EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered on March 3, 2022 to be effective as of the 1st day of April, 2022, by and between Xxxxxx Lease Finance Corporation, a Delaware corporation (“Employer”), and Xxxxxx Xxxxxx (“Employee”).
RECITALS
WHEREAS, pursuant to an employment agreement made and entered into with Employee as of the 9th day of February 2016, Employer has employed Employee as Senior Vice President, Corporate Development;
WHEREAS, Xxxxxxx X. Xxxxxx XX, Chief Executive Officer and Chairman, has advised Employer’s Compensation Committee of the Board that in preparing for the future, it is time for him to step into a more strategic role;
WHEREAS, effective as of the 1st day of April 2022, Xxxxxxx X. Xxxxxx XX will become Employer’s Executive Chairman;
WHEREAS, Employer desires to employ Employee in the position of Chief Executive Officer effective as of the 1st day of April 2022, and with the position, compensation, amenities and other benefits set forth herein;
WHEREAS, Employee desires to be employed by Employer in the position of CEO, upon the terms and conditions set forth herein; and
WHEREAS, Employee acknowledges that he has had an opportunity to consider this Agreement and consult with independent advisors of his choosing with regard to the terms of this Agreement, and enters this Agreement voluntarily and with a full understanding of its terms.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises of the parties and the mutual benefits they will gain by the performance thereof, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1.Definitions. The following terms in the Agreement shall have the meanings as set forth below:
(a)“Affiliate” means a person that, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with the first mentioned person.
(b)“Board” means the Board of Directors of the Employer.
(c)“Cause” means any of the following: following thirty (30) days advance written notice to the Employee setting forth in reasonable detail the nature of the Cause of:
i.Employee’s conviction of or plea of nolo contendere to any felony or gross misdemeanor charges brought in any court of competent jurisdiction;
ii.any fraud, misrepresentation or gross misconduct by Employee against Employer;
iii.Employee’s willful refusal or willful failure to perform his duties as Chief Executive Officer; or
iv.Employee’s material, willful breach of this Agreement.
No such act or event described in clauses (iii) and (iv) of this paragraph 1(c) shall constitute Cause hereunder if the Employee has fully cured such act or event during the applicable thirty (30) day notice period.
(d)“Change in Control” means the occurrence of any of the following events:
i.any “person” (as such term is used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than Xxxxxxx X. Xxxxxx XX or an Affiliate (as defined in Section 13) of Xxxxxxx X. Xxxxxx XX, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of Employer representing at least fifty percent (50%) of the total voting power represented by Employer’s then outstanding voting securities; or
ii.the stockholders of Employer approve a merger or consolidation of Employer with any other corporation, other than a merger or consolidation which would result in the voting securities of Employer outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least fifty (50%) of the total voting power represented by the voting securities of Employer or such surviving entity outstanding immediately after such a merger or consolidation, or the stockholders of Employer approve a plan of complete liquidation or dissolution of Employer or an agreement for the sale or disposition by Employer of all or substantially all of Employer’s assets, provided, however, that if such merger, consolidation, liquidation, dissolution, sale or disposition does not subsequently close, a Change in Control shall not be deemed to have occurred; or
iii.individuals who are directors of Employer as of the effective date hereof cease for any reason to constitute a majority of the Board unless such change(s) is approved by a majority of the directors of Employer as of the date thereof.
(e)“Code” means the Internal Revenue Code of 1986, as amended.
(f)“Confidential and Proprietary Information” means information not generally known to the public and which is proprietary to Employer and relates to Employer’s existing or reasonably foreseeable business or operations, including but not limited to trade secrets, business plans, advertising or public relations strategies, financial information, budgets, personnel information, customer information and lists, and information pertaining to research, development, manufacturing, engineering, processing, product designs (whether or not patented or patentable), purchasing and licensing, and which may be embodied in reports or other writings or in blue prints or in other tangible forms such as equipment and models.
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(g)“Good Reason” means any of the following: following thirty (30) days advance written notice to the Employer setting forth in reasonable detail the nature of the Good Reason, provided such notice is delivered within sixty (60) days of knowledge of the occurrence of the applicable event that would trigger Good Reason:
i.a material reduction in compensation (other than under a program approved by the Compensation Committee that affects all executive officers of Employer);
ii.a material reduction in benefits;
iii.a material reduction in Employee’s position, title or duties;
iv.a change in the Employee’s reporting obligations so that Employee must report to someone other than the Board;
v.any action or inaction that constitutes a material breach by Employer of its obligations under this Agreement; or
vi.as permitted during the first two years of this Agreement, action by the Executive Chairman of the Board terminating the Employee’s employment or demoting the Employee in the Executive Chairman’s sole discretion without the consent of the Board.
