PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT PURSUANT TO THE HAGERTY, INC. 2021 STOCK INCENTIVE PLAN
EXHIBIT 10.1
PURSUANT TO THE
XXXXXXX, INC. 2021 STOCK INCENTIVE PLAN
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Participant: as specified through the electronic acceptance process provided by the Company or its designee.
Grant Date: as specified through the electronic acceptance process provided by the Company or its designee.
Target Number of Performance Restricted Stock Units Granted Pursuant to this Agreement: as specified through the electronic acceptance process provided by the Company or its designee.
Maximum Number of Performance Restricted Stock Units Granted Pursuant to this Agreement: as specified through the electronic acceptance process provided by the Company or its designee.
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THIS PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”), dated as of the Grant Date specified above, is entered into by and between Xxxxxxx, Inc., a corporation organized in the State of Delaware (the “Company”), and the Participant specified above, pursuant to the Xxxxxxx, Inc. 2021 Stock Incentive Plan, as in effect and as amended from time to time (the “Plan”), which is administered by the Compensation Committee of the Board of Directors of the Company (the “Committee”); and
WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the Performance Restricted Stock Units (“PRSUs”) provided herein to the Participant.
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:
1. Incorporation By Reference; Plan Document Receipt. This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time unless such amendments are expressly intended not to apply to the Award provided hereunder), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control.
2. Grant of Performance Restricted Stock Unit Award. The Company hereby grants to the Participant, as of the Grant Date specified above, the number of PRSUs specified above. Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s interest in the Company for any reason, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of the shares of Class A common stock of the Company (“Common Stock”) underlying the PRSUs, except as otherwise specifically provided for in the Plan or this Agreement.
3. Vesting.
(a) Vesting Schedule. Subject to the provisions of this Section 3, the PRSUs subject to this Agreement are eligible to vest on such applicable date as is specified on Exhibit A to this Agreement (the “Vesting Date”) subject to the terms and conditions provided on Exhibit A to this Agreement (the “Vesting Schedule”). Except as provided in this Section 3 and Exhibit A to this Agreement, vesting of the PRSUs as of the Vesting Date is conditioned on Participant’s continued employment by the Company or
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PRSU Version: March 20, 2024
any of its subsidiaries (collectively, the “Xxxxxxx Companies” and individually a “Xxxxxxx Company”) through such Vesting Date and assumes Participant has not ceased to be employed by the Xxxxxxx Companies prior to such Vesting Date. Except as provided on Exhibit A with respect to Participant’s earlier death, Disability or Retirement, or termination without Cause following a Change in Control, there shall be no proportionate or partial vesting in the periods prior to each Vesting Date and all vesting shall occur only on the appropriate Vesting Date.
(b) Termination of Employment by Death, Disability or Retirement. If Participant’s employment by the Xxxxxxx Companies ceases as a result of the Participant’s death, Disability or Retirement prior to the Vesting Date, then Participant will be eligible to vest in the PRSUs to the extent specified on Exhibit A. For such purposes, “Disability” means the Participant is eligible to receive benefits under the Company’s long-term disability benefit plan as in effect on the date of termination, as determined by the third-party insurer of such plan. If the Company does not have a long-term disability benefit plan in effect on the date of termination, then “Disability” has the applicable meaning as set forth in Section 409A of the Internal Revenue Code. A termination due to Participant’s “Retirement” means that the date of Participant’s last day of employment with the Xxxxxxx Companies (“Last Day”) is (i) on or after Participant’s fifty-fifth (55th) birthday, and (ii) Participant’s age (in whole years) plus full years of continuous, full-time employment with the Xxxxxxx Companies (as measured from the Participant’s date of hire, and without regard to any partial years of employment) equals seventy (70) or more.
(c) Change in Control. Notwithstanding any other provision in this Agreement or the Plan, if the acquiring or surviving entity in a Change in Control transaction will not assume, continue or substitute the PRSUs so that all PRSUs shall be cancelled and terminated upon the Change in Control Transaction, the PRSUs shall be eligible to vest as specific on Exhibit A.
