Exhibit 10.5
EMPLOYMENTAGREEMENT
This Employment Agreement (the “Agreement”), dated as of May 6, 2026, is by and between Six Flags Entertainment Corporation, a Delaware corporation (the “Company”), and Christopher Bennett (the “Executive”).
WHEREAS,theBoardofDirectorsoftheCompany(the“Board”)hasapprovedthehiring of Executive as Chief Legal and Compliance Officer and Secretary (“CLO”) of the Company, effective as of the Effective Date (as defined herein); and
WHEREAS,theCompanyandExecutivedesiretoenter intothisAgreementtoreflectthe terms of Executive’s employment as CLO of the Company.
NOW,THEREFORE,inconsiderationofsuchemploymentandthemutualcovenantsand promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive agree as follows:
1.Employment. The Company hereby agrees to employ Executive, and Executive hereby agreestoacceptemploymentwiththeCompanyasitsCLOuponthetermsandconditions containedinthisAgreement.Executive’semploymentwiththeCompanyshallcommence on May 27, 2026 (such date, the “Effective Date”) and shall continue, subject to earlier termination of such employment pursuant to the terms hereof, until (and including) the three- (3-) year anniversary of the Effective Date (the “Term”), subject to automatic renewalforsuccessiveone(1)yearperiodsthereafter(each,a“RenewalTerm”),provided either party can give written notice of non-renewal at least ninety (90) days’prior to the expirationoftheTermorthen-currentRenewalTerm.TheTermandeachRenewalTerm, if any, shall be collectively referred to hereinafter as the “Employment Period.”
2.Duties. During the Employment Period, Executive shall serve on a full-time basis, and performservicesinacapacityandinamannerconsistentwithExecutive’spositionforthe Company, reportingtothe Company’s Chief Executive Officer.Executive shall havethe title of CLO commencing as of the Effective Date and shall have such duties, authorities and responsibilities as are consistent with the customary duties, authorities and responsibilitiesofsuchaposition, andasthe ChiefExecutiveOfficer maydesignatefrom time to time while the Executive serves as the CLO of the Company.
Executive shall devote substantially all of Executive’s business time and attention and Executive’s best efforts (excepting vacation time, holidays, sick days and periods of disability) to Executive’s employment and service with the Company; provided that this Section 2 shall not be interpreted as prohibitingExecutive from (i) managingExecutive’s personal investments (so long as such investment activities are of a passive nature), (ii) engaging in charitable or civic activities, or (iii) participating on boards of directors or similar bodies of non-profit organizations, in each case, so long as such activities in the aggregate do not (a) materially interfere with the performance of Executive’s duties and responsibilitieshereunder,(b)createafiduciaryconflict,or(c)withrespectto(ii)and(iii) only, detrimentally affect the Company’s reputation as reasonably determined by the Company in good faith.
3.Location of Employment. Executive’s principal place of employment shall be at the Company’s corporate office located in Arlington, Texas, subject to reasonable business travel consistent with Executive’s duties and responsibilities.
4.Compensation.
4.1BaseSalary.
(a)In consideration of all services rendered by Executive under this Agreement, the Company shall pay Executive a base salary (the “BaseSalary”) at an annual rate of $647,000 during the Employment Period. Executive’s Base Salary will be reviewed from time to time for possible increase (but will not decrease, except in the event of an across-the-board reductionapplicabletosubstantiallyallseniorexecutivesoftheCompany).
(b)The Base Salary shall be paidinsuch installmentsand at such timesas the Company pays its regularly salaried employees and shall be subject to all required withholding taxes, including income, FICA, and Medicare contributions, and similar deductions.
4.2Incentive Compensation. During the Employment Period, Executive will be eligibletoparticipateinoneormoreoftheCompany’scashincentivecompensation plans and equity incentive plans (awards or compensation under any such plans beingreferredtoas“IncentiveCompensation”)atalevelappropriatetoExecutive’s position and performance, as solely determined by the Board.Executive’s target levelofIncentiveCompensationassetforthinthisSection4.2(otherthantheInitial Incentive Grant as defined below in Section 4.2(c)) will be reviewed from time to time but will not decrease, except in the event of an across-the-board reduction applicable to substantially all senior executives of the Company.
(a)AnnualCashIncentiveCompensation.
(a)(i) Executive shall be eligible to receive an annual cash incentive award (“Annual Cash Incentive”) in respect of each of the Company’s full fiscalyearsduringtheEmploymentPeriod,withatargetbonusopportunity equal to 95%of Base Salary(“TargetAnnual Cash Incentive”).The Board will establish the applicable service-based and performance-based goals, which may include adjusted EBITDA or other criteria, and corresponding attainment percentages. Notwithstanding the foregoing, for calendar year 2026,ExecutivewillbeeligibleforaproratedAnnualCashIncentivebased on a partial year of service in such calendar year.
(ii) Any Annual Cash Incentive payable to Executive for a calendar year shall be paid to Executive at the same time that other senior executives of the Company receive bonus payments, butinno event laterthan March 15 of the calendar year following the end of the calendar year to which such AnnualCashIncentiverelates.ExecutiveshallnotbepaidanyAnnualCash
IncentivewithrespecttoacalendaryearunlessExecutiveisemployedwith theCompanyonthelastdayofthecalendaryeartowhichsuchAnnualCash Incentive relates, except as otherwise set forth in Section 6 hereof and in compliance with Section 11.7.
(b)Annual Equity Incentive Compensation. Executive shall be eligible to receive an annual equity award under the Company’s 2024 Omnibus Incentive Plan (or a successor plan) (the “Stock Incentive Plan”) in accordancewiththefollowing,withthetermsandconditionsassetforthin the applicable award agreement issued under the Stock Incentive Plan, at the same time the Company generally makes equity grants to other senior executives of the Company, which for calendar year 2026 shall be prior to July 31, 2026 (the “Annual EquityAward”).
(i)The targetnumberofshares underlyingeachAnnual EquityAward shall be determinedbydividing$1,719,000bytheclosingprice of theCompany’scommonstockonthetradingdateimmediatelyprior to the date of the Annual EquityAward grant.
(ii)Unless otherwise specified by the Board, the form of the Annual EquityAward for 2026 shall be a mix of performance stock units (“PSUs”) and restricted stock units (“RSUs”), with no less than thirty percent (30%) in the form of RSUs. The form of theAnnual EquityAwardwillbedeterminedbytheBoardonthesamebasisas for other senior executives of the Company.
(iii)The Board will establish for each Annual Equity Award the applicable service-based and/or performance-based goals on the same basis as such goals are set for other senior executives of the Company.