No such act or event described in clauses (i) through (vi) of this paragraph 1(g) shall constitute Good Reason hereunder if the Employer has fully cured such act or event during the applicable thirty (30) day notice period.
No such act or event described in clauses (i) through (v) of this paragraph 1(g) shall constitute Good Reason hereunder if Employee provides written consent to any such occurrence.
(h)“Start Date” means April 1, 2022.
(i)“Termination Date” means the date on which Employee’s employment by Employer ceases under this Agreement, as provided under Sections 8 or 9 below, as applicable.
2.Employment. Employer hereby employs Employee and Employee hereby accepts employment, upon the terms and conditions hereinafter set forth, as Chief Executive Officer. Employee shall work from Employer’s Corporate Headquarters located in Coconut Creek, FL, or another office location of Employer, or another location to be mutually agreed by Employee and Employer and which agreement to work at another location shall not be unreasonably withheld.
3.Term. Executive’s employment hereunder shall continue under this Agreement for an indefinite period of time beginning on the Start Date and continuing until termination in accordance with Section 8 or 9 of this Agreement, as applicable.
4.Duties.
(a)Employee shall in good faith perform those duties and functions as are required by his position (and as are outlined on Exhibit “A” hereto). Notwithstanding the foregoing or any
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other provision in this Agreement, Employer shall have the right to modify from time to time the title and duties assigned to Employee so long as such title and duties are consistent with the usual and customary expectations of the type of position and function of Employee as Chief Executive Officer.
(b)Employee agrees to serve Employer faithfully and to the best of his ability; to devote his full time and attention, with undivided loyalty, during normal business hours to the business and affairs of Employer, except during reasonable vacation periods and periods of illness and incapacity, and to perform such duties as the Board may assign him that are consistent with his title. Employee shall not engage in any other business or job activity during the Employment Term without Employer’s prior written consent. Notwithstanding the foregoing, Employee may engage in civic and not-for- profit activities so long as such activities do not materially interfere with Employee’s performance of his duties hereunder.
5.Compensation. Employer agrees to provide as compensation to Employee the following salary, incentive, and benefits in exchange for the services described in Section 4 of this Agreement:
(a)Base Salary. Employer agrees to pay to Employee during the Employment Term an annual base salary in the amount of Six Hundred Forty Thousand US Dollars ($640,000) less payroll deductions and all required withholdings, or such higher amount as the Compensation Committee of the Board shall from time to time determine. Employee’s base salary shall be paid not less frequently than semi-monthly in accordance with Employer’s usual payroll practices. In August of 2022 and 2023, the Compensation Committee of the Board will review Employee’s base salary. Provided that Employee has performed the essential functions of his employment, the Compensation Committee would target an annual base salary in the amount of Seven Hundred Seven Thousand US Dollars ($707,000) effective September 1, 2022 and target an annual base salary in the amount of Seven Hundred Seventy-Five Thousand US Dollars ($775,000) effective September 1, 2023. Thereafter the Compensation Committee of the Board will review Employee’s base salary no less than once annually, and shall have sole discretion to increase or decrease (in connection with a salary reduction program approved by the Compensation Committee of the Board, which affects all executive officers of Employer) Employee’s base salary.
(b)Incentive Compensation. In addition to Employee’s base salary, Employee shall participate in and, to the extent earned or otherwise payable thereunder, receive periodic incentive cash bonuses pursuant to any incentive plans currently maintained or hereafter established by Employer and applicable to an employee of Employee’s position. Employee’s entitlement to incentive compensation is discretionary and shall be determined by the Compensation Committee of the Board in good faith based upon the extent to which Employee’s individual performance objectives and Employer’s performance objectives were achieved during the applicable bonus period. For 2022, Employee is eligible to receive a target bonus of 90% of Employee’s base salary. Effective January 1, 2023, the target bonus shall increase automatically to 100% of Employee’s base salary.
6.Benefits and Perquisites.
