Delaware | 001-34846 | 75-2788861 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Named Executive Officer | Title | Stock Options (1)(2)(3) | Time-Based Restricted Stock Awards (1)(3)(4) | Market-Based Restricted Stock Awards (1)(3)(5) | ||||
Stephen T. Winn (6) | Chief Executive Officer | 0 | 0 | 350,000 | ||||
W. Bryan Hill (7) | Chief Financial Officer and Treasurer | 64,585 | 15,180 | 27,050 | ||||
William Chaney (7) | Executive Vice President, Enterprise Solutions | 64,585 | 15,180 | 27,050 |
(1) | The awards were approved to be granted effective three days after the Company’s earnings are released for the fourth quarter of 2014. The awards are governed by our 2010 Plan, and the forms of award agreements approved for use thereunder. The award agreements set forth provisions regarding eligibility, vesting and other terms applicable to such awards. The 2010 Plan was filed with the Commission as Appendix A to our Definitive Proxy Statement on Schedule 14A (File No. 001-34846) on April 17, 2014 and the First Amendment to the 2010 Plan was filed with the Commission as Exhibit 10.1 to our Current Report on Form 8-K (File No. 001-34846) on January 21, 2015. The description of the awards in this Current Report on Form 8-K does not purport to be complete and is qualified in its entirety by reference to the full text of the 2010 Plan and each of the award agreements. |
(2) | The stock option awards have an exercise price equal to the closing price per share of our common stock on the effective date of the grant. Each stock option award vests as to 8.33% of the shares subject to such award on the first day of each calendar quarter, beginning on the first day of the calendar quarter following the date of grant, for 12 consecutive calendar quarters. |
(3) | Vesting of stock option awards and both time-based and market-based restricted stock awards is contingent on the recipient’s continued status as a service provider to us or one of our subsidiaries as of each applicable vesting date. |
(4) | The time-based restricted stock awards granted to Messrs. Hill and Chaney vest as to 8.33% on the first day of each calendar quarter, beginning on the first day of the calendar quarter following the date of grant, for 12 consecutive calendar quarters. The unvested shares subject to each time-based restricted stock award are subject to forfeiture upon certain events. |
(5) | Of the total number of shares of market-based restricted stock granted to each executive officer, (1) 50% of the shares will become eligible to vest if, after the grant date and prior to July 1, 2018, the average closing price per share of our common stock for 20 consecutive trading days equals or exceeds $30.00 per share; and (2) 50% of the shares will become eligible to vest if, after the grant date and prior to July 1, 2018, the average closing price per share of our common stock for 20 consecutive trading days equals or exceeds $35.00 per share. Shares that become eligible to vest, if any, are referred to as “eligible shares.” The eligible shares will vest 25% per quarter over the four calendar quarters following the date they become eligible shares, beginning on the first day of the next calendar quarter after the date they become eligible shares, subject to the executive officer remaining a service provider to the Company through each applicable vesting date. However, all unvested eligible shares will be fully vested on July 1, 2018, provided that the executive officer remains a service provider to the Company through such date. In the event of a change in control (as defined in the 2010 Plan), or upon the executive officer’s termination of service due to death or disability before all shares have become eligible shares, 100% of the then unvested eligible shares will vest. Each tranche of market-based restricted stock will be deemed to be eligible and will fully vest immediately prior to a change in control that results in consideration per share of the Company’s common stock equal to or in excess of the market price target applicable to that tranche. The unvested shares subject to each market-based restricted stock award are subject to forfeiture upon certain events. |
(6) | The form of award agreement for market-based restricted stock awards to Mr. Winn is filed as Exhibit 10.5 to this Current Report on Form 8-K. |
(7) | The forms of award agreements for stock option awards and time-based restricted stock awards to Messrs. Hill and Chaney are filed as Exhibits 10.2 and 10.4 to this Current Report on Form 8-K and the form of the award agreement for market-based restricted stock awards to Messrs. Hill and Chaney is filed as Exhibit 10.6 to this Current Report on Form 8-K. All of Mr. Hill’s and Mr. Chaney’s unvested stock options and shares of restricted stock under time-based restricted stock awards will fully vest (1) upon termination of his service due to death or disability, (2) upon a change in control if a qualifying replacement award is not provided pursuant to the terms of the 2010 Plan, or (3) if within two years after a change in control his service to the Company is terminated without Cause or for Good Reason, as defined in Mr. Hill’s and Mr. Chaney’s respective employment agreements. |
Exhibit No. | Description | |