(c)InitialIncentiveGrant.Executiveshallbegrantedastockunitawardunder theStockIncentivePlan(the“InitialIncentiveGrant”)intheformofRSUs with an aggregate grant date value of $175,000, vesting in equal one-third installments on each of the first three (3) anniversaries of the grant date based on the continued service of Executive. The Initial Incentive Grant shallbecomefullyvesteduponterminationbytheCompanywithoutCause or at the option of Executive for Good Reason during the Employment Period,orupontheexpirationoftheinitialTermuponnoticeofnon-renewal by the Company. The terms and conditions of the Initial Incentive Grant shallbesetforthintheawardagreementevidencingsuchaward.TheInitial Incentive Grant shall be made at the same time as the 2026Annual Equity Award.ThenumberofsharesunderlyingtheInitialIncentiveGrantshallbe determined based ontheclosing price oftheCompany’scommon stockon thetradingdateimmediatelypriortothe dateoftheInitialIncentiveGrant.
4.3Stock Ownership Guidelines. Executive acknowledges and agrees that for the duration of the Term the Executive will comply with the Company’s Stock Ownership Guidelines as an officer of the Company.
4.4Vacation.Executiveshallbeentitledtofive(5)weeksofannualpaidvacationdays, which shall accrue and be useable by Executive in accordance with Company policy, as may be in effect from time to time.
4.5Benefits. DuringtheEmploymentPeriod,Executiveshallbeentitledtoparticipate in any benefit and compensation plans, includingbut not limitedto medical, short andlong-termdisability, lifeinsurance coverage,401(k) anddeferredcompensation plans(butexcludinganyseveranceorbonusplansunlessspecificallyreferencedin thisAgreement)offeredbytheCompanyasineffectfromtimetotime(collectively, “Benefit Plans”), on the same basis as those generally made available to other senior executivesoftheCompany,totheextentExecutivemaybeeligibletodoso under the terms of any such Benefit Plan; provided, that the Company shall cover the costs of an annual physical for Executive under the Company’s medical plan. Executive understandsthat any such BenefitPlansmay beterminated or amended from time to time by the Company in its sole discretion.
4.6Business Expenses. During the Employment Period, all reasonable travel, entertainment, and other business expenses incurred by Executive in the performance of the Executive’s duties hereunder shall be reimbursed by the CompanyinaccordancewiththeCompany’spoliciesasineffectfromtimetotime.
4.7Relocation Expenses.The Company shall reimburse Executive for all reasonable relocation expenses incurred in connection with Executive’s relocation to the Arlington,Texas area, in accordance with the Company’s relocationpolicies as in effectfromtimetotime.AllsuchreimbursementsshallbemadepriortoDecember 31, 2026.
5.Termination.Executive’semploymenthereundermayonlybeterminatedasfollows:
5.1ByCompany.AttheoptionoftheCompany:
(a)for Cause (as defined in Section 6.3 hereof and subject to the notice and cure provisions therein); or
(b)withoutCause,butsubjecttoten(10)dayspriorwrittennoticetoExecutive (provided that the assignment of thisAgreement to and assumption of this Agreement by the purchaser of all or substantially all of the assets of the Company shall not, in and of itself, be treated as a termination without Cause under this Section 5.1(b)).
5.2By Executive For Good Reason.At the option of Executive for Good Reason (as provided in Section 6.3 hereof); or
5.3By Executive Without Good Reason.At the option of Executive for any or no reason,onsixty(60)dayspriorwrittennoticetotheCompany(whichtheCompany may, in its sole discretion, make effective as a resignation earlier than the terminationdateprovidedinsuchnotice)subjecttoSection6.4hereoftotheextent applicable.
5.4By Reason ofDeath orDisability;ExpirationoftheTerm.(i)Automaticallyinthe event of the death of Executive, (ii) in the event of Disability of Executive, at the option of the Company, by written notice to Executive or Executive’s personal representative,and(iii)automaticallyattheexpirationoftheTermunderSection1 hereof.
6.SeverancePayments.
6.1Termination Without Cause or Resignation for Good Reason. If Executive’s employment is terminated at any time during the Employment Period by the Company without Cause or by Executive for Good Reason (as defined in Section 6.3 hereof), subject to Section 6.4 and Section 11.7 hereof, Executive shall be entitled to:
(a)within thirty (30) days following such termination: (i) payment of Executive’s accrued and unpaid Base Salary; (ii) reimbursement of expenses under Sections 4.6 and 4.7 hereof (as applicable); and (iii) payment for accrued and unused vacation days, in each case accrued as of the date of termination;
(b)an amount equal to two (2) times both Executive’s Base Salary and Executive’s Target Annual Cash Incentive at the time of termination of employment (which shallnotreflect anydecreases resultingfroman event described in Section 6.3(c)(iii)), payable in twelve (12) equal monthly installments following the termination date, in accordance with the Company’s standard payroll practices and subject to the provisions of Sections 6.4 and 11.7 hereof;
(c)any Annual Cash Incentive award earned with respect to a calendar year endingonorpriortothedateofsuchterminationofemploymentbutunpaid as of such date, shall be payable at the same time such payment would be made if Executive continued to be employed by the Company;
(d)a pro-rata portion of Executive’s Annual Cash Incentive award for the calendar year in which Executive’s termination of employment occurs (determined by multiplying the amount of such Annual Cash Incentive, measured pursuant to the metrics established by the Board, that would be due for the full calendar year, by a fraction, the numerator of which is the number of days during the calendar year of termination that Executive is employedwiththeCompanyandthedenominatorofwhichis365basedon actualperformance)andpayableatthesametimethatothersenior
executives of the Company receive bonus payments in respect of the calendar year in which such termination occurs, but in no event later than March 15 of the calendar year following the end of the calendar year to which such cash incentive award relates;
(e)provided Executive effectively elects and remains eligible to receive continuation coverage under Part 6 of Title I of the Employee Retirement IncomeSecurityActof1974,asamended, andSection4980BoftheCode, asamended(“COBRA”)theCompanyshallpaytothecarrierorreimburse Executive (at the Company’s discretion) for the amount of any COBRA premiums under the Company’s group medical benefit plans as in effect fromtimetotimethatwouldbedue,lesstheamountofExecutive’sportion ofsuchpremiumsdeterminedasifExecutivewereanactiveemployee,until the earliest to occur of (i) eighteen (18) months after the termination date;
(ii)thedateExecutiveisnolongereligibleforCOBRAcoverage;or
(iii)withrespecttoanyparticularplan,thedateExecutivebecomeseligible to participate in a comparable benefit provided by a subsequent employer (andExecutivemustnotifytheCompany,inwriting,atleasttwo(2)weeks orassoonaspracticablepriortobecomingeligibleforsuchbenefitthrough a subsequent employer), which shall be payable in accordance with the Company’sstandard payroll practices subject to the provisionsof Sections
6.4and11.7hereof;
(f)if such termination is the result of a termination by the Company without Cause or resignation by Executive for Good Reason, then, subject to Executive executing a general release of all claims as set forth in Section 6.4, notwithstanding anything in the Annual Equity Award or Stock Incentive Plan tothe contrary, Executive shall become vested asto service requirements in all outstanding equity awards granted under the Stock IncentivePlan(includingtheRSUsandPSUshereunder)thatarescheduled to vest within the eighteen- (18-) month period following Executive’sdate of termination, with PSUs and any other performance-based awards remaining subject to vesting based on actual performance measured at the end of the performance period under the award;provided that, inthe event such termination occurs within theeighteen- (18-) month periodfollowing aChangeinControl(asdefinedintheStockIncentivePlan),Executiveshall become vested as to service requirements in all outstanding equity awards granted under the Stock Incentive Plan (including the RSUs and PSUs hereunder), with PSUs and any other performance-based awards to be vested at the target level of performance, withoutregard to any continuing employment requirements or proration.
