Second Amended and Restated Master Employment Agreement
Exhibit 10.1
Second Amended and Restated
Master Employment Agreement
Master Employment Agreement
This Second Amended and Restated Master Employment Agreement (this “Agreement”) is made and
entered into this 1st day of April, 2011 by and between Invesco Ltd. (hereinafter,
together with its subsidiaries as applicable, the “Company”) and Xxxxxx X. Xxxxxxxx (hereinafter,
“Executive”), to be effective as set forth in Section 1 below.
Background
Whereas, the Company, Invesco Holding Company Limited and Executive are parties to an
Amended and Restated Master Employment Agreement (the “First Amended Employment Agreement”), dated
December 31, 2008; and
Whereas, the Company and Executive now desire to enter into this Agreement that shall
supersede the First Amended Employment Agreement.
Now, Therefore, in consideration of the foregoing and of the mutual covenants and
agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Effective Date. The effective date of this amendment and restatement is January 1,
2011 (the “Effective Date”).
2. Employment. Executive acknowledges and agrees to continue to serve as the
President and Chief Executive Officer of the Company. In his capacity as President and Chief
Executive Officer of the Company, Executive shall have the responsibilities listed on the Terms of
Reference (attached hereto as Appendix A). Executive acknowledges that the Company may
amend the Terms of Reference from time to time as the Board of Directors of the Company (the
“Board”) deems necessary or desirable in order to comply with applicable law, regulation, order or
written guidance issued by a governing authority, securities exchange or similar organization. In
his capacity as President and Chief Executive Officer of the Company, Executive will report
directly to the Board.
3. Employment Period. Executive’s employment commenced on August 1, 2005 for a
four-year term and has been extended for additional one-year periods pursuant to the terms,
conditions and limitations set forth in the First Amended Employment Agreement. Executive’s
employment shall continue under the terms, conditions and limitations of this Agreement, unless
terminated earlier as provided herein. The date on which Executive’s employment terminates (as
specified in Section 6(f) below) shall be referred to herein as the “Date of Termination,” and the
period between August 1, 2005 and the Date of Termination shall be referred to as the “Employment
Period.”
4. Extent of Service. During the Employment Period, and excluding any periods of
vacation and sick leave to which Executive is entitled, Executive agrees to
devote his business time, attention, skill and efforts exclusively to the faithful performance
of his duties hereunder; provided, however, that it shall not be a violation of this Agreement for
Executive to (i) devote reasonable periods of time to charitable and community activities and, with
the approval of the Board, industry or professional activities, and/or (ii) manage personal
business interests and investments, so long as such activities do not interfere with the
performance of Executive’s responsibilities under this Agreement. It is expressly understood and
agreed that the continued conduct by Executive of such activities, as listed on Appendix B,
shall not be deemed to interfere with the performance of Executive’s responsibilities hereunder.
5. Compensation and Benefits.
(a) Base Salary. During the Employment Period, the Company will pay to Executive base
salary at the rate of US $790,000 per year or such greater amount as the Board shall determine from
time to time (“Base Salary”), less normal withholdings, payable in equal monthly or more frequent
installments as are customary under the Company’s payroll practices from time to time.
(b) Compensation. During the Employment Period, the following shall apply:
(i) Bonus Cash Compensation. During the Employment Period, Executive will have the
opportunity, based on the achievement of certain performance criteria, as mutually determined by
the Compensation Committee of the Board (the “Compensation Committee”) and Executive, to receive
annual bonus cash compensation awards in an amount determined by the Compensation Committee in its
discretion (the “Annual Cash Bonus”), appropriately pro-rated for any periods consisting of less
than a full year. Executive’s Annual Cash Bonus opportunity shall be competitive with market
practices. Any earned Annual Cash Bonus shall be paid to Executive pursuant to the terms of the
applicable incentive plan; provided, however, that any such Annual Cash Bonus for a fiscal year of
the Company shall be paid to Executive no later than the 15th day of the third month following the
close of such fiscal year, or the calendar year where applicable, or such later date during such
following year as may be specified in the applicable plan from time to time, unless Executive shall
elect to defer the receipt of such Annual Cash Bonus pursuant to a deferred compensation program
maintained by the Company that meets the requirements of Section 409A (“Section 409A”) of the
Internal Revenue Code of 1986, as amended (the “Code”).
(ii) Short- and Long-Term Equity Compensation. Executive has previously received certain
short- and long-term equity compensation awards, and nothing in this Agreement is intended to
affect such awards. In addition, during the Employment Period, Executive will have the
opportunity, based on the achievement of certain performance criteria, as mutually determined by
the Compensation Committee and Executive, to receive annual short- and long-term equity
compensation awards. Executive’s short- and long-term equity award opportunities shall be
competitive with market practices. Any such awards shall have terms and conditions that are at
least as favorable as those applicable generally to the most senior officers and employees of the
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Company based in the United States (the “US Senior Management”) and shall reflect the
provisions of this Agreement applicable to awards held by Executive.
(c) Benefits.
(i) Incentive, Savings and Retirement Plans. During the Employment Period, Executive
shall be eligible to participate in all incentive, savings and retirement plans that are
tax-qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”),
and in all plans that are supplemental to any such tax-qualified plans, in each case to the extent
that such plans are applicable generally to US Senior Management and subject to the terms and
conditions thereof.
(ii) Executive Deferred Compensation. During the Employment Period, Executive will be
eligible to participate in all aspects of the Company’s deferred compensation programs, including
the deferral of salary, bonuses and other incentives, as in effect at any time during the
Employment Period, as provided generally to other US Senior Management, and subject to the terms
and conditions thereof.
(iii) Welfare Benefit Plans. During the Employment Period, Executive and/or
Executive’s spouse and dependant(s), as the case may be, shall be eligible for participation under
all welfare benefit plans, practices, policies and programs provided by the Company (including,
without limitation, medical, prescription, dental, vision, disability, salary continuance, group
life and supplemental group life, accidental death and travel accident insurance plans and
programs) to the extent applicable generally to other US Senior Management, and subject to the
terms and conditions thereof.
(iv) Fringe Benefits and Perquisites. During the Employment Period, Executive shall
be eligible to receive fringe benefits and perquisites provided generally to other US Senior
Management.
(v) Vacation. During the Employment Period, Executive shall be entitled to paid
vacation in accordance with the plans, policies, programs and practices of the Company provided
generally to other US Senior Management.
(vi) Business Expenses. During the Employment Period, Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by Executive in accordance with
the policies, practices and procedures of the Company applicable generally to other US Senior
Management.
