EMPLOYMENT AGREEMENT
EXHIBIT 10.4
This Employment Agreement (this “Agreement”), effective as of the date of the consummation of
the initial public offering of common stock of Triangle Capital Corporation (the “Effective Date”),
is entered into by and among Triangle Capital Corporation, a Maryland corporation (the “Company”),
and Xxxxxxx X. Xxxx (the “Executive”).
W I T N E S S E T H:
WHEREAS, the Company desires to induce the Executive to enter into an agreement of employment
with the Company for the period provided in this Agreement; and
WHEREAS, the Executive is willing to accept such employment on a full-time basis, all in
accordance with the terms and conditions set forth below;
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, the parties
hereto hereby covenant and agree as follows:
1. Employment
(a) The Company hereby agrees to employ the Executive, and the Executive hereby agrees to
accept such employment with the Company, beginning on the Effective Date and continuing for the
period set forth in Section 2 hereof, all upon the terms and conditions hereinafter set forth.
(b) The Executive affirms and represents that as of the Effective Date, he is under no
obligation to any former employer or other party that is in any way inconsistent with or imposes
any restriction on the Executive’s acceptance of employment hereunder with the Company, the
employment of the Executive by the Company, or the Executive’s undertakings under this Agreement.
2. Term of Employment
(a) Unless earlier terminated as provided in this Agreement, the term of the Executive’s
employment pursuant to this Agreement shall be for a period beginning on the Effective Date and
ending on the first anniversary of the Effective Date (the “Initial Term”).
(b) The term of the Executive’s employment under this Agreement shall be automatically renewed
for additional one-year terms (each a “Renewal Term”), unless earlier terminated as provided in
this Agreement, upon the expiration of the Initial Term or any Renewal Term unless the Company or
the Executive delivers to the other, at least three (3) months prior to the expiration of the
Initial Term or the then current Renewal Term, as the case may be, a written notice specifying that
the term of the Executive’s employment will not be renewed at the end of the Initial Term or such
Renewal Term, as the case may be. The Initial
Term together with any Renewal Terms shall hereinafter be referred to as the “Employment
Term.”
3. Duties. The Executive shall be employed as a Managing Director of the Company,
shall faithfully and competently perform such duties as inherent in such position and as are
specified in the Bylaws of the Company. The Executive shall perform his duties principally at the
offices of the Company in Raleigh, North Carolina, with such travel to such other locations from
time to time as the position of Managing Director may reasonably demand. Except as may otherwise
be approved in advance by the Board of Directors of the Company, and except during vacation periods
and reasonable periods of absence due to sickness, personal injury or other disability, the
Executive shall devote his full business time throughout the Employment Term to the services
required of him hereunder. The Executive shall render his business services exclusively to the
Company and its subsidiaries during the Employment Term and shall use his best efforts, judgment
and energy to improve and advance the business and interests of the Company and its subsidiaries in
a manner consistent with the duties of his position. Nothing contained in this Section 3 shall
preclude the Executive from performing services for charitable or not-for-profit community
organizations, provided that such activities do not interfere with the Executive’s performance of
his duties and responsibilities under this Agreement.
4. Salary; Bonuses; Special Bonuses.
(a) Salary. As compensation for the performance by the Executive of the services to
be performed by the Executive hereunder during the Employment Term, the Company shall pay the
Executive a base salary at the annual rate of Two Hundred Thousand and No/100 Dollars ($200,000.00)
(said amount, together with any increases thereto as may be authorized from time to time by the
Compensation Committee of the Board of Directors of the Company in its sole discretion, being
hereinafter referred to as “Salary”). Any Salary payable hereunder shall be paid in regular
intervals in accordance with the Company’s payroll practices from time to time in effect.
