EMPLOYMENT AGREEMENT
Exhibit (k)(1)
THIS AGREEMENT, effective as of the date of the consummation of the initial public offering of
common stock by Main Street Capital Corporation (the “Effective Date”), is between Main Street
Capital Corporation, a Maryland corporation (the “Company”), and Xxxx X. Xxxxxxx, a resident of
Xxxxxx County, Texas (the “Executive”).
1. Employment Term. The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to accept such employment, beginning on the Effective Date for a term
ending on December 31, 2010, subject to earlier termination as provided in Section 6 hereof (such
term being herein referred to as the “term of this Agreement”). The Executive agrees to accept
such employment and to perform the services specified herein, all upon the terms and conditions
hereinafter stated.
2. Duties. The Executive shall serve the Company and shall report to the Chairman of
the Board and Chief Executive Officer and also be subject to the general direction and control of
the Board of Directors of the Company. The Executive shall faithfully, diligently and to the best
of the Executive’s ability, perform the management and administrative duties of the President and
Chief Financial Officer of the Company. The Executive shall also serve as an officer of any
subsidiary of the Company as requested by the Company, and the Executive shall perform such other
duties as are from time to time assigned to him by the Company’s Board of Directors that are not
inconsistent with the provisions hereof. The Executive represents and warrants to the Company that
the Executive is not subject to any obligation to any third party that would restrict or interfere
with the Executive’s ability to perform hereunder.
3. Extent of Service. The Executive shall devote his full business time and attention
to the business of the Company, and, except as may be specifically permitted by the Company, shall
not be engaged in any other business activity during the term of this Agreement. The foregoing
shall not be construed as preventing the Executive from (i) making passive investments in other
businesses or enterprises, (ii) serving on boards of directors of other public or non-public
companies, or (iii) engaging in other civic, charitable and business activities; provided, however,
that such investments and activities will not require services on the part of the Executive which
would in any way impair the performance of his duties under this Agreement. This Section 3 shall
not apply to the Executive’s investment in or activities with Main Street Capital II, LP (“MSC
II”), a separate small business investment company (“SBIC”).
4. Compensation.
(a) Base Salary. During the term of this Agreement, the Company shall pay the
Executive an annual salary of not less than $311,250, with an annual target increase of 5%.
The Executive’s salary and benefits will be reviewed annually, and any increase therein
shall remain at the sole discretion of the Company, acting through the Compensation
Committee of its Board of Directors (the “Committee”). The salary set forth herein shall
not be subject to reduction and shall be payable in accordance with the payroll policies of
the Company in effect from time to time during the term of this
Agreement. The Company shall have the right to deduct from any payment of all
compensation to the Executive hereunder (i) any federal, state or local taxes required by
law to be withheld with respect to such payments, and (ii) any other amounts specifically
authorized to be withheld or deducted by the Executive.
(b) Cash Bonus. The Executive will be eligible to receive cash bonus
compensation from the Company in respect of any fiscal year (or portion thereof) beginning
on or after January 1, 2008 occurring during the term of this Agreement at the discretion of
the Committee. Determination of the annual performance-based cash bonus is within the sole
discretion of the Committee, but in any case shall be based on the satisfaction of
objective, reasonable and attainable performance criteria that would be pre-established by
the Committee and communicated to the Executive, with a cash bonus target of base salary for
applicable calendar years as follows: Calendar Year 2008 — 50%; Calendar Year 2009 — 60%;
Calendar year 2010 — 70%. Cash bonuses shall be paid by March 15 of the calendar year
following the year in which they were earned (i.e., calendar year 2008 bonus would be paid
by March 15, 2009).