10.1 | Form of Stock Option Award Agreement between the Company and Stephen T. Winn approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.2 | Form of Stock Option Award Agreement between the Company and certain executive officers approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.3 | Form of Restricted Stock Award Agreement for time-based awards between the Company and Stephen T. Winn approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.4 | Form of Restricted Stock Award Agreement for time-based awards between the Company and certain executive officers approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.5 | Form of Restricted Stock Award Agreement for market-based awards between the Company and Stephen T. Winn approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.6 | Form of Restricted Stock Award Agreement for market based awards between the Company and certain executive officers approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.7 | Form of Stock Option Award Agreement between the Company and award recipients approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.8 | Form of Stock Option Award Agreement between the Company and award recipients (California residents) approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.9 | Form of Restricted Stock Award Agreement between the Company and award recipients approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.10 | Form of Restricted Stock Award Agreement between the Company and award recipients (California residents) approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.11 | Amended and Restated Employment Agreement between the Company and Stephen T. Winn dated as of March 1, 2015. | |
10.12 | Amended and Restated Employment Agreement between the Company and W. Bryan Hill dated as of March 1, 2015. | |
10.13 | Amended and Restated Employment Agreement between the Company and William Chaney dated as of March 1, 2015. |
REALPAGE, INC. | ||
By: | /s/ Stephen T. Winn | |
Stephen T. Winn Chief Executive Officer, President and Chairman | ||
Exhibit No. | Description | |
10.1 | Form of Stock Option Award Agreement between the Company and Stephen T. Winn approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.2 | Form of Stock Option Award Agreement between the Company and certain executive officers approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.3 | Form of Restricted Stock Award Agreement for time-based awards between the Company and Stephen T. Winn approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.4 | Form of Restricted Stock Award Agreement for time-based awards between the Company and certain executive officers approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.5 | Form of Restricted Stock Award Agreement for market-based awards between the Company and Stephen T. Winn approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.6 | Form of Restricted Stock Award Agreement for market-based awards between the Company and certain executive officers approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.7 | Form of Stock Option Award Agreement between the Company and award recipients approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.8 | Form of Stock Option Award Agreement between the Company and award recipients (California residents) approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.9 | Form of Restricted Stock Award Agreement between the Company and award recipients approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.10 | Form of Restricted Stock Award Agreement between the Company and award recipients (California residents) approved for use under the 2010 Equity Incentive Plan, as amended and restated June 4, 2014, as amended. | |
10.11 | Amended and Restated Employment Agreement between the Company and Stephen T. Winn dated as of March 1, 2015. | |
10.12 | Amended and Restated Employment Agreement between the Company and W. Bryan Hill dated as of March 1, 2015. | |
10.13 | Amended and Restated Employment Agreement between the Company and William Chaney dated as of March 1, 2015. |
Grant Number: | ||
Date of Grant: | ||
Vesting Commencement Date: | ||
Exercise Price per Share: | ||
Total Number of Shares Granted: | ||
Total Exercise Price: | ||
Type of Option: | __ Incentive Stock Option X Nonstatutory Stock Option | |
Term/Expiration Date: | To Be Determined |
Grant Number: | ||
Date of Grant: | ||
Vesting Commencement Date: | ||
Total Number of Shares Granted: |
(i) | if Executive’s employment is terminated by reason of Executive’s death or Disability, 12 months of Executive’s Base Salary (determined as of the Date of Termination); |
(ii) | if, other than during the Protected Period, Executive’s employment is terminated by Employer without Cause or by Executive with Good Reason, one-and-a-half multiplied by Executive’s Base Salary (determined as of the Date of Termination); or |
(iii) | if, during the Protected Period, Executive’s employment is terminated by Employer without Cause or by Executive with Good Reason, two multiplied by the sum of Executive’s Base Salary (determined as of the Date of Termination). |