(b) Bonus. The Executive may receive bonus compensation from the Company in respect
of any fiscal year (or portion thereof) occurring during the Employment Term at the discretion of
the Compensation Committee of the Board of Directors of the Company. Any bonus or incentive
compensation payable pursuant to a plan that bases such bonus or incentive compensation on the
Executive’s salary shall be based on the Executive’s highest annual rate of Salary at any time
during such fiscal year. In no circumstance, however, shall the Executive’s cash bonus in any year
equal more than 100% of his then current Salary, not including any of the Executive’s tax
gross-ups, expense reimbursements or similar payments which have been approved by the Compensation
Committee of the Board of Directors.
5. Other Benefits; Company Stock.
(a) General. During the Employment Term, the Executive shall:
(i) be eligible to participate in employee fringe benefits and pension and/or profit
sharing plans that may be provided by the Company for its senior
executive employees in accordance with the provisions of any such plans, as the same
may be in effect from time to time;
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(ii) be eligible to participate in the Company’s long-term incentive and equity plans
that may from time to time be adopted by the Company, including the Company’s 2007 Equity
Incentive Plan;
(iii) be eligible to participate in any medical and health plans or other employee
welfare benefit plans that may be provided by the Company for its senior executive employees
in accordance with the provisions of any such plans, as the same may be in effect from time
to time;
(iv) be entitled to the number of paid vacation days in each calendar year determined
by the Company from time to time for its senior executive officers, provided that such
number of paid vacation days in each calendar year shall not be less than twenty work days
(four calendar weeks); the Executive shall also be entitled to all paid holidays given by
the Company to its senior executive officers;
(v) be entitled to sick leave, sick pay and disability benefits in accordance with any
Company policy that may be applicable to senior executive employees from time to time, and
(vi) be entitled to reimbursement for all reasonable and necessary direct out-of-pocket
business expenses incurred by the Executive in the performance of his duties hereunder in
accordance with the Company’s normal policies from time to time in effect (including,
without limitation, relocation expenses).
6. Confidential Information. The Executive hereby covenants, agrees and acknowledges
as follows:
(a) The Executive shall not, without the prior express written consent of the Company,
directly or indirectly, use for any purpose any Confidential Information (as defined below) in any
way, or divulge, disclose or make available or accessible any Confidential Information to any
person, firm, partnership, corporation, trust or any other entity or third party unless (i) such
disclosure is reasonably necessary or appropriate in connection with the performance by the
Executive of his duties as an executive of the Company or (ii) such disclosure is required by
applicable law or (iii) the Executive is requested or required by a judicial or arbitration body or
governmental agency (by oral question, interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process) to disclose any such information, in which
case the Executive will (A) promptly notify the Company of such request or requirement, so that the
Company may seek an appropriate protective order and (B) cooperate with the Company, at its
expense, in seeking such an order.
(b) “Confidential Information” means all information concerning the business and activities of
the Company and any of its affiliates, including, without limitation, concerning the portfolio
companies, investments, suppliers, employees, consultants, prospects, computer or other files,
projects, products, computer disks or other media, computer hardware or computer software programs,
underwriting, lending or investment standards, marketing plans,
financial information, methodologies, know-how, processes, trade secrets, policies, practices,
projections, forecasts, formats, operational methods, product development techniques, research,
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strategies or information agreed to with third parties to be kept confidential by the Company and
any of its affiliates. Notwithstanding the immediately preceding sentence, Confidential
Information shall not include any information that is, or becomes, a part of the public domain or
generally available to the public (unless such availability occurs as a result of any breach by the
Executive of this Agreement) or any business knowledge and experience of the type usually acquired
by persons engaged in positions similar to the Executive’s position with the Company, to the extent
such knowledge and experience is non-Company specific and not proprietary to the Company or any of
its affiliates.
(c) The Executive shall not disclose, use or make known for his or another’s benefit any
Confidential Information or use such Confidential Information in any way except as is in the best
interests of the Company in the performance of the Executive’s duties under this Agreement. The
Executive may disclose Confidential Information when required by a third party and applicable law
or judicial process, but only after providing immediate notice to the Company at any third party’s
request for such information, which notice shall include the Executive’s intent with respect to
such request.