5. Other Compensation and Benefits. In addition to the base salary under Section 4,
the Executive shall be entitled to participate in the following benefits during the term of this
Agreement:
(a) Awards of Restricted Stock, as defined in the Company’s Equity Incentive Plan (the
“Plan”), or other stock based compensation under the terms of the Plan and an applicable
award agreement, as set forth below:
| (i) | Upon the Company’s receipt of exemptive relief from the Securities and Exchange Commission regarding its ability, to award restricted stock to certain of its employees, and certain employees of its wholly owned subsidiaries (the “SEC Exemptive Relief”), and contingent on the receipt of such exemptive relief, the Company shall award the Executive 40,000 shares of restricted stock as soon as practicable after the receipt of SEC Exemptive Relief. | ||
| (ii) | Contingent on the continued effectiveness and applicability of the SEC Exemptive Relief, for each of calendar years 2009 and 2010, the Executive shall receive annual awards of Restricted Stock attributable to service during each of 2009 and 2010 with a value, on the date of the award, equal to 75% of annual base salary for the then current fiscal year, subject to the Committee’s discretion based on the satisfaction of objective, reasonable and attainable performance criteria as pre-established by the Committee and communicated to the Executive. The annual Restricted Stock awards shall be issued by March 15 of the calendar year following the year in which they were earned (i.e., calendar year 2009 award would be issued by March 15, 2010). |
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The awards of Restricted Stock shall vest in four equal annual installments, subject to
continued employment, beginning with the first anniversary of the date of grant and
continuing on each of the second, third and fourth anniversary thereof. Such awards shall
become immediately and fully vested upon the occurrence of a Change in Control as defined
herein. If the SEC Exemptive Relief is not obtained, the Company shall provide an equitable
substitution for the awards of Restricted Stock described in this subsection 5(a), the form
of equitable substitution to be determined by the Committee.
(b) Four weeks of paid vacation in each calendar year, subject to the Company’s
personnel policies respecting such matters.
(c) Participation in the Company’s group health and hospitalization program, and
inclusion in such other employee benefits, as are available generally to executive-level
employees of the Company.
(d) Reimbursement for travel, lodging and other out-of-pocket expenses reasonably
incurred by the Executive in the exercise of the Executive’s duties under this Agreement
which are substantiated in accordance with the Company’s policies as to reimbursement.
(e) Insurance coverage pursuant to the terms and subject to the limitations that are
available generally to executive-level employees of the Company (including life insurance or
disability benefit coverage).
6. Termination.
(a) Death. If the Executive dies during the term of this Agreement and while
in the employ of the Company, this Agreement shall automatically terminate and the Company
shall have no further obligation to the Executive or his estate except that the Company
shall pay the Executive’s estate (i) that portion of the Executive’s base salary under
Section 4(a) accrued through the date on which the Executive’s death occurred, (ii) a pro
rata amount of the target annual cash bonus described in Section 4(b) above, based on the
number of days the Executive was employed in the year in comparison to 365, and (iii) all
benefits payable under the governing provisions of any benefit plan or program of the
Company. Such payment of base salary and bonus to the Executive’s estate shall be made in
the same manner and at the same times as they would have been paid to the Executive had he
not died. In addition, any previously unvested shares of Restricted Stock or other
stock-based compensation shall immediately become fully vested.
(b) Disability. If during the term of this Agreement, the Executive shall be
prevented from performing his duties hereunder by reason of disability, and such disability
shall continue for a period of six months, then the Company may terminate the Executive’s
employment under this Agreement (subject to continuing any benefits provided for in the
Agreement) at any time after the expiration of such six-month period. For purposes of this
Agreement, the Executive shall be deemed to have become disabled when the Company, upon the
advice of a qualified physician, shall have determined that
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the Executive is unable to perform his responsibilities and duties for the Company by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less than 12
months. In the event of a termination pursuant to this paragraph (b), the Company shall be
relieved of all its obligations under this Agreement, except that the Company shall pay to
the Executive (or his estate in the event of his subsequent death), (i) the Executive’s base
salary under Section 4(a) through the date on which such termination shall have occurred,
reduced during such period by the amount of any benefits received under any disability
policy maintained by the Company, (ii) a pro rata amount of the target annual cash bonus
described in Section 4(b) above, based on the number of days the Executive was employed in
the year in comparison to 365, and (iii) all benefits payable under the governing provisions
of any benefit plan or program of the Company. All such payments to the Executive or his
estate shall be made in the same manner and at the same times as they would have been paid
to the Executive had he not become disabled. In addition, any previously unvested shares of
Restricted Stock or other stock-based compensation shall immediately become fully vested.
(c) Discharge for Cause. Prior to the end of the term of this Agreement, the
Company may discharge the Executive for Cause and terminate this Agreement. In such case
this Agreement shall automatically terminate and the Company shall have no further
obligation to the Executive or his estate other than to pay to the Executive (or his estate
in the event of his subsequent death) that portion of the Executive’s salary accrued through
the date of termination.
