exv10w9





Exhibit
10.9




EMPLOYMENT AGREEMENT




     EMPLOYMENT AGREEMENT, dated as of June 1, 2011 (this “Employment Agreement”), by and
between CVR GP, LLC, a Delaware limited liability company (the “Company”), and BYRON R.
KELLEY (the “Executive”).



     The Company serves as the general partner of CVR Partners, LP (the “Partnership”), and
desires to employ Executive on the terms described in this Employment Agreement.



     The parties hereto agree as follows:



     Section 1. Employment.



               1.1. Term. The Company agrees to employ the Executive, and the Executive agrees to be
employed by the Company, in each case pursuant to this Employment Agreement. This Employment
Agreement will commence effective June 1, 2011 (the “Commencement Date”) and continue for
an initial term ending on the third (3rd) anniversary of the Commencement Date (the “Initial
Term”). Following the Initial Term, this Employment Agreement will automatically renew for
successive periods of one (1) year (each, a “Renewal Term”), unless either party hereto
gives written notice of nonrenewal to the other party at least thirty (30) days prior to the
expiration of the Initial Term or any Renewal Term. Notwithstanding the foregoing, this Employment
Agreement may be terminated at any time during the Initial Term or any Renewal Term by the
termination or resignation of the Executive’s employment in accordance with Section 3 hereof. The
“Term” of this Employment Agreement is the period of time commencing with the Commencement
Date and continuing until the earlier of the (i) expiration of the Initial Term or any Renewal Term
following notice of nonrenewal in accordance with this Section 1.1, and (ii) termination or
resignation of the Executive’s employment in accordance with Section 3 hereof.



               1.2. Duties. During the Term, the Executive shall serve as President and Chief
Executive Officer of the Company, as a member of the board of directors of the Company (the
“Board”), and such other or additional positions as an officer or director of the Company,
and of such direct or indirect affiliates of the Company (“Affiliates”), as the Executive
and the Board or its designee shall mutually agree from time to time. In such positions, the
Executive shall perform such duties, functions and responsibilities during the Term commensurate
with the Executive’s positions as reasonably directed by the Board.



               1.3. Exclusivity. During the Term, the Executive shall devote substantially all of
Executive’s working time and attention to the business and affairs of the Partnership, the Company
and their respective Affiliates, shall faithfully serve the Partnership, the Company and their
respective Affiliates, and shall in all material respects conform to and comply with the lawful and
reasonable directions and instructions given to Executive by the Board, or its designee, consistent
with Section 1.2 hereof. During the Term, the Executive shall use Executive’s best efforts during
Executive’s working time to promote and serve the interests of the Partnership, the Company and
their respective Affiliates and shall not engage in any other business activity, whether or not
such activity shall be engaged in for pecuniary profit. The



 









 




provisions of this Section 1.3 shall not be construed to prevent the Executive from (i)
investing Executive’s personal, private assets as an investor in such form or manner as will not
require any active services on the part of the Executive in the management or operation of the
affairs of the companies, partnerships, or other business entities in which any such investments
are made; (ii) serving as an advisory director to, or as a member of, the board of directors of
Martin Midstream GP LLC (provided, such service does not conflict with the Executive’s duties and
obligations to the Partnership and the Company); or (iii) providing consulting services of no more
than 240 hours per year to Regency GP LLC through November 2013. Notwithstanding the foregoing,
provided it does not interfere with the Executive’s performance of his obligations pursuant to this
Employment Agreement, the Executive shall be permitted to consult with and participate in the
management of Wire Road Studios LLC and Kel Realty LLC.




     Section 2. Compensation.



               2.1. Salary. As compensation for the performance of the Executive’s services
hereunder, during the Term, the Company shall pay to the Executive a salary at an annual rate of
$500,000 which annual salary shall be prorated for any partial year at the beginning or end of the
Term and shall accrue and be payable in accordance with the Company’s standard payroll policies, as
such salary may be adjusted upward by (i) recommendation of the Compensation Committee of the
Board, if then in existence, and (ii) approval of the Board, in each case, in its discretion (as
adjusted, the “Base Salary”).



               2.2. Annual Bonus. For each completed fiscal year occurring during the Term, the
Executive shall be eligible to receive an annual cash bonus (the “Annual Bonus”).
Commencing with fiscal year 2011, the target Annual Bonus shall be 200% of the Executive’s Base
Salary as in effect at the beginning of the Term in fiscal year 2011 (which shall be prorated for
fiscal year 2011) and at the beginning of each such fiscal year thereafter during the Term, the
actual Annual Bonus to be based upon such individual and/or Partnership performance criteria
established for each such fiscal year by the Compensation Committee of the Board of Directors of
CVR Energy, Inc., in its discretion. The Annual Bonus, if any, payable to Executive for a fiscal
year will be paid by the Company to the Executive on the last scheduled payroll payment date during
such fiscal year; provided, however, that if the Annual Bonus is payable pursuant to a plan that is
intended to provide for the payment of bonuses that constitute “performance-based compensation”
within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended (the
“Code”), the Annual Bonus shall be paid at such time as is provided in the applicable plan.



               2.3. Employee Benefits. During the Term, the Executive shall be eligible to
participate in such health, insurance, retirement, and other employee benefit plans and programs of
the Company as in effect from time to time on the same basis as other senior executives of the
Company.



               2.4. Paid Time Off. During the Term, the Executive shall be entitled to twenty-five
(25) days of paid time off (“PTO”) each year.



               2.5. Business Expenses. The Company shall pay or reimburse the Executive for all
commercially reasonable business out-of-pocket expenses that the Executive



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incurs during the Term in performing Executive’s duties under this Employment Agreement upon
presentation of documentation and in accordance with the expense reimbursement policy of the
Company in effect from time to time. Notwithstanding anything herein to the contrary or otherwise,
except to the extent any expense or reimbursement described in this Employment Agreement does not
constitute a “deferral of compensation” within the meaning of Section 409A of the Code and the
Treasury regulations and other guidance issued thereunder, any expense or reimbursement described
in this Employment Agreement shall meet the following requirements: (i) the amount of expenses
eligible for reimbursement provided to the Executive during any calendar year will not affect the
amount of expenses eligible for reimbursement to the Executive in any other calendar year; (ii) the
reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on
or before the last day of the calendar year following the calendar year in which the applicable
expense is incurred; (iii) the right to payment or reimbursement or in-kind benefits hereunder may
not be liquidated or exchanged for any other benefit; and (iv) the reimbursements shall be made
pursuant to objectively determinable and nondiscretionary Company policies and procedures regarding
such reimbursement of expenses.




               2.6. Phantom Unit Awards. Concurrently herewith, the Executive and the Partnership
are entering into an Employee Phantom Unit Agreement, pursuant to which the Partnership has granted
to the Executive Phantom Units. If and to the extent the Partnership grants Phantom Units to the
Executive in the future, such Phantom Units will be granted pursuant to an Employee Phantom Unit
Agreement with vesting terms substantially similar to the provisions included in Section 3 of the
Employee Phantom Unit Agreement form attached as Exhibit A hereto.



     Section 3. Employment Termination.