(d) The Executive agrees that upon termination of his employment with the Company for any
reason, the Executive shall forthwith return to the Company all Confidential Information in
whatever form maintained (including, without limitation, computer discs and other electronic
media).
(e) The Executive acknowledges and agrees that a remedy at law for any breach or threatened
breach of the provisions of this Section 6 would be inadequate and, therefore, agrees that the
Company shall be entitled to injunctive relief in addition to any other available rights and
remedies in case of any such breach or threatened breach by the Executive (and the Executive hereby
waives any requirement that any of the Company provide a bond or other security in connection with
the issuance of any such injunction); provided, however, that nothing contained herein shall be
construed as prohibiting the Company from pursuing any other rights and remedies available for any
such breach or threatened breach.
(f) The obligations of the Executive under this Section 6 shall, except as otherwise provided
herein, survive the termination of the Employment Term and the expiration or termination of this
Agreement.
(g) Without limiting the generality of Section 9 hereof, the Executive hereby expressly agrees
that the foregoing provisions of this Section 6 shall be binding upon the Executive’s heirs,
successors and legal representatives.
7. Termination.
(a) The Executive’s employment hereunder shall be terminated upon the occurrence of any of the
following:
(i) death of the Executive;
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(ii) the Executive’s inability to perform his duties on account of disability or
incapacity for a period of one hundred eighty (180) or more days, whether or not
consecutive, within any period of twelve (12) consecutive months;
(iii) the Company giving written notice, at any time, to the Executive that the
Executive’s employment is being terminated “for cause” (as defined below);
(iv) the Company giving written notice to the Executive that (A) the Executive’s
employment is being terminated other than during the two-year period commencing with a
“Change in Control” (as defined below) and other than pursuant to clauses (i), (ii) or (iii)
above, or (B) the Executive’s employment will not be renewed at the end of the applicable
Employment Term other than during the two-year period commencing with a “Change in Control”
and other than pursuant to clauses (i), (ii) or (iii) above;
(v) the Company giving written notice that the Executive’s employment is being
terminated during the two-year period commencing with a Change in Control and other than
pursuant to clauses (i), (ii) or (iii) above, or the Company giving written notice
specifying that the Executive’s employment will not be renewed at the end of the applicable
Employment Term falling within the two-year period commencing with a Change in Control and
other than pursuant to clause (i), (ii) or (iii) above;
(vi) the Executive resigning with “Good Reason” (as defined below) during the two-year
period commencing with a Change in Control;
(vii) the Executive resigning for any reason whatsoever (whether by reason of
retirement, resignation or otherwise), except as set forth in clauses (vi) or (viii); or
(viii) the Executive resigning for any reason whatsoever (whether by reason of
retirement, resignation or otherwise) during the period commencing on the three hundred
sixty-sixth (366th) day following a Change in Control and ending on the three hundred
ninety-sixth (396th) day following such Change in Control.
(b) The following actions, failures and events by or affecting the Executive shall constitute
“cause” for termination within the meaning of clause (iii) above: (i) gross negligence by the
Executive in the performance of, or the willful disregard by the Executive of, his obligations
under this Agreement or otherwise relating to his employment, which gross negligence or willful
disregard continues unremedied for a period of fifteen (15) days after written notice thereof to
the Executive; (ii) acts of dishonesty by the Executive that are materially detrimental to one or
more of the Company or its subsidiaries; (iii) the Executive’s material breach of this Agreement;
(iv) the Executive being convicted of, or pleading guilty or no contest to, a felony or other crime
having as its predicate element fraud, dishonesty or misappropriation, or the entry of any order or
consent decree, whether or not
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liability is admitted or denied, by the Securities and Exchange Commission against the
Executive in respect of charges that the Executive violated any provision of the Investment Company
Act of 1940 or the Securities Exchange Act of 1934, other than provisions requiring the maintenance
of proper books and records; or (v) failure by the Executive to obey the reasonable and lawful
orders and policies of the Board of Directors of the Company that are material to and consistent
with the terms of this Agreement, which failure continues unremedied for a period of fifteen (15)
days after written notice thereof to the Executive (provided that in the case of clauses (ii) or
(iii) above, the Executive shall have received written notice of such proposed termination. For
purposes of this definition, no act or failure to act by the Executive shall be considered
“willful” unless done or omitted to be done by the Executive in bad faith and without reasonable
belief that the Executive’s action or omission was in the best interests of the Company.