6. Termination of Employment.
(a) Death or Disability. Executive’s employment hereunder shall terminate
automatically upon Executive’s death during the Employment Period. If the Company determines in
good faith that the Disability of Executive has occurred during the Employment Period (pursuant to
the definition of Disability set forth below), it may give to Executive a Notice of Termination,
and Executive’s employment with the Company shall terminate on the Date of Termination set forth
therein, provided that,
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within the 30 days after such receipt, Executive shall not have returned to full-time
performance of Executive’s duties. For purposes of this Agreement, “Disability” shall mean the
inability of Executive, as determined by the Board in good faith, to perform the essential
functions of his regular duties and responsibilities, with reasonable accommodation, due to a
medically determinable physical or mental illness which has lasted (or can reasonably be expected
to last) for a period of one hundred eighty (180) days in any twelve-month period. At the request
of Executive or his personal representative, the Board’s determination that the Disability of
Executive has occurred shall be certified by two physicians mutually agreed upon by Executive or
his personal representative, and the Company. In the event that such independent certification (if
so requested by Executive) does not support the Board’s determination that Executive is Disabled
pursuant to the terms of this Agreement, Executive’s termination shall be deemed a termination by
the Company without Cause and not a termination by reason of his Disability.
(b) Termination by the Company. The Company may terminate Executive’s employment
hereunder during the Employment Period with or without Cause. For purposes of this Agreement,
“Cause” shall mean:
(i) the willful and continued failure of Executive to perform substantially Executive’s duties
with the Company (other than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to Executive by the
Compensation Committee which specifically identifies the manner in which the Compensation Committee
believes that Executive has not substantially performed Executive’s duties, or
(ii) the willful engaging by Executive in illegal conduct or gross misconduct which is
materially injurious to the Company, including, without limitation, any conviction of, or plea of
nolo contendere to, a crime that constitutes a felony, or
(iii) the willful and continued material violation of written Company policies or procedures
by Executive, after a written demand for substantial compliance with such policies or procedures is
delivered to Executive by the Compensation Committee which specifically identifies the manner in
which the Compensation Committee believes that Executive has not substantially complied with the
same, or
(iv) Executive’s bankruptcy or insolvency, or
(v) any act or omission by Executive which could lead to his being prohibited, pursuant to
Section 9 of the Investment Company Act of 1940, from serving in the capacity provided for in this
Agreement.
For purposes of this provision, no act or failure to act, on the part of Executive, shall be
considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without
reasonable belief that Executive’s action or omission
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was legal, proper and in the best interests of the Company. Any act, or failure to act, based
upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of
counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by
Executive in good faith and in the best interests of the Company. The cessation of employment of
Executive shall not be deemed to be for Cause unless and until there shall have been delivered to
Executive a copy of a resolution duly adopted by the affirmative vote of not less than a majority
of the entire membership of the Board at a meeting of such Board called and held for such purpose
(after reasonable notice is provided to Executive and Executive is given an opportunity, together
with counsel, to be heard before such Board), finding that, in the good faith opinion of such
Board, Executive is guilty of the conduct giving rise to Cause as defined above, and specifying the
particulars thereof in detail.
(c) Termination by Executive. Executive’s employment may be terminated by Executive
for Good Reason or no reason. For purposes of this Agreement, “Good Reason” shall mean any of the
following events occurring during the Employment Period:
(i) without the written consent of Executive, the assignment to Executive of any duties
inconsistent in any material respect with Executive’s position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as in effect on the Effective
Date, or any other action by the Company which results in a diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by the Company promptly after receipt of
written notice thereof given by Executive; provided, however, that the Company relieving Executive
of his position, authority, duties or responsibilities in connection with an election to place
Executive on paid administrative leave as contemplated by and in accordance with Section 6(g) below
shall not constitute Good Reason;
(ii) a reduction by the Company of Executive’s Base Salary as in effect on the Effective Date,
or as the same may be increased from time to time, or failure of Executive to be eligible for an
Annual Cash Bonus or short- or long-term equity compensation pursuant to the 2008 Global Equity
Incentive Plan or any successor plan; provided, however, that the failure of Executive to be
eligible for an Annual Cash Bonus pursuant to Section 5(b)(i) for any fiscal year in which a Notice
of Termination has been given by the Company or Executive shall not constitute Good Reason if
Executive is eligible for a Prorated Bonus pursuant to Section 7(a)(iii);
(iii) the Company requiring Executive, without his consent, to be based at any office or
location other than Atlanta;
(iv) any failure by the Company to comply with and satisfy Section 11(c) of this Agreement; or
(v) the failure of the Board to re-nominate Executive for election as a director of the Board
from time to time during the Employment Period;
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provided, however, that the failure of the Board to re-nominate Executive for election as a
director of the Board at any time after a Notice of Termination has been given by the Company or
Executive shall not constitute Good Reason.
Good Reason shall not include Executive’s death or Disability. Executive may terminate employment
for Good Reason only if Executive gives a Notice of Termination to the Company within 90 days after
the occurrence of the event giving rise to Good Reason. The Company shall have an opportunity to
cure any claimed event of Good Reason within 30 days after a Notice of Termination is given (the
“Cure Period”). The Company shall notify Executive of the timely cure of any claimed event of Good
Reason and the manner in which such cure was effected. In the event of such cure, any Notice of
Termination delivered by Executive based on such claimed Good Reason shall be deemed withdrawn and
shall not be effective to terminate this Agreement.
(d) Termination On or After December 31, 2025. Unless the Company and Executive agree
to continue Executive’s employment after December 31, 2025, Executive’s employment will terminate
on that date (the “Expiration of this Agreement”). Executive’s employment with the Company may
continue after the Expiration of this Agreement if Executive and the Company so agree, but the
terms of this Agreement will not apply to Executive’s employment after that time.
(e) Notice of Termination. Any termination of Executive’s employment by the Company
or Executive (other than by death or the Expiration of this Agreement) shall be communicated by a
Notice of Termination to the other party hereto given in accordance with Section 13(e) of this
Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which
(i) indicates the specific termination provision in this Agreement relied upon, (ii) in the case of
a termination by the Company for Cause or by Executive for Good Reason, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of Executive’s
employment and (iii) specifies the Date of Termination. The failure by Executive or the Company to
set forth in a Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason or Cause shall not waive any right of Executive or the Company, respectively, hereunder
or preclude Executive or the Company, respectively, from asserting such fact or circumstance in
enforcing Executive’s or the Company’s rights hereunder.
