exv10w4






Exhibit 10.4




Execution Version




SECOND AMENDED AND RESTATED 

EMPLOYMENT AGREEMENT




     SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of January 1, 2010 (the
“Employment Agreement”), by and between CVR ENERGY, INC., a Delaware corporation (the
“Company”), and EDMUND S. GROSS (the “Executive”).



     WHEREAS, the Company and the Executive entered into an amended and restated employment
agreement dated December 29, 2007 (the “First Amended and Restated Agreement”).



     WHEREAS, the Company and the Executive desire to further amend and restate the First Amended
and Restated Agreement in its entirety as provided for herein;



     NOW, THEREFORE, in consideration of the mutual covenants contained herein and other valid
consideration the sufficiency of which is acknowledged, 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, for a period
commencing on January 1, 2010 (the “Commencement Date”) and ending on the earlier of (i)
the third (3rd) anniversary of the Commencement Date and (ii) the termination or resignation of the
Executive’s employment in accordance with Section 3 hereof (the “Term”).



               1.2. Duties. During the Term, the Executive shall serve as Senior Vice President,
General Counsel and Secretary of the Company 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 of directors of the Company (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 Company and its
Affiliates, shall faithfully serve the Company and its 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 Company and its 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 investing Executive’s
personal, private assets as a passive 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 passive
investments are made.




     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
$347,000 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 the Compensation Committee of the Board 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 2010, the target Annual Bonus shall be 90% of the Executive’s Base
Salary as in effect at the beginning of the Term in fiscal year 2010 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 Company performance criteria established for each such fiscal year by the
Compensation Committee of the Board. 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.



               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 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 as approved by the Board and
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 Internal Revenue
Code of 1986, as amended (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



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benefit; and (iv) the reimbursements shall be made pursuant to objectively determinable and
nondiscretionary Company policies and procedures regarding such reimbursement of expenses.




     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 for a period of twelve (12) months (or, if earlier, until
and including the month in which the Executive attains age 70) and (y) 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 twelve (12) months
or, if earlier, until such time as the Executive becomes eligible for Welfare Benefits from a
subsequent employer (the “Welfare Benefit Continuation Period”); provided,
that, if (A) such termination or resignation occurs pursuant to clause (i) or (ii) directly
above 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 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 for the twelve (12) month period
commencing on the one (1) year anniversary of the date of termination or resignation, (ii) a
payment each month during the twenty-four (24) month period following the date of termination or
resignation equal to one-twelfth (1/12th) of the target Annual Bonus for the year in
which the Executive’s termination or resignation occurs and (iii) the continuation of the Welfare
Benefits for the twelve (12) month period commencing on the one (1) year 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”) (such payments, 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, the
Company shall use reasonable efforts to obtain individual insurance policies providing the Welfare
Benefits to the



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Executive during the Welfare Benefit Continuation Period and, if applicable, the Additional
Welfare Benefit Continuation Period, 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 forty-five (45) days after the date of such 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 Section 3.2(d), the Severance Payments will commence to be paid to the Executive within
ten (10) days following the effectiveness of the Release.




                    (b) Retirement. Upon Retirement, the Executive, whether or not Section 3.2(a) also
applies but without duplication of benefits, to the extent permitted pursuant to the applicable
plans, shall be entitled to 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.
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, 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.



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



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                         (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 that increases the Executive’s commute by more than fifty (50) miles; 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 Company and its Affiliates or their reputation or the ability of the Executive
to perform Executive’s employment-related duties or to represent the Company and its 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 applicable, Section 3.2(b), 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 Company or any Affiliate 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 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



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Reason occurred after the Company 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) “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 date the Executive attains age 62.



                    (d) 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 Executive at any time during the six (6)
month period following the Executive’s separation from service, and any such amounts deferred such
six (6) months shall instead be paid in a lump sum on the first payroll payment date following
expiration of such six (6) month period. For purposes of conforming this Employment Agreement to
Section 409A of the Code, the parties agree that 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).



               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, however, such period of cooperation shall



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be for three (3) years, following any such termination or resignation of Executive’s
employment for any reason, with respect to tax matters involving the Company or any of its
Affiliates. The Company shall reimburse the Executive for expenses reasonably incurred in
connection with such matters as agreed by the Executive and the Board and 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.




     Section 4. Unauthorized Disclosure; 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 Company
and its 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 Company and its Affiliates and other forms of information considered by the
Company and its Affiliates to be confidential and in the nature of trade secrets (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 Company; 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-Solicitation of Employees. During the Term and for a period of twelve (12)
months thereafter (the “Restriction Period”), the Executive shall not directly or
indirectly contact, induce or solicit (or assist any Person to contact, induce or solicit) for



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employment any person who is, or within twelve (12) months prior to the date of such
solicitation was, an employee of the Company or any of its Affiliates.