(c) “Good Reason” shall mean, on and after a Change in Control, without the Executive’s
written consent, the occurrence of any of the following events:
(i) (A) any change in the duties or responsibilities (including reporting
responsibilities) of the Executive that is inconsistent in any material and adverse respect
with the Executive’s position(s), duties, responsibilities or status with the Company
immediately prior to such Change in Control (including any material and adverse diminution
of such duties or responsibilities); provided, however, that Good Reason shall not be deemed
to occur upon a change in duties or responsibilities (other than reporting responsibilities)
that is solely and directly a result of the Company no longer being a publicly traded entity
and does not involve any other event set forth in this paragraph (i); or (B) a material and
adverse change in the Executive’s titles or offices with the Company as in effect
immediately prior to such Change in Control;
(ii) a material reduction by the Company in the Executive’s rate of annual base salary
or annual target bonus opportunity (including any material and adverse change in the formula
for such annual bonus target) as in effect immediately prior to such Change in Control;
(iii) any requirement of the Company that the Executive be based anywhere more than
thirty-five (35) miles from the office where the Executive is located at the time of such
Change in Control, if such relocation increases the Executive’s commute by more than twenty
(20) miles; or
(iv) any failure of the Company to cause any successor entity to the Company in such
Change of Control unconditionally to assume all of the obligations of the Company under this
Agreement (except to the extent that such obligation would be assumed by operation of law)
prior to the effectiveness of such Change in Control.
In addition, if (i) the Executive resigns prior to a Change in Control under circumstances that
would have constituted a resignation by the Executive for Good Reason if such circumstances
occurred following a Change in Control; (ii) such event constituting Good Reason for such
resignation was at the request of a third party who had indicated an intention or taken steps
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reasonably calculated to effect a Change in Control or was otherwise in anticipation of a Change in
Control; and (iii) a Change in Control involving such third party (or a party competing with such
third party to effectuate a Change in Control) or such anticipated Change in Control does occur,
then the date immediately prior to the date of such termination of employment shall be treated as a
Change in Control and such termination shall be treated as by the Executive for Good Reason.
(d) Consequences of Termination.
(i) In the event that the Executive’s employment is terminated pursuant to clauses (i),
(ii) or (iv) of Section 7(a) above (except upon failure to renew pursuant to clause (B) of
Section 7(a)(iv) above), then (i) during the twelve (12) month period beginning on the date
of such termination, the Company shall pay to the Executive, as severance pay or liquidated
damages or both, monthly payments equal to one-twelfth of (x) the rate per annum of his
Salary at the time of such termination plus (y) up to one hundred percent (100%) of the
Executive’s bonus compensation as determined in the sole discretion of the Compensation
Committee (“Bonus Compensation”), provided, however, that no such payments shall be required
from and after the time that the Executive fails to comply with his obligations under
Section 10 below; and (ii) the Company shall continue to provide the Executive with all
benefits provided to Executive immediately prior to such termination from the date of such
termination until the earlier to occur of (x) the first anniversary of such termination or
(y) as to any particular benefit, the date upon which the Executive becomes eligible to
receive such equal benefit from another employer; provided, however, that if the provision
of any such benefit by the Company would contravene any law or the terms of any employee
benefit plan of the Company, or would result in the loss of a tax benefit to which the
Company otherwise would be entitled, the Company shall pay to the Executive, on an after-tax
basis (in respect of any benefit which would be non-taxable to the Executive if provided
directly by the Company), sufficient cash to allow the Executive to purchase an equivalent
benefit from an entity other than the Company. If the Executive’s employment terminates due
to failure to renew this Agreement pursuant to clause (B) of Section 7(a)(iv) above, then
any severance payment or benefit will be payable at the absolute discretion of the
Compensation Committee.