(f) Date of Termination. “Date of Termination” means the date on which Executive’s
employment with the Company terminates and shall be, (i) if Executive’s employment terminates due
to the Expiration of this Agreement, December 31, 2025; (ii) if Executive is terminated by the
Company for Cause, the date on which the Notice of Termination is given to Executive (or any later
date as is mutually agreed between Executive and the Company) following completion of the
procedural requirements specified under Section 6(b); (iii) if Executive dies, the date of death;
(iv) if Executive’s employment is terminated due to Executive’s Disability, the date that is 30
days after the Notice of Termination is given to Executive, provided Executive has not returned to
full-time employment before that time; (v) if Executive’s employment is terminated for Good Reason,
the date that is 30 days after the Notice of Termination is
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given to the Company, provided that the Company has not cured any claimed event of Good Reason
before the expiration of the Cure Period; and (vi) if Executive’s employment is terminated by the
Company without Cause or Executive terminates his employment other than for Good Reason, the date
that is six (6) months after the date on which the Notice of Termination is given (the “Notice
Date”).
(g) Garden Leave. In the event of a termination by the Company without Cause or by
Executive other than for Good Reason, the Company shall have the right, in its sole discretion, to
place Executive on paid administrative leave during all or any part of the period between the
Notice Date and the Date of Termination (any such period of administrative leave referred to herein
as the “Garden Leave Period”). During the Garden Leave Period, (i) the Company may, but shall not
be required to, provide Executive with access to the Company’s offices, (ii) the Company may, but
shall not be required to, request that Executive perform services for the Company, and Executive
shall not be obligated to perform any such services (other than any obligations Executive may have
to cooperate with the Company under Section 6(h) below), (iii) Executive shall not provide services
as an employee or otherwise to any entity or organization, except that Executive shall be permitted
to provide services (x) to an entity or organization that that is exempt from taxation under
Section 501 of the Code, (y) to a federal, state or local government or an agency or
instrumentality thereof and (z) as a director or advisory director of one or more corporations or
other entities, provided that any such directorship or services as an advisory director do not
require Executive’s full-time employment and are not provided to an entity that is competitive with
the Company, (iv) Executive shall be entitled to receive an amount equal to his Base Salary payable
in equal monthly or more frequent installments as are customary under the Company’s payroll
practices from time to time (provided, that in the event that prior to the end of the Garden Leave
Period, Executive experiences a Separation from Service (as defined in Section 14(a)), any then
remaining installments will be paid in a lump sum in accordance with the payment timing rules set
forth in Section 14(a)), and (v) Executive shall continue to be eligible to participate in, receive
payments under and vest in payments and benefits under the Company’s employee benefit and
compensation plans (subject to the terms and conditions of such plans and any required earlier
cessation of participation or vesting in any such plans that provide for nonqualified deferred
compensation within the meaning of Section 409A due to Executive’s Separation from Service prior
to the expiration of the Garden Leave Period).
(h) Cooperation. For the period beginning upon Executive’s Date of Termination or, if
earlier, the date on which any Garden Leave Period commences, and ending on the second anniversary
of the applicable date (the “Cooperation Period”), Executive agrees that he will cooperate with and
provide assistance to the Company regarding any or all of the following, as long as said services
to be rendered by Executive shall not materially impede his ability to meet any obligations or
duties he may have with his then current employer or self-employment: (i) the transition of
ongoing matters relating to the business of the Company, as may be reasonably requested by the
Company from time to time; (ii) any litigation or criminal, civil or administrative proceeding,
whether currently pending or filed during the Cooperation Period, arising out of or relating to
matters about which Executive has knowledge or in which Executive may be
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identified or called as a witness by any party; and (iii) such other services as the Company
may reasonably request. Such cooperation and assistance includes, without limitation, attendance at
meetings with Company representatives or the Company’s legal counsel (or both) upon reasonable
notice and at mutually convenient times and places, provision of complete and truthful information
in response to any inquiries of the Company and/or its counsel, full disclosure and production of
all documents and things that may be relevant to any such matters (regardless of any express
inquiry by the Company or its counsel), and attendance as a witness at depositions, trials or
similar proceedings upon reasonable advance notice. In no event shall Executive be required to
provide services under this Section 6(h) at a level that would prevent a Separation from Service.
In consideration for Executive’s services during the Cooperation Period (other than during any
Garden Leave Period), the Company shall pay Executive at an hourly rate of compensation
commensurate with his Base Salary as of his Date of Termination for any services performed by
Executive on behalf of the Company in connection with this Section 6(h). In addition to and
notwithstanding the foregoing, the Company will reimburse Executive for all out-of-pocket expenses
reasonably incurred by Executive in the performance of his duties hereunder during the Cooperation
Period.
Executive shall immediately notify the Company of any formal or informal inquiry or request
for information directed to Executive by any third-party that in any way relates to Executive’s
employment by the Company or any aspect of the Company’s business operation.
7. Obligations of the Company upon Termination.
(a) Termination by Executive for Good Reason; Termination by the Company Other Than for
Cause or Disability. If, during the Employment Period, the Company shall terminate Executive’s
employment other than for Cause or Disability, or Executive shall terminate employment for Good
Reason, then Executive shall be entitled to the payments and benefits described below; provided,
however, that Executive shall be entitled to the payments and benefits described in Sections
7(a)(iii) through 7(a)(vi) only if Executive executes, and does not revoke, a general release of
all claims in substantially the form used by the Company generally with respect to US Senior
Management terminating employment under such conditions no later than 52 days after the Date of
Termination (or, if earlier, the date on which any Garden Leave Period commences), which general
release shall be provided by the Company to Executive within seven days after the Date of
Termination (or, if earlier, the date on which any Garden Leave Period commences).
