Contract
Exhibit 10.1 EMPLOYMENT AGREEMENT April 25, 2023 Xxxxx of Xxxx Nevada Corporation l Xxxxx of Xxxx Plaza El Paso, Texas 79912 Attn: Board of Directors This Employment Agreement (this “Agreement”) is entered into as of April 25, 2023, between Xxxxx of Xxxx Nevada Corporation, a Nevada corporation (the “Company”), and Xxxx Xxxxxxxx (“Executive”), but effective for all purposes as of the Effective Date (as defined below). 1. Employment Relationship; Duties. 1.1 Employment Relationship. Executive is currently employed by the Company as Chief Operating Officer and also currently serves as Chief Operating Officer of Xxxxx of Xxxx. The Company and Executive intend to change Executive’s role from Chief Operating Officer to Chief Executive Officer of the Company and Xxxxx of Xxxx. Such change is anticipated to become effective on and after March 1, 2024, unless otherwise agreed upon (the “Effective Date”). Notwithstanding the foregoing, in the event Executive assumes the role of Chief Executive Officer prior to March 1, 2024, the compensation and benefits set forth in Section 2 below will take effect as of the date Executive assumes the role of Chief Executive Officer and the “Effective Date” of this Agreement will be revised to reflect this new date. In such event, the annual performance incentive and long-term incentive compensation due Executive in her role as Chief Operating Officer prior to such new effective date and in her new role as Chief Executive Officer from the time of the new effective date until March 1, 2024, will be appropriately pro-rated. Both the Executive and the Company acknowledge that either party may terminate Executive’s employment relationship with the Company and any of its affiliates at any time and for any or no reason, provided that each party complies with the terms of this Agreement. Capitalized terms used but not otherwise defined in this Agreement are defined in Section 13 below. 1.2 Duties. Executive, subject to the direction and control of the Board of Directors of Xxxxx of Xxxx (the “Board”), shall have all of the executive powers of the Chief Executive Officer and exercise active management and supervision over the business and affairs of Xxxxx of Xxxx and its subsidiaries, including the Company, and shall perform such executive and/or administrative duties consistent with the office of Chief Executive Officer as from time to time may be assigned to her by the Board in its judgment and discretion. Executive shall report to the Board. Executive shall devote her entire professional business time and all reasonable efforts to perform diligently her duties under this Agreement. Notwithstanding the forgoing, with prior written approval of the Board, Executive may serve on one (1) “for profit” board and two (2) “not for profit” boards, so long as such services do not unreasonably interfere with Executive’s performance of her obligations hereunder. For avoidance of doubt, “for profit” boards can be for public or private companies. 2. Compensation and Benefits.
2.1 Annual Base Salary. Effective as of the Effective Date, Executive’s annual base salary will be no less than $1,000,000.00 per year (the “Base Salary”), payable in accordance with the Company’s usual pay practices (and in any event no less frequently than monthly). The Base Salary shall be reviewed by the Compensation Committee annually. 2.2 Annual Performance Incentive. Executive shall be eligible to participate in the Xxxxx of Xxxx Limited 2011 Annual Incentive Plan and any successor annual incentive plan or arrangement in which executive officers of Xxxxx of Xxxx are eligible to participate (as amended, restated or modified from time to time, the “Annual Incentive Plan”). Except as otherwise set forth in this Agreement, any incentive award shall be subject to, and governed by, the terms and requirements of the Annual Incentive Plan, any applicable award agreement granted thereunder and the following applicable terms and conditions: (a) Performance Opportunity. Effective as of the Effective Date, for the annual performance period commencing March 1, 2024 and ending February 28, 2025, Executive shall be eligible to receive an annual performance bonus (the “Fiscal APB”) targeted at 125% of Executive’s Base Salary at the commencement of the applicable annual performance period. Notwithstanding the foregoing and for avoidance of doubt, except to the extent expressly set forth in this Agreement, no Fiscal APB shall be earned or payable for the applicable annual performance period if the threshold is not achieved, and Executive shall not be entitled to a bonus with respect to any such performance measure if the threshold amount associated with such performance measure is not achieved. (b) Other Terms of Fiscal APB. Except as expressly provided in this Term Sheet, the performance goals, target awards, thresholds, maximums and any other terms of any Fiscal APB shall be determined as set forth under the Annual Incentive Plan and at the sole discretion of the Compensation Committee of the Board (the “Compensation Committee”). (c) Certain Conditions. (i) Completion of the Performance Period. Except to the extent expressly set forth in this Agreement, Executive shall not be deemed to be eligible for or to have “earned” any performance-based award under this Agreement, the Annual Incentive Plan or such award agreement unless the applicable performance period has been fully completed and the applicable performance goals have been achieved. (ii) Continued Employment; No Pro-Rata Awards. Except to the extent expressly set forth in this Agreement, to qualify for and receive payment of any annual incentive award under the Annual Incentive Plan, Executive must remain employed with the Company through the last day of the performance period for which such incentive award is payable. For avoidance of doubt, except to the extent expressly set forth in this Agreement, Executive shall not be entitled to any pro-rata portion of any annual incentive award for a partial performance period if Executive’s employment is terminated at any point on or prior to the last day of the performance period for which such incentive award is payable. (d) APB Participant Limit. Notwithstanding anything contained herein to the contrary, the threshold, target and maximum opportunity or amount of any Fiscal APB that may be established for Executive with respect to any performance period shall be subject to the limitations set forth in the Annual Incentive Plan, including Section 4.10 of the Annual Incentive Plan (or any amended or successor provision relating thereto) (the “APB Participant Limit”). In the event the threshold, target and maximum opportunity or amount of any Fiscal APB contemplated herein exceeds the APB Participant
Limit, to the extent required under the Annual Incentive Plan, the rules and regulations of any exchange in which the Shares are traded or listed, or applicable law, the Company shall use its commercially reasonable efforts to obtain shareholders’ approval at an annual general shareholders meeting of an amendment to the Annual Incentive Plan permitting the award of the Fiscal APB as contemplated herein. In the event Xxxxx of Xxxx’s shareholders have not or do not so approve an amendment to the APB Participant Limit, the Company and the Compensation Committee shall be obligated only to grant to Executive a Fiscal APB with terms that do not exceed the APB Participant Limit. (e) Award Not Guaranteed. The grant of any annual Fiscal APB does not constitute a promise of achievement of such award or payment. 2.3 Long-Term Incentive Compensation. Executive is also entitled to participate in the Xxxxx of Xxxx Limited 2018 Stock Incentive Plan and any successor stock or long-term incentive plan in which executive officers of Xxxxx of Xxxx are eligible to participate (as amended, restated or modified from time to time, the “Stock Incentive Plan”). Any such incentive award shall be subject to, and governed by, the terms and requirements of the Stock Incentive Plan, any award agreement issued thereunder, and the following applicable terms and conditions. (a) Long-Term Incentive Award. As of the Effective Date, Executive shall be eligible to receive long-term incentive grants (the “Fiscal LTPB”) in the form of restricted stock awards (“RSAs”) under the Stock Incentive Plan consisting of both time-vesting RSAs and performance-based RSAs. With respect to the first fiscal year of the Company commencing on the Effective Date, subject to Section 2.3(b) Executive shall receive a Fiscal LTPB, (i) 25% of the Targeted Equity Award Amount will be granted in the form of time-vested based RSAs that will vest in three equal installments on successive anniversary dates of the grant over the three-year period that commences on the Date of Grant, and (ii) 75% of the Targeted Equity Award Amount will be granted in the form of performance-based RSAs for the performance period commencing March 1, 2024 and ending February 28, 2027. Notwithstanding the foregoing and for the avoidance of doubt, except to the extent expressly set forth in this Agreement, no Fiscal LTPB shall be earned or payable, and Executive shall not be entitled to the vesting of a Fiscal LTPB with respect to any such performance-based RSAs if the threshold amount associated with such performance measure is not achieved for a given Fiscal LTPB. (b) Long-Term Incentive Opportunity. Effective as of the Effective Date, Executive’s total equity award for each Fiscal LTPB that is granted each fiscal year will be the lesser of $3,800,000 or the LTPB Plan Limit (as defined below) (the “Targeted Equity Award Amount”), which in the case of performance awards shall be based target. For each Fiscal LTPB, with respect to time-vested based awards and performance awards to the extent such performance awards do not relate to a total shareholder return component, the number of common shares of Xxxxx of Xxxx (the “Shares”) subject to the performance- based RSA (rounded up to the next whole share) shall be a quotient equal to (i) the Targeted Equity Award Amount allocable to such awards that are subject to a total shareholder return component divided by (ii) the Fair Market Value of the Shares as of the Date of Grant. For each Fiscal LTPB, with respect to and to the extent such performance awards relate to a total shareholder return component, the number of Shares subject to the performance-based RSA (rounded up to the next whole share) shall be a quotient equal to (A) the Targeted Equity Award Amount allocable to such awards that are subject to a total shareholder return component divided by (B) the per share value of such award as computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718 determined by reference to the Fair Market Value as of close of trading of the Shares as of the Date of Grant. Notwithstanding the foregoing, the number of Shares determined pursuant to the foregoing shall not exceed the LTPB Plan Limit.