(a)Benefits. Employer shall provide Employee such employment benefits, equipment and support as are generally available to executive officers of Employer, including without limitation reimbursement of reasonable expenses incurred in performing his duties under this Agreement (including, but not limited to, expenses for entertainment, long distance telephone calls, lodging, meals, transportation and travel), coverage under medical, dental, long-term disability and group life insurance plans, and rights and benefits for which Employee is eligible under Employer’s 401(k) and employee stock purchase plans. Employer will also endeavor to
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provide Employee with a long-term disability plan. Procurement of such disability coverage, however, will be subject to evidence of insurability and underwriting approval.
(b)Vacation and Sick Pay. Employee shall be eligible for vacation and sick leave in accordance with the policies of Employer in effect from time to time during the Employment Term. Employee shall be entitled to a period of annual vacation time equal to four (4) weeks during each Employment Year, to accrue pro rata during the course of the Employment Term. All accrued vacation shall be paid to Employee in a lump sum payment on the date of a Change in Control or termination of employment with Employer.
(c)Perquisites. During the Employment Term, Employer shall also provide the following perquisites to Employee:
i.Use of an Employer provided car comparable to that presently used by the Employee;
ii.Payment for Employee’s monthly fees and expenses at one social club, capped at $30,000 per year;
iii.Financial, tax and estate planning services with a value of a maximum of $45,000 per year, to be reimbursed or paid after receipt of a reasonable invoice, reviewed and approved by the Compensation Committee of the Board;
iv.Personal use of the Employer plane (including family and friends) with a limit of $30,000 benefit in any calendar year based upon Standard Industry Fare Level (SIFL) rates, and any unused amounts shall carry into the following year; and
v.Reimbursement of reasonable expenses incurred in performing his duties under this Agreement (including, but not limited to, expenses for entertainment, long-distance telephone calls, lodging, meals and travel including first class air fare).
7.Grants of Restricted Stock.
(a)Employee will be eligible to participate in any Employer’s incentive stock plan (For Restricted Stock Bonus Awards) (the “Plan”) on the same terms as are generally available to executive officers of Employer and on terms which are in accordance with comparative market practices. The parties agree that any additional grant of restricted stock under the Plan or any similar plan is subject to the discretion of the Board, or the Compensation Committee of the Board, based upon the duties of Employee’s position, the extent to which Employee’s individual performance objectives and Employer’s profitability objectives and other financial and non-financial objectives were achieved during the applicable period, and comparative market practices.
(b)In addition to any rights Employee may have under the Plan or specific restricted stock under the Plan, all restricted stock bonus awards granted to Employee which would have otherwise vested during the period following the occurrence of a Change in Control shall immediately vest and become exercisable in the event of a Change in Control.
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8.Termination by Employer. The employment of Employee may be terminated by Employer or Employer for any reason or no reason, with or without cause or justification, subject to the following:
(a)Termination For Cause. If (i) Employee’s employment is terminated by Employer for Cause, then (A) Employer’s total liability to Employee or his heirs shall be limited to payment of any unpaid base salary, any annual incentive compensation and any vested but undistributed stock to which Employee is entitled as of the Termination Date, and accrued vacation and sick pay, and Employee shall not be entitled to any further compensation or benefits provided under this Agreement, including, without limitation, any severance payments and (B) Employee will forfeit that portion of any grant of restricted stock that has not vested as of the Termination Date.
(b)Termination Without Cause. If (i) Employee’s employment is terminated by Employer without Cause, Employer will (A) in the case of termination, provide not less than six (6) months’ notice of termination or an amount equal to twelve (12) months of Employee’s base salary in lieu of notice. In addition, in each of the foregoing scenarios, Employee will be paid the severance which is described in Section 10 below.
9.Termination by Employee. The employment of Employee may be terminated by Employee for any reason or no reason, with or without cause or justification, subject to the following:
(a)Voluntary Resignation. If (i) Employee’s employment terminates by reason of Employee’s voluntary resignation (and is not a resignation for Good Reason), then (A) Employer’s total liability to Employee shall be limited to payment of any unpaid base salary, any annual incentive compensation and vested but undistributed grants of stock to which Employee is entitled as of the Termination Date, and accrued vacation and sick pay, and Employee shall not be entitled to any further compensation or benefits provided under this Agreement, including, without limitation, any severance payments and (B) Employee will forfeit that portion of any grant of restricted stock that has not vested as of the Termination Date.