For purposes of this Agreement, the Company shall have “Cause” to discharge the
Executive or terminate the Executive’s employment hereunder upon (i) the Executive’s
conviction of any felony or any other crime involving moral turpitude, (ii) the Executive’s
repeated failure or refusal to perform all of his duties, obligations and agreements herein
contained or imposed by law, including his fiduciary duties, to the reasonable satisfaction
of the Company’s Board of Directors, (iii) the Executive’s commission of acts amounting to
gross negligence or willful misconduct to the material detriment of the Company, or (iv) the
Executive’s material breach of any provision of this Agreement or uniformly applied
provisions of the Company’s employee handbook or other personnel policies, including without
limitation, its Code of Ethics. Such determination of “Cause” shall be reasonably made in
good faith by the Company’s Board of Directors, and in the event of circumstances described
in clause (ii) or (iv) of the immediately preceding sentence, the Board shall give written
notice to the Executive specifying such circumstances and providing a period of 30 days in
which the Executive shall be allowed to cure such circumstances.
Any such termination by virtue of this paragraph (c) shall not prejudice any remedy
that the Company may have at law, in equity, or under this Agreement, for breach hereof by
the Executive.
(d) Discharge Without Cause. Prior to the end of the term of this Agreement,
the Company may discharge the Executive without Cause (as defined in paragraph (c)
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above) and the Executive may terminate employment for “Good Reason” (as defined below).
In either such case, the Company shall have no further obligation to the Executive or his
estate, except that the Company shall continue to pay to the Executive (or his estate in the
event of his subsequent death), (i) the Executive’s combined base salary plus the target
cash bonus award applicable to the year in which termination occurs (both to be determined
as described in Section 4 herein) for a period of 24 months following the date of discharge,
(ii) a pro rata amount of the maximum annual target bonus described in Section 4(b) herein
for the year of termination, based on the number of days the Executive was employed in the
year in comparison to 365, payable within sixty days following the end of the calendar year
in which termination occurs, (iii) all benefits payable under the governing provisions of
any benefit plan or program of the Company and (iv) any previously unvested shares of
Restricted Stock or other stock-based compensation shall immediately become fully vested.
In addition, if following the date of such discharge, the Executive becomes eligible to
elect continuation coverage under the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) and properly elects such coverage, the Company shall reimburse the Executive or
pay on the Executive’s behalf the amount of the premiums under COBRA for the Company’s group
health and hospitalization insurance coverage then in effect as of the date of discharge,
for so long as he remains eligible for COBRA coverage, or until expiration of the term of
this Agreement (whichever is longer). All payments to the Executive or his estate pursuant
to this Section 6(d) shall be made in the same manner and at the same times as they would
have been paid to the Executive had he not been discharged. For purposes of this Agreement,
“Good Reason” means any of the following conditions or events that results in the
Executive’s termination of employment within two years following the initial existence of
one or more of the following conditions arising without the Executive’s consent:
| (i) | a material diminution in the Executive’s base salary or target bonus; | ||
| (ii) | a material diminution in the Executive’s authority, duties, or responsibilities, specifically excluding whether the Executive is a member of the Board of Directors of the Company; | ||
| (iii) | the implementation of a requirement that the Executive report to a corporate officer or employee instead of reporting directly to Chairman of the Board of Directors and Chief Executive Officer and under the general direction of the Board of Directors of the Company; | ||
| (iv) | a material change in the geographic location at which the Executive must perform the services, which is currently Houston, Texas; or | ||
| (v) | any other action or inaction that constitutes a material breach by the Company of this Agreement, which would include a decision |
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| not to assume the terms of this agreement by any successor of the Company. |
For the Executive’s termination to constitute a termination for “Good Reason”, the Executive must
provide notice to the Company of the existence of one of the conditions listed in this Section 6
within a period not to exceed 90 days of the Executive’s initial knowledge of the condition, upon
the notice of which the Company must be provided a period of at least 30 days during which it may
remedy the condition and not be required to pay the compensation and other benefits discussed
above.