(c) Other Terms of Fiscal LTPB. Notwithstanding the foregoing, the Compensation Committee may increase or decrease the targets, thresholds or maximums for awards of performance-based RSA grants for any performance period at its sole discretion. Except as expressly provided in this Agreement, the performance goals and other terms of any Fiscal LTPB shall be determined at the sole discretion of the Compensation Committee. (d) Certain Conditions. (i) Completion of the Performance Period. Except to the extent expressly set forth below, for purposes of this Agreement, the Stock Incentive Plan and any award agreement granted thereunder, Executive shall not be deemed to be eligible for payment for or to have “earned” any performance-based award under the Stock Incentive Plan or such award agreement unless the applicable performance period has been fully completed and the applicable performance goals have been achieved. (ii) Continued Employment; No Pro-Rata Awards. Except to the extent expressly set forth in this Agreement, to qualify for any incentive payment under the Stock Incentive Plan, Executive must remain employed with the Company and Xxxxx of Xxxx through the last day of the performance period for which such incentive payment is payable and, at a minimum, the threshold amount associated with the performance measures must be achieved for such performance period. For avoidance of doubt, except to the extent expressly set forth in this Agreement, Executive shall not be entitled to any pro-rata portion of any Fiscal LTPB for a partial performance period if Executive’s employment is terminated at any point on or prior to the last day of the performance period for which such incentive award is payable. (e) LTPB Plan Limit. Notwithstanding anything contained herein to the contrary, the number of Shares that shall be established for Executive with respect to any RSA shall be subject to the limitations set forth in the Stock Incentive Plan, including Section 3(a) of the Stock Incentive Plan (or any amended or successor provision relating thereto) (the “LTPB Plan Limit”). In the event (i) there are not a sufficient number of Shares under the Stock Incentive Plan to cause the grant of RSAs or (ii) the number of Shares that may be established for any threshold, target and maximum opportunity in any Fiscal LTPB herein (as calculated without giving effect to the LTPB Plan Limit) exceeds the LTPB Plan Limit, to the extent required under the Stock Incentive Plan, the rules and regulations of any exchange in which the Shares are traded or listed, or applicable law, the Company shall use its commercially reasonable efforts to obtain shareholders’ approval at an annual general meeting of shareholders to approve of an amendment to the Stock Incentive Plan permitting the award of RSA’s in excess of the LTPB Plan Limit, as contemplated herein. In the event Xxxxx of Xxxx’s shareholders have not or do not so approve an amendment to the LTPB Plan Limit, the Company and the Compensation Committee shall be obligated only to grant to Executive a Fiscal LTPB with terms that do not exceed the LTPB Plan Limit. (f) Award Not Guaranteed. The grant of any Fiscal LTPB does not constitute a promise of achievement of such award or payment. 2.4 Other Benefits. Effective as of the Effective Date, Executive will be eligible for such health and welfare benefits as may be generally available to other executive officers of the Company. Executive shall be entitled to six (6) weeks of vacation and such periods of sick leave allowance each year as are determined by the Company per its written policies, procedures and practices applicable to all employees of the Company. Executive may participate in all retirement and other benefit plans or arrangements of the Company generally available from time to time to executive officers of the Company
and for which Executive qualifies under the terms of such plans provided Executive satisfies the conditions for participation under such arrangements. 3. Relocation. 3.1 Relocation Expectations. The Company will designate a city in which its executive offices will be located. Unless otherwise agreed upon, Executive will be expected to timely relocate her home residence in or around the designated city such to have a reasonable commute to the Company’s executive offices, from where Executive will work on a regular and consistent basis exclusive of business travel. Timely relocation means within six (6) months from the Effective Date or the date of the Company’s designation of the city for the Executive, whichever is later. 3.2 Relocation Benefits. Executive will be eligible to receive such relocation assistance and benefits as may be generally available to other relocating executive officers and management employees of the Company. To the extent not covered by such relocation benefits, the Company shall reimburse Executive for the full amount of the broker’s sales commission incurred in selling her current New Jersey home. 4. Expense Reimbursement. The Company shall reimburse Executive for reasonable travel and other expenses incurred in connection with Executive’s performance of duties to carry out the Company’s business, subject to the Company’s written policies, procedures and practices. 5. Compensation and Awards Granted Prior to this Agreement. With respect to any period, including any performance period ending prior to Effective Date, Executive shall continue to be entitled to receive the base salary, annual cash incentive and long-term incentive awards pursuant to the same, including performance, payment, vesting and other terms and conditions of the compensation or award granted to Executive prior to the Effective Date. 6. Release of Claims. In consideration for and as a condition precedent to receiving the severance benefits outlined in this Agreement, Executive agrees to execute a Release of Claims in the form attached as Exhibit A (“Release of Claims”). Executive promises to execute and deliver the Release of Claims to the Company within 21 days (or, if required by applicable law, 45 days) from the last day of Executive’s active employment. Executive shall forfeit the severance benefits outlined in this Agreement in the event that Executive fails to execute and deliver the Release of Claims to the Company in accordance with the timing and other provisions of the preceding sentence or revokes such Release of Claims prior to the “Effective Date” (as such term is defined in the Release of Claims) of the Release of Claims. 7. Additional Compensation Upon Certain Termination Events. 7.1 Termination of Executive’s Employment (Not in Connection with a Change of Control or Retirement Termination of Employment). In the event of a Termination of Executive’s Employment and contingent upon the Executive’s execution of the Release of Claims without revocation within the time period described in Section 6 above and in compliance with Section 12 and Section 13 of this Agreement, Executive shall be entitled to the following benefits: (a) an amount equal to (i) twelve (12) months of Executive’s annual base pay at the rate in effect immediately prior to the date of Termination of Executive’s Employment plus (ii) 100% of
the target annual incentive for the performance period during which Executive’s employment was terminated, which incentive payment would have been awarded to Executive under the Annual Incentive Plan; (b) an amount equal to the pro rata portion (as defined below) of the annual incentive payable under the Annual Incentive Plan for the performance period during which Executive’s employment was terminated had Executive’s employment not been terminated, based upon the actual performance of Xxxxx of Xxxx at the end of such performance period and payable at the same time that such payment would be made during Executive’s regular employment with the Company. For purposes of this Section 7.1(b), the term “pro rata portion” shall mean a percentage, when expressed as a fraction, the numerator of which is the number of days during the applicable performance period in which the Executive was an employee of the Company, and the denominator of which is the number of days in such performance period; (c) the vesting of the pro rata portion (as defined below) of any performance-based compensation that would be vested or otherwise payable to Executive under the Stock Incentive Plan for the performance period(s) during which Executive’s employment with the Company was terminated if Executive’s employment had not been terminated, based upon the actual performance of Xxxxx of Xxxx at the end of such performance period(s) and payable at the same time that such payment would be made during Executive’s regular employment with the Company. For purposes of this Section 7.1(c), the term “pro rata portion” shall mean a percentage, when expressed as a fraction, the numerator of which is the number of days during the applicable performance period(s) in which the Executive was an employee of the Company, and the denominator of which is the number of days in such performance period(s); and (d) the immediate vesting of a pro rata portion (as defined below) of any installment of time-vested restricted stock units (“RSUs”), time-vested restricted stock awards (“RSAs”) and time- vested options granted under the Stock Incentive Plan that would have vested as of the anniversary of the date that begins the vesting period applicable to such installment of RSUs, RSAs or options that immediately follows the date of Termination of Executive’s Employment. For purposes of this Section 7.1(d), the term “pro rata portion” shall mean, with respect to any award of time-vested RSUs, time-vested RSAs or time-vested options, a percentage, when expressed as a fraction, the numerator of which is the number of days from and after the date that begins the vesting period applicable to such installment of RSUs, RSAs or options during which Executive was an employee of the Company, and the denominator of which is the total number of days in the vesting period(s) applicable to such installment of RSUs, RSAs or options assuming Executive had been an employee throughout such vesting period and no event or other matter occurred that would accelerate the vesting of such award. Any options that vest pursuant to this Section 7.1(d) shall remain exercisable through the post-termination exercise period set forth in or contemplated by the agreement evidencing the option. Notwithstanding anything to the contrary in this Agreement, if any payments, awards or benefits are owed or required to be settled or delivered to Executive under Section 7.3 hereof, then Executive shall not be entitled to any payment or benefit under this Section 7.1. Notwithstanding anything to the contrary in this Agreement, if any payments, awards or benefits are owed or required to be settled or delivered to Executive under Section 7.1(c) and (d) and Executive has attained Retirement Eligibility, then Executive shall be entitled to the greater of the payment or benefit under Section 7.1(c) and (d), determined on an aggregate basis with respect to the Eligible RSAs, on the one hand, or Section 7.2, determined on an aggregate basis with respect to the Eligible RSAs, on the other hand. Solely for purposes of this paragraph, the determination of the Eligible RSAs shall assume that the date of Retirement Termination of Employment shall be deemed to have occurred as of the date of the termination of his or her employment regardless of whether such termination occurred due to a Termination of Executive’s Employment or a Retirement Termination of Employment.