(i) The Company shall pay to Executive, in a lump sum in cash within 30 days after the earlier
of the Date of Termination and the date on which any Garden Leave Period commences, the sum of (1)
Executive’s Base Salary through the Date of Termination (or, if earlier, the date on which any
Garden Leave Period commences) to the extent not theretofore paid, (2) any accrued vacation pay to
the extent not theretofore paid and (3) unless Executive has a later payout date required in
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connection with the terms of a deferral plan or agreement or in order to comply with Section
409A , any compensation previously deferred by Executive (together with any accrued interest or
earnings thereon) to the extent not theretofore paid (the sum of the amounts described in clauses
(1), (2) and (3) referred to hereinafter as the “Accrued Obligations”); and
(ii) The Company shall pay to Executive in a lump sum in cash, on the date on which the annual
cash bonus for the applicable fiscal year would be paid to other executive officers of the Company
generally and in no event later than the payment date pursuant to the terms of the applicable
incentive plan as set forth in Section 5(b)(i) , an Annual Cash Bonus in respect of the most
recently completed fiscal year of the Company ending prior to the earlier of the Date of
Termination and the date on which any Garden Leave Period commences, if the Annual Cash Bonus for
such year has not otherwise been paid, in an amount equal to the greater of (x) the amount
determined by the Compensation Committee pursuant to Section 5(b)(i), (y) Executive’s most recent
previously paid Annual Cash Bonus (including any amounts deferred or satisfied through the grant of
equity awards) and (z) US $4,750,000 (the highest of such amounts, including any amounts deferred
or satisfied through the grant of equity awards, referred to herein as the “Reference Bonus”);
provided, however, that the amount paid pursuant to this Section 7(a)(ii) shall be no greater than
the maximum amount payable to Executive as an Annual Cash Bonus for such year pursuant to the
formula established under Section 162(m)(4)(C) of the Code with respect to such bonus and the
performance goals attained for such year as certified by the Compensation Committee, without regard
to whether Executive is a covered employee within the meaning of Section 162(m)(3) of the Code for
the year such amount is deductible (the “Section 162(m) Limit Amount”), except that the Section
162(m) Limit Amount shall not apply in the event of a termination of employment during the 12-month
period following a Change in Control; and
(iii) The Company shall pay to Executive, in a lump sum in cash on the 60th day after
Executive’s Separation from Service, a prorated Annual Cash Bonus for the fiscal year of the
Company in which the Date of Termination occurs (or, if earlier, the date on which the Garden Leave
Period commences) equal to the product of (x) the Reference Bonus and (y) a fraction, the numerator
of which is the number of days that have elapsed in the fiscal year of the Company in which the
Date of Termination occurs (or, if earlier, the date on which the Garden Leave Period commences) as
of the Date of Termination (or, if earlier, the date on which the Garden Leave Period commences),
and the denominator of which is 365 (the “Prorated Bonus”); provided, however, that, for purposes
of this Section 7(a)(iii), the Reference Bonus shall be no greater than the Section 162(m) Limit
Amount and such Prorated Bonus shall be paid on such date as the annual cash bonus would be paid to
other executive officers of the Company generally and in no event later than the payment date
pursuant to the terms of the applicable incentive plan as set forth in Section 5(b)(i), except
that, in the event of a termination of employment during the 12-month period following a Change in
Control, (A) the Section 162(m) Limit Amount shall not apply and (B) the Prorated Bonus shall be
paid on the 60th day after Executive’s Separation from Service if the Change in Control event
qualifies as an event described in Section 409A(a)(2)(A)(v); and
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(iv) The Company shall pay to Executive, in a lump sum in cash on the 60th day after
Executive’s Separation from Service, an amount equal to the sum of (1) Executive’s then-current
annual Base Salary; (2) the Reference Bonus; and (3) an amount equal to the value, expressed in US
dollars, of the shares (or awards in respect of shares) of Company common stock awarded to
Executive under the most recently made annual grant of restricted stock, restricted stock units and
other equity or equity-based awards pursuant to Section 5(b)(ii) (and disregarding any year in
which no annual equity awards are granted), with such value to be determined as of the date of
grant without regard to the vesting conditions contained therein in accordance with the Company’s
standard valuation methodology and procedures for equity and equity-based awards as applied
consistently (the “Most Recent Equity Award Value”); provided, however, that if the Most Recent
Equity Award Value is less than 50% of the value of the annual equity awards (determined in the
same manner as the Most Recent Equity Award Value is determined) for the annual grant most recently
preceding the Most Recent Equity Award Value (and disregarding any year in which no annual equity
awards are granted) (the “Prior Equity Award Value”), then the Prior Equity Award Value shall be
the value applicable for purposes of clause (3) of this Section 7(a)(iv); and
(v) Effective as of Executive’s Separation from Service, each and every stock option,
restricted share award, restricted share unit award and other equity or equity-based award and
performance award issued to Executive and outstanding as of the date of Separation from Service (if
not already vested) shall immediately vest and, if applicable, become exercisable, and any
restrictions on the sale or transfer (other than any such restriction arising by operation of law)
on restricted shares shall terminate; provided that any delays in payment or settlement set forth
in the grant or award agreements for awards that constitute nonqualified deferred compensation
within the meaning of Section 409A shall continue to apply in accordance with their terms; and
(vi) To the extent that Executive elects to continue medical benefits in accordance with the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall provide
continuation of medical benefits in effect as of the Date of Termination (or, if earlier, the date
immediately preceding the date on which Executive loses coverage under the Company’s group health
plan due to a termination of employment under the terms of the applicable plan that occurs prior to
the Date of Termination) for Executive, his spouse and his covered dependents under the group
health plan then in effect for US Senior Management for the period required by law (the “COBRA
Continuation Period”). For an additional period of 18 months after the COBRA Continuation Period
(or, if the COBRA Continuation Period is less than 18 months from the Date of Termination, such
longer period as is necessary to provide a total of 36 months of coverage from the Date of
Termination) (the “Extended Coverage Period”), the Company will provide coverage under a group or
individual policy comparable to the coverage in effect for Executive, his spouse and covered
dependents on the first day of the COBRA Continuation Period (“Extended Company Coverage”);
provided, however, that, if either the Company or the insurer or the plan providing Extended
Company Coverage would incur any direct or indirect material penalty under applicable law for
providing such coverage or Executive would suffer negative tax consequences due to the manner in
which such benefits are provided, the Company may
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refuse to provide on not less than 90 days’ advance written notice to Executive, or Executive
may reject, Extended Company Coverage, in which case Executive may, but shall not be required, to
purchase individual or other coverage comparable to the Extended Company Coverage (“Extended
Individual Coverage”); provided, further, that in the event Extended Individual Coverage cannot be
obtained, the Company and Executive shall cooperate in good faith to modify the manner in which the
Extended Company Coverage is provided (or to be provided) in order to seek to minimize the
penalties applicable to the Company, the plan or the insurer and/or any negative consequences to
Executive, consistent with applicable law and the commitment to provide Executive, his spouse and
covered dependents with comparable coverage for the Extended Coverage Period, and such Extended
Company Coverage shall be provided. Executive shall be obligated to pay the COBRA premium for the
COBRA Coverage and the fair market cost for the Extended Company Coverage or Extended Individual
Coverage, and the Company shall pay to Executive, on a monthly basis in advance, an amount equal to
the applicable premium or cost. The Company’s obligation to pay Executive such monthly amounts
shall terminate at the end of the Extended Coverage Period, or if earlier, with respect to the
month following the date Executive has obtained other employment if Executive and his dependents
are covered by health care coverage provided by the new employer; and
(vii) To the extent not theretofore paid or provided, the Company shall timely pay or provide
to Executive any other vested amounts or benefits required to be paid or provided or which
Executive is entitled to receive under any plan, program, policy or practice of the Company that is
applicable to Executive by its terms (such other amounts and benefits shall be hereinafter referred
to as the “Other Benefits”).