(d) Double Trigger Vesting. Notwithstanding any other provision in this Agreement or the Plan, and except as otherwise provided in the applicable Change in Control transaction documents, in the event that the PRSUs are assumed, continued or substituted by the acquiring or surviving entity in a Change in Control Transaction and the Participant incurs an involuntary termination of employment without Cause following a Change in Control and prior to the Vesting Date, the Participant shall be eligible to vest in the PRSUs to the extent specified on Exhibit A. Nothing in this Section 3(d) or any other provision of this Agreement is intended to provide the Participant with any right to consent to or object to any transaction that might result in a Change in Control and each provision of this Agreement shall be interpreted in a manner consistent with this intent. For such purposes, “Cause” means the Company, in its sole and absolute discretion, determines that the Participant’s termination of employment was due to any one or more of the following events: (i) the Participant failed to make reasonable, good faith efforts to substantially fulfill assigned duties or the Participant intentionally failed to comply with applicable policies or directives of the Company; (ii) the Participant participated or engaged in (A) fraud, embezzlement, or theft, or (B) any intentional act inimical to the interests of the Company or that causes or reasonably could have caused the Company actual harm; (iii) the Participant intentionally and wrongfully damages property of the Company causing actual harm; (iv) the Participant wrongfully and intentionally disclosed trade secrets or confidential information of the Company, if such disclosure causes or could reasonably have caused actual harm to the Company; (v) the Participant violates any agreement that restricts the Participant from competing with the Company or solicits persons having a relationship with the Company to discontinue such relationship with the Company; (vi) the Participant engages in conduct that brings the Company into material public disgrace or disrepute; or (vii) the Participant commits a felony or a crime involving moral turpitude, regardless of whether conviction results. For purposes of determination whether a Participant’s termination was for Cause, the following standards will apply: (A) “intentional” acts will include acts committed with actual intent or as a result of willful or reckless conduct or intent, (B) no act, or failure to act, will be deemed “intentional” if it was due primarily to an error in judgment or negligence, but will be deemed “intentional” if done, or omitted to be done, not in good faith and without reasonable belief that the act or omission was in the best interest of the Company, and (C) “actual harm” will mean damage or injury that is more than nominal but will not require damage or injury that is material or substantial.
(e) Committee Discretion to Accelerate Vesting. Notwithstanding the foregoing, the Committee may, in its sole discretion, provide for accelerated vesting of the PRSUs at any time and for any reason.
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(f) Forfeiture. Subject to the Committee’s discretion to accelerate vesting hereunder, all unvested PRSUs shall be forfeited forty-five (45) days following Participant’s Last Day except as otherwise specific on Exhibit A. No PRSUs will be settled via an issuance of shares of Common Stock unless such PRSUs have vested. All unvested PRSUs remaining after vested PRSUs as determined under this Section 3 and Exhibit A are accounted for shall be forfeited.
4. Delivery of Shares. On a date selected by the Company that is within thirty (30) days following the applicable Vesting Date of the PRSUs, the Participant shall receive an issuance of the number of shares of Common Stock that correspond to the number of PRSUs that have become vested on or prior to the applicable Vesting Date. (the “Original Issuance Date”). If the Original Issuance Date falls on a date that is not a business day, delivery shall instead occur on the next following business day. In addition, if:
(a) the Original Issuance Date does not occur (1) during an “open window period” applicable to the Participant, as determined by the Company in accordance with the Company’s then-effective policy on trading in Company securities, or (2) on a date when the Participant is otherwise permitted to sell shares of Common Stock on an established stock exchange or stock market (including but not limited to under a previously established written trading plan that meets the requirements of Rule 10b5-1 under the Exchange Act and was entered into in compliance with the Company’s policies (a “10b5-1 Arrangement”)), and
(b) either (1) Withholding Taxes (as defined below) do not apply, or (2) the Company decides, prior to the Original Issuance Date, (A) not to satisfy the Withholding Taxes by withholding shares of Common Stock from the shares otherwise due, on the Original Issuance Date, to be issued to Participant under this PRSU, and (B) not to permit Participant to enter into a “same day sale” commitment with a broker-dealer (including but not limited to a commitment under a 10b5-1 Arrangement) and (C) not to permit Participant to pay the Participant’s Withholding Taxes in cash, then the shares that would otherwise be issued to Participant on the Original Issuance Date will not be delivered on such Original Issuance Date and will instead be delivered on the first business day when Participant is not prohibited from selling shares of the Company’s Common Stock in the open public market, but in no event later than December 31 of the calendar year in which the Vesting Date occurs, or, if and only if permitted in a manner that complies with Treasury Regulations Section 1.409A-1(b)(4), no later than the date that is the 15th day of the third calendar month of the applicable year following the year in which the shares of Common Stock under this PRSU are no longer subject to a “substantial risk of forfeiture” within the meaning of Treasury Regulations Section 1.409A-1(d).