               3.1. Termination of Employment. The Company may terminate the Executive’s employment
for any reason during the Term, and the Executive may voluntarily resign Executive’s employment for
any reason during the Term, in each case (other than a termination by the Company for Cause) at any
time upon not less than thirty (30) days’ notice to the other party. Upon the termination or
resignation of the Executive’s employment with the Company for any reason (whether during the Term
or thereafter), the Executive shall be entitled to any Base Salary earned but unpaid through the
date of termination or resignation, any earned but unpaid Annual Bonus for completed fiscal years,
any unused accrued PTO and any unreimbursed expenses in accordance with Section 2.5 hereof
(collectively, the “Accrued Amounts”).



               3.2. Certain Terminations.



                    (a) Termination by the Company Other Than For Cause or Disability; Resignation by the
Executive for Good Reason. If during the Term (i) the Executive’s employment is terminated by
the Company other than for Cause or Disability or (ii) the Executive resigns for Good Reason, then
in addition to the Accrued Amounts the Executive shall be entitled to the following payments and
benefits: (x) the continuation of Executive’s Base Salary at the rate in effect immediately prior
to the date of termination or resignation (or, in the case of a resignation for Good Reason, at the
rate in effect immediately prior to the occurrence of the event constituting Good Reason, if
greater) for a period of eighteen (18) months (or, if



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earlier, until and including the month in which the Executive attains age 70) (the
“Severance Period”) and (y) a Pro-Rata Bonus and (z) to the extent permitted pursuant to
the applicable plans, the continuation on the same terms as an active employee (including, where
applicable, coverage for the Executive and the Executive’s dependents) of medical, dental, vision
and life insurance benefits (“Welfare Benefits”) the Executive would otherwise be eligible
to receive as an active employee of the Company for eighteen (18) months or, if earlier, until such
time as the Executive becomes eligible for Welfare Benefits from a subsequent employer (the
“Welfare Benefit Continuation Period”) (collectively, the “Severance Payments”).
If the Executive is not permitted to continue participation in the Company’s Welfare Benefit plans
pursuant to the terms of such plans or pursuant to a determination by the Company’s insurance
providers or such continued participation in any plan would result in the imposition of an excise
tax to the Company pursuant to Section 4980D of the Code, the Company shall use reasonable efforts
to obtain individual insurance policies providing the Welfare Benefits to the Executive during the
Welfare Benefit Continuation Period and, if applicable, the Additional Welfare Benefit Continuation
Period (as defined below), but shall only be required to pay for such policies an amount equal to
the amount the Company would have paid had the Executive continued participation in the Company’s
Welfare Benefits plans; provided, that, if such coverage cannot be obtained, the
Company shall pay to the Executive monthly during the Welfare Benefit Continuation Period and, if
applicable, the Additional Welfare Benefit Continuation Period, an amount equal to the amount the
Company would have paid had the Executive continued participation in the Company’s Welfare Benefits
plans. The Company’s obligations to make the Severance Payments shall be conditioned upon: (i) the
Executive’s continued compliance with Executive’s obligations under Section 4 of this Employment
Agreement and (ii) the Executive’s execution, delivery and non-revocation of a valid and
enforceable release of claims arising in connection with the Executive’s employment and termination
or resignation of employment with the Company (the “Release”) in a form reasonably
acceptable to the Company and the Executive that becomes effective not later than sixty (60) days
after the date of such termination or resignation of employment. The Company shall provide the
form of the Release to the Executive within five (5) business days following the date of the
Executive’s termination or resignation of employment. In the event that the Executive breaches any
of the covenants set forth in Section 4 of this Employment Agreement, the Executive will
immediately return to the Company any portion of the Severance Payments that have been paid to the
Executive pursuant to this Section 3.2(a). Subject to the foregoing and Section 3.2(e), the
Severance Payments will commence to be paid to the Executive on the sixtieth (60th) day
following the Executive’s termination of employment, except that the Pro-Rata Bonus shall be paid
at the time when annual bonuses are paid generally to the Company’s senior executives for the year
in which the Executive’s termination of employment occurs.




                    (b) Change in Control Termination. If (A) (i) the Executive’s employment is
terminated by the Company other than for Cause or Disability, or (ii) the Executive resigns for
Good Reason, and such termination or resignation described in (i) or (ii) of this Clause (A) occurs
within the one (1) year period following a Change in Control, or (B) the Executive’s termination or
resignation is a Change in Control Related Termination, then, in addition to the Severance Payments
described in Section 3.2(a), the Executive shall also be entitled to (I) the continuation of
Executive’s Base Salary at the rate in effect immediately prior to the date of termination or
resignation (determined without regard to any reduction in Base Salary subsequent to the Change in
Control or in connection with the Change in Control Related



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Termination) for a period of twelve (12) months (or, if earlier, until and including the month
in which the Executive attains age 70) commencing on the eighteen (18) month anniversary of the
date of termination or resignation (the “Additional Severance Period”), (II) a payment each
month during the Severance Period and the Additional Severance Period equal to one-twelfth
(1/12th) of the target Annual Bonus for the year in which the Executive’s termination or
resignation occurs (determined without regard to any reduction in Base Salary or target Annual
Bonus percentage subsequent to the Change in Control or in connection with the Change in Control
Related Termination) and (III) the continuation of the Welfare Benefits for the twelve (12) month
period commencing on the eighteen (18) month anniversary of the date of termination or resignation
or, if earlier, until such time as the Executive becomes eligible for Welfare Benefits from a
subsequent employer (the “Additional Welfare Benefit Continuation Period”). Amounts
received pursuant to this Section 3.2(b) shall be deemed to be included in the term Severance
Payments for purposes of this Employment Agreement.




                    (c) Retirement. Upon Retirement, the Executive, whether or not Section 3.2(a) also
applies but without duplication of benefits, shall be entitled to (i) a Pro-Rata Bonus, (ii) to the
extent permitted pursuant to the applicable plans, the continuation on the same terms as an active
employee of Welfare Benefits the Executive would otherwise be eligible to receive as an active
employee of the Company for twenty-four (24) months following the date of the Executive’s
Retirement or, if earlier, until such time as the Executive becomes eligible for Welfare Benefits
from a subsequent employer and, thereafter, shall be eligible to continue participation in the
Company’s Welfare Benefits plans, provided that such continued participation shall be entirely at
the Executive’s expense and shall cease when the Executive becomes eligible for Welfare Benefits
from a subsequent employer and (iii) use of Company facilities at the Executive’s expense, but only
to the extent that such use does not interfere with the Company’s use thereof. Notwithstanding the
foregoing, (x) if the Executive is not permitted to continue participation in the Company’s Welfare
Benefit plans pursuant to the terms of such plans or pursuant to a determination by the Company’s
insurance providers or such continued participation in any plan would result in the plan being
discriminatory within the meaning of Section 4980D of the Code, the Company shall use reasonable
efforts to obtain individual insurance policies providing the Welfare Benefits to the Executive for
such twenty-four (24) months, but shall only be required to pay for such policies an amount equal
to the amount the Company would have paid had the Executive continued participation in the
Company’s Welfare Benefit plans; provided, that, if such coverage cannot be
obtained, the Company shall pay to the Executive monthly for such twenty-four (24) months an amount
equal to the amount the Company would have paid had the Executive continued participation in the
Company’s Welfare Benefits plans and (y) any Welfare Benefits coverage provided pursuant to this
Section 3.2(b), whether through the Company’s Welfare Benefit plans or through individual insurance
policies, shall be supplemental to any benefits for which the Executive becomes eligible under
Medicare, whether or not the Executive actually obtains such Medicare coverage. The Pro-Rata Bonus
shall be paid at the time when annual bonuses are paid generally to the Company’s senior executives
for the year in which the Executive’s Retirement occurs. If following the Initial Term, but prior
to completing five (5) years of employment with the Company (and therefore not meeting the
definition of Retirement), the Executive resigns employment for any reason (other than by reason of
the Executive’s death), then the Executive will be entitled to a Pro-Rata Bonus.



