assignment or transfer of this Agreement in
violation of the foregoing provisions will be void.
(f) Indemnification. The Executive shall be indemnified and held harmless by
the Company, or its successors or assigns, from and against any losses, claims,
damages, liabilities or actions, to the fullest extent permitted by law. The
Company shall maintain directors and officers liability insurance for the
benefit of the Executive on a basis no less favorable than the basis on which it
generally maintains such insurance for the benefit of other executives of the
Company.
(g) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Pennsylvania applicable to agreements
made and/or to be performed in that state, without regard to any choice of law
provisions thereof.
(h) No Setoff. The amount of any payment or benefit provided for in Section 4
shall not be reduced by any compensation earned by the Executive as the result
of employment by another employer, by retirement benefits, by setoff against any
amount claimed to be owed by the Executive to the Company, or otherwise.
(i) Mitigation. The Executive shall have no duty to mitigate any amounts
payable or benefits provided under this Agreement by seeking other employment
or otherwise.
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(j) Withholding of Taxes. The Company is authorized to withhold from any
benefit provided or payment due hereunder the amount of withholding taxes due
any federal, state, or local authority in respect of such benefit or payment and
to take such other action as may be necessary in the opinion of the Company to
satisfy all obligations for the payment of such withholding taxes.
(k) Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement will remain in effect, and if such
provision is inapplicable to any person or circumstance, it will nevertheless
remain applicable to all other persons and circumstances.
(l) Effectiveness. This Agreement shall become effective on and as of the
Effective Date. The respective rights of the parties hereunder shall survive the
termination of the Executive's employment.
(m) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
EXECUTIVE
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
RADNOR HOLDINGS CORPORATION
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇ Hastings
Title: Executive Vice President,
Treasurer
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