(i) | If the Accounting Firm determines that the aggregate Agreement Payments to Executive should be reduced so that the Parachute Value of all Payments to Executive, in the aggregate, equals the applicable Safe Harbor Amount, Employer shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting Firm under this Section 9(d) shall be binding upon Employer and Executive and shall be made as soon as reasonably practicable and in no event later than 15 days following the Date of Termination. For purposes of reducing the Agreement Payments to Executive so that the Parachute Value of all Payments to Executive, in the aggregate, equals the applicable Safe Harbor Amount, only Agreement Payments (and no other Payments) shall be reduced. The reduction contemplated by this Section 9(d), if applicable, shall be made by reducing payments and benefits (to the extent such amounts are considered Payments) under the following sections in the following order: (i) Section 9(a)(i); (ii) Section 9(a)(ii); and (iii) Section 9(a)(iii). |
(ii) | As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by Employer to or for the benefit of Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer to or for the benefit of Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in each case consistent with the calculation of the applicable Safe Harbor Amount hereunder. In the event that the Accounting Firm, based on the assertion of a deficiency by the Internal Revenue Service against Employer or Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit of Executive shall be repaid by Executive to Employer, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which Executive is subject to tax under Sections 1 and 4999 of the Code or generate a refund of such taxes. If the Accounting Firm, based on controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by Employer to or for the benefit of Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. |
(iii) | In connection with making determinations under this Section 9(d), the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by Executive before or after the applicable transaction giving rise to application of Section 4999 of the Code, including any noncompetition provisions that may apply to Executive |
(iv) | All fees and expenses of the Accounting Firm in implementing the provisions of this Section 9(d) shall be borne by Employer. |
(v) | The following terms shall have the following meanings for purposes of this Section 9(d). |
(1) | “Accounting Firm” shall mean a nationally recognized certified public accounting firm (which accounting firm shall in no event be the accounting firm for the entity seeking to effectuate such change of control) or other professional services organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by Employer (as it exists prior to a change of control) and reasonably acceptable to Executive for purposes of making the applicable determinations hereunder. |
(2) | “Agreement Payment” shall mean a Payment paid or payable pursuant to this Agreement. |
(3) | “Net After-Tax Receipt” shall mean the Present Value of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state, local, and foreign laws, determined by applying the highest marginal rate under Section 1 of the Code and under state, local, and foreign laws that applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate as such Executive shall certify, in Executive’s sole discretion, as likely to apply to Executive in the relevant tax year. |
(4) | “Parachute Value” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the excise tax under Section 4999 of the Code will apply to such Payment. |
(5) | A “Payment” shall mean any payment, benefit or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise. |
(6) | “Present Value” of a Payment shall mean the economic present value of a Payment as of the date of the change in control for purposes of Section 280G of the Code, as determined by the Accounting Firm using the discount rate required by Section 280G(d)(4) of the Code. |
(7) | “Safe Harbor Amount” means (x) 3.0 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, minus (y) $1.00. |
(i) | solicit any business from, or attempt to sell any products or services, or to call upon or solicit any customer or client of Employer then-existing, or any Past customer of Employer, or any affiliate of Employer that Executive had direct or indirect contact while employed with Employer; |
(ii) | assist, cooperate or encourage any third party to do any of the foregoing. |
(i) | solicit any business from, or attempt to sell any products or services, or to call upon or solicit any licensee of Employer then-existing, or any Past licensee of Employer, or any affiliate of Employer that Executive had direct or indirect contact while employed with Employer; |
(ii) | assist, cooperate or encourage any third party to do any of the foregoing. |
(i) | Initiation. Arbitration of Arbitrable Claims shall be in accordance with the Employment Rules and Mediation Procedures of the American Arbitration Association as amended (“AAA Employment Rules”), as augmented in this Agreement. Arbitration shall be initiated as provided by the AAA Employment Rules, although the written notice to the other party initiating arbitration shall also include a statement of the claim(s) asserted and the facts upon which the claim(s) are based. Either party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. |