(b)Resignation for Good Reason. If (i) Employee’s employment terminates by reason of Employee’s voluntary resignation for Good Reason, Employee will be paid the severance which is described in Section 10 below.
10.Severance Payment. In the event that Employee’s termination of employment falls under either Section 8(b) or 9(b), then Employee shall be entitled to the following severance in exchange for signing a release of claims that has been equitably negotiated by and between the parties.
(a)Amount. In the event severance is payable hereunder, such severance shall be in an amount equal to
i.two (2) times Employee’s annual base salary at the time of termination, it being acknowledged and agreed that if Employee is terminating employment due to a material reduction in base salary, then the part of the severance payable to Employee pursuant to this subsection 10(a)(i) shall be based upon Employee’s base salary before such material reduction, plus
ii.any unpaid base salary and any annual incentive compensation to which Employee is entitled as of the Termination Date, and accrued vacation and sick pay, plus
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iii.an amount equal to two (2) years of the average annual Incentive Bonus paid to Employee attributable to the two (2) years prior to the year of termination (or the greater of (A) one (1) year or (B) the target bonus for such year, “doubled” in the case of a termination triggering severance that occurs prior to two (2) annual incentive bonuses being paid to Employee), it being acknowledged and agreed that if Employee is terminating employment due to a material reduction in incentive compensation, then the part of the severance payable to Employee pursuant to this subsection 10(a)(iii) shall be based upon Employee’s incentive compensation before any such material reduction, plus
iv.distribution of unpaid deferred compensation in accordance with the terms of the applicable deferred compensation plan and any elections made thereunder, plus
v.accelerated vesting of the restricted stock scheduled to vest during the two (2) years following the Termination Date, plus
vi.continued coverage under all group benefit plans (e.g., medical, dental and vision) for a period of twenty-four months following the Termination Date, in each case at the same cost to Employee as prior to the Termination Date, it being acknowledged and agreed that if Employer is unable to provide such continuation coverage under any such group benefit plan, Employer shall pay for or reimburse Employee for the cost of such coverage.
(b)Payment. Subject to Section 24 hereof, all cash components of the above-described severance payments shall be paid in a lump sum within thirty (30) days of the Termination Date; provided that, only to the extent required by Section 409A of the Code, such payments shall be made in a lump sum six months after the Termination Date.
(c)Limitation on Payments. If any payment or benefit Employee would receive from Employer or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the “Code”, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Employee’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall be made in a manner consistent with the requirements of Code Section 409A and occur in the following order: cancellation of accelerated vesting of stock awards; reduction of employee benefits; and reduction of cash payments. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Employee’s stock awards unless Employee elects in writing a different order for cancellation.
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The accounting firm engaged by Employer for general audit purposes as of the day prior to the effective date of the event that triggers the Payment shall perform the foregoing calculations. If the accounting firm so engaged by Employer is serving as accountant or auditor for the individual, entity or group effecting the “change in ownership” as described in Section 280G(b)(2)(A)(i) of the Code, Employer shall appoint a nationally recognized accounting firm to make the determinations required hereunder. Employer shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder.
The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Employer and Employee within fifteen (15) calendar days after the date on which Employee’s right to a Payment is triggered (if requested at that time by Employer or Employee) or such other time as requested by Employer or Employee. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish Employer and Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon Employer and Employee.
11.Benefits Upon Termination. Except as otherwise expressly provided by this Agreement pursuant to Section 10(a)(vi) and without limiting any rights granted to Employee hereunder, all insurance benefits provided under Section 6 of this Agreement shall be extended, at Employee’s election and cost, to the extent permitted by Employer’s insurance policies and benefit plans, for one year after Employee’s Termination Date, except (a) as required by law (e.g., COBRA health insurance continuation election) or (b) in the event of a termination described in Section 8 or 9.
12.Death/Disability.
(a)In the event (during the Employment Term) of Employee’s death, (i) this Agreement shall terminate, (ii) Employer shall pay to Employee’s estate or heirs any unpaid base salary and any annual incentive compensation to which Employee may be entitled as of the Termination Date, accrued but unpaid vacation pay, and (iii) Employee’s estate and heirs shall not be entitled to any severance payments hereunder. In addition, all stock options and restricted stock granted to Employee shall immediately vest and become exercisable, if applicable, upon Employee’s death. Employee’s estate shall have the right to receive or exercise such grants or options for the shorter of (i) two (2) years from the date of death, and (ii) the term of the grant or option.