Notwithstanding any provision to the contrary contained herein or otherwise, the Company’s
obligation to continue to provide any of the benefits described above shall immediately cease and
shall be permanently forfeited, if it is determined by a Court of competent jurisdiction that
Executive has breached any of the restrictive covenants contained in Appendix C hereof.
(b) Death. If Executive’s employment is terminated by reason of Executive’s death
during the Employment Period, the Company shall provide payment of Accrued Obligations, the
Prorated Bonus and the timely payment or provision of Other Benefits. Accrued Obligations and the
Prorated Bonus shall be paid to Executive’s estate or beneficiary, as applicable, in a lump sum in
cash within 30 days after the Date of Termination. In addition, if not previously paid, Executive
shall be entitled to an Annual Cash Bonus in respect of the most recently completed fiscal year of
the Company ending prior to Executive’s date of death consistent with, and at the time specified
in, Section 7(a)(ii) above, except that the Section 162(m) Limit Amount shall not apply. With
respect to the provision of Other Benefits, the term Other Benefits as used in this Section 7(b)
shall include, without limitation, and Executive’s estate and/or beneficiaries shall be entitled to
receive, benefits under such plans, programs, practices and policies relating to death benefits, if
any, as are applicable to Executive on the date of his death.
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(c) Disability. If Executive’s employment is terminated by reason of Executive’s
Disability during the Employment Period, the Company shall provide payment of Accrued Obligations,
the Prorated Bonus and the timely payment or provision of Other Benefits. Accrued Obligations
shall be paid to Executive in a lump sum in cash within 30 days after Executive’s Date of
Termination and the Prorated Bonus shall be paid to Executive in a lump sum in cash on the
60th day after Executive’s Separation from Service. In addition, if not previously
paid, Executive shall be entitled to an Annual Cash Bonus in respect of the most recently completed
fiscal year of the Company ending prior to Executive’s Date of Termination due to Disability
consistent with, and at the time specified in, Section 7(a)(ii) above, except that the Section
162(m) Limit Amount shall not apply. With respect to the provision of Other Benefits, the term
Other Benefits as used in this Section 7(c) shall include, without limitation, and Executive shall
be entitled after the Date of Termination to receive, disability and other benefits under such
plans, programs, practices and policies relating to disability, if any, as are applicable to
Executive and his covered dependents on the Date of Termination.
(d) Voluntary Termination without Good Reason. If Executive voluntarily terminates
employment during the Employment Period without Good Reason, Executive shall be entitled to (i)
payment of Accrued Obligations in a lump sum in cash within 30 days after the earlier of the Date
of Termination and the date on which any Garden Leave Period commences, (ii) if the Annual Cash
Bonus in respect of the most recently completed fiscal year of the Company ending prior to the Date
of Termination has not otherwise been paid, payment of the Reference Bonus in a lump sum in cash
on the date on which the annual cash bonus for the applicable fiscal year would be paid to other
executive officers of the Company generally and in no event later than the payment date pursuant to
the terms of the applicable incentive plan as set forth in Section 5(b)(i) , provided, however,
that, for purposes of this Section 7(d)(ii), the Reference Bonus shall be no greater than the
Section 162(m) Limit Amount (except that the Section 162(m) Limit Amount shall not apply in the
event of a termination of employment during the 12-month period following a Change in Control),
(iii) payment in a lump sum in cash on the 60th day after Executive’s Separation from
Service of a prorated Annual Cash Bonus for the fiscal year of the Company in which the Date of
Termination occurs (or is to occur, taking into account any Garden Leave Period) equal to the
product of (x) the Reference Bonus and (y) a fraction, the numerator of which is the number of days
that have elapsed in the fiscal year of the Company in which the Date of Termination occurs (or is
to occur, taking into account any Garden Leave Period) as of the Date of Termination, and the
denominator of which is 365, provided, however, that, for purposes of this Section 7(d)(iii), the
Reference Bonus shall be no greater than the Section 162(m) Limit Amount and such Prorated Bonus
shall be paid on such date as the annual cash bonus would be paid to other executive officers of
the Company generally and in no event later than the payment date pursuant to the terms of the
applicable incentive plan as set forth in Section 5(b)(i) (except that, in the event of a
termination of employment during the 12-month period following a Change in Control, (A) the Section
162(m) Limit Amount shall not apply and (B) the Prorated Bonus shall be paid on the 60th day after
Executive’s Separation from Service if the Change in Control event qualifies as an event described
in Section 409A(a)(2)(A)(v)), and (iv) the timely payment or provision of Other Benefits.
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(e) Cause. If Executive’s employment is terminated for Cause during the Employment
Period, Executive’s employment shall terminate without further obligations to Executive, other than
for payment of (i) Accrued Obligations in a lump sum in cash within 30 days after Executive’s Date
of Termination and (ii) the timely payment or provision of Other Benefits.
(f) Termination On or After the Expiration of the Agreement. If Executive’s
employment terminates on December 31, 2025 due to the Expiration of this Agreement (or after such
date and prior to the payment of the Annual Cash Bonus in respect of the 2025 fiscal year),
Executive shall be entitled to (i) payment of Accrued Obligations in a lump sum in cash within 30
days after Executive’s Date of Termination, (ii) if the Annual Cash Bonus in respect of the 2025
fiscal year of the Company has not otherwise been paid, payment of the Reference Bonus in a lump
sum in cash on such date as the annual cash bonus would be paid to other executive officers of the
Company generally and in no event later than the payment date pursuant to the terms of the
applicable incentive plan as set forth in Section 5(b)(i); provided, however, that, for purposes of
this Section 7(f)(ii), the Reference Bonus shall be no greater than the Section 162(m) Limit Amount
(except the Section 162(m) Limit Amount shall not apply in the event of a termination of employment
during the 12-month period following a Change in Control), and (iii) timely payment or provision of
Other Benefits. If Executive’s employment terminates after December 31, 2025, Executive’s
employment shall terminate without further obligations to Executive, other than for (x) payment of
Accrued Obligations in a lump sum in cash within 30 days after Executive’s Date of Termination, (y)
the payment of any unpaid Annual Cash Bonus in respect of the 2025 fiscal year as set forth in
clause (ii) above and (z) the timely payment or provision of Other Benefits.