(g)all other accrued amounts or accrued benefits due to Executive in accordance with the Company’s benefit plans, programs or policies (other than severance).
6.2Termination For Any Other Reason. Upon the termination of Executive’s employment for any reason other than by the Company without Cause, or by Executive for Good Reason, including without limitation a termination by the CompanyforCause,aresignationbyExecutivewithoutGoodReason,intheevent ofdeathorDisability,orupontheexpirationoftheTerm,ExecutiveorExecutive’s legalrepresentativesshallbeentitledtoreceivethepaymentsandbenefitsdescribed under Sections 6.1(a), (c), and (g) hereof.
6.3CertainDefinitions.ForpurposesofthisAgreement:
(a)“Cause”shallmean:
(i)Executive’swillfulandcontinuedfailuretoperformtheExecutive’s duties hereunder or tofollow thelawful directionof the Board or a material breach offiduciarydutyafterwrittennotice specifying the failure or breach;
(ii)Theft or fraud, with regard to the Company or in connection with Executive’s duties;
(iii)Executive’sconvictionof(orpleadingguiltyornolocontendereto) a felony (excluding minor motor vehicle infractions) or any lesser offense involving fraud, or moral turpitude;
(iv)material violation of the Company’s Code of Conduct or similar writtenpoliciesafterwrittennoticespecifyingthefailureorbreach;
(v)an act of gross negligence or willful misconduct by Executive that relates to the affairs of the Company;
(vi)amaterial breachbyExecutive ofanyprovision ofthisAgreement;
(vii)a final, non-appealable determination by a court or other governmental body of competent jurisdiction that a material violation by Executive of federal or state securities laws has occurred; or
(viii)asprovided in Section11.1hereof.
providedhowever, that Cause shall not exist unless (A) the Company has givenExecutivewrittennoticeofanytermination,settingforththeconduct that is alleged to constitute Cause, within thirty (30) days of the first date on which the Company has knowledge of such conduct, and (B) the CompanyhasprovidedExecutiveatleastthirty(30)daysfollowingthedate on which such notice is provided to both meet with the Board and to cure such conduct and Executive has failed to do so. Failing such cure, a terminationofemploymentbytheCompanyforCauseshallbeeffectiveon
thedayfollowingtheexpirationofsuchcureperiod.Failuretoachieveany specified performance goals shall not constitute Cause.
(b)“Disability” shall mean a physical ormentalincapacity or disability which hasrendered,orislikelytorender,ExecutiveunabletoperformExecutive’s material dutiesfora periodof either(i) one hundred and eighty(180) days in any twelve- (12) month period or (ii) ninety (90) consecutive days, as determined by the Company.
(c)“GoodReason”shallmean,withoutExecutive’sexpressconsent:
(i)anymaterialdiminutioninExecutive’sresponsibilities, authorityor duties as CLO;
(ii)any adverse change in the reporting relationship as set forth in Section 2 hereof;
(iii)anymaterialreductionin(x)Executive’saggregateamountofBase Salary or (y) target Incentive Compensation opportunity under Sections 4.2(a) and (b) (except in the event of an across-the-board reduction in Base Salary or Incentive Compensation opportunity applicabletosubstantiallyallseniorexecutivesoftheCompany);or
(iv)amaterialbreachofthisAgreementbytheCompany;
providedhowever, that no event described in clause (i) or (ii) shall constitute Good Reason unless (A) Executive has given the Company written notice ofthe termination, settingforththeconduct oftheCompany thatisallegedtoconstituteGoodReason,withinthirty(30)daysofthefirst dateonwhichExecutivehasknowledgeofsuchconduct,and(B)Executive has provided the Company at least thirty (30) days following the date on which such notice is provided to cure such conduct and the Company has failedtodoso.Failingsuchcure,aterminationofemploymentbyExecutive for Good Reason shall be effective on the day following the expiration of such cure period.
(d)“Noncompetition Period” shall mean during Executive’s employment and the twenty-four- (24-) month period immediately following the date of Executive’s termination. For purposes of clarity, a Noncompetition Period shall apply to any form of termination of employment, including but not limited to, termination without Cause, termination for Cause, resignation for Good Reason or resignation without Good Reason.
6.4Conditions to Payment. All payments and benefits due to Executive under this Section 6 which are not otherwise required by law shall be payable only if Executive (orExecutive’sbeneficiaryorestate)deliverstothe Companyand does notrevoke(underthetermsofapplicablelaw)ageneralreleaseofallclaimsinthe
formattachedheretoasExhibitA,providedthat,ifnecessary,suchgeneralrelease maybeupdatedandrevisedtocomplywithapplicablelawtoachieveitsintent.The firstpaymentsofamountsdescribedinSections6.1(b),(d),(e)and(f)shallbemade beginning on the first payroll date following the effective date of such general release,andthefirstpaymentshallincludeallamountsotherwiseduepriorthereto, subject to the terms and conditions herein. Such general release shall be executed anddelivered(andnolongersubjecttorevocation)withinsixty(60)daysfollowing termination and provided further that if the sixty- (60-) day period begins in one calendar year and ends in a second calendar year, payments shall always be made in the second calendar year. Failure to timely execute and return such release or revocationthereofshallbeawaiverbyExecutiveofExecutive’srighttoseverance (which, for the avoidance of doubt, shall not include any amounts described in Sections 6.1(a), (c) and (g) hereof). In addition, severance shall be conditioned on Executive’s compliance with Section 7 hereof as provided in Section 8 below.
6.5No Other Severance. Executive hereby acknowledges and agrees that, other than the severance payments described in this Agreement, upon termination of employment Executive shall not be entitled to any other severance under any Company benefit plan or severance policy generally available to the Company’s employees or otherwise.
7.RestrictionsonActivitiesofExecutive.
7.1Confidentiality.