(b)In the event (during the Employment Term) of Employee’s long term disability (as defined in Employee’s Group Disability Plan) and the passing of the Elimination Period (as defined in Employee’s Group Disability Plan), (i) this Agreement shall terminate, (ii) Employer shall pay to Employee any unpaid base salary and any annual incentive compensation to which Employee is entitled as of the Termination Date, and (iii) Employee shall not be entitled to any severance payments hereunder. In addition, the restricted stock or stock options scheduled to vest during the two (2) years after the date of Employee’s disability shall receive accelerated vesting and shall become exercisable upon the termination of this Agreement due to Employee’s disability. Employee shall have the right to receive or exercise such grants or options for the shorter of (i) two (2) years from the date of disability, and (ii) the term of the grant or option.
13.Maintenance of Confidentiality and Duty of Loyalty.
(a)General. Employee acknowledges that, pursuant to his employment with Employer, he will necessarily have access to trade secrets and information that is confidential and proprietary to Employer in connection with the performance of his duties. In consideration for the disclosure to Employee of, and the grant to Employee of access to such valuable and
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confidential information and in consideration of his employment, Employee shall comply in all respects with the provisions of this Section 13.
(b)Nondisclosure. During the Term and for a period of ten (10) years thereafter, Confidential and Proprietary Information of Employer of which Employee gains knowledge during the Employment Term shall be used by Employee only for the benefit of Employer in connection with Employee’s performance of his employment duties, and Employee shall not, and shall not allow any other person that gains access to such information in any manner to, without the prior written consent of Employer, disclose, communicate, divulge or otherwise make available, or use, any such information, other than for the immediate benefit of Employer. For purposes of this Agreement, the term Employee will refrain from any acts or omissions that would jeopardize the confidentiality or reduce the value of any Employer Confidential and Proprietary Information.
(c)Covenant of Loyalty. During the Term, Employee shall not, on his own account or as an employee, agent, promoter, consultant, partner, officer, director, or as a more than 1% shareholder of any other person, firm, entity, partnership or corporation, own, operate, lease, franchise, conduct, engage in, be connected with, have any interest in, or assist any person or entity engaged in any business in the continental United States that is in any way competitive with or similar to the business that is conducted by Employer or is in the same general field or industry as Employer. Without limiting the generality of the foregoing, Employee does hereby covenant that he will not, during the Employment Term:
i.solicit, accept or receive any compensation from any customer of Employer or any business competitive to that of Employer; or
ii.contact, solicit or call upon any customer or supplier of Employer on behalf of any person or entity other than Employer for the purpose of selling, providing or performing any services of the type normally provided or performed by Employer; or
iii.induce or attempt to induce any person or entity to curtail or cancel any business or contracts which such person or entity has with Employer; or
iv.induce or attempt to induce any person or entity to terminate, cancel or breach any contract which such person or entity has with Employer, or receive or accept any benefits from such termination, cancellation or breach.
(d)No Solicitation. During the Term and for a period of three (3) years thereafter, Employee agrees not to interfere with the business of Employer or any Affiliate of Employer by directly or indirectly soliciting, attempting to solicit, inducing or otherwise causing any employee of Employer or any Affiliate of Employer to terminate his or her employment with Employer in order to become an employee, consultant or independent contractor to or for any other person or entity.
(e)Injunctive Relief. Employee expressly agrees that the covenants set forth in this Section 13 are reasonable and necessary to protect Employer and its legitimate business interests, and to prevent the unauthorized dissemination of Confidential and Proprietary Information to competitors of Employer. Employee also agrees that Employer will be irreparably harmed and that damages alone cannot adequately compensate Employer if there is a violation of this Section 13 by Employee, and that injunctive relief against Employee is essential for the protection of Employer. Therefore, in the event of any such breach, it is agreed that, in addition to any other
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remedies available, Employer shall be entitled as a matter of right to injunctive relief in any court of competent jurisdiction, plus reasonable attorneys’ fees actually incurred in seeking such relief to the extent that Employer is successful on its claims against Employee. Furthermore, Employee agrees that Employer shall not be required to post a bond or other collateral security with the court if Employer seeks injunctive relief. To the extent any provision of this Section 13 is deemed unenforceable by virtue of its scope or limitation, Employee and Employer agree that the scope and limitation provisions shall nevertheless be enforceable to the fullest extent permissible under the laws and public policies applied in such jurisdiction where enforcement is sought.