(g) Indemnification. During the Employment Period, Executive will have the same
director and officer liability insurance coverage as is provided generally to other US Senior
Management and directors and shall be subject to the indemnity provisions of the Company’s
governing documents, which the Company intends to be the widest indemnity permitted under
applicable law.
8. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit
Executive’s continuing or future participation in any employee benefit plan, program, policy or
practice provided by the Company and for which Executive may qualify, except as specifically
provided herein. Amounts which are vested benefits or which Executive is otherwise entitled to
receive under any plan, policy, practice or program of the Company at or subsequent to the Date of
Termination (or, if earlier, the date of Separation from Service) shall be payable in accordance
with such plan, policy, practice or program, except as explicitly modified by this Agreement.
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9. Certain Reductions in Payments.
(a) Notwithstanding any provision of this Agreement to the contrary, in the event the
Accounting Firm (as defined below) shall determine that receipt of all Payments (as defined below)
would subject Executive to the excise tax under Section 4999 of the Code, the Accounting Firm shall
determine whether it is more beneficial to Executive to reduce any of the Payments paid or payable
pursuant to this Agreement (the “Agreement Payments”) so that the Parachute Value (as
defined below) of all Payments, in the aggregate, equals the Safe Harbor Amount (as defined below).
The Agreement Payments shall be so reduced only if the Accounting Firm determines that Executive
would have a greater Net After-Tax Receipt (as defined below) of aggregate Payments if the
Agreement Payments were so reduced. If the Accounting Firm determines that Executive would not
have a greater Net After-Tax Receipt of aggregate Payments if the Agreement Payments were so
reduced, Executive shall receive all Agreement Payments to which Executive is entitled hereunder.
For purposes of reducing the Agreement Payments so that the Parachute Value of all Payments, in the
aggregate, equals the Safe Harbor Amount, only Agreement Payments (and no other Payments) shall be
reduced.
(b) All calculations required under this Section 9 shall be made in good faith by the
Accounting Firm and all fees and expense of the Accounting Firm shall be borne by the Company.
Such calculations shall be provided to Executive in writing as soon as practicable and in no event
later than 15 business days before the consummation of the transaction giving rise to the change in
ownership or control of the Company, and shall be subject to Executive’s review and comment.
Following Executive’s review and comment, the calculations shall be conclusive and binding on the
Company and Executive for purposes of this Section 9.
(c) The reduction of any Agreement Payments, if applicable, shall be effected in the following
order: (i) any cash payments under Section 7(a)(iv); (ii) any cash payments under Section
7(a)(iii) that constitute a “parachute payment” under Section 280G(b)(2) of the Code; (iii) any
equity awards that are not subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c), in
the order of the grants with the latest scheduled payment (or vesting date if no payment is
scheduled) to the earliest scheduled payment (or vesting date, if applicable); (iv) acceleration of
vesting of any stock options subject to calculation under Treas. Reg. §1.280G-1, Q&A-24(b) or (c)
for which the exercise price exceeds the then fair market value of the underlying stock, in the
order selected by Executive; (v) acceleration of vesting of any equity award subject to calculation
under Treas. Reg. §1.280G-1, Q&A-24(b) or (c) that is not a stock option, in the order of the
equity tranches with the largest 280G Payment value to those with the smallest 280G Payment value;
and (vi) acceleration of vesting of any stock options subject to calculation under Treas. Reg.
§1.280G-1, Q&A-24(b) or (c) for which the exercise price is less than the fair market value of the
underlying stock in the order selected by Executive.
(d) To the extent requested by Executive, the Company shall cooperate with Executive in good
faith in valuing, and the Accounting Firm shall take into account the value of, services provided
or to be provided by Executive (including without
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limitation, Executive’s agreeing to refrain from performing services pursuant to a covenant
not to compete or similar covenant, including Executive’s obligation to refrain from providing
certain services during any Garden Leave Period) before, on or after the date of a change in
ownership or control of the Company (within the meaning of Q&A-2(b) of the final regulations under
Section 280G of the Code), such that payments in respect of such services may be considered
reasonable compensation within the meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations
under Section 280G of the Code and/or exempt from the definition of the term “parachute payment”
within the meaning of Q&A-2(a) of the final regulations under Section 280G of the Code in
accordance with Q&A-5(a) of the final regulations under Section 280G of the Code.
(e) Definitions. The following terms shall have the following meanings for purposes
of this Section 9.
(i) “Accounting Firm” shall mean a nationally recognized certified public
accounting firm that is selected by the Company for purposes of making the applicable
determinations hereunder and reasonably acceptable to Executive, which firm shall not,
without Executive’s consent, be a firm serving as accountant or auditor for the Company or
the individual, entity or group effecting the change of control.
(ii) “Net After-Tax Receipt” shall mean the present value (as determined in
accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Payment net of
all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code
and under applicable state and local laws, determined by applying the highest marginal rate
under Section 1 of the Code and under state and local laws that applied to Executive’s
taxable income for the immediately preceding taxable year, or such other rate(s) as the
Accounting Firm determined to be likely to apply to Executive in the relevant tax year(s).
(iii) “Parachute Value” of a Payment shall mean the present value as of the
date of the change of control for purposes of Section 280G of the Code of the portion of
such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code,
as determined by the Accounting Firm for purposes of determining whether and to what extent
the excise tax under Section 4999 of the Code will apply to such Payment.
(iv) “Payment” shall mean any payment, distribution or benefit in the nature
of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the
benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise.
(v) “Safe Harbor Amount” means (x) 3.0 times Executive’s “base amount,” within
the meaning of Section 280G(b)(3) of the Code, minus (y) $1.00.
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10. Restrictions on Conduct of Executive. The Company and Executive specifically
acknowledge that Executive shall be required to comply with the restrictive covenants set forth in
Appendix C hereof.
11. Assignment and Successors.
(a) This Agreement is personal to Executive and without the prior written consent of the
Company shall not be assignable by Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by Executive’s legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession had taken place. As
used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12. Full Settlement; Resolution of Disputes. The Company agrees to pay promptly as
incurred, to the fullest extent permitted by law, all legal fees and expenses that Executive may
reasonably incur as a result of any contest by the Company, Executive or others as to the validity
or enforceability of, or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by Executive about the amount of any such
payment pursuant to this Agreement), but only if Executive is the prevailing party on at least one
material issue raised in the enforcement proceeding.