(a)ExecutiveacknowledgesthatitisthepolicyoftheCompanytomaintainas secret and confidential all “Confidential Information” (as defined herein). ThepartiesheretorecognizethattheservicestobeperformedbyExecutive pursuanttothisAgreementarespecialandunique,andthatbyreasonofthe Executive’s employment by the Company after the Effective Date, Executive will acquire, or may have acquired, Confidential Information. Executive recognizes that all such Confidential Information is and shall remain the sole property of the Company, free of any rights of Executive, and acknowledges that the Company has a vested interest in assuring that all such Confidential Information remains secret and confidential. Therefore, in consideration ofExecutive’s employment with the Company pursuanttothisAgreement,Executiveagreesthatatalltimesfromandafter theEffectiveDate,theExecutivewillnot,directlyorindirectly,discloseto any person, firm, company or other entity (other than the Company) any ConfidentialInformation,exceptasspecificallyrequiredintheperformance oftheExecutive’sdutieshereunder,withoutthepriorwrittenconsentofthe Company, except to the extent that (i) any such Confidential Information becomesgenerallyavailabletothepublic, otherthanasaresultofabreach by Executive of this Section 7.1 or by any other executive officer of the Company subject to confidentiality obligations, or (ii) any such Confidential Information becomes available to Executive on a non-confidential basis from a source other than the Company, or its executive officersoradvisors;providedthatsuchsourceisnotknownbyExecutive
to be bound by a confidentiality agreement with, or other obligation of secrecyto,theCompanyoranotherparty.Inaddition,itshallnotbeabreach of the confidentiality obligations hereof if Executive is required by law to disclose any Confidential Information; provided that in such case, Executive shall (x) givethe Company theearliestnotice possible that such disclosureisormayberequiredand(y)cooperatewiththeCompany,atthe Company’sexpense,inprotectingtothemaximumextentlegallypermitted, theconfidentialorproprietarynatureoftheConfidentialInformationwhich must be so disclosed. The obligations of Executive under this Section 7.1 shall survive any termination of thisAgreement. During the Employment Period Executive shall exercise all due and diligent precautions to protect the integrity of the business plans, customer lists, statistical data and compilation, agreements, contracts, manuals or other documents of the Company which embody the Confidential Information, and upon the expiration or the termination of the Employment Period, Executive agrees that all Confidential Information in the Executive’s possession, directly or indirectly, that is in writing or other tangible form (together with all duplicates thereof) will forthwith be returned to the Company and will not be retained by Executive or furnished to any person, either by sample, facsimile film, audio or video cassette, electronic data, verbal communication or any other means of communication. Executive agrees that the provisions of this Section 7.1 are reasonably necessary to protect the proprietary rights of the Company in the Confidential Information and its trade secrets, goodwill and reputation.
(b)For purposes hereof, the term “Confidential Information” means all information developed or used by the Company relating to the “Business” (as herein defined), operations, employees, customers, suppliers and distributors of the Company, including, but not limited to, customer lists, purchaseorders,financialdata,pricinginformationandpricelists,business plans and market strategies and arrangements and any strategic plan, all books,records,manuals,advertisingmaterials,catalogues,correspondence, mailing lists, production data, sales materials and records, purchasing materials and records, personnel records, quality control records and proceduresincludedinorrelatingtotheBusinessoranyoftheassetsofthe Company and all trademarks, copyrights and patents, and applications therefore, all trade secrets, inventions, processes, procedures, research records, market surveys and marketing know-how and other technical papers. The term “Confidential Information” also includes any other information heretofore or hereafter acquired by the Company and deemed byittobeconfidential.ForpurposesofthisAgreement,theterm“Business” shallmean:(i)thebusinessofamusementandwaterparks;(ii)leisuretheme parks; (iii) any other business engaged in or being developed (including productionofmaterialsusedintheCompany’sbusinesses)bytheCompany, orbeingconsideredbytheCompany,atthetimeofExecutive’stermination, ineachcase, totheextent
suchbusinessisprimarilyrelatedtothebusiness ofamusementandwaterparksorleisurethemeparks;and(iv)anyjoint venture, partnership or agency arrangements relating to the businesses described in (b)(i) through (iii) above provided that, in determining when an entityis ina“Business”, the Board will not actunreasonably in making such determination.
(c)Notwithstanding Executive’s obligations in this Agreement relating to Confidential Information, this Agreement shall not be applied to limit or interfere with Executive’s right, without notice to or authorization of the Company, to communicate and cooperate in good faith with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the U.S. Securities and Exchange Commission, the Financial Industry Regulatory Authority, or any other self-regulatory organization or any other federal, state or local governmental agency or commission (a “GovernmentAgency”) for the purpose of (i)reporting a possible violation of any U.S. federal, state, or local law or regulation, (ii) participating in any investigation or proceeding that may be conducted or managed by any Government Agency, including by providing documents or other information,or(iii)filingachargeorcomplaintwithaGovernmentAgency. Additionally, the Executive shall not be held criminally or civilly liable underanyfederalorstatetradesecretlawforthedisclosureofatradesecret that is made (x)in confidence to a federal, state, or local government official,ortoanattorney,solelyforthepurposeofreportingorinvestigating asuspectedviolationoflaw,(y)inacomplaintorotherdocumentfiledina lawsuitorotherproceeding,ifsuchfilingismadeunderseal;or(z)incourt proceedings if the Executive files a lawsuit for retaliation by an employer for reporting a suspected violation oflaw,orto theExecutive’s attorney in such lawsuit, provided that the Executive must file any document containing the trade secret under seal, and the Executive may not disclose thetradesecret,exceptpursuanttocourtorder.Theactivitiesordisclosures described in this Section 7.1(c) shall be referred to in this Agreement as “Protected Activities.” Notwithstanding the foregoing, under no circumstance will the Executive be authorized to make any disclosures as to which the Company may assert protections from disclosure under the attorney-client privilege or the attorney work product doctrine, without prior written consent of an authorized officer designated by the Company. Nothing in thisAgreement shall prevent Executive from listing the fact of Executive’s employment with the Company, or the dates and summary description thereof (to exclude any Confidential Information) on any resume or similar professional accomplishments summary,or on social media or on-line networking forums.
7.2Non-Competition.