(e) Termination in Connection with a Change in Control. If following a Change
in Control, the Executive voluntarily terminates his employment for Good Reason or the
Executive is discharged without Cause, in either case during the term of this Agreement or
within 12 months following the Change in Control, whichever is later, then the Company shall
have no further obligation to the Executive or his estate, except that the Company shall pay
to the Executive (or his estate in the event of his subsequent death), (i) a lump-sum
payment payable within 30 days following such termination equal to three times the
Executive’s annual base salary plus target cash bonus award for the year in which
termination occurs (as described in Section 4 herein), (ii) a pro rata amount of the annual
target cash bonus described in Section 4(b) above for the year of termination, based on the
number of days the Executive was employed in the year in comparison to 365, payable within
sixty days following the end of the calendar year in which termination occurs, (iii) all
benefits then payable under the governing provisions of any benefit plan or program of the
Company, and (iv) any previously unvested shares of Restricted Stock or other stock-based
compensation shall immediately become fully vested. In addition, if following the date of
such resignation or discharge, the Executive becomes eligible to elect continuation coverage
under COBRA and properly elects such coverage, the Company shall reimburse the Executive or
pay on the Executive’s behalf the amount of the premiums under COBRA for the Company’s group
health and hospitalization insurance coverage then in effect, in each case for so long as he
remains eligible for COBRA coverage, or until expiration of the term of this Agreement
(whichever is longer). All payments to the Executive or his estate pursuant to this Section
6(e) shall be made in the same manner and at the same times as they would have been paid to
the Executive had he not resigned or been discharged.
As a condition to making any such payments under this paragraph (e) or paragraph (d) above,
the Executive shall execute and deliver to the Company the Executive’s release of all claims
against the Company and its Affiliates, other than the right to receive such payments, in
the form and substance reasonably acceptable to the Company. For purposes of this
Agreement, an “Affiliate” of an entity is a person that directly or indirectly controls, is
under the control of or is under common control with such entity. No such termination
pursuant to this paragraph (e) will relieve the Executive of his obligations under Section 7
hereunder.
For purposes of this Agreement, a “Change in Control” occurs when (in accordance of the
Internal Revenue Code of 1986, as amended, and applicable Treasury authorities
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(“Section 409A”)): (i) Any one person, or more than one person acting as a group (as defined
in Section 409A) acquires ownership of capital stock of the Company that, together with
stock held by such person or group, constitutes more than 50 percent of the total fair
market value or total voting power of the capital stock of the Company (provided that an
increase in the percentage of capital stock owned by any one person, or persons acting as a
group, as a result of a transaction in which the Company acquires its capital stock in
exchange for property will be treated as an acquisition of capital stock for purposes of
this section); (ii) any one person, or more than one person acting as a group acquires (or
has acquired during the 12-month period ending on the date of the most recent acquisition by
such person or persons) ownership of capital stock of the Company possessing 30 percent or
more of the total voting power of the capital stock of the Company; (iii) a majority of
members of the Board is replaced during any 12-month period by directors whose appointment
or election is not endorsed by a majority of the members of the Board prior to the date of
such appointment or election; or (iv) any one person has acquired or more than one person
has acting as a group has acquired (or during the 12-month period ending on the date of the
most recent acquisition by such person or persons) assets from the Company that have a total
gross fair market value equal to or more than 40 percent of the total gross fair market
value of all of the assets of the Company immediately prior to such acquisition or
acquisitions. For purposes of clause (iv) in the immediately preceding sentence, gross fair
market value means the value of the assets of the Company or the value of the assets being
disposed of, determined without regard to any liabilities associated with such assets. A
transfer of assets by the Company is not treated as a change in the ownership of such assets
if the assets are transferred to: (a) a shareholder of the Company (immediately before the
asset transfer) in exchange for or with respect to its capital stock; (b) an entity, 50
percent or more of the total value or voting power of which is owned, directly or
indirectly, by the Company; (c) a person, or more than one person acting as a group, that
owns, directly or indirectly, 50 percent or more of the total value or voting power of all
the outstanding capital stock of the Company; or (d) an entity, at least 50 percent of the
total value or voting power of which is owned, directly or indirectly, by a person described
in the immediately preceding clause (c).