13. Miscellaneous.
(a) Waiver. Failure of either party to insist, in one or more instances, on
performance by the other in strict accordance with the terms and conditions of this Agreement shall
not be deemed a waiver or relinquishment of any right granted in this Agreement or of the future
performance of any such term or condition or of any other term or condition of this Agreement,
unless such waiver is contained in a writing signed by the party making the waiver.
(b) Severability. If any provision or covenant, or any part thereof, of this
Agreement should be held by any court to be invalid, illegal or unenforceable, either in whole or
in part, such invalidity, illegality or unenforceability shall not affect the validity, legality or
enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
- 16 -
(c) Entire Agreement. This Agreement contains the entire agreement between the
Company and Executive with respect to the subject matter hereof and supersedes the First Amended
Employment Agreement and any other agreement between the parties with respect to the subject matter
hereof. Notwithstanding any provision in any restricted stock or other short- or long-term equity
compensation award agreement between Executive and the Company entered into before or after the
Effective Date, Executive shall not be required to provide any advance written notice of
Executive’s intent to terminate employment other than the Notice of Termination required under this
Agreement, and the nondisclosure, nonrecruitment, nonsolicitation and works-for-hire provisions of
any such restricted stock agreements or other equity award agreements shall not apply to Executive.
Rather, for the avoidance of doubt, Executive shall be subject to the Notice of Termination
provisions of this Agreement and the nondisclosure, nonrecruitment, nonsolicitation, works-for-hire
and other provisions of Appendix C.
(d) Governing Law. Except to the extent preempted by federal law, and without regard
to conflict of laws principles, the laws of the State of Georgia shall govern this Agreement in all
respects, whether as to its validity, construction, capacity, performance or otherwise.
(e) Notices. All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed within the continental United States by first class, registered or certified mail,
postage prepaid, as follows:
| To Company: | Invesco Ltd. | |||
| 0000 Xxxxxxxxx Xxxxxx XX | ||||
| Xxxxxxx, XX 00000 | ||||
| Attention: General Counsel | ||||
| To Executive: | Xx. Xxxxxx X. Xxxxxxxx | |||
| 000 Xxxxxxxxx Xxxx X.X. | ||||
| Xxxxxxx, Xxxxxxx 00000 |
Any party may change the address to which notices, requests, demands and other communications shall
be delivered or mailed by giving notice thereof to the other party in the same manner provided
herein.
(f) Amendments and Modifications. This Agreement may be amended or modified only by a
writing signed by the Company and Executive, which makes specific reference to this Agreement.
(g) Survivorship. Upon the expiration or other termination of this Agreement and/or
the Employment Period, the respective rights and obligations of the parties hereto shall survive
such expiration or other termination to the extent necessary to carry out the intentions of the
parties under this Agreement.
- 17 -
(h) Construction. Each party and his or its counsel have reviewed this Agreement and
have been provided the opportunity to revise this Agreement and accordingly, the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement. Instead, the language of all parts of
this Agreement shall be construed as a whole, and according to its fair meaning, and not strictly
for or against any party.
14. Section 409A Compliance.
(a) Payment of Amounts and Benefits. Notwithstanding anything in this Agreement to
the contrary, if and to the extent any amount or benefit (including equity awards) set forth in
this Agreement constitutes nonqualified “deferred compensation” subject to Section 409A and
is payable or distributable by reason of Executive’s termination of employment, including the
placement of Executive on paid administrative leave during the Garden Leave Period pursuant to
Section 6(g), to the extent such termination or placement on administrative leave constitutes a
“separation from service” within the meaning of Section 409A (“Separation from Service”), then such
amount or benefit will be payable or distributable to Executive as follows:
(i) if Executive is not a Specified Employee as of the date that Executive incurs a Separation
from Service, then
(A) if the payment or distribution is payable in a lump sum, the earlier of
Executive’s death or the 60th day after the Executive’s Separation from Service, and
(B) if the payment or distribution is payable over time, in accordance with the
normal payment or distribution schedule for such payments or distributions; or
(ii) if Executive is a Specified Employee (as defined below) as of his Separation from
Service, then
(A) if the payment or distribution is payable in a lump sum, the earlier of
Executive’s death or the first day of the seventh month following Executive’s Separation
from Service, plus interest at the applicable federal rate provided for in Section
7872(f)(2)(A) of the Code for the month in which Executive’s Separation from Service occurs
(the “AFR”); and
(B) if the payment or distribution is payable over time, the amount of such
compensation that would otherwise be payable during the six-month period immediately
following Executive’s Separation from Service will be accumulated and paid upon the earlier
of Executive’s death or the first day of the seventh month following Executive’s Separation
from Service, plus interest at the AFR, and the normal payment or distribution schedule for
any remaining payments or distributions will resume.
- 18 -
A “Specified Employee” has the meaning given such term in Section 409A and shall be determined
in accordance with rules adopted by the Board of Directors or a committee thereof, which shall be
applied consistently with respect to all nonqualified deferred compensation arrangements of the
Company. Despite any contrary provision of this Agreement, references to termination of employment
or Date of Termination shall refer to the date of Executive’s Separation from Service, to the
extent such reference relates to the timing of the commencement of payment of an amount that
constitutes nonqualified deferred compensation within the meaning of Section 409A , but, to the
extent any such reference relates to the determination of an amount or is used for any other
purpose, the Date of Termination, not the date of Separation from Service, shall be the relevant
date.
(b) Miscellaneous Provisions. It is intended that the payments and benefits provided
under this Agreement shall comply with the provisions of Section 409A and the Treasury regulations
relating thereto, or an exemption to Section 409A, and this Agreement shall be interpreted
accordingly. Any payments or benefits that qualify for the “short-term deferral” exception or
another exception under Section 409A shall be paid under the applicable exception. Any payments
with respect to which Executive has previously made a deferral election shall be subject to such
deferral election, although for the avoidance of doubt, in no event shall any prior deferral
election apply to any portion of the severance payments under Section 7(a)(iv). For purposes of
the limitations on nonqualified deferred compensation under Section 409A, each payment of
compensation under this Agreement shall be treated as a separate payment of compensation for
purposes of applying the Section 409A deferral election rules and the exclusion under Section 409A
for certain short-term deferral amounts. All reimbursements and in-kind benefits provided under
this Agreement that constitute nonqualified deferred compensation within the meaning of Section
409A shall be subject to the following: (i) in no event shall reimbursements by the Company be made
later than the end of the calendar year following the calendar year in which the applicable
expenses and other amounts were incurred; (ii) the amount or benefits that the Company is obligated
to pay or provide in any given calendar year shall not affect the amount or benefits that it is
obligated to pay or provide in any other calendar year; (iii) reimbursements and in-kind benefits
may not be liquidated or exchanged for any other benefit; and (iv) except as otherwise specifically
provided herein, the Company’s obligations to make such reimbursements or provide such in-kind
benefits shall apply until the later of Executive’s death or, if longer, through the
20th anniversary of Executive’s Separation from Service. In no event may Executive,
directly or indirectly, designate the calendar year of any payment under this Agreement. Within
the time period permitted under Section 409A or any Internal Revenue Service or Treasury
regulations, rules or other guidance issued thereunder, the Company and Executive may modify this
Agreement in the manner that preserves the original intent and does not diminish the value of the
payments and benefits to Executive in order to cause the provisions of this Agreement to comply
with the requirements of Section 409A, so as to avoid the imposition of taxes and penalties on
Executive pursuant to Section 409A.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Amended and
Restated Master Employment Agreement as of the date first above written.