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                    (d) Definitions. For purposes of this Section 3.2, the following terms shall have the
following meanings:



                         (1) A resignation for “Good Reason” shall mean a resignation by the Executive within
thirty (30) days following the date on which the Company has engaged in any of the following: (i)
the assignment of duties or responsibilities to the Executive that reflect a material diminution of
the Executive’s position with the Company; (ii) a relocation of the Executive’s principal place of
employment outside of the greater Houston metropolitan area; or (iii) a reduction in the
Executive’s Base Salary, other than across-the-board reductions applicable to similarly situated
employees of the Company; provided, however, that the Executive must provide the
Company with notice promptly following the occurrence of any of the foregoing and at least thirty
(30) days to cure.



                         (2) “Cause” shall mean that the Executive has engaged in any of the following: (i)
willful misconduct or breach of fiduciary duty; (ii) intentional failure or refusal to perform
reasonably assigned duties after written notice of such willful failure or refusal and the failure
or refusal is not corrected within ten (10) business days; (iii) the indictment for, conviction of
or entering a plea of guilty or nolo contendere to a crime constituting a felony (other than a
traffic violation or other offense or violation outside of the course of employment which does not
adversely affect the Partnership, the Company or their respective Affiliates or their reputation or
the ability of the Executive to perform Executive’s employment-related duties or to represent the
Partnership, the Company or their respective Affiliates); provided, however, that
(A) if the Executive is terminated for Cause by reason of Executive’s indictment pursuant to this
clause (iii) and the indictment is subsequently dismissed or withdrawn or the Executive is found to
be not guilty in a court of law in connection with such indictment, then the Executive’s
termination shall be treated for purposes of this Employment Agreement as a termination by the
Company other than for Cause, and the Executive will be entitled to receive (without duplication of
benefits and to the extent permitted by law and the terms of the then-applicable Welfare Benefits
plans) the payments and benefits set forth in Section 3.2(a) and, to the extent either or both are
applicable, Section 3.2(b) and Section 3.2(c), following such dismissal, withdrawal or finding,
payable in the manner and subject to the conditions set forth in such Sections and (B) if such
indictment relates to environmental matters and does not allege that the Executive was directly
involved in or directly supervised the action(s) forming the basis of the indictment, Cause shall
not be deemed to exist under this Employment Agreement by reason of such indictment until the
Executive is convicted or enters a plea of guilty or nolo contendere in connection with such
indictment; or (iv) material breach of the Executive’s covenants in Section 4 of this Employment
Agreement or any material written policy of the Partnership, the Company or any of their respective
Affiliates after written notice of such breach and failure by the Executive to correct such breach
within ten (10) business days, provided that no notice of, nor opportunity to correct, such breach
shall be required hereunder if such breach cannot be cured by the Executive.



                         (3) “Change in Control” shall have the meaning set forth on Appendix A.



                         (4) “Change in Control Related Termination” shall mean a termination of the
Executive’s employment by the Company other than for Cause or



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Executive’s resignation for Good Reason, in each case at any time prior to the date of a
Change in Control and (A) the Executive reasonably demonstrates that such termination or the basis
for resignation for Good Reason occurred in anticipation of a transaction that, if consummated,
would constitute a Change in Control, (B) such termination or the basis for resignation for Good
Reason occurred after the Partnership entered into a definitive agreement, the consummation of
which would constitute a Change in Control or (C) the Executive reasonably demonstrates that such
termination or the basis for resignation for Good Reason was implemented at the request of a third
party who has indicated an intention or has taken steps reasonably calculated to effect a Change in
Control.




                         (5) “Disability” shall mean the Executive’s inability, due to physical or mental ill
health, to perform the essential functions of the Executive’s job, with or without a reasonable
accommodation, for 180 days during any 365 day period irrespective of whether such days are
consecutive.



                         (6) “Pro-Rata Bonus” shall mean, the product of (A) a fraction, the numerator of which
is the number of days the Executive is employed by the Company during the year in which the
Executive’s employment terminates pursuant to Section 3.2(a) or (c) prior to and including the date
of the Executive’s termination and the denominator of which is 365 and (B)(i) if the Annual Bonus
is payable pursuant to a plan that is intended to provide for the payment of bonuses that
constitute “performance-based compensation” within the meaning of Section 162(m) of the Code, an
amount for that year equal to the Annual Bonus the Executive would have been entitled to receive
had his employment not terminated, based on the actual performance of the Partnership or the
Executive, as applicable, for the full year, or (ii) if the Annual Bonus is not payable pursuant to
a plan that is intended to provide for the payment of bonuses that constitute “performance-based
compensation”, the target Annual Bonus for that year.



                         (7) “Retirement” shall mean the Executive’s termination or resignation of employment
for any reason (other than by the Company for Cause or by reason of the Executive’s death)
following the later of (i) the date the Executive attains age 62, or (ii) the date the Executive
completes five (5) years of employment with the Company.



                    (e) Section 409A. To the extent applicable, this Employment Agreement shall be
interpreted, construed and operated in accordance with Section 409A of the Code and the Treasury
regulations and other guidance issued thereunder. If on the date of the Executive’s separation from
service (as defined in Treasury Regulation §1.409A-1(h)) with the Company the Executive is a
specified employee (as defined in Code Section 409A and Treasury Regulation §1.409A-1(i)), no
payment constituting the “deferral of compensation” within the meaning of Treasury Regulation
§1.409A-1(b) and after application of the exemptions provided in Treasury Regulation
§§1.409A-1(b)(4) and 1.409A-1(b)(9)(iii) shall be made to the Executive at any time prior to the
earlier of (a) the expiration of the six (6) month period following the Executive’s separation from
service or (b) the Executive’s death, and any such amounts deferred during such applicable period
shall instead be paid in a lump sum to Executive (or, if applicable, Executive’s estate) on the
first payroll payment date following expiration of such six (6) month period or, if applicable, the
Executive’s death. For purposes of conforming this Employment Agreement to Section 409A of the
Code, the parties agree that any reference to termination of



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employment, severance from employment, resignation from employment or similar terms shall mean
and be interpreted as a “separation from service” as defined in Treasury Regulation §1.409A-1(h).
For purposes of applying Section 409A of the Code to this Employment Agreement (including, without
limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), each payment that the
Executive may be entitled to receive under this Employment Agreement shall be treated as a separate
and distinct payment and shall not collectively be treated as a single payment.




               3.3. Exclusive Remedy. The foregoing payments upon termination or resignation of the
Executive’s employment shall constitute the exclusive severance payments due the Executive upon a
termination or resignation of Executive’s employment under this Employment Agreement.



               3.4. Resignation from All Positions. Upon the termination or resignation of the
Executive’s employment with the Company for any reason, the Executive shall be deemed to have
resigned, as of the date of such termination or resignation, from and with respect to all positions
the Executive then holds as an officer, director, employee and member of the Board of Directors
(and any committee thereof) of the Company and any of its Affiliates.