14.Notices. Any notice which either party may wish or be required to give to the other party pursuant to this Agreement shall be in writing and shall be either personally served or deposited in the United States mail, registered or certified, and with proper postage prepaid. Mailed notices to Employee shall be addressed to Employee at the home address which Employee most recently communicated to Employer in writing. In the case of Employer, mailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of the General Counsel. Notice given by personal service shall be deemed effective upon service. Notice given by registered or certified mail shall be deemed effective three (3) days after deposit in the mail.
15.Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective legal representatives, and their successors and assigns. As used in this Agreement, the term “successor” shall include any person, firm, corporation or other business entity which at any time, whether by merger, purchase, consolidation, or otherwise, acquired all or substantially all of the assets or business of Employer. This Agreement shall be deemed to be willfully breached by Employer if any such successor does not absolutely and unconditionally assume all of Employer’s obligations under this Agreement and agree expressly to perform the obligations in the same manner and to the same extent as Employer would be required to perform such obligations in the absence of the succession; it being understood that no such breach shall occur where such assumption or agreement occurs by operation of law. Employee may not assign any of his duties hereunder and he may not assign any of his rights hereunder without the written consent of Employer, which shall not be unreasonably withheld.
16.Entire Agreement. This Agreement contains the entire agreement of the parties and, as of the Start Date, supersedes and replaces all prior agreements and understandings between the parties relating to the subject matter hereof.
17.Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws (without reference to choice or conflict of laws) of the State of Florida.
18.Arbitration. Employer and Employee agree that, to the extent permitted by law and to the extent that the enforceability of this Agreement is not thereby impaired, any and all disputes, controversies or claims between Employee and Employer, except disputes concerning the use or disclosure of trade secrets, proprietary and/or confidential information, or otherwise arising under Section 13 hereof, shall be determined exclusively by final and binding arbitration in Broward or Palm Beach County, Florida in accordance with the employment rules of the American Arbitration Association then in effect. The controversy or claim shall be submitted to three arbitrators, one of whom shall be chosen by Employer, one of whom shall be chosen by Employee, and the third of whom shall be chosen by the two arbitrators so selected. The party desiring arbitration shall give written notice to the other party of its desire to arbitrate the particular matter in question, naming the arbitrator selected by it. If the other party shall fail within a period of 15 days after such notice shall have been given to reply in writing naming the arbitrator selected by it, then the party not in default may apply to the American Arbitration Association for the appointment of the second arbitrator. If the two arbitrators chosen as above shall fail within 15 days after their selection to agree upon a third arbitrator, then either party
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may apply to the American Arbitration Association for the appointment of an arbitrator to fill the place so remaining vacant. Employer shall pay the fees of the arbitrators so selected. The decision of any two of the arbitrators shall be final and binding upon the parties hereto and shall be delivered in writing signed in triplicate by the concurring arbitrators to each of the parties hereto. The parties agree that both parties will be allowed to engage in adequate discovery consistent with the nature of the claims in dispute. The arbitrators shall have the authority to entertain a motion to dismiss and/or a motion for summary judgment by any party and shall apply the standards governing such motions under the Federal Rules of Civil Procedure. The arbitrators shall have discretion to award monetary and other damages, or no damages, and to fashion such other relief as the arbitrators deem appropriate. The arbitrators also shall have discretion to award the prevailing party reasonable costs and attorneys’ fees incurred in bringing or defending an action under this Section 18, as permitted by applicable law. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction.
Nothing in this Section 18 shall limit the Employer’s ability to seek injunctive relief for any violation of Employee’s obligations concerning nondisclosure, loyalty and non-solicitation as set forth in Section 13 hereof. Any such injunctive relief proceeding shall be without prejudice to any rights Employer or Employee may have under this Agreement to obtain relief in arbitration with respect to such matters.
19.Name Change. So long as (a) Employee is the Chief Executive Officer of Employer, and (b) Employee or his Affiliates own 10% or more of the outstanding common stock of Employer, Employer will not change its name without the prior written consent of Employee. This Section 19 shall be automatically rendered void in the event of a Change in Control.