7. Restrictive Covenants.
(a) Covenant not to compete. The parties hereto recognize that the
Executive is retained by the Company as part of a professional, management and executive
staff of the Company whose duties include the formulation and execution of management
policy. Therefore, the Executive hereby agrees that during the term of his employment
hereunder and for a period of 12 months after the Executive’s voluntary termination of
employment or termination of employment pursuant to Section 6(d) (the “Initial Non-Compete
Period”), he shall not act or engage in material competition with the activities of or plans
of the Company as they exist up to the time of the Executive’s termination of employment.
“Material competition” by the Executive shall mean the involvement by the Executive in any
business or investment activity involving providing financing solutions to lower middle
market companies (i.e., companies with annual revenues between $10 million to $100 million)
within the United States, including, but not limited
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to an involvement as an employee, consultant, advisor, agent, shareholder, independent contractor,
investor, partner, member, owner or otherwise; provided, however, that the Executive shall
be permitted to acquire a passive stock interest in such a business provided the stock
acquired is publicly traded and is not more than 2% of the outstanding interest in such
business. In addition, “material competition” will specifically not include the investment
in or purchase of one lower middle market business and will also specifically not include
involvement in the investment activities of MSC II or other SBIC funds managed by the
Company. For purposes of this Section 7, “Company” includes the Company and any Affiliate.
Additionally, if the Executive is terminated pursuant to Section 6(d), the Executive will
also not engage in material competition with the Company after the Initial Non-Compete
Period while he is receiving the monthly severance payments provided for in Section 6(d);
provided however, that the Executive will be allowed to engage in material competition with
the Company after the Initial Non-Compete Period upon providing written notification to the
Company at which time he will begin receiving only 50% of the remaining monthly severance
payments provided for in Section 6(d).
The Executive understands that the provisions of Section 7 hereof may limit his ability to
earn a livelihood in a business similar to the business in which he is involved, but as a
member of the management group of the Company he nevertheless agrees and hereby acknowledges
that (i) such provisions do not impose a greater restraint than is necessary to protect the
goodwill, trade secrets or other business interests of the Company; (ii) such provisions
contain reasonable limitations as to time, scope of activity, and geographical area to be
restrained; and (iii) the consideration provided hereunder, including without limitation,
any amounts or benefits provided under Section 6 hereof, is sufficient to compensate the
Executive for the restrictions contained in Section 7 hereof. In consideration of the
foregoing and in light of the Executive’s education, skills and abilities, the Executive
agrees that he will not assert that, and it should not be considered that, any provisions of
Section 7 otherwise are void, voidable or unenforceable or should be voided or held
unenforceable.
If, at the time of enforcement of Section 7 of this Agreement, a court shall hold that the
period, scope, or area restrictions stated herein are unreasonable under circumstances then
existing, the parties hereto agree that the maximum period, scope or geographical area
reasonable under such circumstances shall be substituted for the stated period, scope or
area and that the court shall revise the restrictions contained herein to cover the maximum
period, scope and area permitted by law. In the event of an alleged breach or violation by
the Executive of this Section 7, the applicable Initial Non-Compete Period set forth in this
Section shall be tolled until such breach or violation has been cured.
(b) Confidential Information; Copyrightable Material. The Executive
acknowledges that in the course of his employment by the Company he shall receive and access
certain trade secrets, management methods, financial and accounting data (including, but not
limited to, reports, studies, analyses, spreadsheets and other materials and information),
operating techniques, prospective acquisitions, employee lists, training manuals and
procedures, personnel evaluation procedures, and other confidential information and
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knowledge concerning the business of the Company and its Affiliates (hereinafter
collectively referred to as “Confidential Information”) which the Company desires to
protect. The Executive understands that the Confidential Information is confidential and he
agrees not to reveal the Confidential Information to anyone outside the Company so long as
the confidential or secret nature of the Confidential Information shall continue, except as
required by law or legal process. The Executive further agrees that, for a period of 18
months after termination, he will at no time use the Confidential Information in competing
with, or to assist any other person or entity in competing with, the Company. Upon
termination of this Agreement, the Executive shall surrender to the Company all papers,
documents, writings and other property produced by him or coming into his possession by or
through his employment or relating to the Confidential Information and the Executive agrees
that all such materials will at all times remain the property of the Company. The Executive
acknowledges that all materials and other copyrightable works and subject matter (regardless
of whether or not constituting “Confidential Information”) produced by the Executive within
the scope of his employment (regardless of whether or not denoted as copyrighted material)
shall be deemed “works made for hire” and shall be owned by and proprietary to the Company
and may not be used or reproduced in whole or in part without the Company’s prior written
consent. Notwithstanding, the provisions of this Section 7 (a), the protection of
Confidential Information shall not apply to any such Confidential Information that relates
to information, techniques or relationships of the Executive that were in existence prior to
the Executive becoming an employee of Main Street Capital Partners, LLC or its affiliates
(“MSCP Affiliates”).