               3.5. Cooperation. For one (1) year following the termination or resignation of the
Executive’s employment with the Company for any reason, the Executive agrees to reasonably
cooperate with the Company upon reasonable request of the Board and to be reasonably available to
the Company with respect to matters arising out of the Executive’s services to the Company and its
Affiliates; provided, if the Executive’s cooperation requires him to incur reasonable expenses,
then the Company will reimburse the Executive for such expenses upon written request. The Company
shall compensate the Executive for such cooperation at an hourly rate based on the Executive’s most
recent base salary rate assuming two thousand (2,000) working hours per year; provided,
that if the Executive is required to spend more than forty (40) hours in any month on Company
matters pursuant to this Section 3.5, the Executive and the Board shall mutually agree to an
appropriate rate of compensation for the Executive’s time over such forty (40) hour threshold. The
parties further agree to cooperate in good faith in the scheduling of the Executive’s obligations
pursuant to this Section 3.5, subject to any competing commitments the Executive may have as of the
Commencement Date to Regency GP LLC through November 2013.



     Section 4. Unauthorized Disclosure; Non-Competition; Non-Solicitation;
Proprietary Rights.



               4.1. Unauthorized Disclosure. The Executive agrees and understands that in the
Executive’s position with the Company and any Affiliates, the Executive has been and will be
exposed to and has and will receive information relating to the confidential affairs of the
Partnership, the Company and their respective Affiliates, including, without limitation, technical
information, intellectual property, business and marketing plans, strategies, customer information,
software, other information concerning the products, promotions, development, financing, expansion
plans, business policies and practices of the Partnership, the Company and their respective
Affiliates and other forms of information considered by the Partnership, the Company and their
respective Affiliates to be confidential and in the nature of trade secrets



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(including, without limitation, ideas, research and development, know-how, formulas, technical
data, designs, drawings, specifications, customer and supplier lists, pricing and cost information
and business and marketing plans and proposals) (collectively, the “Confidential
Information”); provided, however, that Confidential Information shall not include
information which (i) is or becomes generally available to the public not in violation of this
Employment Agreement or any written policy of the Partnership, the Company or their respective
Affiliates; or (ii) was in the Executive’s possession or knowledge on a non-confidential basis
prior to such disclosure. The Executive agrees that at all times during the Executive’s employment
with the Company and thereafter, the Executive shall not disclose such Confidential Information,
either directly or indirectly, to any individual, corporation, partnership, limited liability
company, association, trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof (each, for purposes of this Section 4, a
“Person”) without the prior written consent of the Company and shall not use or attempt to
use any such information in any manner other than in connection with Executive’s employment with
the Company, unless required by law to disclose such information, in which case the Executive shall
provide the Company with written notice of such requirement as far in advance of such anticipated
disclosure as possible. Executive’s confidentiality covenant has no temporal, geographical or
territorial restriction. Upon termination or resignation of the Executive’s employment with the
Company, the Executive shall promptly supply to the Company all property, keys, notes, memoranda,
writings, lists, files, reports, customer lists, correspondence, tapes, disks, cards, surveys,
maps, logs, machines, technical data and any other tangible product or document which has been
produced by, received by or otherwise submitted to the Executive during or prior to the Executive’s
employment with the Company, and any copies thereof in Executive’s (or capable of being reduced to
Executive’s) possession.




               4.2. Non-Competition. By and in consideration of the Company’s entering into this
Employment Agreement and the payments to be made and benefits to be provided by the Company
hereunder, and in further consideration of the Executive’s exposure to the Confidential Information
of the Partnership, the Company and their respective Affiliates, the Executive agrees that the
Executive shall not, during the Term and for a period of twelve (12) months thereafter (the
“Restriction Period”), directly or indirectly, own, manage, operate, join, control, be
employed by, or participate in the ownership, management, operation or control of, or be connected
in any manner with, including, without limitation, holding any position as a stockholder, director,
officer, consultant, independent contractor, employee, partner, or investor in, any Restricted
Enterprise (as defined below); provided, that (a) the Executive shall not be prohibited
from serving as an advisory director to, or as a member of, the board of directors of Martin
Midstream GP LLC, and (b) in no event shall ownership of one percent (1%) or less of the
outstanding securities of any class of any issuer whose securities are registered under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), standing alone, be
prohibited by this Section 4.2, so long as the Executive does not have, or exercise, any rights to
manage or operate the business of such issuer other than rights as a stockholder thereof. For
purposes of this paragraph, “Restricted Enterprise” shall mean any Person that is actively
engaged in any business which is either (i) in competition with the business of the Partnership,
the Company or any of their respective Affiliates conducted during the preceding twelve (12) months
(or following the Term, the twelve (12) months preceding the last day of the Term), or (ii)
proposed to be conducted by the Partnership, the Company or any of their respective Affiliates in
the Partnership’s, the Company’s or their respective Affiliate’s business plan as in



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effect at that time (or following the Term, the business plan as in effect as of the last day
of the Term); provided, that (x) with respect to any Person that is actively engaged in the
refinery business, a Restricted Enterprise shall only include such a Person that operates or
markets in any geographic area in which the Partnership, the Company or any of their respective
Affiliates operates or markets with respect to its refinery business and (y) with respect to any
Person that is actively engaged in the fertilizer business, a Restricted Enterprise shall only
include such a Person that operates or markets in any geographic area in which the Partnership, the
Company or any of their respective Affiliates operates or markets with respect to its fertilizer
business. During the Restriction Period, upon request of the Company, the Executive shall notify
the Company of the Executive’s then-current employment status. For the avoidance of doubt, a
Restricted Enterprise shall not include any Person or division thereof that is engaged in the
business of supplying (but not refining) crude oil or natural gas.




               4.3. Non-Solicitation of Employees. During the Restriction Period, the Executive
shall not directly or indirectly contact, induce or solicit (or assist any Person to contact,
induce or solicit) for employment any person who is, or within twelve (12) months prior to the date
of such solicitation was, an employee of the Partnership, the Company or any of their respective
Affiliates.



               4.4. Non-Solicitation of Customers/Suppliers. During the Restriction Period, the
Executive shall not (i) contact, induce or solicit (or assist any Person to contact, induce or
solicit) any Person which has a business relationship with the Partnership, the Company or any of
their respective Affiliates in order to terminate, curtail or otherwise interfere with such
business relationship or (ii) solicit, other than on behalf of the Partnership, the Company or
their respective Affiliates, any Person that the Executive knows or should have known (x) is a
current customer of the Partnership, the Company or any of their respective Affiliates in any
geographic area in which the Partnership, the Company or any of their respective Affiliates
operates or markets or (y) is a Person in any geographic area in which the Partnership, the Company
or any of their respective Affiliates operates or markets with respect to which the Partnership,
the Company or any of their respective Affiliates has, within the twelve (12) months prior to the
date of such solicitation, devoted more than de minimis resources in an effort to cause such Person
to become a customer of the Partnership, the Company or any of their respective Affiliates in that
geographic area. For the avoidance of doubt, the foregoing does not preclude the Executive from
soliciting, outside of the geographic areas in which the Partnership, the Company or any of their
respective Affiliates operates or markets, any Person that is a customer or potential customer of
the Partnership, the Company or any of their respective Affiliates in the geographic areas in which
it operates or markets.



               4.5. Extension of Restriction Period. The Restriction Period shall be extended for a
period of time equal to any period during which the Executive is in breach of any of Sections 4.2,
4.3 or 4.4 hereof.