7.2 Retirement Termination of Employment. In the event of a Retirement Termination of Employment and contingent upon Executive’s execution of the Release of Claims without revocation within the time period described in Section 6 above and in compliance with Section 12 and Section 13 of this Agreement, Executive shall be entitled to the following benefits: (a) the vesting of any performance-based Eligible RSAs at the same time that such Eligible RSAs would otherwise become eligible to vest if the Compensation Committee, in its reasonable discretion, determines the Eligible RSAs would be vested under the Stock Incentive Plan for the performance period(s) during which Executive’s employment with the Company was terminated had Executive’s employment not been terminated, based upon the actual performance of Xxxxx of Xxxx at the end of such performance period(s); and (b) the continued vesting following the date of the Retirement Termination of Employment of all time-vested Eligible RSAs in accordance with the terms and conditions of the applicable award agreement and the Stock Incentive Plan; provided that the number of shares that shall be eligible to continue to vest as of each vesting date of such Eligible RSAs following such date of Retirement Termination of Employment shall be equal to the pro rata portion (as defined below) of any Unvested Tranche applicable to such vesting date assuming no event or other matter occurred that would accelerate the vesting of such award. For purposes of this Section 7.2(b), the term “pro rata portion” shall mean, with respect to each Unvested Tranche of Eligible RSAs, a number of shares equal to the product of (i) a percentage, when expressed as a fraction, which has a numerator equal to the number of days from and including the Grant Date of such Eligible RSAs through and including the date of Retirement Termination of Employment and a denominator equal to the number of days from and including the Grant Date of such Eligible RSAs through and including the vesting date for such Unvested Tranche, multiplied by (ii) the number of shares of the Eligible RSAs subject to such Unvested Tranche. The remaining shares in any Unvested Tranche of time-vested RSAs under the Stock Incentive Plan will be forfeited upon the Retirement Termination of Employment. 7.3 Termination of Executive’s Employment in Connection with a Change of Control. If there is a Change of Control, and if within six months prior to, on, or within eighteen months following the effective date of such Change of Control, there occurs a Termination of Executive’s Employment and contingent upon the Executive’s execution of the Release of Claims without revocation within the time period described in Section 6 above and in compliance with Section 12 and Section 13 of this Agreement, Executive shall be entitled to the following benefits (without duplicating any payment already owed under Section 7.1 or Section 7.2): (a) an amount equal to (i) eighteen (18) months of Executive’s annual base pay at the rate in effect immediately prior to the date of Termination of Executive’s Employment plus (ii) 150% of the target annual incentive under the Annual Incentive Plan for the performance period during which Executive’s employment was terminated; (b) the pro rata portion (as defined in Section 7.1(b)) of the target amount of any annual incentive compensation under the Annual Incentive Plan for the performance period during which Executive’s employment with the Company terminated; (c) immediate vesting of all unvested, time-vested RSUs and unvested, time-vested RSAs granted pursuant to the Stock Incentive Plan that are outstanding as of immediately prior to the date of Termination of Executive’s employment; (d) immediate vesting of all unvested, time-vested options granted pursuant to the Stock Incentive Plan that are outstanding as of immediately prior to the date of Termination of Executive’s
Employment and an extended exercisability period for options that vest pursuant to this Section 7.3(d) ending on the later of the last date of the post-termination exercise period set forth in the agreement evidencing the option and ninety (90) days following the date of a Change of Control, provided that no option shall be exercisable beyond the original term of the option; provided that the exercise of such options shall otherwise be subject to the terms and conditions of the Stock Incentive Plan and the award agreement relating to such option; and (e) immediate vesting based on assumed performance attainment at target levels of all unvested performance-based RSUs and unvested performance-based RSAs issued pursuant to the Stock Incentive Plan that are outstanding as of immediately prior to the date of Termination of Executive’s Employment. Notwithstanding anything to the contrary in this Agreement, if any payments, awards or benefits are owed or required to be settled or delivered to Executive under Section 7.3(c), (d) and (e) and Executive has attained Retirement Eligibility, then Executive shall be awarded the payment or benefit under Section 7.3(c), (d) and (e), and Executive shall not be entitled to any payment or benefit under Section 7.2, except as provided in the immediately following sentence. If, following the end of the relevant performance period(s) for the performance-based RSAs the Executive received under Section 7.3(e), the number of Eligible RSAs that would have vested under Section 7.2(a) is, on an aggregate basis, greater than the number of RSAs that vested under Section 7.3(e) on an aggregate basis, then Executive will also be entitled to the vesting of the number of performance-based Eligible RSAs equivalent to the positive difference thereof, at the time required under Section 7.2(a). Solely for purposes of this paragraph, the determination of the Eligible RSAs shall assume that the date of Retirement Termination of Employment shall be deemed to have occurred as of the date of the termination of his or her employment regardless of whether such termination occurred due to a Termination of Executive’s Employment in connection with a Change of Control or a Retirement Termination of Employment. 7.4 Termination of Executive’s Employment for Cause. In the event of the Executive’s Termination of Employment due to Cause, the Executive shall not be entitled to any payments as provided under Sections 7.1, 7.2 or 7.3 above. 7.5 In the event of a termination of Executive’s employment under Section 7.1., 7.2 7.3 or 7.4 above or in the event of a termination of Executive’s employment because of death or Disability, the Company shall, in addition to the payments set forth in those sections, where applicable, pay Executive (i) any unpaid base salary or other benefit earned by her up to and including the effective date of such termination of Executive’s employment and (ii) to the extent not duplicative of the payments set forth in Sections 7.1, 7.2 and 7.3, as applicable, any unpaid cash or equity incentive payment earned under the Annual Incentive Plan or the Stock Incentive Plan and vested prior to the effective date of such termination to the extent such payment would not violate Section 409A of the Code (“Section 409A”)). For purposes of this Section 7.5, and except as otherwise provided in this Agreement, with respect to any award or award agreement granted under any stock or other incentive plan of Xxxxx of Xxxx and its subsidiaries, Executive shall not be deemed to be eligible for or to have “earned” any performance-based award under such plan or such award agreement unless the applicable performance period has been fully completed and the applicable performance goals have been achieved. Subject to compliance with Section 18, the amounts described in this Section 7.5, if any, shall be paid on the date Executive would otherwise have received each such payment if her employment had not been terminated, subject to certification of the attainment of any performance goals by the Compensation Committee to the extent required by the Code or any stock or other incentive plan of Xxxxx of Xxxx and its subsidiaries or any related award agreement. 7.6 In the event of a Termination of Executive’s Employment under Section 7.1, a Retirement Termination of Employment under Section 7.2 or a Termination of Executive’s Employment
under Section 7.3, the Company shall provide, to the extent permitted by benefit plans of Xxxxx of Xxxx and its subsidiaries, and applicable law, the continuation (by way of Company payment for the entire coverage under COBRA) of health insurance benefits for Executive and her eligible dependents for a maximum of (a) twelve (12) months, in the event of a Termination of Executive’s Employment under Section 7.1, or until Executive is covered by another health insurance policy or is eligible for coverage under an employer-sponsored group health plan, if that occurs earlier than twelve months following the Termination of Executive’s Employment under Section 7.1 or (b) eighteen (18) months, in the event of a Retirement Termination of Employment under Section 7.2 or a Termination of Executive’s Employment under Section 7.3, or until Executive is covered by another health insurance policy or is eligible for coverage under an employer-sponsored group health plan, if that occurs earlier than eighteen months following a Retirement Termination of Employment under Section 7.2 or the Termination of Executive’s Employment under Section 7.3, as applicable. The Company shall pay the Company’s COBRA administrator directly on behalf of Executive. Executive acknowledges that the Company’s payment for coverage under COBRA may be a taxable benefit to Executive. Accordingly, in order to comply with applicable tax rules and to the extent required, the Company will impute the amount of the premium to Executive as income and report it on Form W-2. Executive and the Company agree that if the COBRA continuation payments provided for in this Section 7.6 are determined to be discriminatory under the Affordable Care Act nondiscrimination provisions applicable to insured group health plans, the parties will renegotiate Section 7.6, as applicable, in good faith to avoid the imposition of any excise tax on Executive or the Company. 