(ii) In the event that the Executive resigns pursuant to clauses (vi) or (viii) of
Section 7(a) above or the Executive’s employment is terminated or not renewed by the Company
pursuant to clause (v) of Section 7(a) above, then (i) during the eighteen (18) month period
beginning on the date of such termination or non-renewal, the Company shall pay to the
Executive, as severance pay or liquidated damages or both, monthly payments equal to
one-twelfth of (x) the rate pre annum of his Salary at the time of such termination or
non-renewal plus (y) Bonus Compensation; and (ii) the Company shall continue to provide the
Executive with all the benefits provided to the Executive immediately prior to such
termination or non-renewal from the date of such termination or non-renewal until the
earlier to occur of (x) the eighteen (18) month anniversary of such termination or
non-renewal, or (y) as to any particular benefit, the date upon which the Executive becomes
eligible to receive such equal benefit from another employer; provided, however, that if the
provision of any such benefit by the Company would
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contravene any law or the terms of any employee benefit plan of the Company, or would
result in the loss of a tax benefit to which the Company otherwise would be entitled, the
Company shall pay to the Executive, on an after-tax basis (in respect of any benefit which
would be non-taxable to the Executive if provided directly by the Company), sufficient cash
to allow the Executive to purchase an equivalent benefit from an entity other than the
Company.
(iii) In the event this Agreement is terminated pursuant to clauses (iii) or (vii) of
Section 7(a) above, the Company shall pay to the Executive all accrued Salary up to the date
of such termination, and shall thereafter have no further obligation to the Executive.
(e) Notwithstanding anything to the contrary expressed or implied herein, except as required
by applicable law and except as set forth in Section 7(d) above, the Company (and its affiliates)
shall not be obligated to make any payments to the Executive or on his behalf of whatever kind or
nature by reason of the Executive’s cessation of employment, other than (i) such amounts, if any,
of his Salary as shall have accrued and remained unpaid as of the date of said cessation and (ii)
such other amounts, if any, which may be then otherwise payable to the Executive pursuant to the
terms of the Company’s benefits plans, including all accrued and unused paid vacation days.
(f) No interest shall accrue on or be paid with respect to any portion of any payments
hereunder.
(g) For purposes of this Agreement, “Change in Control” means the occurrence of any one of the
following events:
(i) any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) is or becomes the beneficial owner (as
defined in Exchange Act Rules 13d-3 and 13d-5, except that for purposes of this paragraph
(i) such person shall be deemed to have beneficial ownership of all shares that such person
has the right to acquire, whether such right is exercisable immediately or only after the
passage of time, directly or indirectly) of more than 35% of the total voting power of the
Company’s “Voting Stock” (as defined below). For purposes of this paragraph (i), such other
person shall be deemed to beneficially own any Voting Stock of a specified entity held by a
parent entity, if such other person is the beneficial owner, directly or indirectly, of more
than 35% of the voting power of the parent entity’s Voting Stock than such other person, and
do not have the right or ability, by voting power, contract or otherwise, to elect, or
designate for election, a majority of the parent entity’s board of directors;
(ii) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board, together with any new directors whose election by the
Board or whose nomination for election by the Company’s shareholders was approved by a vote
of a majority of the Company’s directors then still in office who were either directors at
the beginning of such period or
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whose election or nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board then in office;
(iii) the merger or consolidation of the Company with or into another person or the
merger of another person with or into the Company, other than a transaction following which
the holders of securities that represented 100% of the aggregate voting power of the Voting
Stock of the Company immediately prior to such transaction own, directly or indirectly, at
least a majority of the aggregate voting power of the Voting Stock of the surviving person
immediately after such transaction in substantially the same proportion that such holders
held the aggregate voting power of the Voting Stock of the Company immediately prior to such
transaction; or
(iv) the sale of all or substantially all of the Company’s assets to another person.