5. Dividends; Rights as Stockholder. This Agreement shall only be settled by the Company by delivery of the number of shares of Common Stock that correspond to the number of PRSUs that have become vested on the applicable vesting date. Participant shall not be entitled to settle any vested PRSUs for cash or in any other manner. Further, the Participant shall not be entitled to receive, currently or on a deferred basis, dividends or dividend equivalents in respect of the number of shares of Common Stock covered by any PRSU unless and until the Participant has become the holder of record of such shares. Further, the Participant shall have no rights as a stockholder with respect to any shares of Common Stock covered by any PRSU unless and until the Participant has become the holder of record of such shares.
6. Non-Transferability. No portion of the PRSUs may be sold, assigned, transferred, encumbered, hypothecated or pledged by the Participant, other than to the Company as a result of forfeiture of the PRSUs as provided herein, unless and until payment is made in respect of vested PRSUs in accordance with the provisions hereof and the Participant has become the holder of record of the vested shares of Common Stock issuable hereunder.
7. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof.
8. Withholding of Tax. The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the PRSUs (“Withholding
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Taxes”) and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any shares of Common Stock otherwise required to be issued pursuant to this Agreement. Any such withholding obligation with regard to the Participant may, at the Company’s discretion, be satisfied by reducing the amount of shares of Common Stock otherwise deliverable to the Participant hereunder.
9. Legend. The Company may at any time place legends referencing any applicable federal, state or foreign securities law restrictions on all certificates representing shares of Common Stock issued pursuant to this Agreement. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares of Common Stock acquired pursuant to this Agreement in the possession of the Participant in order to carry out the provisions of this Section 9.
10. Securities Representations. This Agreement is being entered into by the Company in reliance upon the following express representations and warranties of the Participant. The Participant hereby acknowledges, represents and warrants that:
(a) The Participant has been advised that the Participant may be an “affiliate” within the meaning of Rule 144 under the Securities Act and in this connection the Company is relying in part on the Participant’s representations set forth in this Section 10.
(b) If the Participant is deemed an affiliate within the meaning of Rule 144 of the Securities Act, the shares of Common Stock issuable hereunder must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company files an additional registration statement (or a “re-offer prospectus”) with regard to such shares of Common Stock and the Company is under no obligation to register such shares of Common Stock (or to file a “re-offer prospectus”).
(c) If the Participant is deemed an affiliate within the meaning of Rule 144 of the Securities Act, the Participant understands that (i) the exemption from registration under Rule 144 will not be available unless (A) a public trading market then exists for the Common Stock of the Company, (B) adequate information concerning the Company is then available to the public, and (C) other terms and conditions of Rule 144 or any exemption therefrom are complied with, and (ii) any sale of the shares of Common Stock issuable hereunder may be made only in limited amounts in accordance with the terms and conditions of Rule 144 or any exemption therefrom.
11. Acceptance. The award of PRSUs pursuant to this Agreement must be accepted by the Participant within a period of 180 days after the Grant Date by executing this agreement in accordance with Section 19 hereof. Subject to the Committee’s discretion, if the award is not accepted within this time period, all PRSUs purported to be granted hereunder may be immediately forfeited.