7.7 Timing of Payment. Notwithstanding anything to the contrary herein, all payments, awards and benefits due or required to be delivered to Executive under Sections 7.1, 7.2 and 7.3 that are not otherwise required by any rule or regulation issued by any state or federal governmental agency shall be contingent upon execution by Executive of the Release of Claims without revocation within the time period described in Section 6 above. Subject to Executive’s compliance with Section 13, and Executive’s continuing compliance with Section 13: (a) The amount, if any, to be paid under Section 7.1(a) shall be payable in twenty-four (24) equal, semi-monthly installments, commencing on the second payroll date following the date that the Release of Claims becomes effective and that is at least 60 but not more than 75 days after the date of Termination of Executive’s Employment and continuing on a semi-monthly basis thereafter on the Company’s regular payroll dates of each ensuing calendar month. (b) The amounts, if any, to be paid or required to be delivered under Section 7.1(b) and Section 7.1(c) shall be payable in accordance with the terms and conditions set forth in Section 7.1(b) and Section 7.1(c), respectively, and in any event within two and one-half months following the last day of the Company’s fiscal year containing the last day of the applicable performance period. (c) Payments and benefits owed, if any, under Section 7.1(d) hereof shall be settled or provided within 60 days following the date of Termination of Executive’s Employment. (d) The amount, if any, to be paid under Section 7.3(a) shall be payable in a lump sum cash payment on the second payroll date following the date that the Release of Claims becomes effective and that is at least 60 but not more than 75 days after the later of the date of Termination of Executive’s Employment and the date of the Change of Control; provided, however, that if the amounts constitute non- qualified deferred compensation subject to Section 409A and the Change of Control does not constitute a “change in control event” within the meaning of the Treasury Regulations of Section 409A, then the portion of such amount that is equal to the amount that would have been paid under Section 7.1(a) had the termination not been in connection with a Change of Control, and that would have been subject to Section 409A, shall be paid in installments pursuant to the same schedule set forth in Section 7.7(a), and the amount equal to the difference between the amount payable under Section 7.3(a) and the aggregate
amount payable under Section 7.1(a) and that is subject to Section 409A shall be paid in a lump sum at the same time that the seventh semi-monthly installment is paid. Payments and benefits owed, if any, under Sections 7.3(b), (c), (d) or (e) hereof shall be paid or provided within 60 days following the later of the date of Termination of Executive’s Employment or the occurrence of the event constituting a Change of Control. Notwithstanding the foregoing, the timing of any amounts, awards or benefits to be paid, provided, delivered or settled under this Section 7.7 is subject to compliance with Section 409A to the extent any of the payments or benefits are considered non-qualified deferred compensation under Section 409A. 7.8 Parachute Payments. In the event that any benefits payable to Executive pursuant to this Agreement, either alone or in conjunction with other compensatory payments, (a) constitute “parachute payments” within the meaning of Section 280G of the Code and (b) but for this Section 7.8 would be subject to the excise tax imposed by Section 4999 of the Code or any comparable successor provisions (the “Excise Tax”), then Executive’s benefits payable hereunder shall be either (x) provided to Executive in full, or (y) provided to Executive to such lesser extent as would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing results in the receipt by Executive, on an after-Excise Tax basis, of the larger economic benefit, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax, in each case, as calculated in the Company’s reasonable judgment. In no event shall the foregoing be interpreted or administered so as to result in an acceleration of payment or further deferral of payment of any amounts (whether under this Agreement or any other arrangement) in violation of Section 409A. Subject to the immediately preceding sentence, any reduction pursuant to clause (y) shall be made by first reducing any cash payments, next by reducing any non-cash benefits, next by reducing any accelerated performance-based equity grants, and finally by reducing any time-vested equity grants, in each case in the reverse order of payment. 8. Withholding; Subsequent Employment. 8.1 Withholding. All payments and benefits provided for in this Agreement are subject to applicable withholding obligations imposed by federal, state and local laws and regulations. 8.2 Offset. The amount of any payment provided for in this Agreement shall not be reduced, offset or subject to recovery by the Company by reason of any compensation earned by Executive as the result of employment by another employer after Termination of Executive’s Employment or Retirement Termination of Employment. 8.3 No Further Compensation. Notwithstanding any other provision of this Agreement, the Annual Incentive Plan, the Stock Incentive Plan, any severance plan, policy, practice, or arrangement or any other benefit plan, agreement or arrangement of or maintained by Xxxxx of Xxxx or any its subsidiaries, the provisions of this Agreement exclusively shall govern Executive’s rights to severance benefits upon termination of employment with the Company and its affiliates, and except as expressly set forth in this Agreement, Executive shall have no further right to any compensation or other benefits pertaining to severance. Under no circumstances will any rights or awards of Executive under the Annual Incentive Plan or the Stock Incentive Plan accelerate and vest upon the Termination of Executive’s Employment or Retirement Termination of Employment, except as otherwise provided in this Agreement. 9. Definitions. 9.1 Beneficial Owner or Beneficially Owned has the meaning of such term in Rule 13d-3 under the Exchange Act (or any successor rule thereto). 9.2 Board. “Board” shall mean the Board of Directors of Xxxxx of Xxxx.
9.3 Cause. “Cause” shall mean: (a) Executive’s commission of an act of fraud, embezzlement or similar action; Executive’s conviction of, or plea of guilty or no contest to, (i) any felony, (ii) any crime involving fraud or embezzlement or (iii) any defalcation or any crime involving moral turpitude; (b) Executive’s material breach of any written policy of the Company or Xxxxx of Xxxx, including but not limited to the Code of Ethics for the Chief Executive Officer and Senior Financial Officers of Xxxxx of Xxxx, which, if in the determination of the Board is capable of being cured or corrected, such breach is not cured or corrected by the Executive within thirty (30) days of receiving written notice thereof from the Company; (c) Executive’s commission of any act of dishonesty which is injurious to the business reputation of the Company or Executive’s violation of the Company’s xxxxxxx xxxxxxx policy; (d) Executive’s failure to perform her material duties, including without limitation, the failure to follow the directions of the Board of Xxxxx of Xxxx; or (e) the breach of any fiduciary duty owed to the Company, Xxxxx of Xxxx and/or its shareholders, which is deemed to be material in the reasonable judgment of the Board. 9.4 Change of Control. “Change of Control” means the occurrence of any of the following events: (a) any “person” (as such term is used for purposes of Section 13(d)(3) or 15(d)(2) of the Exchange Act or any successor section thereto) becomes the Beneficial Owner, directly or indirectly, of more than forty percent (40%) of the combined voting power of the Outstanding Xxxxx of Xxxx Voting Securities; provided, however, that the following acquisitions shall not constitute a Change of Control: (i) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Xxxxx of Xxxx or any corporation controlled by Xxxxx of Xxxx, or (ii) any acquisition by an entity pursuant to a reorganization, merger, amalgamation or consolidation, unless such reorganization, merger, amalgamation or consolidation constitutes a Change of Control under clause (b) of this Section 9.4; (b) the consummation of a reorganization, merger, amalgamation or consolidation, unless following such reorganization, merger, amalgamation or consolidation sixty percent (60%) or more of the combined voting power of the then issued and outstanding voting securities of the entity resulting from such reorganization, merger, amalgamation or consolidation entitled to vote generally in the election of directors is then Beneficially Owned, directly or indirectly, by all or substantially all of the individuals and entities who were the Beneficial Owners, respectively, of the Outstanding Xxxxx of Xxxx Voting Securities immediately prior to such reorganization, merger, amalgamation or consolidation; (c) the (i) approval by the shareholders of Xxxxx of Xxxx of a complete liquidation or dissolution of Xxxxx of Xxxx or (ii) sale or other disposition (in one transaction or a series of related transactions) of all or substantially all of the assets of Xxxxx of Xxxx and its “subsidiaries” (as defined in Section 424(f) of the Code), unless the successor entity existing immediately after such sale or disposition is then Beneficially Owned, directly or indirectly, by all or substantially all of the individuals and entities who were the Beneficial Owners, respectively, of the Outstanding Xxxxx of Xxxx Voting Securities immediately prior to such sale or disposition; or (d) during any period of twenty-four months (not including any period prior to the effective date of the Xxxxx of Xxxx Limited 2018 Stock Incentive Plan), individuals who at the beginning