8. Reduction of Payments in Certain Cases.
(a) For purposes of this Section 8, (i) a “Payment” shall mean any payment or distribution in
the nature of compensation to or for the benefit of the Executive, whether paid or payable pursuant
to this Agreement or otherwise; (ii) “Agreement Payment” shall mean a Payment paid or payable
pursuant to this Agreement; (iii) “Net After Tax Receipt” shall mean the “Present Value” (as
defined below) of a Payment net all of federal, state and local taxes imposed on the Executive with
respect thereto (including without limitation under Section 4999 of the Internal Revenue Code of
1986, as amended (the “Code)), determined by applying the highest marginal rates of such taxes that
applied to the Executive’s taxable income for the immediately preceding taxable year, or such other
rate(s) as the Executive shall in his sole discretion certify as likely to apply to the Executive
in the relevant tax year(s); (iv) “Present Value” shall mean such value determined in accordance
with Section 280G(d)(4) of the Code; and (v) “Reduced Amount” shall mean the smallest aggregate
amount of Agreement Payments which (A) is less than the sum of all Agreement Payments and (B)
results in aggregate Net After Tax Receipts which are equal to or greater than the Net After Tax
Receipts which would result if the aggregate Agreement Payments were any other amount less than the
sum of all Agreement Payments.
(b) Anything in this Agreement to the contrary notwithstanding, in the event that a nationally
recognized certified public accounting firm designated by the Company (the “Accounting Firm”) shall
determine that receipt of all Payments would subject the Executive to tax under Section 4999 of the
Code, it shall determine whether some amount of Agreement Payments would meet the definition of a
“Reduced Amount.” If said firm determines that there is a Reduced Amount, the aggregate Agreement
Payments shall be reduced to such Reduced Amount.
(c) If the Accounting Firm determines that aggregate Agreement Payments should be reduced to
the Reduced Amount, the Company shall promptly give the Executive notice to that effect and a copy
of the detailed calculation thereof, and the Executive may then elect, in his sole discretion,
which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such
election the Present Value of the aggregate
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Agreement Payments equals the Reduced Amount), and shall advise the Company in writing of his
election within ten (10) business days of his receipt of notice. If no such election is made by
the Executive within such ten-day period, the Company may elect which of such Agreement Payments
shall be eliminated or reduced (as long as after such election the present value of the aggregate
Agreement Payments equals the Reduced Amount) and shall notify the Executive promptly of such
election. All determinations made by the Accounting Firm under this Section 8 shall be binding
upon the Company and the Executive. As promptly as practicable following such determination, the
Company shall pay to or distribute for the benefit of the Executive such Agreement Payments as are
then due to the Executive under this Agreement and shall promptly pay to or distribute for the
benefit of the Executive in the future such Agreement Payments as become due to the Executive under
this Agreement.
(d) While it is the intention of the Company and the Executive to reduce the amounts payable
or distributable to the Executive hereunder only if the aggregate Net After Tax Receipts to the
Executive would thereby be increased, as a result of the uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is
possible that amounts will have been paid or distributed by the Company to or for the benefit of
the Executive pursuant to this Agreement which should not have been so paid or distributed
(“Overpayment”) or that additional amounts which will have not been paid or distributed by the
Company to or for the benefit of the Executive pursuant to this Agreement could have been so paid
or distributed (“Underpayment”), in each case, consistent with the calculation of the Reduced
Amount hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency
by the Internal Revenue Service against either the Company or the Executive which the Accounting
Firm believes has a high probability of success determines that an overpayment has been made, then
the Executive shall repay any such Overpayment to the Company within ten business days of his
receipt of notice of such Overpayment. In the event the Accounting Firm, based upon controlling
precedent or substantial authority, determines that an Underpayment has occurred, any such
underpayment shall be promptly paid by the Company to or for the benefit of the Executive.