12. Entire Agreement; Amendment. This Agreement and any exhibits to it, together with the Plan, contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.
13. Notices. Any notice hereunder by the Participant shall be given to the Company in writing and such notice shall be deemed duly given only upon receipt thereof by the General Counsel of the Company. Any notice hereunder by the Company shall be given to the Participant in writing and such notice shall be deemed duly given only upon receipt thereof at such physical address or e-mail address as the Participant may have on file with the Company.
14. No Right to Employment. Any questions as to whether and when there has been a termination and the cause of such termination shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Xxxxxxx Companies to terminate the Participant’s employment or service at any time, for any reason and with or without cause.
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15. Transfer of Personal Data. The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any subsidiary) of any personal data information related to the PRSUs awarded under this Agreement for legitimate business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given by the Participant.
16. Compliance with Laws. The grant of PRSUs and the issuance of shares of Common Stock hereunder shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations (including, without limitation, the provisions of the Securities Act, the Exchange Act and in each case any respective rules and regulations promulgated thereunder) and any other law, rule regulation or exchange requirement applicable thereto. The Company shall not be obligated to issue the PRSUs or any shares of Common Stock pursuant to this Agreement if any such issuance would violate any such requirements. As a condition to the settlement of the PRSUs, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate to evidence compliance with any applicable law or regulation.
17. Binding Agreement; Assignment. This Agreement shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign (except in accordance with Section 6 hereof) any part of this Agreement without the prior express written consent of the Company.
18. Headings. The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.
19. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument; provided, however, that the Participant may be required to execute this Agreement through the electronic acceptance process provided by the Company or its designee.
20. Further Assurances. Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.
21. Severability. The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.
22. Acquired Rights. The Participant acknowledges and agrees that: (a) the Company may terminate or amend the Plan at any time; (b) the Award of PRSUs made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (c) no past grants or awards (including, without limitation, the PRSUs awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (d) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation.
23. Section 409A. This Agreement is intended to be exempt from or comply with Section 409A of the Code (“Section 409A”) and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding anything herein to the contrary, if and to the extent it is determined that the payments and benefits provided under this Agreement fail to satisfy the requirements of the “short-term deferral” exemption from application of Section 409A and are otherwise deferred compensation subject to Section, and if the Participant is a “specified employee” (as defined under Section 409A(a)(2)(B)(i) of the Code) as of the date of the Participant’s “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h)), then the issuance of any shares of Common Stock that would otherwise be made upon the date of the separation from service or within the first six (6) months thereafter will not be made on the
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originally scheduled date and will instead be issued in a lump sum no earlier than the date that is six (6) months and one day after the date of the separation from service, but only if such delay in the issuance of the shares is necessary to avoid the imposition of additional taxation on Participant in respect of the issuance of shares of Common Stock under Section 409A. The Company reserves the right, to the extent the Company deems appropriate or advisable in its sole discretion, to unilaterally amend or modify this Agreement as may be necessary to ensure that all payments and benefits provided for under this Agreement are made in a manner that qualifies for exemption from or complies with the requirements of Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement are exempt from or comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A of the Code.
24. Tax Advice. Participant represents that the Participant has consulted with any tax consultants Participant deems advisable in connection with this Agreement and that Participant is not relying on the Company for any tax advice related to this Agreement.
25. Additional Agreements. As further consideration for the award of PRSUs made under this Agreement, Participant agrees to be bound by the additional covenants and agreements attached hereto as Exhibit B, which is incorporated into this Agreement by reference.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed, as of the Grant Date, by an authorized officer of the Company and by accepting this Agreement through the electronic acceptance process provided by the Company, or its designee, Participant is electronically signing this Agreement and agrees Participant’s electronic signature is the legal equivalent of a manual signature on this Agreement.
XXXXXXX, INC.
By:
Name: Xxxxx X. Xxxxxx
Title: Chief Legal Officer and Corporate Secretary
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Exhibit A
The PRSUs are eligible to vest pursuant to the criteria set forth on this Exhibit A. Certain capitalized terms used herein have the meanings set forth in Section 4 below. Capitalized terms not defined herein have the meanings set forth in the Agreement to which this Exhibit A is attached or the Plan.