               4.3. 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 Company or of any of its Affiliates
in order to terminate, curtail or otherwise interfere with such business relationship or (ii)
solicit, other than on behalf of the Company and its Affiliates, any Person that the Executive
knows or should have known (x) is a current customer of the Company or any of its Affiliates in any
geographic area in which the Company or any of its Affiliates operates or markets or (y) is a
Person in any geographic area in which the Company or any of its Affiliates operates or markets
with respect to which the Company or any of its 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 Company or any of its 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 Company or any of its Affiliates operates or markets, any Person
that is a customer or potential customer of the Company or any of its Affiliates in the geographic
areas in which it operates or markets.



               4.4. 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 or
4.3 hereof.



               4.5. 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 business or activities of the
Company and its 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 Company and/or its applicable 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
Company and/or its applicable 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
Company and its 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



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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 4.5, the Executive hereby irrevocably designates and appoints
the Company, its Affiliates, and their 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.




               4.6. 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 4.6 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.



               4.7. Remedies. The Executive agrees that any breach of the terms of this Section 4
would result in irreparable injury and damage to the Company and its Affiliates for which the
Company and its 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 Company and its Affiliates
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 Company and its 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 Company or its 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 Company and its 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.



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     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 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 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. 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 and, absent



10









 




manifest error, such Determination shall be binding, final and conclusive upon the Company and
the Executive.




     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 (i)
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 (b) 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
Incorporation or Bylaws, as in effect from time to time, and subject to any separate agreement (if
any) between the Company 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 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. 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



11









 




or certified mail, return receipt requested, postage prepaid and addressed to the intended
recipient as set forth below:




	 	 	 

	If to the Company:

	 	CVR Energy, Inc.
	 

	 	2277 Plaza Drive, Suite 500
	 

	 	Sugar Land, TX 77479
	 

	 	Attention:    Chief Executive Officer
	 

	 	Facsimile:    (281) 207-3505
	 
	 	 
	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
	 
	 	 
	If to the Executive:

	 	Edmund S. Gross
	 

	 	10 E. Cambridge Circle, Suite 250
	 

	 	Kansas City, KS 66103
	 

	 	Facsimile:    (913) 982-5651






          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.




               8.6. 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 Kansas, 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 Kansas (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.



               8.7. 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.



12









 





               8.8. 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 including, without limitation, the First Amended and Restated Agreement.



               8.9. 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.



               8.10. 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.



               8.11. 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.



               8.12. 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.



               8.13. 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 the Chief Executive Officer of the Company
and such other or additional officers, or committees of the Board, as the Board may expressly
designate from time to time for such purpose.



[signature page follows]




13









 





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



	 	 	 	 	 	 	 	 	 

	 	 	 	 	CVR ENERGY, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Edmund S. Gross
 

EDMUND S. GROSS

	 	 	 	By:
	 	/s/ John J. Lipinski
 

Name: John J. Lipinski
	 	 
	 

	 	 	 	 	 	Title: Chief Executive Officer and President	 	 






[Signature Page to Second Amended and Restated Employment Agreement]




 









 





APPENDIX A



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




     (a) An acquisition (other than directly from the Company) of any voting securities of the
Company (the “Voting Securities”) by any “Person” (as the term “person” is used for
purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (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 the Company’s then-outstanding
Voting Securities; provided, however, that in determining whether a Change in Control has occurred
pursuant to this paragraph (a), 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) the Company 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 the Company (for purposes of this definition, a “Related Entity”), (ii) the
Company, any Principal Stockholder or any Related Entity, or (iii) any Person in connection with a
Non-Control Transaction (as hereinafter defined);



     (b) The consummation of:



          (i) A merger, consolidation or reorganization (x) with or into the Company or (y) in which
securities of the Company 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 the Company 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 by 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) the Company 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 the Company 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 the Company; or




          (iii) The sale or other disposition of all or substantially all of the assets of the Company
and its Subsidiaries taken as a whole to any Person (other than (x) a transfer to a Related Entity
or (y) the distribution to the Company’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 the Company 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 the Company and, after such share
acquisition by the Company, 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 the Company and any other securities into which such shares are changed or for which
such shares are exchanged and (ii) “Principal Stockholder” means each of Kelso Investment
Associates VII, L.P., a Delaware limited partnership, KEP VI, LLC, a Delaware limited liability
company, GS Capital Partners V Fund, L.P., a Delaware limited partnership, GS Capital Partners V
Offshore Fund, L.P., a Cayman Islands exempted limited partnership, GS Capital Partners V
Institutional, L.P., a Delaware limited partnership and GS Capital Partners V GmbH & Co. KG, a
German limited partnership.