(ii) | Binding Arbitration. Arbitration shall be final and binding upon the parties and shall be the exclusive forum for all Arbitrable Claims, except for any appeals or enforcement of an arbitration award. Should one party select arbitration pursuant to this Agreement, then no other party shall initiate or prosecute any lawsuit or administrative action on overlapping issues of law or fact, unless the rights or obligations of third parties not subject to being determined in such arbitration are affected or must be determined in order for there to be a complete determination of the controversy, in which event the arbitration may be stayed or dismissed pending determination of the parties’ rights in a different forum where appropriate third parties are joined. |
(iii) | Venue. All arbitration hearings under this Agreement shall be conducted in Denton County, Texas. |
(iv) | Arbitrator’s Decision Must Be In Writing. The decision of the arbitrator shall be in writing and shall include a statement of the essential conclusions and findings upon which the decision is based. |
• | Claims arising out of or by virtue of or in connection with Employee’s employment with Company or any of the Released Parties, the terms and conditions of that employment, or the termination of that employment. This release includes (but is not limited to) Claims for breach of contract and common law Claims for wrongful discharge; assault and battery; negligence; negligent hiring, retention and/or supervision; intentional or negligent invasion of privacy; defamation; intentional or negligent infliction of emotional distress; violations of public policy; or any other law grounded in tort, contract or common law. With the exception of any Claims covered by Paragraph 3(b) of this Agreement, this release further includes (but is not limited to) statutory Claims for failure to pay wages and/or overtime, unlawful harassment, and unlawful retaliation, Claims arising under federal, state or local laws, statutes or orders or regulations that relate to the employment relationships and/or prohibiting employment discrimination or any other federal, state or local law, including, but not limited to, Claims under the following statutes: |
• | Title VII of the Civil Rights Act of 1964, as amended in 1991; |
• | Section 1981 of the Civil Rights Act of 1866, as amended; |
• | 42 U.S.C. Sections 1981 - 1988; |
• | The Age Discrimination in Employment Act; |
• | The Employee Income Retirement Security Act; |
• | The Fair Labor Standards Act; |
• | The Americans With Disabilities Act; |
• | The Family and Medical Leave Act; |
• | The National Labor Relations Act; |
• | The Fair Credit Reporting Act; |
• | The Immigration Reform Control Act; |
• | The Occupational Safety & Health Act; |
• | The Equal Pay Act; |
• | The Uniformed Services Employment and Reemployment Rights Act; |
• | The Worker Adjustment and Retraining Notification Act; |
• | The Employee Polygraph Protection Act; |
• | The Texas Labor Code; |
• | Any state or federal consumer protection and/or trade practices act; and |
• | Any state or federal workers’ compensation or disability, to the maximum extent permitted by law. |
(i) | if Executive’s employment is terminated by reason of Executive’s death or Disability, six months of Executive’s Base Salary (determined as of the Date of Termination); |
(ii) | if, other than during the Protected Period, Executive’s employment is terminated by Employer without Cause or by Executive with Good Reason, one multiplied by Executive’s Base Salary (determined as of the Date of Termination); or |
(iii) | if, during the Protected Period, Executive’s employment is terminated by Employer without Cause or by Executive with Good Reason, two multiplied by Executive’s Base Salary (determined as of the Date of Termination). |
(i) | If the Accounting Firm determines that the aggregate Agreement Payments to Executive should be reduced so that the Parachute Value of all Payments to Executive, in the aggregate, equals the applicable Safe Harbor Amount, Employer shall promptly give Executive notice to that effect and a copy of |
(ii) | As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by Employer to or for the benefit of Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer to or for the benefit of Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in each case consistent with the calculation of the applicable Safe Harbor Amount hereunder. In the event that the Accounting Firm, based on the assertion of a deficiency by the Internal Revenue Service against Employer or Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit of Executive shall be repaid by Executive to Employer, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which Executive is subject to tax under Sections 1 and 4999 of the Code or generate a refund of such taxes. If the Accounting Firm, based on controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by Employer to or for the benefit of Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. |
(iii) | In connection with making determinations under this Section 9(d), the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by Executive before or after the applicable transaction giving rise to application of Section 4999 of the Code, including any noncompetition provisions that may apply to Executive (whether set forth in this Agreement or otherwise), and Employer shall cooperate in the valuation of any such services, including any noncompetition provisions. |