1.General Terms. The general terms applicable to the PRSUs are as follows:
•Maximum Number of PRSUs: 200% of the Target Number of PRSUs.
•Performance Period: Three year period commencing January 1, 2024 and ending December 31, 2026.
2.Vesting Terms. The PRSUs are eligible to vest subject to satisfaction of each of: (i) a time-based continued employment vesting condition, and (ii) the Company’s applicable level of attainment of the performance goals specified in Section 3 below (the “Performance Goals”).
•Except as explicitly provided herein, the Participant must remain employed by the Xxxxxxx Companies through the applicable Vesting Date to be eligible to vest in any PRSUs.
•The number of PRSUs that are eligible to vest will depend on the Company’s level of attainment of the Performance Goals during the Performance Period, as specified in Section 3 below.
•In no event are the PRSUs eligible to vest for more than the Maximum Number of PRSUs
3.Earned PRSUs. The number of PRSUs which will become Earned PRSUs which are eligible to vest will be determined by taking the number of Target Number of PRSUs specified in the Grant Notice and multiplying such Target Number of PRSUs by the applicable Performance Multiplier as determined by the Committee pursuant to the chart set forth below.
Target Goal: Adjusted Operating Income of $252,300,000 | ||||||||
| Performance Level | Attained Percentage of Target Goal | Performance Multiplier | ||||||
| Less than 70% | Zero | |||||||
| Threshold | 70% | 35% | ||||||
| More than 70% but less than 100% | 35% plus 2.1667 x Attained Percentage of Target Goal above 70% (and less than 100%) | |||||||
| Target | 100% | 100% | ||||||
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| More than 100% but less than 150% | 100% plus 2.0 x Attained Percentage of Target Goal above 100% (up to 150%) | |||||||
| Maximum | 150% | 200% | ||||||
Determination of Performance Multiplier.
•The applicable Performance Multiplier (rounded to four decimal places) for the Performance Period will be determined by the Committee in accordance with the criteria set forth in the foregoing chart on the basis of the Company’s actual level of achievement of the Performance Goal during the Performance Period as measured against the Target Goal. The Committee’s determination will be final and binding on the Participant.
•As provided above, linear interpolation applies for determining the Performance Multiplier for achievement between the applicable Threshold, Target and Maximum performance levels.
•If the Threshold Goal is not met during the Performance Period, no PRSUs are eligible to vest.
•The Performance Multiplier determined for the Performance Period may not exceed 200%.
Determination and Vesting of CIC Earned PRSUs Upon a Change in Control. In the event of the consummation of a Change in Control before the end of the Performance Period, the Committee reserves the discretion to instead elect to earlier end the Performance Period and determine the number of Earned PRSUs that are eligible to vest based on the Company’s level of achievement of the Performance Goals through the date immediately preceding the Change in Control (“CIC Earned PRSUs”).
•If the Acquiror will assume, continue or substitute the CIC Earned PRSUs, such CIC Earned PRSUs will be eligible to vest subject to the Participant’s continued employment with the Company or any acquiring or successor entity through the January 1st immediately following scheduled expiration of the three-year Performance Period, which January 1st shall be the “Vesting Date” for any CIC Earned PRSUs, or Participant’s earlier Qualified Termination (whether preceding or following the Change in Control).
•If the CIC Earned PRSUs are not assumed, continued or substituted by the Acquiror, the CIC Earned PRSUs will instead accelerate vesting and will be settled immediately prior to the Change in Control, subject to the Participant’s continued employment through the date immediately preceding the Change in Control (or the Participant’s earlier Qualified Termination).
•Notwithstanding anything to the contrary set forth in the Agreement, any CIC Earned PRSUs that vest in connection with a Qualified Termination shall be settled no later than 90 days following the later of the date of the Change in Control or the date of such Qualified Termination to the extent necessary to avoid adverse tax consequences under Section 409A, subject to any required six month and one day delay for any issuance to a “specified employee” in connection with a separation from service to the extent necessary to avoid adverse tax consequences under Section 409A.