(e) All fees and expenses of the Accounting Firm in implementing the provisions of this
Section 8 shall be borne by the Company.
9. Non-Assignability.
(a) Neither this Agreement nor any right or interest hereunder shall be assignable by the
Executive or his beneficiaries or legal representatives without the Company’s prior written
consent; provided, however, that nothing in this Section 9(a) shall preclude the Executive from
designating a beneficiary to receive any benefit payable hereunder upon his death or incapacity.
(b) Except as required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to exclusion, attachment, levy or similar process or to assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall be null, void and
of no effect.
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10. Restrictive Covenants.
(a) Competition. During the Employment Term and during the “Applicable Period” (as
defined below), the Executive will not directly or indirectly (as a shareholder, general partner,
member or other owner, director, officer, executive employee, manager, consultant, independent
contractor, advisor or otherwise) engage in competition with, or own any interest in, perform any
services for, participate in or be connected with any business or organization which engages in
competition with the Company within the meaning of Section 10(d); provided, however, that the
provisions of this Section 10(a) shall not be deemed to prohibit the Executive’s (i) ownership of
not more than two percent (2%) of the total shares of all classes of stock outstanding of any
publicly held company or (ii) ability to invest, as a limited partner, in any private equity,
mezzanine or similar investment fund. For purposes of this Agreement, the “Applicable Period”
shall mean the period of time following the termination of the Executive’s employment in which any
severance payments are owed to the Executive by the Company.
(b) Non-Solicitation. During the Employment Term and during the Applicable Period,
the Executive will not directly or indirectly induce or attempt to induce any management employee
of any of the Company to leave the employ of the Company, or in any way interfere with the
relationship between any of the Company and any employee thereof.
(c) Non-Interference. During the Employment Term and during the Applicable Period,
the Executive will not directly or indirectly hire, engage, send any work to, place orders with, or
in any manner be associated with any investment bank, private equity group, financial institution
or other business relation of the Company if such action would be known by him to have a material
adverse effect on the business, assets or financial condition of the Company or materially
interfere with the relationship between any such person or entity and the Company.
(d) Certain Definitions.
(i) For purposes of this Section 10, a person or entity (including, without limitation,
the Executive) shall be deemed to be engaging in competition with the Company if such person
or entity either engages primarily in the business of providing Mezzanine financing to lower
middle market companies or engages in any other type of business which comprises a
significant portion of the Company’s revenues at the time of termination of the Executive’s
employment with the Company and for which the Executive had responsibility or authority or
about which business the Executive received Confidential Information, in either case in the
geographic region encompassing the service areas in which the Company conducts, or had an
established plan to begin conducting, such businesses at the time of termination of the
Executive’s employment with the Company.
(ii) For purposes of this Section 10, no corporation or entity that may be deemed to be
an affiliate of the Company solely by reason of its controlling, being controlled by, or
being under common control with any Permitted Holder or any of their respective affiliates
will be deemed to be an affiliate of the Company.
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(e) Certain Representations of the Executive. In connection with the foregoing
provisions of this Section 10, the Executive represents that his experience, capabilities and
circumstances are such that such provisions will not prevent him from earning a livelihood. The
Executive further agrees that the limitations set forth in this Section 10 (including, without
limitation, time and territorial limitations) are reasonable and properly required for the adequate
protection of the current and future businesses of the Company. It is understood and agreed that
the covenants made by the Executive in this Section 10 (and in Section 6 hereof) shall survive the
expiration or termination of this Agreement.