               4.6. Proprietary Rights. The Executive shall disclose promptly to the Company any and
all inventions, discoveries, and improvements (whether or not patentable or registrable under
copyright or similar statutes), and all patentable or copyrightable works, initiated, conceived,
discovered, reduced to practice, or made by Executive, either alone or in conjunction with others,
during the Executive’s employment with the Company and related to the



10









 




business or activities of the Partnership, the Company or their respective Affiliates (the
“Developments”). Except to the extent any rights in any Developments constitute a work
made for hire under the U.S. Copyright Act, 17 U.S.C. § 101 et seq. that are owned ab initio by the
Partnership, the Company and/or their respective Affiliates, the Executive assigns all of
Executive’s right, title and interest in all Developments (including all intellectual property
rights therein) to the Company or its nominee without further compensation, including all rights or
benefits therefor, including without limitation the right to sue and recover for past and future
infringement. The Executive acknowledges that any rights in any developments constituting a work
made for hire under the U.S. Copyright Act, 17 U.S.C § 101 et seq. are owned upon creation by the
Partnership, the Company and/or their respective Affiliates as the Executive’s employer. Whenever
requested to do so by the Company, the Executive shall execute any and all applications,
assignments or other instruments which the Company shall deem necessary to apply for and obtain
trademarks, patents or copyrights of the United States or any foreign country or otherwise protect
the interests of the Partnership, the Company and their respective Affiliates therein. These
obligations shall continue beyond the end of the Executive’s employment with the Company with
respect to inventions, discoveries, improvements or copyrightable works initiated, conceived or
made by the Executive while employed by the Company, and shall be binding upon the Executive’s
employers, assigns, executors, administrators and other legal representatives. In connection with
Executive’s execution of this Employment Agreement, the Executive has informed the Company in
writing of any interest in any inventions or intellectual property rights that Executive holds as
of the date hereof. If the Company is unable for any reason, after reasonable effort, to obtain
the Executive’s signature on any document needed in connection with the actions described in this
Section 4.6, the Executive hereby irrevocably designates and appoints the Partnership, the Company,
their respective Affiliates, and their respective duly authorized officers and agents as the
Executive’s agent and attorney in fact to act for and in the Executive’s behalf to execute, verify
and file any such documents and to do all other lawfully permitted acts to further the purposes of
this Section with the same legal force and effect as if executed by the Executive.




               4.7. Confidentiality of Agreement. Other than with respect to information required to
be disclosed by applicable law, the parties hereto agree not to disclose the terms of this
Employment Agreement to any Person; provided the Executive may disclose this Employment Agreement
and/or any of its terms to the Executive’s immediate family, financial advisors and attorneys.
Notwithstanding anything in this Section 4.7 to the contrary, the parties hereto (and each of their
respective employees, representatives, or other agents) may disclose to any and all Persons,
without limitation of any kind, the tax treatment and tax structure of the transactions
contemplated by this Employment Agreement, and all materials of any kind (including opinions or
other tax analyses) related to such tax treatment and tax structure; provided that this sentence
shall not permit any Person to disclose the name of, or other information that would identify, any
party to such transactions or to disclose confidential commercial information regarding such
transactions.



               4.8. Remedies. The Executive agrees that any breach of the terms of this Section 4
would result in irreparable injury and damage to the Partnership, the Company and their respective
Affiliates for which the Partnership, the Company and their respective Affiliates would have no
adequate remedy at law; the Executive therefore also agrees that in the event of said breach or any
threat of breach, the Partnership, the Company and their respective Affiliates



11









 




shall be entitled to an immediate injunction and restraining order to prevent such breach
and/or threatened breach and/or continued breach by the Executive and/or any and all Persons acting
for and/or with the Executive, without having to prove damages, in addition to any other remedies
to which the Partnership, the Company and their respective Affiliates may be entitled at law or in
equity, including, without limitation, the obligation of the Executive to return any Severance
Payments made by the Company to the Company. The terms of this paragraph shall not prevent the
Partnership, the Company or their respective Affiliates from pursuing any other available remedies
for any breach or threatened breach hereof, including, without limitation, the recovery of damages
from the Executive. The Executive and the Company further agree that the provisions of the
covenants contained in this Section 4 are reasonable and necessary to protect the businesses of the
Partnership, the Company and their respective Affiliates because of the Executive’s access to
Confidential Information and Executive’s material participation in the operation of such
businesses.




     Section 5. Representation.



     The Executive represents and warrants that (i) Executive is not subject to any contract,
arrangement, policy or understanding, or to any statute, governmental rule or regulation, that in
any way limits Executive’s ability to enter into and fully perform Executive’s obligations under
this Employment Agreement and (ii) Executive is not otherwise unable to enter into and fully
perform Executive’s obligations under this Employment Agreement.



     Section 6. Withholding.



     All amounts paid to the Executive under this Employment Agreement during or following the Term
shall be subject to withholding and other employment taxes imposed by applicable law.



     Section 7. Effect of Section 280G of the Code.



               7.1. Payment Reduction. Notwithstanding anything contained in this Employment
Agreement to the contrary, (i) to the extent that any payment or distribution of any type to or for
the Executive by the Company, any affiliate of the Company, any Person who acquires ownership or
effective control of the Company or ownership of a substantial portion of the Company’s assets
(within the meaning of Section 280G of the Code and the regulations thereunder), or any affiliate
of such Person, whether paid or payable or distributed or distributable pursuant to the terms of
this Employment Agreement or otherwise (the “Payments”) constitute “parachute payments”
(within the meaning of Section 280G of the Code), and if (ii) such aggregate would, if reduced by
all federal, state and local taxes applicable thereto, including the excise tax imposed under
Section 4999 of the Code (the “Excise Tax”), be less than the amount the Executive would
receive, after all taxes, if the Executive received aggregate Payments equal (as valued under
Section 280G of the Code) to only three times the Executive’s “base amount” (within the meaning of
Section 280G of the Code), less $1.00, then (iii) such Payments shall be reduced (but not below
zero) if and to the extent necessary so that no Payments to be made or benefit to be provided to
the Executive shall be subject to the Excise Tax; provided, however, that the
Company shall use its reasonable best efforts to obtain shareholder approval of the Payments
provided for in this Employment Agreement in a manner



12









 




intended to satisfy requirements of the “shareholder approval” exception to Section 280G of
the Code and the regulations promulgated thereunder, such that payment may be made to the Executive
of such Payments without the application of an Excise Tax. If the Payments are so reduced, the
Company shall reduce or eliminate the Payments (x) by first reducing or eliminating the portion of
the Payments which are not payable in cash (other than that portion of the Payments subject to
clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of
the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of
the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation §
1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with
payments or benefits which are to be paid the farthest in time.




               7.2. Determination of Amount of Reduction (if any). The determination of whether the
Payments shall be reduced as provided in Section 7.1 hereof and the amount of such reduction shall
be made at the Company’s expense by an accounting firm selected by the Company from among the four
(4) largest accounting firms in the United States (the “Accounting Firm”). The Accounting
Firm shall provide its determination (the “Determination”), together with detailed
supporting calculations and documentation, to the Company and the Executive within ten (10) days
after the Executive’s final day of employment, which Determination, absent manifest error, shall be
binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines
that no Excise Tax is payable by the Executive with respect to the Payments, it shall furnish the
Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed
with respect to any such payments. If the Accounting Firm determines that Excise Tax is payable by
the Executive with respect to the Payments, it shall furnish the Executive with an opinion
reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any
payments after the reductions contemplated by Section 7.1 hereof.