(a)Executive agrees that, during the Noncompetition Period, Executive will not:
(i)directlyorindirectly,own,manage,operate,controlorparticipatein the ownership, management or control of, or be connected as an officer, employee, partner, consultant, contractor, director, or otherwise with, or have any financial interest in, or aid, consult, advise,orassistanyoneelseintheconductof,anyentityorbusiness:
(A)in which ten percent (10%) or more of whose annual revenuesarederivedfromaBusinessasdefinedabove;and
(B)which conducts business in any locality or region of the United States, Ontario or Quebec, Canada, or the Mexico City, Mexico area (whether or not such competing entity or business is physically located in the United States, Canada, or Mexico) or any other area where Business is being conducted by the Company on the date Executive’s employment is terminated hereunder or in each and every area where the Company has taken substantial and material steps to conduct such Business as of the date Executive’s employment is terminated hereunder; and
(ii)either personally orby theExecutive’sagent orbyletters, circulars oradvertisements,andwhetherfortheExecutiveoronbehalfofany other person, company, firm or other entity, except in the Executive’s capacity as an executive of the Company, canvass or solicit, or enter into or effect (or cause or authorize to be solicited, entered into, or effected), directly or indirectly, for or on behalf of the Executive or any other person, any business relating to the services of the type provided by, or orders for business or services similar to those provided by, the Company from any person, company,firm,orother entitywhois,orhasatanytimewithintwo
(2)yearspriortothedateofsuchactionbeen,acustomerorsupplier of theCompanywithwhomExecutivehas hadmaterial contacts or has learned Confidential Information about, in either case, during the last two (2) years of Executive’s service with the Company; providedthattherestrictionsofSection7.2(a)(i)(B)aboveshallalso apply to any person, company, firm, or other entity with whom the Company is specifically seeking to develop a relationship as a customer or supplier of the Company at the date of such action.
Notwithstandingtheforegoing,(x)Executive’sownershipofsecuritiesofa publiccompanyengagedincompetitionwiththeCompanynotinexcessof five percent (5%) of any class of such securities shall not be considered a breach of the covenants set forth in this Section 7.2(a) and (y) Executive may be employed with a person, sole proprietorship, partnership, firm, corporation, company, institution, or other entity engaged in the Business providedthatExecutive’sservicesdo notincludeengagingintheBusiness
and Executive is not in a position where Executive could reasonably be expected to use, rely upon, or disclose Confidential Information.
(b)Executive agrees that, at all times from afterthe Effective Date, Executive willnot,eitherpersonallyorbytheExecutive’sagentorbyletters,circulars or advertisements, andwhetherfortheExecutiveor onbehalf of anyother person,company,firm,orotherentity,exceptintheExecutive’scapacityas an executive of the Company:
(i)seektopersuadeanyemployeeoftheCompanytodiscontinuesuch employee’sstatusoremploymenttherewithortobecomeemployed inabusinessoractivitieslikelytobecompetitivewiththeBusiness; or
(ii)solicitoremployanysuchpersonwhowasprovidingservicestothe Company within twelve (12) months prior to the date of such solicitation or employment, in any locality or region of the United States or Canada and in each and every other area where the Company conducts its Business;
provided;however,thattherestrictionssetforthinthisSection 7.2(b)shall cease upon the expiration of the Noncompetition Period and shall, at no time, prohibit Executive from engaging in general solicitation for employees, so long as such solicitation is general in nature and does not specifically target any employee of the Company.
7.3AssignmentofInventions.
(a)Executive agrees that during employment with the Company, any and all inventions, discoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, formulas, business processes, secret processes and know-how, whether or not patentable or a copyright ortrademark, whichExecutive maycreate, conceive, developor make, either alone or in conjunction with others and related or in any way connected with the Company’s strategic plans, products, processes or apparatus or the Business (collectively, “ Inventions ”), shall be fully and promptly disclosed to the Company and shall be the sole and exclusive property of the Company as against Executive or any of Executive’s assignees.
Regardless of the status of Executive’s employment by the Company, ExecutiveandExecutive’sheirs,assignsandrepresentativesshallpromptly assign to the Company any and all right, title and interest in and to such Inventions made during employment with the Company.
(b)Whether during or after the Employment Period, Executive further agrees toexecuteandacknowledgeallpapersandtodo,attheCompany’sexpense,
any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letterspatent,copyrights, trademarksor other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and transfer such Inventions, copyrights,patents,patentapplicationsandotherintellectualpropertyrights to the Company and its successors and assigns. In the event that the Companyisunable,afterreasonableeffortsand,inanyevent,afterten(10) business days, to secure Executive’s signature on a written assignment to theCompany,ofanyapplicationforletterspatent,trademarkregistrationor to any common law or statutory copyright or other property right therein, whether because of Executive’s physical or mental incapacity, or for any otherreasonwhatsoever,Executiveirrevocablydesignatesandappointsthe Secretary of the Company as Executive’s attorney-in-fact to act on Executive’s behalf to execute and file any such applications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark.
7.4Return of Company Property. Within ten (10) days following the date of any termination of Executive’s employment, Executive or Executive’s personal representative shall return all property of the Company in Executive’spossession, including but not limited to all Company-owned computer equipment (hardware and software), telephones, facsimile machines, smart phones, cell phones, tablet computer and other communication devices, credit cards, office keys, security access cards, badges, identification cards and all copies (including drafts) of any documentation or information (however stored) relating to the Business, the Company’s customers and clients or its prospective customers and clients. Anything to the contrary notwithstanding, Executive shall be entitled to retain (i) personalpapersandothermaterialsofapersonalnature,providedthatsuchpapers or materials do not include Confidential Information, (ii) information showing Executive’scompensationorrelatingtoreimbursementofexpenses, and(iii) copies of plans, programs and agreements relating to Executive’s employment, or terminationthereof, withtheCompanywhichtheExecutivereceivedinExecutive’s capacity as a participant.
7.5Resignation as an Officer and Director. Upon any termination of Executive’s employment, Executive shall be deemedto haveresigned, to theextent applicable as an officer of the Company, a member of the Board, and a member of the board of directors or similar body of any of the Company’sAffiliates and as a fiduciary of any Company benefit plan. On or immediately following the date of any termination ofExecutive’semployment,Executive shall confirm the foregoing by submittingtotheCompanyinwritingaconfirmationofExecutive’sresignation(s).
7.6Cooperation.Duringemploymentandforaperiodoftwelve(12)monthsthereafter, Executive shall give Executive’s assistance and cooperation willingly, upon reasonableadvancenotice(whichshallincludedueregardtotheextentreasonably feasible for Executive’s employment obligations and prior commitments), in any
matterrelatingtoExecutive’spositionwiththeCompany,orExecutive’s knowledge as a result thereof as the Company may reasonably request, including Executive’s attendance and truthful testimony where deemed appropriate by the Company, with respect to any investigation or the Company’s defense or prosecution of any existing or future claims or litigations or other proceeding relatingtomattersinwhichtheExecutivewasinvolvedorhadknowledgebyvirtue of Executive’s employment with the Company. The Company will reimburse Executive for reasonable out-of-pocket travel costs and expenses incurred by the Executive (in accordance with Company policy) as a result of providing such assistance,uponthesubmission oftheappropriatedocumentation totheCompany.