Impact of Qualified Termination Prior to Vesting Date.
•If the Participant terminates employment due to the Participant’s death, Disability or Qualified Retirement prior to the Vesting Date, the Participant will be eligible to vest in a pro-rata number of Earned PRSUs or CIC Earned PRSUs, as applicable, subject to the level of attainment of the Performance Goals, and with such pro-rata portion calculated by reference to the total number of days that Participant was employed during the applicable Service Period, divided by the total number of days in such Service Period.
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•If the Participant terminates employment due to a Change in Control Termination, then Participant will be eligible to vest in the full number of Earned PRSUs or CIC Earned PRSUs, as applicable.
•If the Participant terminates employment prior to the Vesting Date for any reason other than a Qualified Termination, no PRSUs are eligible to vest and any unvested PRSUs will be forfeited and cancelled as provided in the Agreement.
4.Definitions. For purposes of the Award, the following definitions apply. Except as otherwise defined by the Agreement or the Grant Notice, or defined below, capitalized terms will have the meanings assigned by the Plan.
•“Acquiror” means the applicable acquiring, continuing or surviving entity in a Change in Control transaction.
•“Adjusted Operating Income” means the Company’s “Adjusted Operating Income” as reported in the Company’s audited financial statements for the corresponding fiscal year periods included in the Performance Period.
•“Change in Control Termination” means the Participant’s termination without Cause following a Change in Control.
•“Determination Date” means the date on which the Committee determines the level of Company performance achieved during the Performance Period and the resulting number of Earned PRSUs. Except as may occur earlier in connection with a Change in Control, such determination by the Committee shall occur on a date during the first calendar quarter immediately following expiration of the Performance Period
•“Earned PRSUs” means the number of PRSUs determined in accordance with Section 3.
•“Performance Metric” means the Company’s Adjusted Operating Income for the Performance Period.
•“Performance Multiplier” means, for the Performance Period, a percentage (rounded to four decimal places) determined in accordance with Section 3.
•“Qualified Termination” means a termination of Participant’s employment prior to the Vesting Date due to Participant’s death, Disability, Qualified Retirement or Change in Control Termination. In all cases, a Qualified Termination occurs only when the Participant has had a “separation from service” within the meaning of Section 409A.
•“Service Period” means the three-year period commencing on the first date of the Performance Period; provided, however, that if a Change in Control occurs prior to expiration of such period where the Acquiror will not assume, continue or substitute the PRSUs in connection with the Change in Control, then the Service Period shall instead end on the date immediately prior to the Change in Control.
•“Target Goal” means the Company’s Target Goal level of Adjusted Operating Income for the Performance Period as set forth in Section 3.
•“Threshold Goal” means the Company’s Threshold Goal level of Adjusted Operating Income for the Performance Period as set forth in Section 3.
•“Vesting Date” means the Determination Date; provided, however, that if the Committee determines that the Performance Period will terminate early in connection with a Change in Control and the applicable number of CIC Earned PRSUs which are eligible to vest, then: (i) if the Acquiror will assume, continue or substitute the CIC Earned PRSUs the “Vesting Date” will instead be the January 1st first following the expiration of the Service Period, and (ii) if the CIC Earned PRSUs will not be assumed, continued or substituted by the Acquiror in such
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Change in Control, the “Vesting Date” shall instead be the date immediately prior to the Change in Control.
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Exhibit B
a.Confidentiality. During the course of Participant's service for the Xxxxxxx Companies, Participant will have access to Confidential Information. For purposes of this Agreement, “Confidential Information” means all data, information, ideas, concepts, discoveries, trade secrets, inventions (whether or not patentable or reduced to practice), innovations, improvements, know-how, developments, techniques, methods, processes, treatments, drawings, sketches, specifications, designs, plans, patterns, models, plans and strategies, and all other confidential or proprietary information or trade secrets in any form or medium (whether merely remembered or embodied in a tangible or intangible form or medium) whether now or hereafter existing, relating to or arising from the past, current or potential business, activities and/or operations of the Xxxxxxx Companies (or any of their respective predecessors, successors or permitted assigns), including, without limitation, any such information relating to or concerning finances, sales, marketing, advertising, transition, promotions, pricing, personnel, customers, suppliers, vendors, partners and/or competitors.