of such period constitute the Board, and any new director (other than (i) a director nominated by a Person who has entered into an agreement with Xxxxx of Xxxx to effect a transaction described in Sections 9.4(a), (b) or (c) hereof, (ii) a director whose initial assumption of office occurs as a result of either an actual or threatened election contest subject to Rule 14a-11 of Regulation 14A promulgated under the Exchange Act or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board or (iii) a director designated by any Person who is the Beneficial Owner, directly or indirectly, of securities of Xxxxx of Xxxx representing 10% or more of the Outstanding Xxxxx of Xxxx Xxxxxx Securities) whose election by the Board or nomination for election by Xxxxx of Xxxx’s shareholders was approved in advance by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority thereof. Notwithstanding the foregoing, to the extent that an option, RSA or RSU is subject to the terms of the Stock Incentive Plan and the Stock Incentive Plan would not permit the use of the definition of Change of Control set forth herein for the determination, vesting, or any other benefit hereunder, then each reference to a Change of Control herein shall be deemed to be the definition of “Change of Control” (or analogous term) defined in the Stock Incentive Plan applicable to such option, RSA or RSU with respect to such determination, vesting, or any other benefit. 9.5 Code. “Code” shall mean the Internal Revenue Code of 1986, as amended. 9.6 Disability. “Disability” shall mean that Executive would qualify to receive benefit payments under the long-term disability plan or policy, as it may be amended from time to time, of the Company or the affiliate or subsidiary of the Company to which Executive provides services regardless of whether Executive is covered by such plan or policy. If the Company or the affiliate or subsidiary of the Company to which Executive provides services does not have a long-term disability policy, “Disability” shall mean that Executive is unable to carry out the responsibilities and functions of the position held by Executive by reason of any medically determined physical or mental impairment for a period of not less than ninety (90) consecutive days or one-hundred eighty (180) non-consecutive days in any twelve month period. An Executive shall not be considered to have incurred a Disability unless he or she furnishes proof of such impairment sufficient to satisfy the Compensation Committee of the Board (or any successor thereto or other committee designated by the Board to assume the obligations of the Compensation Committee of the Board under the terms of the Stock Incentive Plan, or if no committee shall be designated or in office, the Board) in its sole discretion. 9.7 Eligible RSAs. “Eligible RSAs” shall mean, with respect to each award of RSAs granted under the terms and conditions of the Stock Incentive Plan that is not fully vested, each unvested RSA that has a Grant Date that is at least six months (measured from and including the Grant Date) before the date of the Retirement Termination of Employment; provided that Eligible RSAs shall not include RSAs for which, under the terms of the applicable award agreement, the vesting of the RSAs shall not accelerate or be eligible for acceleration under any agreements, plans, policies, arrangements or programs by reason of Executive’s termination of service with the Company or its affiliates due to retirement, age and/or total years of service with the Company or its affiliates (or any combination thereof). 9.8 Exchange Act. “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor thereto. 9.9 Fair Market Value. “Fair Market Value” shall have the meaning ascribed to such term in the Stock Incentive Plan.
9.10 Good Reason. “Good Reason” shall mean any of the following if such event occurs without the consent of the Executive: (a) Executive shall fail to be vested by the Company or Xxxxx of Xxxx with the powers and authority of the Chief Executive Officer or a significant change by the Company or Xxxxx of Xxxx in Executive’s functions, duties or responsibilities which would cause Executive’s position with the Company or Xxxxx of Xxxx to become of less responsibility or scope from the position and attributes thereof described in Section 1 and 1A above; (b) a material reduction by the Company in Executive’s base salary; (c) the refusal of any successor to assume this Agreement in accordance with the terms and conditions of Section 10; or (d) Executive is required by the Company or Xxxxx of Xxxx to move her residence xxx xxxx fifty miles from the residence she establishes after the relocation set forth in Section 3. Notwithstanding anything to the contrary contained herein, no termination for Good Reason shall occur unless (i) Executive delivers written notice to the Company of the occurrence of the event described in this Section 9.10 that constitutes Good Reason within ninety (90) days of Executive learning of the initial existence of the event, (ii) the Company or Xxxxx of Xxxx, as applicable, fails to remedy the event within thirty (30) days of the delivery of such notice and (iii) Executive terminates her employment no later than thirty (30) days following the end of such cure period. 9.11 Grant Date. “Grant Date” means (a) with respect to any option, RSA or RSU, the date expressly stated as the “Grant Date” or “Date of Grant” or analogous term in the applicable award agreement or (b) if no such date is specified in the applicable award agreement, the date on which the Compensation Committee resolves to grant an option, RSA or RSU, as the case may be. 9.12 Xxxxx of Xxxx. “Xxxxx of Xxxx” means Xxxxx of Xxxx Limited, a Bermuda company, and its successors and assigns. 9.13 Outstanding Xxxxx of Xxxx Voting Securities. “Outstanding Xxxxx of Xxxx Voting Securities” means the then issued and outstanding voting securities of Xxxxx of Xxxx entitled to vote generally in the election of directors. 9.14 Retirement Eligibility. “Retirement Eligibility” means any time after the date (a) the sum of the Executive’s age and number of years of service of employment with the Company or any of its affiliates or subsidiaries is sixty-five (65) and (b) the Executive attains ten (10) consecutive years of employment with the Company or any of its affiliates or subsidiaries. 9.15 Retirement Termination of Employment. “Retirement Termination of Employment” means that Executive, by written notice to the Company, has voluntarily terminated her employment with the Company (including any affiliate or subsidiary of the Company) for any reason other than for Cause, death or Good Reason on or after the date Executive attains Retirement Eligibility. 9.16 Termination of Executive’s Employment. “Termination of Executive’s Employment” means that (a) the Company has terminated Executive’s employment with the Company (including any affiliate or subsidiary of the Company) other than for Cause, death, Disability or a Retirement Termination of Employment, or (b) Executive, by written notice to the Company, has terminated her employment with the Company (including any affiliate or subsidiary of the Company) for Good Reason
other than due to a Retirement Termination of Employment. A Termination of Executive’s Employment is intended to mean a termination of employment which constitutes a “separation from service” under the Code for purposes of non-qualified deferred compensation payable hereunder on or by reference to the Executive’s separation from service. 9.17 Unvested Tranche. “Unvested Tranche” means, for any applicable period of determination, the period (a) between the Grant Date and the first vesting date of such Eligible RSA, if no portion of the Eligible RSA has vested as of such determination, and (b) between each vesting date under any Eligible RSA. 10. Successors; Binding Agreement. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding on, the Company and its successors and assigns, and the rights and obligations of Executive under this Agreement shall inure to the benefit of, and shall be binding upon, Executive and (other than obligations to perform services and to refrain from disparagement) her heirs, personal representatives and assigns; provided that Executive may not assign any of her rights, interests or obligations hereunder without the prior written consent of the Company or Xxxxx of Xxxx. The Company will require, and will cause Xxxxx of Xxxx to require, any successor (whether direct or indirect, by purchase, merger, acquisition of assets, consolidation or otherwise) to all or substantially all of the business and/or assets of Xxxxx of Xxxx to assume and agree to perform the duties and obligations of Xxxxx of Xxxx and the Company, as the case may be, under this Agreement in the same manner and to the same extent that Xxxxx of Xxxx and the Company would be required to perform if no such succession had taken place. 