| INVESCO LTD. | ||||||
| By: | ||||||
| Title: Chairman of the Board of Directors | ||||||
| EXECUTIVE: | ||||||
| Xxxxxx X. Xxxxxxxx | ||||||
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APPENDIX A
Terms of Reference
Corporate Governance
Terms of Reference for the Chief Executive Officer
Authority and Reporting
| 1. | The Chief Executive Officer (“CEO”) is generally responsible for managing the business of Invesco Ltd. and its subsidiaries (collectively, the “Company”), and is accountable to and reports to the Board of Directors (the “Board”) of the Company with regard thereto. | ||
| 2. | The CEO has general supervision of the business of the Company and is responsible for all senior management matters affecting the Company. All members of senior management report, either directly or indirectly, to him. |
Key Responsibilities
| 3. | The CEO is responsible for conducting the affairs of the Company with the highest standards of integrity and probity and in compliance with all applicable laws, principles and rules of corporate governance, including the Company’s Articles of Association, its Corporate Governance Manual and the resolutions of the Board, as the same shall be in effect from time to time. | ||
| 4. | The CEO is responsible for proposing and developing the Company’s strategy and overall commercial objectives, which he does in close consultation with the senior management team, the Chairman of the Board of Directors (the “Chairman”) and the Board. | ||
| 5. | The CEO is responsible for ensuring that the Company has in place all necessary financial, operational and compliance controls and risk management systems. | ||
| 6. | The CEO is responsible — with the senior management team — for implementing the decisions of the Board and its committees. |
Additional Responsibilities
Further, the CEO is responsible for:
| 7. | Providing input to the Board’s agenda from himself and other members of senior management; |
| 8. | Ensuring that he communicates with the Chairman on the important and strategic issues facing the Company, and proposing Board agendas to the Chairman which reflect these; | ||
| 9. | Ensuring that the senior management team gives appropriate priority to providing reports to him and, where required, the Board which contain accurate, timely and clear information; | ||
| 10. | Ensuring, in consultation with the Chairman, that he and the other members of senior management comply with the Board’s approved procedures; | ||
| 11. | Providing information and advice on succession planning to the Chairman, the Nomination and Corporate Governance Committee and other members of the Board, in respect of members of senior management; | ||
| 12. | Leading the communication program with shareholders; | ||
| 13. | Ensuring that the development needs of the members of senior management reporting to him are identified and met; | ||
| 14. | Ensuring that performance reviews for each of the members of senior management are carried out at least once a year and providing input to the wider Board evaluation process; and | ||
| 15. | Performing such other duties and exercising such other powers as from time to time may be assigned to him by the Board. |
0
XXXXXXXX X
Non-Exclusive List of Activities
Xxxxxx Center
Commerce Club
Investment Company Institute
Southern Methodist University
Xxxxxxxx Arts Center
APPENDIX C
Confidential Information
A critical aspect of Executive’s position is access to trade secret, proprietary, and
confidential information. For example, Executive’s knowledge of the exact amounts and holdings of
Company-related investment positions is confidential. While some of that information may
eventually be made public, the information is extremely sensitive and is to be treated as
confidential until it is released. Likewise, computer models and programs developed by the Company
or purchased by it are proprietary and confidential. Other information the Company possesses as
trade secrets or confidential information include (without limitation) its marketing strategies,
marketing plans, compensation arrangements, benefit plans, and ideas and inventions of its
employees. (For purposes of this Appendix C, “Company” includes the subsidiaries and affiliates of
the Company.)
These are simply examples of the types of information the Company considers trade secret
and/or confidential. As time passes, the Company will no doubt develop new categories of
information it considers trade secrets and/or confidential. As this occurs, the Company will
identify such new categories of information and remind Executive of the obligation to treat it as
confidential. The importance of all of the types of information identified here is that the
Company’s competitors do not have permitted access to this information and are thus unable to use
it to compete with the Company. Accordingly, these types of information create a competitive
advantage for the Company and are economically valuable. Thus, Executive agrees not to disclose or
use any of the Company’s trade secret and/or confidential information for Executive’s own benefit
or the benefit of anyone other than the Company, during Executive’s employment and after the
effective date of the termination of Executive’s employment relationship with the Company.
Company Employees and Customers
Executive agrees that, in the event of the termination of the employment relationship between
Executive and the Company, Executive will not solicit or hire any Company employees for a period of
six (6) months after the Date of Termination (the “Non-solicit Period”). Further, Executive agrees
that during the Non-Solicit Period Executive will not solicit the business relationships Executive
developed or acquired while working for the Company.
Inventions and Ideas
Since the Company is paying Executive for Executive’s time and efforts, Executive agrees that
all information, ideas, and inventions developed while employed by the Company related in any way
to the Company’s business, are the sole property of the Company. This includes all investment
models, processes, and methodologies Executive develop while employed by the Company. Indeed, one
of the reasons for Executive’s employment is the creation of such ideas. This information is
confidential and trade secret information as discussed above. Executive understands that the
Company may
seek to patent or to obtain trademark or copyright protection related to such information,
ideas, and inventions, and that, if necessary, Executive will assign any interest Executive may
have in such information, ideas, and inventions Executive develops to the Company.
Return of Company Property
Upon the termination of Executive’s employment, Executive agrees to return all property of the
Company. To the extent such property is information of which Executive has detailed knowledge but
no electronic or other documents containing such information, Executive agrees to itemize such
information in writing for the Company prior to the effective date of the termination of
Executive’s employment.
2