Participant shall not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any person, other than in the course of Participant’s assigned duties and for the benefit of the Xxxxxxx Companies, either during the period of Participant’s employment or service or at any time thereafter, any Confidential Information or other confidential or proprietary information received from third parties subject to a duty on the subject Xxxxxxx Company’s part to maintain the confidentiality of such information, and to use such information only for certain limited purposes strictly for the benefit of the Xxxxxxx Companies.
The foregoing shall not apply to information that (a) was known to the public prior to its disclosure to Participant; (b) becomes generally known to the public subsequent to disclosure to Participant through no wrongful act of either Participant or any of Participant’s representatives or affiliates; or (c) Participant is required to disclose by applicable law, regulation or legal process (provided that, subject to Section 11 to this Exhibit B below, Participant provides the Company with prior notice of the contemplated disclosure and cooperate with the Company (or another Xxxxxxx Company) at its expense in seeking a protective order or other appropriate protection of such information).
b.Noncompetition. Participant shall not, directly or indirectly by or through any agent, whether as principal, agent, owner, investor, lender, shareholder, member, partner, manager, director, officer, employee, consultant or in any other capacity, (a) during Participant’s employment by a Xxxxxxx Company (“Employment”) and until 12 months after the date of termination of the Employment (the "Restricted Period"), engage or participate in the Restricted Business anywhere in the world, or (b) without the written consent of the Board of Directors of Xxxxxxx, Inc. (the “Board”), use a Xxxxxxx Companies’ financial resources, management, employees, business names or other intellectual property, other than in furtherance of the business of the Xxxxxxx Companies. "Restricted Business" means (a) the vehicle, boat, and collectible insurance business and ancillary businesses relating to the preservation, safety, and enjoyment of vehicles, boats, and collectibles, and (b) any other business in which the Xxxxxxx Companies are engaged during the applicable Restricted Period.
c.Nonsolicitation; Noninterference. During the Restricted Period, Participant will not solicit or suggest, or provide assistance to anyone else in seeking to solicit or suggest, that any customer, vendor, employee, or other person or organization having or contemplating a relationship with the Xxxxxxx Companies terminate, reduce, or not initiate their relationship or contemplated relationship with the Xxxxxxx Companies, or enter into any similar relationship with anyone else instead of the Xxxxxxx Companies. The time periods for the covenants in this Section shall be extended by the same period that Participant is in violation of any such covenant. The parties agree that any breach of Participant’s commitments in this Section would cause the Xxxxxxx Companies irreparable harm and that injunctive relief would be appropriate.
d.Nondisparagement. Participant agrees not to make negative comments or otherwise disparage any of the Xxxxxxx Companies or any of their respective partners, members, officers, directors, managers, employees, shareholders, agents or products other than in the good faith performance of Participant’s duties to the Xxxxxxx Companies during Participant’s service for any Xxxxxxx Company. The foregoing shall not be violated by truthful statements in response to legal process, required governmental testimony
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or filings, or administrative or arbitral proceedings (including, without limitation, depositions in connection with such proceedings).
e.Return of Property. On Participant’s termination for any reason (or at any time prior thereto at the request of any Xxxxxxx Company), Participant shall return to the applicable Xxxxxxx Company all Confidential Information or other property belonging to such Xxxxxxx Company or any of its affiliates (including, but not limited to, any Xxxxxxx Company-provided laptops, computers, cell phones, wireless electronic mail devices or other equipment, or documents and property belonging to any Xxxxxxx Company).