7.7Non-Disparagement. During the Executive’s employment with the Company and at any time thereafter, Executive agrees not to disparage or encourage or induce others to disparage the Company, any of its respective employees that were employed during Executive’s employment with the Company or any of its respectivepastandpresent,officers,directors,productsorservices(the“CompanyParties”). For purposes of this Section 7.7, the term “disparage” includes, without limitation,commentsorstatementstothepress,totheCompany’semployeesorto any individual or entity with whom the Company has a business relationship (including,withoutlimitation,anyvendor,supplier,customerordistributor),orany publicstatement,thatineachcaseisintendedto,or canbereasonablyexpectedto, materiallydamagetheCompanyParties.Notwithstandingtheforegoing,nothingin this Section 7.7shall preventExecutive from engaging in anyProtectedActivities or from making any truthful statement to the extent, but only to the extent (A) necessary with respect to any litigation, arbitration or mediation involving this Agreement,including,butnotlimitedto,theenforcementofthisAgreement,inthe foruminwhichsuchlitigation,arbitrationormediationproperlytakes placeor(B) requiredbylaw,legalprocessorbyanycourt,arbitrator,mediatororadministrative or legislative body (including any committee thereof) with apparent jurisdiction over Executive.
7.8Tolling. IntheeventofanyviolationoftheprovisionsofthisSection 7,Executive acknowledges and agrees that the post- termination restrictions contained in this Section7shallbeextendedbyaperiodoftimeequaltotheperiodofsuchviolation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation.
7.9Survival. This Section 7 and Section 8 hereof shall survive any termination or expiration of this Agreement or employment of Executive.
8.Remedies;Scope.
8.1ItisspecificallyunderstoodandagreedthatanybreachoftheprovisionsofSection 7ofthisAgreementislikelytoresultinirreparableinjurytotheCompanyandthat the remedy atlaw alone will be aninadequate remedy for such breach, andthat in addition to any other remedy it may have in the event of a breach or threatened breach of Section 7 above, the Company shall be entitled to enforce the specific performanceofthisAgreementandtoseekbothtemporaryandpermanent
injunctiverelief(totheextentpermittedbylaw)withoutbondandwithoutliability shouldsuchreliefbedenied,modifiedorviolated.Furthermore,intheeventofany breach of the provisions of Section 7.2 above or a material and willful breach of any other provision in Section 7 above (the “Forfeiture Criteria”), the Company shall be entitled to cease making any severance payments being made hereunder, andintheeventofafinal,non-appealabledeterminationbyafederalorstatecourt of competent jurisdiction that a breach of any provision of Section 7 above has occurred, if such breach of Section 7 above satisfies the Forfeiture Criteria and occurswhileExecutiveisreceivingseverancepaymentsinaccordancewithSection 6above(regardlesswhethertheCompanydiscoverssuchbreachduringsuchperiod of severance payment or anytime thereafter), the Company shall be entitled to recover any severance payments made to Executive.
8.2Scope. Executive has carefullyconsidered the nature and extent of therestrictions upon Executive and the rights and remedies conferred upon the Company under Section 7 andSection8.1, and hereby acknowledges and agrees that thesame are reasonable and necessary in time and territory, are intended to eliminate competition which otherwise would be unfair to the Company, do not stifle the inherent skill and experience of Executive, would not operate as a bar to Executive’s sole means of support, are fully required to protect the business interests of the Company, and do not confer a benefit upon the Company disproportionate to the detriment to Executive.
9.Severable Provisions. The provisions of thisAgreement are severable and the invalidity of any one or more provisions shall not affect the validity of any other provision. In the event that a court of competent jurisdiction shall determine that any provision of this Agreement or the application thereof is unenforceable in whole or in part because of the duration or scope thereof, the parties hereto agree that said court in making such determination shall have the power to reduce theduration and scope of such provision to the extent necessary to make it enforceable, and that theAgreement in its reduced form shall be valid and enforceable to the full extent permitted by law.
10.Notices. All notices hereunder, to be effective, shall be in writing and shall be deemed effectivewhendelivered(a)byhandormailedbycertifiedmail,postageandfeesprepaid, or (b) nationally recognized overnight express mail service, as follows:
IftotheCompany: 8701 Red OakBoulevard
Charlotte,NC 28217
Attn:ChiefPeopleandCultureOfficer
If to Executive: ThelastaddressshownonrecordsoftheCompanyortosuchother addressasapartymaynotifytheotherpursuanttoanoticegivenin accordance with this Section 10.
11.Miscellaneous.
11.1Executive Representation. Executive hereby represents to the Company that the execution and delivery of thisAgreement by Executive and the Company and the performance by Executive of Executive’s duties hereunder shall not constitute a breachof,orotherwisecontravene,orbeprevented,interferedwithorhinderedby, the terms of any employment agreement or other agreement or policy to which Executiveisapartyorotherwisebound,andfurtherthatExecutiveisnotsubjectto anylimitationontheExecutive’sactivitiesonbehalf oftheCompanyasaresultof agreements into which Executive has entered except for obligations of confidentiality with former employers. To the extent this representation and warranty is not true and accurate, it shall be treated as a Cause event and the Company may terminate Executive for Cause or not permit Executive to continue employment. Executive acknowledges and agrees that the Executive has had the opportunitytoconsultwithlegalcounselorotheradvisoroftheExecutive’schoice, that the Executive is entering into thisAgreement knowingly, voluntarily, and of theExecutive’sownfreewill,thattheExecutiveisrelyingontheExecutive’sown judgment in doing so, and that the Executive fully understands the terms and conditions contained herein.
11.2No Mitigation; No Offset. In the event of any termination of Executive’s employment hereunder, Executive shall be under no obligation to seek other employment or otherwise mitigate the obligations of the Company under this Agreement, and there shall be no offset against any amount due to Executive on account of any remuneration or benefits provided by any subsequent employment Executive may obtain.
11.3EntireAgreement;Amendment.Exceptasotherwiseexpresslyprovidedhereinand as further set forth in the grant agreement of any equity awards, this Agreement constitutes the entire Agreement between the parties hereto with regard to the subject matter hereof, superseding all prior understandings, term sheets and agreements, whether written or oral. This Agreement may not be amended or revised except by a writing signed by the parties.
11.4AssignmentandTransfer.TheprovisionsofthisAgreementshallbebindingonand shall inure to the benefit of the Company and any successor in interest to the CompanywhoacquiresallorsubstantiallyalloftheCompany’sassets.Neitherthis Agreement nor any of the rights, duties or obligations of Executive shall be assignablebyExecutive, norshallanyofthepaymentsrequiredorpermittedtobe made to Executive by this Agreement be encumbered, transferred or in any way anticipated, except as required by applicable laws. All rights of Executive under this Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal representatives, estates, executors, administrators, heirs and beneficiaries.
11.5Waiver of Breach.Awaiver by either party of any breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the other party.
11.6ReportingandWithholding.TheCompanyshallbeentitledtoreportallincomeand withholdfromanyamountstobepaidorbenefitsprovidedtoExecutivehereunder any federal, state, local or foreign income tax withholding, FICA contributions, Medicarecontributions,orothertaxes,chargesordeductionswhichitisfromtime to time required to withhold or that Executive has authorized the Company to withhold. The Company shall be entitled to rely on an opinion of counsel if any question as to the amount or requirement of any such withholding shall arise.