     Section 8. Miscellaneous.



               8.1. Amendments and Waivers. This Employment Agreement and any of the provisions
hereof may be amended, waived (either generally or in a particular instance and either
retroactively or prospectively), modified or supplemented, in whole or in part, only by written
agreement signed by the parties hereto; provided, that, the observance of any provision of
this Employment Agreement may be waived in writing by the party that will lose the benefit of such
provision as a result of such waiver. The waiver by any party hereto of a breach of any provision
of this Employment Agreement shall not operate or be construed as a further or continuing waiver of
such breach or as a waiver of any other or subsequent breach, except as otherwise explicitly
provided for in such waiver. Except as otherwise expressly provided herein, no failure on the part
of any party to exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a waiver thereof, nor
shall any single or partial exercise of such right, power or remedy by such party preclude any
other or further exercise thereof or the exercise of any other right, power or remedy.



               8.2. Fees and Expenses.. The Company shall pay all legal fees and related expenses
(including the costs of experts, evidence and counsel) incurred by the Executive as a result of or
relating to (a) the preparation, negotiation and execution of this Employment



13









 




Agreement, up to a maximum amount of $5,000, (b) the termination of the Executive’s employment
by the Company or the resignation by the Executive for Good Reason (including all such fees and
expenses, if any, incurred in contesting, defending or disputing the basis for any such termination
or resignation of employment) or (c) the Executive seeking to obtain or enforce any right or
benefit provided by this Employment Agreement; provided, that, if it is determined that the
Executive’s termination of employment was for Cause, the Executive shall not be entitled to any
payment or reimbursement pursuant to this Section 8.2.




               8.3. Indemnification. To the extent provided in the Company’s Certificate of
Formation or Limited Liability Company Agreement, as in effect from time to time, and subject to
any separate agreement (if any) between the Company and the Executive or between the Partnership
and the Executive regarding indemnification, the Company shall indemnify the Executive for losses
or damages incurred by the Executive as a result of causes of action arising from the Executive’s
performance of duties for the benefit of the Partnership or the Company, whether or not the claim
is asserted during the Term.



               8.4. Assignment. This Employment Agreement, and the Executive’s rights and
obligations hereunder, may not be assigned by the Executive, and any purported assignment by the
Executive in violation hereof shall be null and void.



               8.5. Payments Following Executive’s Death. Any Accrued Amounts payable to the
Executive pursuant to this Employment Agreement that remain unpaid at the Executive’s death shall
be paid to the Executive’s estate.



               8.6. Notices. Unless otherwise provided herein, all notices, requests, demands,
claims and other communications provided for under the terms of this Employment Agreement shall be
in writing. Any notice, request, demand, claim or other communication hereunder shall be sent by
(i) personal delivery (including receipted courier service) or overnight delivery service, (ii)
facsimile during normal business hours, with confirmation of receipt, to the number indicated,
(iii) reputable commercial overnight delivery service courier or (iv) registered or certified mail,
return receipt requested, postage prepaid and addressed to the intended recipient as set forth
below:



	 	 	 	 	 

	 

	 	If to the Company:
	 	CVR GP, LLC 

10 E. Cambridge Circle, Suite 250

Kansas City, KS 66103 

Attention: General Counsel 

Facsimile: (913) 982-5651
	 
	 	 	 	 
	 

	 	with a copy to:
	 	Fried, Frank, Harris, Shriver & Jacobson LLP 

One New York Plaza 

New York, NY 10004 

Attention: Donald P. Carleen, Esq.

Facsimile: (212) 859-4000 







14









 






	 	 	 	 	 

	 

	 	If to the Executive:
	 	Byron R. Kelley 

14 Holley Ridge Drive 

Kingswood, Texas 77339 

Facsimile: (281) 360-7125






          All such notices, requests, consents and other communications shall be deemed to have been
given when received. Any party may change its facsimile number or its address to which notices,
requests, demands, claims and other communications hereunder are to be delivered by giving the
other parties hereto notice in the manner then set forth.



               8.7. Governing Law. This Employment Agreement shall be construed and enforced in
accordance with, and the rights and obligations of the parties hereto shall be governed by, the
laws of the State of Texas, without giving effect to the conflicts of law principles thereof. Each
of the parties hereto irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of Texas (collectively, the “Selected Courts”) for any action or
proceeding relating to this Employment Agreement, agrees not to commence any action or proceeding
relating thereto except in the Selected Courts, and waives any forum or venue objections to the
Selected Courts.



               8.8. Severability. Whenever possible, each provision or portion of any provision of
this Employment Agreement, including those contained in Section 4 hereof, will be interpreted in
such manner as to be effective and valid under applicable law but the invalidity or
unenforceability of any provision or portion of any provision of this Employment Agreement in any
jurisdiction shall not affect the validity or enforceability of the remainder of this Employment
Agreement in that jurisdiction or the validity or enforceability of this Employment Agreement,
including that provision or portion of any provision, in any other jurisdiction. In addition,
should a court or arbitrator determine that any provision or portion of any provision of this
Employment Agreement, including those contained in Section 4 hereof, is not reasonable or valid,
either in period of time, geographical area, or otherwise, the parties hereto agree that such
provision should be interpreted and enforced to the maximum extent which such court or arbitrator
deems reasonable or valid.



               8.9. Entire Agreement. From and after the Commencement Date, this Employment
Agreement constitutes the entire agreement between the parties hereto, and supersedes all prior
representations, agreements and understandings (including any prior course of dealings), both
written and oral, relating to any employment of the Executive by the Company or any of its
Affiliates.



               8.10. Counterparts. This Employment Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.



               8.11. Binding Effect. This Employment Agreement shall inure to the benefit of, and be
binding on, the successors and assigns of each of the parties, including, without limitation, the
Executive’s heirs and the personal representatives of the Executive’s estate and any successor to
all or substantially all of the business and/or assets of the Company.



15









 





               8.12. General Interpretive Principles. The name assigned this Employment Agreement
and headings of the sections, paragraphs, subparagraphs, clauses and subclauses of this Employment
Agreement are for convenience of reference only and shall not in any way affect the meaning or
interpretation of any of the provisions hereof. Words of inclusion shall not be construed as terms
of limitation herein, so that references to “include”, “includes” and “including” shall not be
limiting and shall be regarded as references to non-exclusive and non-characterizing illustrations.



               8.13. Mitigation. Notwithstanding any other provision of this Employment Agreement,
(a) the Executive will have no obligation to mitigate damages for any breach or termination of this
Employment Agreement by the Company, whether by seeking employment or otherwise and (b) except for
Welfare Benefits provided pursuant to Section 3.2(a) or Section 3.2(b), the amount of any payment
or benefit due the Executive after the date of such breach or termination will not be reduced or
offset by any payment or benefit that the Executive may receive from any other source.



               8.14. Company Actions. Any actions, approvals, decisions, or determinations to be
made by the Company under this Employment Agreement shall be made by the Company’s Board, except as
otherwise expressly provided herein. For purposes of any references herein to the Board’s
designee, any such reference shall be deemed to include such officers, or committees of the Board,
as the Board may expressly designate from time to time for such purpose.



[signature page follows]




16









 




     IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of the date first
written above.