20.Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never been contained herein.
21.Amendments and Waivers. This Agreement may be modified only by a written instrument duly executed by each party hereto. No breach of any covenant, agreement, warranty or representation shall be deemed waived unless expressly waived in writing by the party who might assert such breach. No waiver of any right hereunder shall operate as a waiver of any other right or of the same or a similar right on another occasion.
22.Counterparts. This Agreement may be executed by the parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
23.
Section Headings. The headings of each Section, subsection or other subdivision of this Agreement are for reference only and shall not limit or control the meaning thereof.
Section Headings. The headings of each Section, subsection or other subdivision of this Agreement are for reference only and shall not limit or control the meaning thereof.24.Section 409A Compliance. Notwithstanding anything in this Agreement to the contrary, if any payment or benefit to Employee under this Agreement on account of the Employee’s termination of employment constitutes a deferral of compensation subject to 409A of the Code (“Section 409A”), such payment or benefit shall commence when Employee has incurred a “Separation from Service” as defined under Treasury Regulation Section 1.409A-1(h)(1) without regard to the optional alternative definitions thereunder. If at the time of Employee’s Separation from Service, Employee is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i), Employer shall delay commencement of any such payment or benefit until six
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months after Employee’s after Employee’s Separation from Service (or, if earlier, Employee’s death) to the extent necessary to comply with Section 409A (the “409A Suspension Period”). On the first regular Employer pay date after the end of the 409A Suspension Period, Employer shall pay to the Employee, without interest, any payments and benefits that Employer would otherwise have been required to provide Employee during the 409A Suspension Period under this Agreement but for the imposition thereof. Thereafter, Employee shall receive any remaining payments and benefits due under this Agreement in accordance with the terms of this Agreement (as if there had not been any 409A Suspension Period.
To the extent that reimbursements or in-kind benefits under this Agreement constitute non-exempt “nonqualified deferred compensation” for purposes of Section 409A, (1) all reimbursements hereunder shall be made on or prior to the last day of the calendar year following the calendar year in which the expense was incurred by Employee, (2) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (3) the amount of expenses eligible for reimbursement or in-kind benefits provided in any calendar year shall not in any way affect the expenses eligible for reimbursement or in-kind benefits to be provided, in any other calendar year.
The payments and benefits under this Agreement are intended to be exempt from or comply with the requirements of Section 409A so that none of the payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities or ambiguous terms herein will be interpreted to be exempt or so comply. The Employer and Employee agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions that are necessary, appropriate or desirable to avoid imposition of any additional tax under Section 409A.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
“Employer”
XXXXXX LEASE FINANCE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx, SVP, General
Counsel & Secretary
“Employee”
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
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Exhibit A
Key Responsibilities: As CEO, you are responsible for all executive management matters affecting the Company. All members of the executive management team report, either directly or indirectly, to you. As CEO you report to the Executive Chairman (acting on behalf of the Board) and to the Board directly. Your principal responsibility is running the Company business. You are responsible for promoting and conducting the affairs of the Company with the highest standards of integrity, probity and corporate governance. You are responsible, with the executive team, for implementing the decisions of the Board and its committees.
Additional responsibilities include:
•Serve as a highly visible and trusted leader with employees, customers, financial institutions, vendors and stakeholders.
•Set, communicate and update a vision and mission for the business, to provide all with direction, meaning and culture.
•Ensure the Company maintains high social responsibility wherever it does business.
•Assess risks to the Company and ensure they are monitored and minimized.
•Maintain awareness of the competitive market landscape, expansion opportunities and industry developments.
•Provide input to the Board’s agenda from yourself and other members of the executive team.
•Ensure a dialogue with the Executive Chairman on the important and strategic issues facing the Company, and work with the Executive Chairman to propose Board agenda items to reflect these strategic issues.
•Ensure the executive team provides reports to you and the Board that contain accurate, timely and clear information.
•Ensure the Executive Chairman is alerted to forthcoming complex, contentious or sensitive issues affecting the Company of which he might not otherwise be aware.
•Evaluate the work of other executive leaders within the company.
•Ensure the development needs of the executive team and other senior management reporting to you are identified and met.
•Ensure performance reviews are carried out at least once a year for each of the executive directors and endeavor to ensure all department heads complete the annual performance reviews for all employees.
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