f.Reasonableness of Covenants. In signing this Agreement, Participant gives the Company assurance that Participant has carefully read and considered all of the terms and conditions of this Agreement, including the restraints imposed under this Exhibit B. Participant agrees that these restraints are necessary for the reasonable and proper protection of the Xxxxxxx Companies and their affiliates and their trade secrets and confidential information and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area, and that these restraints, individually or in the aggregate, will not prevent Participant from obtaining other suitable employment during the period in which Participant is bound by the restraints. Participant acknowledges that each of these covenants has a unique, very substantial and immeasurable value to the Xxxxxxx Companies and their affiliates and that Participant has sufficient assets and skills to provide a livelihood while such covenants remain in force. Participant further covenants that Participant will not challenge the reasonableness or enforceability of any of the covenants set forth in this Exhibit B, and that Participant will reimburse the Xxxxxxx Companies for all costs (including reasonable attorneys’ fees) incurred in connection with any action to enforce any of the provisions of this Exhibit B if either any Xxxxxxx Company or any of their affiliates prevails on any material issue involved in such dispute or if Participant challenges the reasonableness or enforceability of any of the provisions of this Exhibit B. It is also agreed that each Xxxxxxx Company will have the right to enforce all of Participant’s obligations to such person or entity under this Agreement and shall be third party beneficiaries hereunder, including without limitation pursuant to this Exhibit B.
g.Reformation. If it is determined by a court of competent jurisdiction in any state that any restriction in this Exhibit B is excessive in duration or scope or is unreasonable or unenforceable under applicable law, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.
h.Tolling. In the event of any violation of the provisions of this Exhibit B, Participant acknowledge and agree that the post-termination restrictions contained in this Exhibit B shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation.
i.Equitable Relief and Other Remedies. Participant acknowledges and agrees that the remedies at law of the Company and each of the third-party beneficiaries of this Exhibit B for a breach or threatened breach of any of the provisions of Exhibit B hereof would be inadequate and, in recognition of this fact, Participant agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company (or any such third-party beneficiary), shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available, without the necessity of showing actual monetary damages or the posting of a bond or other security.
j.Company Recoupment of Award. Participant acknowledges that the PRSUs subject to this Agreement are subject to potential forfeiture or recoupment to the fullest extent called for this Section 10, by any Company recoupment policy, other agreement or arrangement with a participant, or applicable federal or state law including, without limitation, any Company obligation to clawback “incentive-based compensation” under Section 10D of the Exchange Act. By executing this Agreement, the Participant agrees to be bound by, and comply with, the terms of any such forfeiture or recoupment provision imposed by applicable federal or state law or prescribed by this Section 10 or any policy of the Company. Specifically, if the Participant violates any agreement between Participant and the Xxxxxxx Companies with respect to non-competition, non-solicitation (including Sections 2 and 3 of this Exhibit B), or if, in a
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written opinion by the independent directors on the Board (the “Independent Directors”), they find that the Company’s financial results are restated or materially misstated due in part to intentional fraud or misconduct by Participant, then: (a) any unvested PRSUs subject to this Agreement shall be forfeited, and (b) the Participant shall immediately remit a cash payment to the Company (“Clawback Payment”) equal to (i) the closing price of a share of Common Stock on whichever national exchange the Common Stock is traded, on either (A) the last business day prior to the Grant Date, or (B) the date of Participant’s last day of Employment, or (C) a date prior to Participant’s last day of Employment set by the Independent Directors in their written opinion, whichever is greater, multiplied by (ii) the number of shares of Common Stock that have vested as of the date on which the Clawback Payment is made by Participant. The remedy provided by this Section 10 shall be in addition to and not in lieu of any rights or remedies which the Company may have against the Participant in respect of a breach by Participant of any duty or obligation to the Company.
k.Protected Rights. Participant understands that nothing in this Agreement limits Participant’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission ("Government Agencies"). Participant further understands that nothing in this Agreement limits (a) Participant’s ability to communicate with any Government Agency or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company, or (b) Participant’s right to receive an award for information provided to any Government Agency. In addition, 18 U.S.C. § 1833(b) provides: "An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b). Accordingly, the parties to this have the right to disclose in confidence trade secrets to Government Agencies, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The parties also have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure.
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