11.7Code Section 409A. Notwithstanding anything to the contrary contained in this Agreement:
(a)The parties agree that thisAgreement shall be interpreted to comply with or, to the extent possible, be exempt from Section 409Aof the Code, and the regulations and guidance promulgated thereunder to the extent applicable (collectively “Code Section 409A”), and all provisions of this Agreementshallbeconstruedinamannerconsistentwiththerequirements for avoiding taxes or penalties under Code Section 409A. Except to the extent attributable to a breach of this Agreement by the Company, in no eventwhatsoeverwilltheCompanybeliableforanyadditionaltax,interest orpenaltiesthatmaybeimposedonExecutiveunderCodeSection409Aor any damages for failing to comply with Code Section 409A.
(b)A termination of employment shall not be deemed to have occurred for purposes of any provision of thisAgreement providing for the payment of any amounts or benefits considered “nonqualifieddeferred compensation” under Code Section 409Aupon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409Aand, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” If Executiveisdeemedonthedateofterminationtobea“specifiedemployee” within the meaning of that term under Code Section 409A(a)(2)(B), then withregardtoanypaymentortheprovisionofanybenefitthatisconsidered nonqualified deferred compensation under Code Section 409Apayable on account of a “separation from service,” if no exemption or exclusion from Section 409Ais determined to apply, such payment or benefit shall not be made or provided until the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of such “separation from service” of Executive, and (ii) the date of Executive’s death (the “DelayPeriod”).UpontheexpirationoftheDelayPeriod,allpaymentsandbenefits delayed pursuant to this Section 11.7(b) (whether they would have otherwise been payableina singlesumorininstallments intheabsence of such delay) shall be paidor reimbursed onthe firstbusiness day following theexpirationoftheDelayPeriodtoExecutiveinalumpsumwithinterest attheprimerateduringtheDelayPeriod,andanyremainingpaymentsand benefitsdueunderthisAgreementshallbepaidorprovidedinaccordance
with the normal paymentdates and in the normalpayment forms specified for them herein.
(c)With regard to any provision herein that provides for reimbursement of costsandexpensesorin-kindbenefits,exceptaspermittedbyCodeSection 409A,(i)therighttoreimbursementorin-kindbenefitsshallnotbesubject to liquidation or exchange for another benefit, (ii) the amount of expenses eligibleforreimbursement,orin-kindbenefits,providedduringanytaxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits, tobe providedinany othertaxable year, provided thatthis clause
(ii)shall not be violated with regard to expenses reimbursed under any arrangementcoveredbyCodeSection105(b)solelybecausesuchexpenses are subject to a limit related to the period the arrangement is in effect and
(iii)such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred.
(d)For purposes of Code Section 409A, Executive’s right to receive any installment payments pursuant tothisAgreement shall be treatedas a right to receive a series of separate and distinct payments. Whenever a payment underthisAgreementspecifiesapaymentperiodwithreferencetoanumber of days(e.g., “paymentshallbemadewithinthirty(30) daysfollowingthe dateoftermination”),theactualdateofpaymentwithinthespecifiedperiod shall be within the sole discretion of the Company, unless provided otherwise herein.
11.8Arbitration.
(a)Executive and the Company agree that, except as provided in Section 11.8(h) below, any dispute, claim, or controversybetween them, including without limitation disputes, claims, or controversies arising out of or relatingtothisAgreementorExecutive’semploymentwiththeCompanyor theterminationofthatemployment,shallbesettledexclusivelybyfinaland binding arbitration. Judgment upon the award of the arbitrators may be entered and enforced in any federal or state court having jurisdiction over the parties. Executive and the Company expressly acknowledge that this agreement to arbitrate applies without limitation to any disputes, claims or controversies between them, including without limitation claims of unlawful discrimination (including without limitation claims under Title VII, the Age Discrimination in Employment Act, the Americans with DisabilitiesAct and all amendments to those statutes, as well as state anti-discrimination statutes), harassment, whistleblowing, retaliation, wrongful discharge, constructive discharge, claims related to the payment of wages orbenefits,contractclaims,andtortclaimsunderfederal,state,orlocallaw, whether created by statute or the common law. By agreeing to submit any and all claims to arbitration (except as set forth in Section 11.8(h) below), ExecutiveandtheCompanyexpresslywaiveanyrightthattheymayhave
to resolve any disputes, claims, or controversies through any other means, including a jury trial or bench trial.
(b)The arbitration shall be conducted by a panel of three (3) arbitrators in accordance with the Employment Arbitration Rules of the American Arbitration Association (“AAA”) except as provided in this Agreement. Within twenty (20) days after notice from one party to the other of the notifying party’s election to arbitrate, each party shall select one (1) arbitrator. Within twenty (20) days after the selection of the two (2) arbitrators by the parties, said arbitrators shall in turn select a third arbitrator.Ifthetwo(2)arbitratorscannotagreeupontheselectionofathird arbitrator,thepartiesagreethatthethirdarbitratorshallbeappointedbythe AAAin accordance withAAA’s arbitrator selection procedures, including the provision of a list of potential arbitrators to both parties. Each member ofthepanelshallbealawyeradmittedtopracticelawforaminimumof15 years.
(c)Executive and the Company waive their right to file any arbitration on a classorcollectivebasis;bothExecutiveand theCompanyagreetofileany arbitration only on an individual basis and agree not to file any arbitration as a representative of any class or group of others. Therefore, neither Executive nor the Company will seek to certify a class or collective arbitration or otherwise seek to proceed in arbitration on a representative basis, andthearbitratorsshallhavenoauthoritytoconductaproceedingas a class or collective action or to award any relief to a class of employees. Nor shall Executive or the Company participate in any class or collective action involving claims covered by this Agreement, but instead shall arbitrate all claims covered by thisAgreement on an individual basis.
(d)Thearbitrationpanelshallhaveauthoritytoawardanyremedyorreliefthat aTexasorfederalcourtinTexascould grantinconformitywithapplicable law on the basis of the claims actually made in the arbitration. The arbitration panel shall not have the authority either to abridge or change substantiverightsavailableunderexistinglaw.Notwithstandingtheabove, anyremedyforanallegedbreachoftheAgreement,wrongfuldischarge,or constructive discharge, orclaimsrelated tocompensation and benefitswill begovernedsolelybytheapplicableprovisionsofthisAgreement, withno righttocompensatory,punitive,orequitablerelief.Furthernotwithstanding the foregoing, giventhe nature of Executive’s position with the Company, the arbitrator shall not have the authority to order reinstatement, and Executive waives any right to reinstatement to the full extent permitted by law.