11. Entire Agreement; Conflicts with Other Agreements. With respect to the matters covered by this Agreement, this Agreement contains the entire understanding relating to the subject matter hereof and supersedes any prior written or oral agreements, representations, and understandings, whether written or not, if any, between the Company or any predecessor of the Company and Executive. As of the Effective Date, this Agreement supersedes and replaces any and all severance pay plans, policies, practices, arrangements or programs, written or unwritten, that Xxxxx of Xxxx or any its subsidiaries may have had in effect for Executive from time to time prior to the date hereof, including that certain Severance Agreement dated May 17, 2022 between the Company and Executive. In the event of any conflict or inconsistency between the terms of any other agreement between the Company, Xxxxx of Xxxx, or any of their respective subsidiaries and Executive or any plan of Xxxxx of Xxxx or its subsidiaries and the terms hereof, the terms of this Agreement shall govern. For purposes of clarity, the arbitration terms found in Section 14 shall supersede the Dispute Resolution and Arbitration Policy and Agreement previously executed by the Executive Notwithstanding the foregoing, nothing in this Agreement is intended to supersede the Confidentiality, Proprietary Rights, and Security Agreement previously executed by the Executive. 12. Resignation of Corporate Offices. Executive will resign Executive’s office, if any, as a director, officer, trustee or other position of the Company, its subsidiaries or affiliates and of any other corporation, partnership, trust or other entity of which Executive serves as such at the request of the Company or its affiliates, effective as of the date of Termination of Executive’s Employment or the date of the Retirement Termination of Employment, as applicable. Executive agrees to provide the Company such written resignation(s) upon request and that no severance pay or other benefits will be paid until after such resignation(s) are provided. Executive agrees to execute all documents and take such further steps as may be required to effectuate such resignation(s). 13. No Disparagement. (a) Executive agrees, other than with regard to employees in the good faith performance of Executive’s duties with the Company while employed by the Company, both during the
term of Executive’s employment and after Executive’s employment with the Company terminates, not to knowingly disparage the Company or its officers, directors, employees or agents in any manner likely to be harmful to it or them or its or their business, business reputation or personal reputation. This Section 13(a) shall not be violated by statements from Executive which are truthful, complete and made in good faith in required response to legal process or governmental inquiry. (b) Executive agrees that any breach of this Section 13 by Executive shall be deemed a material breach of this Agreement. Executive agrees and understands that the remedy at law for any breach by him of this Section 13 would be inadequate and that the damages flowing from such breach are not readily susceptible to being measured in monetary terms. Accordingly, it is acknowledged that, upon Executive’s violation of this Section 13, Xxxxx of Xxxx or its subsidiaries may be entitled to immediate injunctive relief and may obtain temporary orders or other injunctive or provisional relief restraining any further breach in a court of competent jurisdiction. Nothing in this Section 13 shall be deemed to limit the Company, Xxxxx of Xxxx or any of its subsidiaries’ remedies at law or in equity for any breach by Executive of any of the provisions of this Section 13 which may be pursued or availed of by the Company, Xxxxx of Xxxx or any of its subsidiaries. 14. Dispute Resolution. (a) For purposes of this Section, the term “Dispute” means any claim or controversy that could be brought in a court of law that arises out of or relates in any way to this Agreement or Executive’s employment by Company, including, without limitation, in connection with any compensation award under the Stock Incentive Plan, the Annual Incentive Plan or otherwise as made to Executive by Xxxxx of Xxxx, the Company or any of its affiliates. To the extent permitted by law or as otherwise expressly provided, Arbitration in accordance with the terms of this Section is the exclusive means for resolution of a Dispute. (b) In the event of any Dispute, the “complaining party” shall give the “other party” written notice of the Dispute. The parties shall have ten (10) business days to resolve the Dispute to their mutual satisfaction or, if unsuccessful, an additional five (5) business days to deliver a request to the other party to submit the Dispute to non-binding mediation with the assistance of a neutral, unaffiliated mediator. If such mediation request is accepted, the mediation shall be completed in El Paso County, Texas, or such other location to be agreed upon by the parties, within forty-five (45) days of delivery of the mediation request. Mediation fees shall be shared equally by the parties. (c) If mediation is unsuccessful, is not timely requested by any party, or is refused by the non-requesting party, either party may then by written notice file a demand for arbitration of the Dispute (“Arbitration Demand”) with the American Arbitration Association (“AAA”). Any Arbitration Demand must be filed by the initiating party with AAA and served on the other party within the limitations period that governs the underlying substantive claim. There shall be three (3) arbitrators who shall be jointly selected by the parties. If the parties have not jointly agreed upon an arbitrator within fourteen (14) calendar days of the filing of the Arbitration Demand, either party may ask AAA to furnish the parties with a list of ten (10) names from which the parties shall jointly select an arbitrator. If the parties have not agreed upon an arbitrator within ten (10) calendar days of the transmittal date of such list, then each party shall have an additional five (5) calendar days in which to strike any names objected to, number the remaining names in order of preference, and return the list to AAA, which shall then select an arbitrator. Notwithstanding the terms of this Agreement, the place of arbitration shall be in El Paso County, Texas, unless otherwise agreed by the parties, and the Arbitration shall be governed by AAA Rules for Employment Arbitration as an individually negotiated arbitration agreement with an executive and not part of a Company-wide arbitration system.
(d) The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1- 16. By agreeing to arbitration, the parties hereto do not intend to deprive a court of jurisdiction to issue a pre-arbitral injunction, or with respect to other proceedings described in Sections 7(e) or (f) hereof (or delay any such proceedings), or other order in aid of arbitration. (e) The arbitrator will set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing the parties an opportunity, adequate in the sole judgment of the arbitrator, to discover relevant information from the opposing parties solely to the extent related to the subject matter of the Dispute. The arbitrator will rule upon motions for summary judgment and to compel or limit discovery and will have the authority to impose sanctions to the same extent as a court of law or equity, should the arbitrator determine that discovery was sought without reasonable justification or that discovery was refused or objected to without reasonable justification. The decision of the arbitrator will be final, binding, and conclusive upon the parties, will be enforceable in a court of law, and will not be appealable except to the extent permitted by applicable law. Such decision must be written and set forth the award, judgment, decree or order awarded by the arbitrator, if any. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction. (f) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW AND SUBJECT TO THE PARTIES’ AGREEMENT TO ARBITRATE, IN THE EVENT OF A DISPUTE BETWEEN THE PARTIES NOT COVERED BY ARBITRATION, EXECUTIVE AND COMPANY ELECT TO HAVE A JUDGE RATHER THAN A JURY RESOLVE ANY FUTURE DISPUTES AND WAIVE A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR TO THE EMPLOYMENT RELATIONSHIP. THE PARTIES UNDERSTAND THAT THE RIGHT TO A TRIAL BY JURY IS A CONSTITUTIONAL RIGHT AND THAT THIS ELECTION TO HAVE A JUDGE DETERMINE ANY CLAIM, RATHER THAN A JURY, IS A VOLUNTARY CHOICE. 15. Governing Law and Venue. To the extent not subject to the Arbitration section, this Agreement, including all matters related to its validity, enforceability, construction, interpretation and performance, all aspects of the relationship between the parties contemplated hereby and any disputes or controversies arising therefrom or related thereto, will be governed by, construed, and enforced in accordance with the laws of the State of Texas (without regard to its conflicts-of-law provisions or principles). The Company and Executive hereby irrevocably and unconditionally (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the state and federal courts of El Paso County, Texas (the “Texas Court”), and not in any other state or federal court in the United States of America or any court in any other country, (b) consent to submit to the exclusive jurisdiction of the Texas Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (c) waive any objection to the laying of venue of any such action or proceeding in the Texas Court, and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Texas Court has been brought in an improper or inconvenient forum. 16. Amendment. No provision of this Agreement may be modified unless such modification is agreed to in writing signed by Executive and the Company. 17. Severability. If any of the provisions or terms of this Agreement shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other terms of this Agreement, and this Agreement shall be construed as if such unenforceable term had never been contained in this Agreement.