	 	 	 	 	 	 	 

	 	 	 	 	 	CVR GP, LLC
	 
	 	/s/ Byron R. Kelley	 	By: 	/s/ Stanley A. Riemann
	 
	 	 	 
	 	BYRON R. KELLEY	 	 	Name: 	 Stanley A. Riemann
	 	 	 	 	 	Title:	 Chief Operating Officer






     Coffeyville Resources, LLC hereby unconditionally, continually, absolutely and irrevocably
guarantees the full and prompt payment and performance of all obligations of the Company under this
Employment Agreement, as amended, supplemented or otherwise modified from time to time
(irrespective of whether or not Coffeyville Resources, LLC was given notice of any such amendment,
supplement or modification). Coffeyville Resources, LLC hereby acknowledges and agrees that any
waiver by the Company of any of its rights under this Employment Agreement shall be binding upon
Coffeyville Resources, LLC (irrespective of whether or not Coffeyville Resources, LLC was given
notice of such waiver).



	 	 	 	 	 
	Coffeyville Resources, LLC

 	 
	By:  	/s/ John J. Lipinski
 	 
	 	Name:  	John J. Lipinski 	 
	 	Title:  	Chief Executive Officer and President 	 



 









 






	 	 	 	 	 



APPENDIX A





“Change in Control” means the occurrence of any of the following:



     (a) CVR Energy, Inc. (“CVR”) and its wholly owned subsidiaries ceasing to own,
beneficially and of record, outstanding equity interests in the Company representing more than 50%
of each of the aggregate ordinary voting power (or, if the Company shall be a partnership, of the
general partner interests) and the aggregate equity value represented by the issued and outstanding
equity interests in the Company;



     (b) The failure by the Company to be the sole general partner of and to own, beneficially and
of record, 100% of the general partner interests in the Partnership;



     (c) An acquisition (other than directly from CVR) of any voting securities of CVR (the
“Voting Securities”) by any “Person” (as the term “person” is used for purposes of Section
13(d) or 14(d) of the Exchange Act), immediately after which such Person has “Beneficial Ownership”
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than thirty percent
(30%) of (i) the then-outstanding Shares or (ii) the combined voting power of CVR’s
then-outstanding Voting Securities; provided, however, that in determining whether a Change in
Control has occurred pursuant to this paragraph (c), the acquisition of Shares or Voting Securities
in a Non-Control Acquisition (as hereinafter defined) shall not constitute a Change in Control. A
“Non-Control Acquisition” shall mean an acquisition by (i) an employee benefit plan (or a
trust forming a part thereof) maintained by (A) CVR or (B) any corporation or other Person the
majority of the voting power, voting equity securities or equity interest of which is owned,
directly or indirectly, by CVR (for purposes of this definition, a “Related Entity”), (ii)
CVR or any Related Entity, or (iii) any Person in connection with a Non-Control Transaction (as
hereinafter defined); or



     (d) The consummation of:



          (i) A merger, consolidation or reorganization (x) with or into CVR or (y) in which securities
of CVR are issued (a “Merger”), unless such Merger is a “Non-Control Transaction.” A
“Non-Control Transaction” shall mean a Merger in which:



               (A) the shareholders of CVR immediately before such Merger own directly or indirectly
immediately following such Merger at least a majority of the combined voting power of the
outstanding voting securities of (1) the corporation resulting from such Merger (the “Surviving
Corporation”), if fifty percent (50%) or more of the combined voting power of the then
outstanding voting securities of the Surviving Corporation is not Beneficially Owned, directly or
indirectly, by another Person (a “Parent Corporation”) or (2) if there is one or more than
one Parent Corporation, the ultimate Parent Corporation;



               (B) the individuals who were members of the Board immediately prior to the execution of the
agreement providing for such Merger constitute at least a majority of the members of the board of
directors of (1) the Surviving Corporation, if there is no Parent



 









 




Corporation, or (2) if there is one or more than one Parent Corporation, the ultimate Parent
Corporation; and




               (C) no Person other than (1) CVR or another corporation that is a party to the agreement of
Merger, (2) any Related Entity, (3) any employee benefit plan (or any trust forming a part thereof)
that, immediately prior to the Merger, was maintained by CVR or any Related Entity, or (4) any
Person who, immediately prior to the Merger, had Beneficial Ownership of thirty percent (30%) or
more of the then outstanding Shares or Voting Securities, has Beneficial Ownership, directly or
indirectly, of thirty percent (30%) or more of the combined voting power of the outstanding voting
securities or common stock of (x) the Surviving Corporation, if there is no Parent Corporation, or
(y) if there is one or more than one Parent Corporation, the ultimate Parent Corporation.



          (ii) A complete liquidation or dissolution of CVR; or



          (iii) The sale or other disposition of all or substantially all of the assets of CVR and its
Subsidiaries taken as a whole to any Person (other than (x) a transfer to a Related Entity or (y)
the distribution to CVR’s shareholders of the stock of a Related Entity or any other assets).



     Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because
any Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted
amount of the then outstanding Shares or Voting Securities as a result of the acquisition of Shares
or Voting Securities by CVR which, by reducing the number of Shares or Voting Securities then
outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons;
provided that if a Change in Control would occur (but for the operation of this sentence) as a
result of the acquisition of Shares or Voting Securities by CVR and, after such share acquisition
by CVR, the Subject Person becomes the Beneficial Owner of any additional Shares or Voting
Securities and such Beneficial Ownership increases the percentage of the then outstanding Shares or
Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur.


For purposes of this definition: (i) “Shares” means the common stock, par value $.01 per
share, of CVR and any other securities into which such shares are changed or for which such shares
are exchanged.






 









 








Exhibit A




Employee Phantom Unit Agreement



(see attached)



 









 





CVR PARTNERS, LP

LONG-TERM INCENTIVE PLAN

EMPLOYEE PHANTOM UNIT AGREEMENT




     THIS AGREEMENT (this “Agreement”), made as of the day of , 2011 (the
“Grant Date”), between CVR Partners, LP, a Delaware limited partnership (the
“Partnership”), and Byron R. Kelley (the “Grantee”).



     WHEREAS, the board of directors of CVR GP, LLC, a Delaware limited liability company (the
“General Partner”), has adopted the CVR Partners, LP Long-Term Incentive Plan (the
“Plan”) in order to provide an additional incentive to certain of the Partnership’s and its
Subsidiaries’ and Parents’ employees, officers, consultants and directors; and



     WHEREAS, the Committee responsible for administration of the Plan has determined to grant
Phantom Units to the Grantee as provided herein.



     NOW, THEREFORE, the parties hereto agree as follows:



     Section 1. Grant of Phantom Units.



          1.1 The Partnership hereby grants to the Grantee, and the Grantee hereby accepts from the
Partnership, Phantom Units on the terms and conditions set forth in this Agreement.
Subject to the terms of this Agreement, each Phantom Unit represents the right of the Grantee to
receive, if such Phantom Unit becomes vested, one (1) Unit on the date specified in Section 4. The
issuance of Units upon vesting shall be subject to the Grantee’s prior execution of and becoming a
party to the Agreement of Limited Partnership of CVR Partners, LP, as may be amended from time to
time, and as in effect at the time of such issuance. Further, any Units delivered to the Grantee
in respect of the Phantom Units shall remain subject to the unit retention guidelines included in
the Corporate Governance Guidelines of the Partnership, as in effect on the date of the award.