(iv) | All fees and expenses of the Accounting Firm in implementing the provisions of this Section 9(d) shall be borne by Employer. |
(v) | The following terms shall have the following meanings for purposes of this Section 9(d). |
(1) | “Accounting Firm” shall mean a nationally recognized certified public accounting firm (which accounting firm shall in no event be the accounting firm for the entity seeking to effectuate such change of control) or other professional services organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by Employer (as it exists prior to a change of control) and reasonably acceptable to Executive for purposes of making the applicable determinations hereunder. |
(2) | “Agreement Payment” shall mean a Payment paid or payable pursuant to this Agreement. |
(3) | “Net After-Tax Receipt” shall mean the Present Value of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state, local, and foreign laws, determined by applying the highest marginal rate under Section 1 of the Code and under state, local, and foreign laws that applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate as such Executive shall certify, in Executive’s sole discretion, as likely to apply to Executive in the relevant tax year. |
(4) | “Parachute Value” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the excise tax under Section 4999 of the Code will apply to such Payment. |
(5) | A “Payment” shall mean any payment, benefit or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise. |
(6) | “Present Value” of a Payment shall mean the economic present value of a Payment as of the date of the change in control for purposes of Section 280G of the Code, as determined by the Accounting Firm using the discount rate required by Section 280G(d)(4) of the Code. |
(7) | “Safe Harbor Amount” means (x) 3.0 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, minus (y) $1.00. |
(i) | solicit any business from, or attempt to sell any products or services, or to call upon or solicit any customer or client of Employer then-existing, or any Past customer of Employer, or any affiliate of Employer that Executive had direct or indirect contact while employed with Employer; |
(ii) | assist, cooperate or encourage any third party to do any of the foregoing. |
(i) | solicit any business from, or attempt to sell any products or services, or to call upon or solicit any licensee of Employer then-existing, or any Past licensee of Employer, or any affiliate of Employer that Executive had direct or indirect contact while employed with Employer; |
(ii) | assist, cooperate or encourage any third party to do any of the foregoing. |
(i) | Initiation. Arbitration of Arbitrable Claims shall be in accordance with the Employment Rules and Mediation Procedures of the American Arbitration Association as amended (“AAA Employment Rules”), as augmented in this Agreement. Arbitration shall be initiated as provided by the AAA Employment Rules, although the written notice to the other party initiating arbitration shall also include a statement of the claim(s) asserted and the facts upon which the claim(s) are based. Either party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. |
(ii) | Binding Arbitration. Arbitration shall be final and binding upon the parties and shall be the exclusive forum for all Arbitrable Claims, except for any appeals or enforcement of an arbitration award. Should one party select arbitration pursuant to this Agreement, then no other party shall initiate or prosecute any lawsuit or administrative action on overlapping issues of law or fact, unless the rights or obligations of third parties not subject to being determined in such arbitration are affected or must be determined in order for there to be a complete determination of the controversy, in which event the arbitration may be stayed or dismissed pending determination of the parties’ rights in a different forum where appropriate third parties are joined. |
(iii) | Venue. All arbitration hearings under this Agreement shall be conducted in Denton County, Texas. |
(iv) | Arbitrator’s Decision Must Be In Writing. The decision of the arbitrator shall be in writing and shall include a statement of the essential conclusions and findings upon which the decision is based. |
• | Claims arising out of or by virtue of or in connection with Employee’s employment with Company or any of the Released Parties, the terms and conditions of that employment, or the termination of that employment. This release includes (but is not limited to) Claims for breach of contract and common law Claims for wrongful discharge; assault and battery; negligence; negligent hiring, retention and/or supervision; intentional or negligent invasion of privacy; defamation; intentional or negligent infliction of emotional distress; violations of public policy; or any other law grounded in tort, contract or common law. With the exception of any Claims covered by Paragraph 3(b) of this Agreement, this release further includes (but is not limited to) statutory Claims for failure to pay wages and/or overtime, unlawful harassment, and unlawful retaliation, Claims arising under federal, state or local laws, statutes or orders or regulations that relate to the employment relationships and/or prohibiting employment discrimination or any other federal, state or local law, including, but not limited to, Claims under the following statutes: |