18. Deferred Compensation. (a) It is the intention that no payment or entitlement pursuant to this Agreement will give rise to any adverse tax consequences under Section 409A or Section 457A of the Code (“Section 457A”) and that such payments or entitlements to which Executive is or could become entitled to under this Agreement are intended to be exempt from or comply with Section 409A and exempt from Section 457A, with the payments intended to be exempt under the “short-term deferral” and “separation pay” exceptions to the maximum extent permitted under Section 409A, and this Agreement shall be interpreted and administered in a manner consistent with such intent. Further, no effect shall be given to any provision herein in a manner that reasonably could be expected to give rise to adverse tax consequences under Section 409A or Section 457A. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A or Section 457A. If Executive or the Company believes, at any time, that any benefit or right provided by this Agreement does not comply with Section 409A or Section 457A, it shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such benefits and rights such that they comply with Section 409A and Section 457A (with the most limited possible economic effect on Executive and on the Company). For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate and distinct payment. Nothing in this Agreement shall provide a basis for any person to take action against the Company or any affiliate thereof based on matters covered by Section 409A or Section 457A, including the tax treatment of any amount paid under this Agreement, and neither the Company nor any of its affiliates shall under any circumstances have any liability to Executive or her estate or any other party for any taxes, penalties or interest due on amounts paid or payable under this Agreement, including taxes, penalties or interest imposed under Section 409A. (b) Without limiting the generality of the foregoing and anything in this Agreement to the contrary notwithstanding, if amounts or benefits payable by reference to the timing of Executive’s termination of employment constitute non-qualified deferred compensation subject to Section 409A, as determined in the Company’s sole discretion, (i) such amounts or benefits shall not be paid unless Executive experiences a “separation from service” (within the meaning of Section 409A), (ii) to the extent that any payment period conditioned on Executive’s execution of a release commences in one calendar year and ends in the subsequent calendar year, such amounts or benefits shall be paid in the second calendar year; and (iii) if Executive is a “specified employee” (within the meaning of Section 409A) as of the date of Executive’s separation from service, such amounts or benefits shall not be paid until the date that is six months and one day following the date of Executive’s separation from service, or if earlier, the date of Executive’s death. With respect to any amount of expenses eligible for reimbursement or the provision of any in-kind benefits under this Agreement, to the extent such payment or benefit would be considered deferred compensation under Section 409A or is required to be included in Executive's gross income for federal income tax purposes, such expenses (including, without limitation, expenses associated with in-kind benefits) will be reimbursed by the Company no later than December 31st of the year following the year in which Executive incurs the related expenses. In no event will the reimbursements or in-kind benefits to be provided by the Company in one taxable year affect the amount of reimbursements or in-kind benefits to be provided in any other taxable year, nor will Executive's right to reimbursement or in-kind benefits be subject to liquidation or exchange for another benefit. 19. Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, (b) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, (c) mailed by reputable overnight courier and receipted for by the party to whom said notice or other
communication shall have been directed or (d) sent by facsimile transmission, with receipt of oral confirmation that such transmission has been received: (i) If to Executive, at such address as Executive shall provide to the Company. (ii) If to the Company to: Xxxxx of Xxxx Nevada Corporation l Xxxxx of Xxxx Plaza El Paso, Texas 79912 Attn: Board of Directors With a copy to: Office of General Counsel 1 Hexxx xx Xxxx Xxxxx Xx Xxxx, Xxxxx 00000 xx to any other address as may have been furnished to Executive by the Company. 20. Clawback Policy. Notwithstanding any other provision of this Agreement or any other agreement between Executive, on the one hand, and the Company, Xxxxx of Xxxx, or the respective affiliates, on the other hand (including any award or similar agreement granted to Executive under the Annual Incentive Plan or the Stock Incentive Plan) (collectively, the “Other Executive Agreements”), to the contrary, any compensation pursuant to this Agreement and/or the other Executive Agreements (Including any Shares issued thereunder, and/or any amount received with respect to any sale of any such Shares), shall be subject to potential cancellation, recoupment, rescission, payback or other action in accordance with (a) Section 304 of the Sarbanes Oxley Act of 2002, (b) Rule 10D-1 of the Exchange Act and any rules and/or regulations issued pursuant to the Xxxx-Xxxxx Act of 2010, and (c) any clawback policy in effect, adopted or implemented by the Company on or after the date hereof with respect to or pursuant to Sarbanes Oxley Act of 2002, the Exchange Act, Xxxx-Xxxxx Act of 2010, in each case as amended, any rules and/or regulations issued pursuant to or promulgated thereunder and any rules, standards or regulations of any stock exchange or market or quotation system on which the Shares are traded or applicable Xxxxx of Xxxx (as such policy may be amended from time to time, the “Policy”). The Executive agrees and consents to the Company’s and its affiliates application, implementation and enforcement of (a) the Policy or any similar policy established by the Company or its affiliates that may apply to the Executive and (b) any provision of applicable law relating to cancellation, rescission, payback or recoupment of compensation, and expressly agrees that the Company and its affiliates may take such actions as are necessary to effectuate the Policy, any similar policy (as applicable to the Executive) or applicable law without further consent or action being required by the Executive. [Signature page follows.]
IN WITNESS WHEREOF, this Agreement has been executed on the date and year first written above. XXXXX OF XXXX NEVADA CORPORATION By: /s/ Tessa Judge Xxxxx Xxxxx Chief Legal Officer EMPLOYEE: /s/ Xxxx Xxxxxxxx Xxxx Xxxxxxxx The obligations of Xxxxx of Xxxx Nevada Corporation to Executive hereunder are hereby guaranteed by Xxxxx of Xxxx Limited, a Bermuda company. XXXXX OF XXXX LIMITED, a Bermuda company By: /s/ Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx Chief Executive Officer
A-1 EXHIBIT A RELEASE OF CLAIMS 1. Parties. The parties to Release of Claims (hereinafter “Release”) are Xxxx Xxxxxxxx and Xxxxx of Xxxx Nevada Corporation, a Nevada corporation, as hereinafter defined. 1.1 Executive and Releasing Parties. For the purposes of this Release, “Executive” means Xxxx Xxxxxxxx, and “Releasing Parties” means Executive and her attorneys, heirs, legatees, personal representatives, executors, administrators, assigns, and spouse. 1.2 The Company and the Released Parties. For the purposes of this Release, the “Company” means Xxxxx of Xxxx Nevada Corporation, a Nevada corporation, and “Released Parties” means the Company and its predecessors and successors, affiliates, and all of each such entity’s officers, directors, employees, insurers, agents, attorneys or assigns, in their individual and representative capacities. 2. Background and Purpose. Executive was employed by the Company. Executive’s employment is ending effective ________________ under the conditions described in Section 7.1, 7.2 or 7.3, as applicable, of the Employment Agreement (“Agreement”) by and between Executive and the Company dated April 25, 2023. The purpose of this Release is to settle, and the parties hereby settle, fully and finally, any and all claims the Releasing Parties may have against the Released Parties, whether asserted or not, known or unknown, including, but not limited to, claims arising out of or related to Executive’s employment, separation of employment, any claim for reemployment, or any other claims whether asserted or not, known or unknown, past or future, that relate to Executive’s employment, separation of employment, reemployment, or application for reemployment (in each case except as set forth below). 3. Release. In consideration for the payments and benefits set forth in Section 7 of the Agreement and other promises by the Company all of which constitute good and sufficient consideration, Executive, for and on behalf of the Releasing Parties, waives, acquits and forever discharges the Released Parties from any obligations the Released Parties have and all claims the Releasing Parties may have as of the Effective Date (as defined in Section 8 below) of this Release, including but not limited to, obligations and/or claims arising from the Agreement (other than any claim Executive may have against the Company after the date hereof with respect to nonperformance of the payment obligations of the Company set forth in Section 7 of the Agreement) or any other document or oral agreement relating to employment, separation of employment, compensation, benefits, severance or post-employment issues. Executive, for and on behalf of the Releasing Parties, hereby releases the Released Parties from any and all claims, demands, actions, or causes of action, in law or equity, whether known or unknown, arising from or related in any way to any employment of or past failure or refusal to employ Executive by the Company, or any other past claim that relates in any way to Executive’s employment, separation of employment, compensation, benefits,