(e)Thearbitrator may awardattorneys’fees and costs tothe extentauthorized bystatute.Thearbitrationpanelshallissueawrittenawardlistingtheissues submittedbytheparties,togetherwithasuccinctexplanationofthemanner
inwhichthepanelresolvedtheissues.Thecostsofthearbitrationpanel shallbebornebythepartiesinaccordancewiththeEmploymentArbitration Rules of the AAA.
(f)All arbitration proceedings, including the arbitration panel’s decision and award,shallbeconfidential.Neitherpartyshalldiscloseanyinformationor evidenceadducedbytheotherinthearbitrationproceedings,orthepanel’s awardexcept(i)totheextentthatthepartiesagreeotherwiseinwriting;(ii) asnecessary in anysubsequent proceedings between theparties,such asto enforce the arbitration award; or (iii) as otherwise compelled by law.
(g)The terms of this arbitration Agreement are severable. The invalidity or unenforceabilityofanyprovisionshereinshallnotaffecttheapplicationof any other provisions. ThisAgreement to arbitrateshall be governed by the FederalArbitrationAct. The claims, disputes, and controversies submitted toarbitrationwillbegovernedbyTexaslawandapplicablefederallaw.The arbitrators shall have exclusive jurisdiction todecide questions concerning the interpretation and enforceability of this Agreement to arbitrate, includingbutnotlimitedtoquestionsofwhether thepartieshaveagreedto arbitrateaparticularclaim,whetherabindingcontracttoarbitratehasbeen entered into, and whether theAgreement to arbitrate is unconscionable or otherwise unenforceable; provided however , that it is agreed that the arbitratorsshallhavenoauthoritytodecideanyquestionsastowhetherthe waiver of class and collective actions is valid or enforceable and all questionsofthevalidityorenforceabilityofthewaivershallbedecidedby a court, not the arbitrators, and the court shall stay any arbitration that purports to proceed as a class or collective action or where the claimant in the arbitration seeks to otherwise act in a representative capacity.
(h)The parties agree and acknowledge that the promises and agreements set forth in Sections 7.1 (Confidentiality) and 7.2 (Non-Competition) of this Agreementshallnotbesubjecttothearbitrationprovisionssetforthinthis Section 11.8, but rather such claims may be brought in any federalor state courtofcompetentjurisdiction.ThisAgreementtoarbitratedoesnotapply to claims arising under federal statutes or applicable law that prohibit pre-dispute arbitration agreements. This Agreement to arbitrate does not preclude Executive from filing a claim or charge with a governmental administrative agency, such as the National Labor Relations Board, the Department of Labor, and the Equal Employment Opportunity Commission, or from filing a workers’ compensation or unemployment compensation claim in a statutorily-specified forum.
.
11.9CodeSection280G.Ifthepresentvalueofallpayments, distributionsandbenefits provided to Executive or for Executive’s benefit pursuant to the terms of this Agreementorotherwisewhichconstitutea“parachutepayment”whenaggregated with other payments, distributions, and benefits which constitute “parachute payments,” exceed two hundred ninety-nine percent (299%) of Executive’s “base amount,”thensuchpayments,distributionsandbenefitsshalleitherbe(i)paidand
deliveredinfull, or(ii)paidanddeliveredinsuchlesseramountaswouldresultin no portionof such payments, distributions andbenefits being subject totheexcise tax imposed by Section 4999 of the Code (the “Excise Tax”), whichever of the foregoing amounts (taking into account the applicable federal, state and local incometaxesandtheExciseTax)resultsinthereceiptbyExecutiveonanafter-tax basisofmateriallylargerpayments,distributionsandbenefitsasdeterminedbythe Company.As used herein, “parachute payment” has the meaning ascribed to it in Section280G(b)(2)oftheCode,withoutregardtoCodeSection280G(b)(2)(A)(ii); and “base amount” has the meaning ascribed to it in Code Section 280G and the regulations thereunder. If the “present value” as defined in Code Sections 280G(d)(4)and1274(b)(2),ofsuchaggregate“parachutepayments”asdetermined bytheCompanyexceedsthe299%limitationsetforthhereinandsubparagraph(ii) above applies, such payments, distributions and benefits shall be reduced by the Company in accordance with the order of priority set forth below so that such reducedamountwillresultinnoportionofthepayments,distributionsandbenefits being subject to theExciseTax. Such payments, distributions and benefits will be reduced by the Company in accordance with the following order of priority (A) reduction of cash payments; (B) cancellation of accelerated vesting of equity awards;and(C)reductionofemployeebenefits.Ifaccelerationofvestingofequity award compensation is to be reduced, such acceleration of vesting shall be cancelledinthereverseorderofthedateofgrantofExecutive’sequityawards.All determinations required to be made under this Section 11.9 shall be made by a certified public accounting firm of national standing (“Accounting Firm”) as determined by the Company and such selected Accounting Firm shall provide detailed supporting calculations both to the Company and Executive. Any determination by theAccounting Firm shall be binding
11.10Indemnification; Liability Insurance. To the extent provided in the Company’s CodeofRegulationsandCertificateofIncorporation,andsubjecttothelimitations on indemnification provided under the Dodd-Frank Wall Street Reform and Consumer Protection Act and regulations thereto (the “Dodd-Frank Act”), the Company shall indemnify and hold harmless Executive for losses or damages incurred by Executive as a result of all causes of action arising from Executive’s performance of duties for the benefit of the Company, whether or not the claim is assertedduringtheEmploymentPeriod.Executiveshallbeprovidedwiththesame level of directors and officers liability insurance coverage provided to other directorsandofficersoftheCompanyonthesametermsandconditionsapplicable to such other directors and officers.
11.11Governing Law. This Agreement shall be construed under and enforced in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions thereof.
11.12Counterparts. ThisAgreement may be executed in one or more counterparts, each of which shall be deemed an original and shall have the same effect as if the signatures hereto and thereto were on the same instrument.
11.13Attorneys’ Fees. The Company shall reimburse Executive for the reasonable attorneys’ fees and costs actually incurred by Executive in the negotiation and preparationofthisAgreement uptoamaximumamountof$15,000.Inconnection with any dispute regarding the enforcement or interpretation of this Agreement, Executive shall be entitled to an award of reasonable attorneys’ fees and costs incurred by Executive, to the extent that a court or arbitrator in such action determines Executive to be the prevailing party for this purpose. In all cases, reimbursementissubjecttopresentationofreasonabledocumentationofsuchfees and expenses.
[SignaturePagetoFollow]
INWITNESSWHEREOF,thepartiesheretohavedulyexecutedthisAgreementasofthe day and year first above written.
COMPANY
By:/s/ John Reilly
Name: John Reilly
Title:President&ChiefExecutive
Officer
EXECUTIVE
/s/ Christopher Bennett
ChristopherBennett