• | Title VII of the Civil Rights Act of 1964, as amended in 1991; |
• | Section 1981 of the Civil Rights Act of 1866, as amended; |
• | 42 U.S.C. Sections 1981 - 1988; |
• | The Age Discrimination in Employment Act; |
• | The Employee Income Retirement Security Act; |
• | The Fair Labor Standards Act; |
• | The Americans With Disabilities Act; |
• | The Family and Medical Leave Act; |
• | The National Labor Relations Act; |
• | The Fair Credit Reporting Act; |
• | The Immigration Reform Control Act; |
• | The Occupational Safety & Health Act; |
• | The Equal Pay Act; |
• | The Uniformed Services Employment and Reemployment Rights Act; |
• | The Worker Adjustment and Retraining Notification Act; |
• | The Employee Polygraph Protection Act; |
• | The Texas Labor Code; |
• | Any state or federal consumer protection and/or trade practices act; and |
• | Any state or federal workers’ compensation or disability, to the maximum extent permitted by law. |
(i) | if Executive’s employment is terminated by reason of Executive’s death or Disability, six months of Executive’s Base Salary (determined as of the Date of Termination), |
(ii) | if, other than during the Protected Period, Executive’s employment is terminated by Employer without Cause or by Executive with Good Reason, one multiplied by Executive’s Base Salary (determined as of the Date of Termination), or |
(iii) | if, during the Protected Period, Executive’s employment is terminated by Employer without Cause or by Executive with Good Reason, two multiplied by Executive’s Base Salary (determined as of the Date of Termination). |
(i) | If the Accounting Firm determines that the aggregate Agreement Payments to Executive should be reduced so that the Parachute Value of all Payments to Executive, in the aggregate, equals the applicable Safe Harbor Amount, Employer shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof. All determinations made by the Accounting |
(ii) | As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by Employer to or for the benefit of Executive pursuant to this Agreement that should not have been so paid or distributed (each, an “Overpayment”) or that additional amounts that will have not been paid or distributed by Employer to or for the benefit of Executive pursuant to this Agreement could have been so paid or distributed (each, an “Underpayment”), in each case consistent with the calculation of the applicable Safe Harbor Amount hereunder. In the event that the Accounting Firm, based on the assertion of a deficiency by the Internal Revenue Service against Employer or Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by Employer to or for the benefit of Executive shall be repaid by Executive to Employer, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such repayment shall be required if and to the extent such deemed repayment would not either reduce the amount on which Executive is subject to tax under Sections 1 and 4999 of the Code or generate a refund of such taxes. If the Accounting Firm, based on controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by Employer to or for the benefit of Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. |
(iii) | In connection with making determinations under this Section 9(d), the Accounting Firm shall take into account the value of any reasonable compensation for services to be rendered by Executive before or after the applicable transaction giving rise to application of Section 4999 of the Code, including any noncompetition provisions that may apply to Executive (whether set forth in this Agreement or otherwise), and Employer shall cooperate in the valuation of any such services, including any noncompetition provisions. |
(iv) | All fees and expenses of the Accounting Firm in implementing the provisions of this Section 9(d) shall be borne by Employer. |
(v) | The following terms shall have the following meanings for purposes of this Section 9(d). |
(1) | “Accounting Firm” shall mean a nationally recognized certified public accounting firm (which accounting firm shall in no event be the accounting firm for the entity seeking to effectuate such change of control) or other professional services organization that is a certified public accounting firm recognized as an expert in determinations and calculations for purposes of Section 280G of the Code that is selected by Employer (as it exists prior to a change of control) and reasonably acceptable to Executive for purposes of making the applicable determinations hereunder. |
(2) | “Agreement Payment” shall mean a Payment paid or payable pursuant to this Agreement. |
(3) | “Net After-Tax Receipt” shall mean the Present Value of a Payment net of all taxes imposed on Executive with respect thereto under Sections 1 and 4999 of the Code and under applicable state, local, and foreign laws, determined by applying the highest marginal rate under Section 1 of the Code and under state, local, and foreign laws that applied to Executive’s taxable income for the immediately preceding taxable year, or such other rate as such Executive shall certify, in Executive’s sole discretion, as likely to apply to Executive in the relevant tax year. |