(f) Injunctive Relief. The Executive acknowledges and agrees that a remedy at law for
any breach or threatened breach of the provisions of Section 10 hereof would be inadequate and,
therefore, agrees that the Company and any of its subsidiaries or affiliates shall be entitled to
injunctive relief in addition to any other available rights and remedies in cases of any such
breach or threatened breach (and the Executive hereby waives any requirement that the Company
provide a bond or other security in connection with the issuance of any such injunction); provided,
however, that nothing contained herein shall be construed as prohibiting the Company or any of its
subsidiaries from pursuing any other rights and remedies available for any such breach or
threatened breach.
11. Binding Effect. Without limiting or diminishing the effect of the provisions
affecting assignment of this Agreement, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal representatives and permitted
assigns.
12. Notices. All notices which are required or may be given pursuant to the terms of
this Agreement shall be in writing and shall be sufficient in all respects if given in writing and
(i) delivered personally, (ii) mailed by certified or registered mail, return receipt requested and
postage prepaid, (iii) sent via a nationally recognized overnight courier, or (iv) sent via
facsimile confirmed in writing to the recipient, if to the Company at the Company’s principal place
of business, and if to the Executive, at his home address most recently filed with the Company, or
to such other address or addresses as either party shall have designated in writing to the other
party hereto, provided, however, that any notice sent by certified or registered mail shall be
deemed delivered on the date of delivery as evidenced by the return receipt.
13. Law Governing. This Agreement shall be governed by and construed in accordance
with the laws of the State of North Carolina, without regard to the principles of conflicts of
laws.
14. Severability. The Executive agrees that in the event that any court of competent
jurisdiction shall finally hold that any provision of Section 6 or 10 hereof is void or constitutes
an unreasonable restriction against the Executive, the provisions of such Section 6 or 10 shall not
be rendered void but shall apply with respect to such extent as such court may judicially determine
constitutes a reasonable restriction under the circumstances. If any part of this Agreement other
than Section 6 or 10 is held by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced in whole or in part by reason of any rule of law or public policy, such
part shall be deemed to be severed from the remainder of this Agreement for
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the purpose only of the particular legal proceedings in question and all other covenants and
provisions of this Agreement shall in every other respect continue in full force and effect and no
covenant or provision shall be deemed dependent upon any other covenant or provision.
15. Waiver. Failure to insist upon strict compliance with any of the terms,
covenants, or conditions hereof shall not be deemed a waiver of such term, covenant or condition,
nor shall any waiver or relinquishment of any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or times.
16. Arbitration. With the exception of any dispute regarding the Executive’s
compliance with the provisions of Sections 6 and 10 above, any dispute relating to or arising out
of the provisions of this Agreement shall be decided by arbitration in Raleigh, North Carolina, in
accordance with the Revised Uniform Arbitration Act as in effect at the time of such dispute
pursuant to North Carolina’s Gen. Stat. § 1-569.1 et. seq., unless the Executive and the Company
mutually agree otherwise in a writing signed by both parties. The Federal Arbitration Act shall
not apply. This undertaking to arbitrate shall be specifically enforceable. The decision rendered
by the arbitrator will be final and judgment may be entered upon it in accordance with appropriate
laws in any court having jurisdiction thereof. Each of the parties shall pay his or its own legal
fees associated with such arbitration.
17. Entire Agreement; Modifications. This Agreement constitutes the entire and final
expression of the agreement of the parties with respect to the subject matter hereof and supersedes
all prior agreements, oral and written, between the parties hereto with respect to the subject
matter hereof including, without limitation, any existing agreement regarding employment or
compensation between or among Executive and the Company. This Agreement may be modified or amended
only by an instrument in writing signed by both parties hereto.
18. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Executive have duly executed and delivered this
Agreement as of the date of the consummation of the initial public offering of common stock of the
Company.
| COMPANY: TRIANGLE CAPITAL CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx, III_ | |||
| Name: | Xxxxxxx X. Xxxxxx, III | |||
| Title: | President and Chief Executive Officer | |||
| EXECUTIVE: |
||||
| /s/ Xxxxxxx X. Xxxx | ||||
| Xxxxxxx X. Xxxx | ||||
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