(c) Non-Solicitation Period. During the 18-month period following the
Executive’s termination of employment for any reason (the “Non-Solicitation Period”), the
Executive will not without the Company’s Board of Directors’ consent, which may be withheld
for any or no reason, solicit, induce or influence, or seek to induce or influence, directly
or indirectly, any person who currently is, or from time to time may be, engaged in or
employed by the Company (as an officer, director, employee, agent or independent contractor)
in any managerial or executive or technical position to terminate his or her employment or
engagement by the Company. During the Non-Solicitation Period, the Executive will also not
solicit any person for any reason, other than the direct benefit of the Company, who is an
executive, officer or owner of any portfolio company, who is an investor or limited partner
in any MSCP Affiliate, or who is a co-investor in investments with the company or MSCP
Affiliates. Notwithstanding, the provisions of this Section 7 (b), these non-solicitation
provisions shall not apply to any relationships of the Executive that were in existence
prior to the Executive becoming an employee of MSCP Affiliates.
(d) Consideration. Each of the covenants of this Section 7 are given by the
Executive as part of the consideration for this Agreement and as an inducement to the
Company to enter into this Agreement and accept the obligations hereunder. The Executive has
had adequate time to consider these covenants and to consult with an attorney or other
advisor concerning them. The Executive acknowledges that he understands these covenants and
agrees to them freely and voluntarily.
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8. Remedies. The parties recognize that the services to be rendered under this
Agreement by the Executive are special, unique, and of extraordinary character, and that in the
event of the breach by the Executive of the covenants contained in Section 7 hereof, the Company
may suffer irreparable harm as a result. The parties therefore agree that, in the event of any
breach or threatened breach of any of such covenants, the Company shall be entitled to specific
performance or injunctive relief, or both, and may, in addition to and not in lieu of any claim or
proceeding for damages, institute and prosecute proceedings in any court of competent jurisdiction
to enforce through injunctive relief such covenants. In addition, the Company may, if it so
elects, suspend (if applicable) any payments due under this Agreement pending any such breach and
offset against any future payments the amount of the Company’s damages arising from any such
breach. The Executive agrees to waive and hereby waives any requirement for the Company to secure
any bond in connection with the obtaining of such injunction or other equitable relief.
9. Excise or Other Tax Liability. Notwithstanding anything in this Agreement to the
contrary, in the event it shall be determined that any payment or distribution by the Company to
the Executive or for his benefit, whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax
imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax
(such excise tax, together with any such interest or penalties, are hereinafter collectively
referred to as the “Excise Tax”), the Company shall pay to the Executive an additional payment (a
“Gross-up Payment”) in an amount such that after payment by the Executive of all taxes (including
any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed on
any Gross-up Payment, the Executive retains an amount of the Gross-up Payment equal to the Excise
Tax imposed upon the Payment. All determinations required to be made under this Section 9 shall be
made by the Company’s registered independent public accounting firm (the “Accounting Firm”). The
Accounting Firm shall provide detailed supporting calculations both to the Company and the
Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company.
Absent manifest error, any determination by the Accounting Firm shall be binding upon the Company
and the Executive. The intent of this provision is for the Executive to be fully reimbursed by the
Company for any Excise Tax that may be due from payments pursuant to the applicable terms of this
Agreement.
10. Indemnification. During and after the term of this Agreement, the Company shall
indemnify the Executive to the fullest extent permitted by applicable law (including reimbursement
of reasonable attorney’s fees) for any action or inaction as an officer, director or fiduciary of
the Company, any Affiliate or any benefit plan of either. In addition, during and after the stated
term of this Agreement, the Company shall cover the Executive under directors’ and officers’
liability insurance to the greatest extent any other officer or director is covered.