          1.2 This Agreement shall be construed in accordance with and consistent with, and subject to,
the provisions of the Plan (the provisions of which are incorporated herein by reference). Except
as otherwise expressly set forth herein, the capitalized terms used in this Agreement shall have
the same definitions as set forth in the Plan.



     Section 2. Vesting Date.



          The Phantom Units shall vest, with respect to thirty-three and one-third percent (33 — 1/3%)
of the total number of Phantom Units granted hereunder, on each of the first three anniversaries of
the Grant Date (each such date, a “Vesting Date”), provided the Grantee continues to serve
as an employee of the Partnership or its Subsidiaries or Parents on the applicable Vesting Date.



 









 





     3. Termination of Employment.



     (a) In the event the Grantee ceases to serve as an employee of the Partnership or one of its
Subsidiaries or Parents prior to any Vesting Date by reason of his or her death, Disability or
Retirement, any Phantom Units that have not vested shall become immediately vested.



     (b) In the event the Grantee has served as an employee of the Partnership or its Subsidiaries
and Parents for more than three years and the Grantee ceases to serve as an employee of the
Partnership or its Subsidiaries and Parents prior to any Vesting Date by reason of a termination of
the Grantee’s employment (i) by the Partnership or one of its Subsidiaries or Parents for any
reason other than for Cause, (ii) by the Grantee’s resignation for any reason, or (iii) by reason
of the expiration of the term of the employment agreement pursuant to which the Grantee is employed
by the Partnership or its Subsidiaries or Parents, then a prorated portion of the any Phantom Units
that have not yet vested will become immediately vested. The prorated portion of Phantom Units that
will become immediately vested will be determined by taking (i) the number of completed months of
employment in excess of three years, (ii) divided by 24, and (iii) multiplied by the number of
Phantom Units that have not vested.



     (c) Notwithstanding the foregoing, (i) if the Grantee’s employment is terminated by the
Partnership or one of its Subsidiaries or Parents other than for Cause or Disability within the one
(1) year period following a Change in Control, (ii) the Grantee resigns from employment with the
Partnership or one of its Subsidiaries or Parents for Good Reason within the one (1) year period
following a Change in Control or (iii) the Grantee’s termination or resignation is a Change in
Control Related Termination (as defined in the employment agreement between the Grantee and the
General Partner, dated as of June 1, 2011), any Phantom Units that have not vested shall become
immediately vested.



     (d) Notwithstanding the foregoing, outstanding Phantom Units that do not become vested in
connection with the Grantee’s termination of employment in accordance with Sections 3(a), (b) or
(c) of this Agreement shall be forfeited.



     (e) To the extent any payments provided for under this Agreement are treated as “nonqualified
deferred compensation” subject to Section 409A of the Code, (i) this Agreement shall be
interpreted, construed and operated in accordance with Section 409A of the Code and the Treasury
regulations and other guidance issued thereunder, (ii) if on the date of the Grantee’s separation
from service (as defined in Treasury Regulation §1.409A-1(h)) with the Partnership or its
Subsidiaries or Parents the Grantee is a specified employee (as defined Section 409A of the Code
and Treasury Regulation §1.409A-1(i)), no payment constituting the “deferral of compensation”
within the meaning of Treasury Regulation §1.409A-1(b) and after application of the exemptions
provided in Treasury Regulation §§1.409A-1(b)(4) and 1.409A-1(b)(9)(iii) shall be made to the
Grantee at any time prior to the earlier of (A) the expiration of the six (6) month period
following the Grantee’s separation from service or (B) the Executive’s death, and any such amounts
deferred during such applicable period shall instead be paid in a lump sum to the Grantee (or, if
applicable, to the Grantee’s estate) on the first payroll payment date following expiration of such
six (6) month period or, if applicable, the Grantee’s death, and (iii) for purposes of conforming
this Agreement to Section 409A of the Code, any reference to termination of employment, severance
from employment, resignation from employment or



 









 




similar terms shall mean and be interpreted as a “separation from service” as defined in Treasury
Regulation §1.409A-1(h).




     4. Payment Date.



          Within thirty (30) days following (i) each Vesting Date, or (ii) if, prior to any Vesting
Date, the Grantee ceases to serve as an employee of the Partnership or its Subsidiaries or Parents
under circumstances described in Section 3(a), (b) or (c), the date of such cessation of
employment, the Partnership will deliver to the Grantee the Units underlying the Phantom Units that
become vested pursuant to Section 2 or 3 of this Agreement.



     5. Non-transferability.



          The Phantom Units may not be sold, transferred or otherwise disposed of and may not be pledged
or otherwise hypothecated.



     6. No Right to Continued Employment.



          Nothing in this Agreement or the Plan shall be interpreted or construed to confer upon the
Grantee any right with respect to continuance of employment by the Partnership or any of its
Subsidiaries or Parents, nor shall this Agreement or the Plan interfere in any way with the right
of the Partnership and its Subsidiaries and Parents to terminate the Grantee’s employment therewith
at any time.



     7. Withholding of Taxes.



          The Grantee shall pay to the Company, or the Company and the Grantee shall agree on such other
arrangements necessary for the Grantee to pay, the applicable federal, state and local income taxes
required by law to be withheld (the “Withholding Taxes”), if any, upon the vesting of the
Phantom Units and delivery of the Units. The Company shall have the right to deduct from any
payment of cash to the Grantee any amount equal to the Withholding Taxes in satisfaction of the
Grantee’s obligation to pay Withholding Taxes. Notwithstanding the foregoing, at the Grantee’s
election, the Company shall withhold delivery of a number of Units with a Fair Market Value as of
the vesting date equal to the Withholding Taxes in satisfaction of the Grantee’s obligations
hereunder.



     8. Grantee Bound by the Plan.



          The Grantee hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all
the terms and provisions thereof.



     9. Modification of Agreement.



          This Agreement may be modified, amended, suspended or terminated, and any terms or conditions
may be waived, but only by a written instrument executed by the parties hereto. No waiver by
either party hereto of any breach by the other party hereto of any provision



 









 




of this Agreement to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions at the time or at any prior or subsequent time.




          10. Severability.



          Should any provision of this Agreement be held by a court of competent jurisdiction to be
unenforceable or invalid for any reason, the remaining provisions of this Agreement shall not be
affected by such holding and shall continue in full force in accordance with their terms.



          11. Governing Law.



          The validity, interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Delaware without giving effect to the conflicts of laws principles
thereof.



          12. Successors in Interest.



          This Agreement shall inure to the benefit of and be binding upon any successor to the
Partnership. This Agreement shall inure to the benefit of the Grantee’s beneficiaries, heirs,
executors, administrators, successors and legal representatives. All obligations imposed upon the
Grantee and all rights granted to the Partnership under this Agreement shall be final, binding and
conclusive upon the Grantee’s beneficiaries, heirs, executors, administrators, successors and legal
representatives.



          13. Resolution of Disputes.



          Any dispute or disagreement which may arise under, or as a result of, or in any way relate to,
the interpretation, construction or application of this Agreement shall be determined by the
Committee. Any determination made hereunder shall be final, binding and conclusive on the Grantee
and the Partnership for all purposes.



[signature pages follow]









 









 








     IN WITNESS WHEREOF, this Agreement has been executed as of the date first written above.



	 	 	 

	CVR PARTNERS, LP 

By: CVR GP, LLC, its general partner

	 	GRANTEE
	 
	 	 
	 
	 	 
	 

	 	 
	By:

Title:

	 	Name: Byron R. Kelley