(4) | “Parachute Value” of a Payment shall mean the present value as of the date of the change in control for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code, as determined by the Accounting Firm for purposes of determining whether and to what extent the excise tax under Section 4999 of the Code will apply to such Payment. |
(5) | A “Payment” shall mean any payment, benefit or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of Executive, whether paid or payable pursuant to this Agreement or otherwise. |
(6) | “Present Value” of a Payment shall mean the economic present value of a Payment as of the date of the change in control for purposes of Section 280G of the Code, as determined by the Accounting Firm using the discount rate required by Section 280G(d)(4) of the Code. |
(7) | “Safe Harbor Amount” means (x) 3.0 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of the Code, minus (y) $1.00. |
(i) | solicit any business from, or attempt to sell any products or services, or to call upon or solicit any customer or client of Employer then-existing, or any Past customer of Employer, or any affiliate of Employer that Executive had direct or indirect contact while employed with Employer; |
(ii) | assist, cooperate or encourage any third party to do any of the foregoing. |
(i) | solicit any business from, or attempt to sell any products or services, or to call upon or solicit any licensee of Employer then-existing, or any Past licensee of Employer, or any affiliate of Employer that Executive had direct or indirect contact while employed with Employer; |
(ii) | assist, cooperate or encourage any third party to do any of the foregoing. |
(i) | Initiation. Arbitration of Arbitrable Claims shall be in accordance with the Employment Rules and Mediation Procedures of the American Arbitration Association as amended (“AAA Employment Rules”), as augmented in this Agreement. Arbitration shall be initiated as provided by the AAA Employment Rules, although the written notice to the other party initiating arbitration shall also include a statement of the claim(s) asserted and the facts upon which the claim(s) are based. Either party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. |
(ii) | Binding Arbitration. Arbitration shall be final and binding upon the parties and shall be the exclusive forum for all Arbitrable Claims, except for any appeals or enforcement of an arbitration award. Should one party select arbitration pursuant to this Agreement, then no other party shall initiate or prosecute any lawsuit or administrative action on overlapping issues of law or fact, unless the rights or obligations of third parties not subject to being determined in such arbitration are affected or must be determined in order for there to be a complete determination of the controversy, in which event the arbitration may be stayed or dismissed pending determination of the parties’ rights in a different forum where appropriate third parties are joined. |
(iii) | Venue. All arbitration hearings under this Agreement shall be conducted in Denton County, Texas. |
(iv) | Arbitrator’s Decision Must Be In Writing. The decision of the arbitrator shall be in writing and shall include a statement of the essential conclusions and findings upon which the decision is based. |
• | Claims arising out of or by virtue of or in connection with Employee’s employment with Company or any of the Released Parties, the terms and conditions of that employment, or the termination of that employment. This release includes (but is not limited to) Claims for breach of contract and common law Claims for wrongful discharge; assault and battery; negligence; negligent hiring, retention and/or supervision; intentional or negligent invasion of privacy; defamation; intentional or negligent infliction of emotional distress; violations of public policy; or any other law grounded in tort, contract or common law. With the exception of any Claims covered by Paragraph 3(b) of this Agreement, this release further includes (but is not limited to) statutory Claims for failure to pay wages and/or overtime, unlawful harassment, and unlawful retaliation, Claims arising under federal, state or local laws, statutes or orders or regulations that relate to the employment relationships and/or prohibiting employment discrimination or any other federal, state or local law, including, but not limited to, Claims under the following statutes: |
• | Title VII of the Civil Rights Act of 1964, as amended in 1991; |
• | Section 1981 of the Civil Rights Act of 1866, as amended; |
• | 42 U.S.C. Sections 1981 - 1988; |
• | The Age Discrimination in Employment Act; |
• | The Employee Income Retirement Security Act; |
• | The Fair Labor Standards Act; |
• | The Americans With Disabilities Act; |
• | The Family and Medical Leave Act; |
• | The National Labor Relations Act; |
• | The Fair Credit Reporting Act; |
• | The Immigration Reform Control Act; |
• | The Occupational Safety & Health Act; |
• | The Equal Pay Act; |
• | The Uniformed Services Employment and Reemployment Rights Act; |
• | The Worker Adjustment and Retraining Notification Act; |
• | The Employee Polygraph Protection Act; |
• | The Texas Labor Code; |
• | Any state or federal consumer protection and/or trade practices act; and |
• | Any state or federal workers’ compensation or disability, to the maximum extent permitted by law. |