11. Notices. All notices, requests, consents and other communications under this
Agreement shall be in writing and shall be deemed to have been delivered on the date personally
delivered or three business days after the date mailed, postage prepaid, by certified mail, return
receipt requested, or when sent by electronic means or facsimile and receipt is confirmed, if
addressed to the respective parties as follows:
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| If to the Executive: | Xxxx X. Xxxxxxx 000 Xxxx Xxxxxxxxx Xxxxx Xxxxxxx, XX 00000 |
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| If to the Company: | Main Street Capital Corporation 0000 Xxxx Xxx Xxxx., Xxxxx 000 Xxxxxxx, XX 00000 Attn: Chairman, Compensation Committee of the Board of Directors |
Either party hereto may designate a different address by providing written notice of such new
address to the other party hereto.
12. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
13. Assignment. This Agreement may not be assigned by the Executive or the Company.
Neither the Executive nor his estate shall have any right to commute, encumber or dispose of any
right to receive payments hereunder, it being agreed that such payments and the right thereto are
nonassignable and nontransferable.
14. Binding Effect. Subject to the provisions of Section 13 of this Agreement, this
Agreement shall be binding upon and inure to the benefit of the parties hereto, the Executive’s
heirs and personal representatives, and the successors and assigns of the Company.
15. Captions. The section and paragraph headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
16. Complete Agreement. This Agreement represents the entire agreement between the
parties concerning the subject hereof and supersedes all prior agreements and arrangements between
the parties concerning the subject matter hereof.
17. Governing Law; Venue. A substantial portion of the Executive’s duties under this
Agreement shall be performed at the Company’s corporate headquarters in Houston, Texas, and this
Agreement has been substantially negotiated and is being executed and delivered in the State of
Texas. This Agreement shall be construed and enforced in accordance with and governed by the laws
of the State of Texas. Any suit, claim or proceeding arising under or in connection with this
Agreement or the employment relationship evidenced hereby must be brought, if at all, in a state
district court in Xxxxxx County, Texas or federal district court in the Southern District of Texas,
Houston Division. Each party submits to the jurisdiction of such courts and agrees not to raise
any objection to such jurisdiction or venue.
18. Survival. The provisions of Sections 6 through 21 shall survive any termination
of this Agreement or the employment relationship of the Company and the Executive.
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19. Counterparts. This Agreement may be executed in multiple original counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
20. Section 409A Compliance. The Executive and the Company agree that this Agreement
is intended to comply with Section 409A and that any ambiguous provision will be construed in a
manner that is compliant with or exempt from the application of Section 409A. The Executive and
the Company agree that if a provision of the Agreement would result in the imposition of an
applicable tax under Section 409A, such provision may be reformed to avoid imposition of the
applicable tax and no action taken to comply with Section 409A shall be deemed to impair a benefit
under this Agreement.
21. Specified Employees. If the Executive is a “specified employee,” as such term is
defined in Section 409A and determined as described below in this Section 21, any payments payable
as a result of the Executive’s termination (other than death) shall not be payable before the
earlier of (i) the date that is six months after the Executive’s termination, (ii) the date of the
Executive’s death, or (iii) the date that otherwise complies with the requirements of Section 409A.
This Section 21 shall be applied by accumulating all payments that otherwise would have been paid
within six months of the Executive’s termination and paying such accumulated amounts at the
earliest date which complies with or is exempt from the application of the requirements of Section
409A. The Executive shall be a “specified employee” for the twelve-month period beginning on April
1 of a year if the Executive is a “key employee” as defined in Section 416(i) of the Internal
Revenue Code (without regard to Section 416(i)(5)) as of December 31 of the preceding year or using
such dates as designated by the Committee in accordance with Section 409A and in a manner that is
consistent with respect to all of the Company’s nonqualified deferred compensation plans. For
purposes of determining the identity of specified employees, the Committee may establish procedures
as it deems appropriate in accordance with Section 409A.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
| Main Street Capital Corporation |
||||
| By: | ||||
| Chairman, Compensation Committee of | ||||
| the Board of Directors | ||||
| Xxxx X. Xxxxxxx | ||||
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