A-2 reemployment, or application for employment, with the exception of any claim Executive may have against the Company for enforcement of the Agreement. The matters released include, but are not limited to, any claims under federal, state or local laws, including the Age Discrimination in Employment Act (“ADEA”) as amended by the Older Workers’ Benefit Protection Act (“OWBPA”), any common law tort, contract or statutory claims, and any claims for liquidated damages, compensatory or putative damages and for attorneys’ fees and costs. Further, Executive, for and on behalf of the Releasing Parties, waives and releases the Released Parties from any claims that this Release was procured by fraud or signed under duress or coercion so as to make the Release not binding. Executive is not relying upon any representations by the Company’s legal counsel in deciding to enter into this Release. Executive understands and agrees that by signing this Release, Executive, for and on behalf of the Releasing Parties, is giving up the right to pursue any legal claims that Executive or the Releasing Parties may have against the Released Parties with respect to the claims released hereby. Provided, nothing in this provision of this Release shall be construed to prohibit Executive from challenging the validity of the ADEA release in this Section of the Release or from filing a charge or complaint with the Equal Employment Opportunity Commission or any state agency or from participating in any investigation or proceeding conducted by the Equal Employment Opportunity Commission or state agency. However, the Released Parties will assert all such claims have been released in a final binding settlement. Executive should consult with an attorney regarding the terms of this Release before signing the Release. Executive understands and agrees that this Release extinguishes all released claims, whether known or unknown, foreseen or unforeseen. Executive fully understands that, if any fact with respect to any matter covered by this Release is found hereafter to be other than or different from the facts now believed by Executive to be true, Executive expressly accepts and assumes that this Release shall be and remain effective, notwithstanding such difference in the facts. 3.1 IMPORTANT INFORMATION REGARDING RELEASE OF AGE DISCRIMINATION CLAIMS. Executive understands and agrees that: a. Also included among the claims knowingly and voluntarily waived and released by Executive in Section 3 are any age discrimination, retaliation, harassment, or related claims under the Age Discrimination in Employment Act (“ADEA”), the Texas Commission on Human Rights Act, the Older Workers Benefit Protection Act (“OWBPA”), or any other federal, state, or local law; b. this Release is worded in an understandable way; c. claims under ADEA that may arise after the date Executive signs this Release are not waived; d. the rights and claims waived in this Release are in exchange for additional consideration over and above any consideration to which Executive was already undisputedly entitled; e. Executive has been advised to consult with an attorney prior to executing this Release and has had sufficient time and opportunity to do so; f. Executive has been given a period of time of 21 days (or, if required by applicable law, 45 days) (the “Statutory Period”), if desired, to consider this Release before signing it, and that if Executive signs this Release in less time than the full Statutory Period, then by doing so she voluntarily agreed to waive her right to the full Statutory Period;
A-3 g. Executive may revoke her waiver and release of any ADEA claims covered by this Release within seven (7) days from the date Executive executes this Release. Notice of revocation must be in writing and received by _________________ Attention: _____________ within seven (7) days after Executive signs this Release; and h. any changes made to this Release, whether material or immaterial, will not restart the running of the Statutory Period. 3.2 Reservations of Rights. This Release shall not affect any rights which Executive may have under any medical insurance, disability plan, workers’ compensation, unemployment compensation, indemnifications, applicable company stock incentive plan(s) that survive termination of employment, or the 401(k) plan maintained by the Company, or any other entitlement to benefits in which Executive already is vested. 3.3 No Admission of Liability. It is understood and agreed that the acts done and evidenced hereby and the release granted hereunder is not an admission of liability on the part of Executive or the Company or the Released Parties, by whom liability has been and is expressly denied. 4. Effective Date. The “Effective Date” of this Release shall be the eighth calendar day after it is signed and not revoked by Executive. 5. Confidentiality, Proprietary, Trade Secret and Related Information (a) Executive acknowledges the duty and agrees not to make unauthorized use or disclosure of any confidential, proprietary or trade secret information learned as an employee about the Company, its products, customers and suppliers, and covenants not to breach that duty. This provision is in addition to, and not in lieu of: (a) the protections afforded trade secrets and confidential information under applicable law; and (b) notwithstanding the restrictions on use or disclosure of trade secrets, confidential information, or proprietary information under any other confidentiality agreement between the Company and Executive. Moreover, Executive acknowledges that, subject to the enforcement limitations of applicable law, the Company reserves the right to enforce the terms of any offer letter, employment agreement, confidentially agreement, or any other agreement between Executive and the Company and any section(s) therein. Should Executive, Executive’s attorney or agents be requested in any judicial, administrative, or other proceeding to disclose confidential, proprietary or trade secret information Executive learned as an employee of the Company, Executive shall promptly notify the Company of such request by the most expeditious means in order to enable the Company to take any reasonable and appropriate action to limit such disclosure. (b) For the avoidance of doubt, nothing in this Agreement (including this Section 5) or the Plan is intended to impede, prohibit or restrict Executive (or an attorney acting on Executive’s behalf) from filing a charge or complaint, initiating communications directly with, or responding to any inquiry from, or providing testimony before, or otherwise participating or cooperating with any investigation or proceeding with the U.S. Securities and Exchange Commission, Commodity Futures Trading Commission, FINRA, or any other state or federal regulatory authority or self-regulatory organization regarding this Agreement or its underlying facts or circumstances, or about a possible violation of securities laws (or recovering any remuneration for doing so), the Commodities Exchange Act, or employment laws,
A-4 or exercising rights under the federal Defend Trade Secrets Act (“DTSA”) which DTSA provides that an individual shall not be held criminally or civilly liable for the disclosure of a trade secret that is made (i) in confidence to a government official or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Executive may provide confidential information in accordance with the immediately preceding sentence of this Section 5(a) without the risk of financial penalties to the Executive. This Section 5(b) does not, however, authorize Executive to disclose information Executive obtains through a communication that is subject to the attorney-client privilege or the work product doctrine. 6. Scope of Release. The provisions of this Release shall be deemed to obligate, extend to, and inure to the benefit of the parties; the Company’s parents, subsidiaries, affiliates, successors, predecessors, assigns, directors, officers, and employees; and each party’s insurers, transferees, grantees, legatees, agents, personal representatives and heirs, including those who may assume any and all of the above-described capacities subsequent to the execution and Effective Date of this Release. 7. Entire Release. This Release and the Agreement signed by Executive contain the entire agreement and understanding between the parties with respect to the subject matter hereto and, except as reserved in Sections 3 and 5 of this Release, supersede and replace all prior agreements, written or oral, prior negotiations and proposed agreements, written or oral. Executive and the Company acknowledge that no other party, nor agent nor attorney of any other party, has made any promise, representation, or warranty, express or implied, not contained in this Release concerning the subject matter of this Release to induce this Release, and Executive and the Company acknowledge that they have not executed this Release in reliance upon any such promise, representation, or warranty not contained in this Release. 8. Severability. Every provision of this Release is intended to be severable. In the event any term or provision of this Release is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction or by final and unappealed order of an administrative agency of competent jurisdiction, such illegality or invalidity should not affect the balance of the terms and provisions of this Release, which terms and provisions shall remain binding and enforceable. 9. Mutual Drafting. The parties each acknowledge that each party has reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. The language of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not strictly for, or against, either of the parties. 10. References. The Company agrees to follow the applicable policies regarding release of employment reference information. 11. Parties May Enforce Release.
A-5 Nothing in this Release shall operate to release or discharge any parties to this Release or their successors, assigns, legatees, heirs, or personal representatives from any rights, claims, or causes of action arising out of, relating to, or connected with a breach of any obligation of any party contained in this Release. 12. Governing Law and Venue. This Release, including all matters related to its validity, enforceability, construction, interpretation and performance, all aspects of the relationship between the parties contemplated hereby and any disputes or controversies arising therefrom or related thereto, will be governed by, construed and enforced in accordance with the laws of the State of Texas (without regard to its conflicts-of-law provisions or principles). The Company and Executive hereby irrevocably and unconditionally (a) agree that any action or proceeding arising out of or in connection with this Release shall be brought only in the state and federal courts of El Paso County, Texas (the “Texas Court”), and not in any other state or federal court in the United States of America or any court in any other country, (b) consent to submit to the exclusive jurisdiction of the Texas Court for purposes of any action or proceeding arising out of or in connection with this Release, (c) waive any objection to the laying of venue of any such action or proceeding in the Texas Court, and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Texas Court has been brought in an improper or inconvenient forum. 13. Acknowledgments. Executive acknowledges that the Company is not undertaking to advise Executive with respect to any tax or other consequences of this Release and that Executive is solely responsible for determining those consequences. Executive has read this Release and understands its terms. Executive has been provided with a full and fair opportunity to consult with an attorney of her choosing and to obtain any and all advice deemed appropriate with respect to this Release. Executive acknowledges that nothing in this Release shall limit Executive’s ability to confer with legal counsel, to testify truthfully under subpoena or court order, or to initiate, provide truthful information for, or cooperate with an investigation by a municipal, state, or federal agency for enforcement of laws. This Release has been entered into with the understanding that there are no unresolved claims of any nature that Executive has against the Company. Executive acknowledges and agrees that except for the payment and benefits set forth in Section 7 of the Agreement, all compensation, benefits, and other obligations due Executive by the Company, whether by contract or by law, have been paid or satisfied in full. Executive further agrees that the representations and understandings set forth in this paragraph have been relied on by the Company and constitute consideration for the Company’s execution of this Release. In light of the foregoing, Executive is satisfied with the terms of this Release and agrees that its terms are binding on him. Dated: , Xxxx Xxxxxxxx STATE OF ) ) County of ) Personally appeared the above named Xxxx Xxxxxxxx and acknowledged the foregoing instrument to be her voluntary act and deed.
A-6 Before me: NOTARY PUBLIC - My commission expires: XXXXX OF XXXX NEVADA CORPORATION By: Name: Title: Dated:
