dhiemploymentagreementar






                                                  EXECUTION VERSION                         EMPLOYMENT AGREEMENT         THIS  EMPLOYMENT      AGREEMENT      and  Addendum  to  Employment  Agreement attached hereto (collectively, this “Agreement”), dated as of April 9, 2018, is  between Dice Inc., a Delaware corporation (the “Company”), with its principal place of  business  at 1040  Avenue  of  the  Americas,  New  York,  New  York  10018, Art  Zeile an  individual, whose address is reflected in the Company’s records (the “Employee”), and,  solely  for  the  purposes  of Sections  1 and 2(b) of  the  Addendum,  DHI  Group,  Inc.  (“Parent”).         In consideration of the Company’s securing the services of the Employee as the  Company’s  President  and  Chief  Executive  Officer, and  the Employee’s undertaking  employment with the Company in such positions, the Company and the Employee hereby  agree to be bound by and comply with the following terms and conditions and agree as  follows:         Section 1.  At-Will  Employment. The Employee  acknowledges  and  agrees  that  his  employment  status  is  that  of  an  employee-at-will  and  that the Employee’s  employment may be terminated by the Company  or the Employee at  any  time with  or  without  cause,  subject  to  the  terms  and  conditions  in  the  Addendum to  Employment  Agreement hereto.  The Employee’s start date shall be on or about April 9, 2018 (the date  on which the Employee actually commences services, the “Employment Commencement  Date”).         Section 2.  Compensation.  In  consideration  of  the  services  to  be  rendered  hereunder, the Employee  shall  be  paid,  and  the  Company  shall  pay the Employee, in  accordance with the Addendum to Employment Agreement attached hereto.         Section 3.  Employee Inventions and Ideas.               (a)   For purposes of this Agreement,  “Inventions” shall mean all ideas,  potential  marketing  and  sales  relationships,  inventions,  copyrightable  expression,  research, plans for products or services, marketing plans, computer software (including,  without  limitation,  source  code),  computer  programs,  original  works  of  authorship,  characters,  know-how,  trade  secrets,  information,  data,  developments,  discoveries,  improvements, modifications, technology, algorithms and designs, whether or not subject  to patent or copyright protection, made, conceived, expressed, developed, or actually or  constructively reduced to practice by the Employee solely or jointly with others during  the term of the Employee’s employment with the Company, which  result from any work  which the Employee may do during his employment, or from any information obtained  from the Company or any affiliate of the Company in the course of his employment by  the Company.               (b)   All Inventions shall be the exclusive property of the Company, and  the Employee  acknowledges  that  all  of  said  Inventions  shall  be  considered  as  “work  made for hire” belonging to the Company. To the extent that any such Inventions, under  applicable  law,  may  not  be  considered  work  made  for  hire  by the Employee  for the                                        Doc#: US1:11947543v3  11573700.4  11573700.6  





 






Company, the Employee hereby agrees to assign and, upon its creation, automatically and  irrevocably assigns to the Company, without any further consideration, all right, title and  interest  in  and  to  such materials,  including,  without  limitation,  any  copyright,  other  intellectual property rights, moral rights, all contract and licensing rights, and all claims  and causes of action of any kind with respect to such materials. The Company shall have  the exclusive right to use the Inventions, whether original or derivative, for all purposes  without  additional  compensation  to the Employee.  At the Company’s  expense, the  Employee will exercise commercially reasonable efforts to assist the Company to perfect  the Company’s  rights  in  the  Inventions  and  to  protect  the  Inventions  throughout  the  world,  including,  without  limitation,  executing  in  favor  of the Company  or  any  designee(s)  of the Company  patent,  copyright,  and  other  applications  and  assignments  relating  to  the Inventions. The Employee  agrees  not  to  challenge  the  validity  of  the  ownership by the Company or its designee(s) in the Inventions; provided that nothing in  this  Agreement  prohibits  or  may  be  deemed  to  prohibit  Employee  from  asserting  that  something is not an “Invention”.               (c)   Should the Company be unable to secure the Employee’s signature  on  any  document  necessary  to  apply  for,  prosecute,  obtain,  or  enforce  any  patent,  copyright,  or  other  right  or  protection  relating  to  any  Invention,  whether  due  to the  Employee’s mental or physical incapacity, the Employee hereby irrevocably designates  and  appoints the Company  and  each  of  its  duly  authorized  officers  and  agents  as the  Employee’s agent and attorney in fact, to act for and in the Employee’s behalf and stead  and to execute and file any such document, and to do all other lawfully permitted acts to  further the prosecution, issuance, and enforcement of patents, copyrights, or other rights  or  protections  with  the  same  force  and  effect  as  if  executed  and  delivered  by the  Employee.               (d)   Notwithstanding the Employee’s  confidentiality  obligations  set  forth in this Agreement, pursuant to the Defend Trade Secrets Act of 2016, the Employee  shall not be held criminally or civilly liable under any Federal or State trade secret law  for the disclosure of a trade secret that: (A) is made (i) in confidence to a Federal, State,  or local government official, either directly or indirectly, or to an attorney; and (ii) solely  for the purpose of reporting or investigating a suspected violation of law; or (B) is made  in a complaint or other document filed in a lawsuit or other proceeding, if such filing is  made under seal.  The Employee also understands that if he files a lawsuit for retaliation  by the Company for reporting a suspected violation of law, the Employee may disclose  the  trade  secret  to  his  attorney  and  use  the  trade  secret  information  in  the  court  proceeding, if the Employee (A)  files  any  document  containing  the  trade  secret  under  seal, and (B) does not disclose the trade secret, except pursuant to court order.         Section 4. Proprietary Information.               (a)   The Employee will not disclose or use, at any time either during or  after the term of employment, any Confidential Information (as herein defined), except (i)  at the request of the Company or an affiliate of the Company or (ii) as required in the  performance  of  the  Employee’s  duties  hereunder; provided, however,  that  if  the  Employee  receives  a  request  to  disclose Confidential  Information  pursuant  to  a                                       2    11573700.6  





 






deposition,  interrogation,  request  for  information  or  documents  in  legal  proceedings,  subpoena,  civil  investigative  demand,  governmental  or  regulatory  process  or  similar  process,  (A)  the  Employee  shall  promptly  notify  in  writing  the  Company,  and  consult  with and assist the Company in seeking a protective order or request for other appropriate  remedy, (B) in the event that such protective order or remedy is not obtained, or if the  Company waives compliance with the terms hereof, the Employee shall disclose only that  portion of the Confidential Information which is legally required to be disclosed (to the  extent such can reasonably be obtained prior to the required disclosure thereof, based on  the written advice of the Employee’s or the Company’s legal counsel, as applicable) and  shall exercise reasonable efforts to provide that the receiving person shall agree to treat  such Confidential Information as confidential to the extent possible (and permitted under  applicable law) in respect of the applicable proceeding or process and, (C) to the extent  reasonably  practicable, the  Company  shall  be  given  an  opportunity  to  review  the  Confidential  Information  prior  to  disclosure  thereof.  “Confidential  Information”  shall  mean all Company proprietary information, technical data, trade secrets, and know-how,  including,  without  limitation,  research,  product  plans,  customer  lists,  customer  preferences,  marketing  plans  and  strategies,  software,  development,  inventions,  discoveries,  processes,  ideas,  formulas,  algorithms,  technology,  designs,  drawings,  business  strategies  and  financial  data  and  information,  including,  but  not  limited  to  Inventions,  whether  or  not  marked  as  “Confidential.   “Confidential  Information”  shall  also mean any and all information received by the Company from customers, vendors and  independent contractors of the Company or other third parties subject to a duty to be kept  confidential.   Notwithstanding  the  foregoing,  “Confidential  Information”  shall  not  include  information  that  is  or  becomes  generally  known  by  the  public  other  than  by  breach of this Agreement by, or other wrongful act of, the Employee.               (b)   The  Employee  hereby  acknowledges  and  agrees  that  all  personal  property,  including,  without  limitation,  all  books,  manuals,  records,  reports,  notes,  contracts,  lists,  blueprints,  and  other  documents,  or  materials,  or  copies  thereof,  Confidential Information as defined in Section 4(a) above, and equipment furnished to or  prepared by  the  Employee  in  the  course  of  or  incident  to  his  employment,  including,  without limitation, records and any other materials pertaining to Inventions, belong to the  Company  and  shall  be  promptly  returned  to  the  Company  upon  termination  of  employment (or earlier at the Company’s request).  Following termination, the Employee  will  not  retain  any  written  or  other  tangible  or  electronic  material  containing  any  Confidential Information or information pertaining to any Invention.               (c)   Notwithstanding  any  other  provision  in  this  Agreement,  nothing  herein  shall (i)  prohibit the Employee from  reporting  to  the  staff  of  the SEC possible  violations of any law or regulation of the SEC, (ii) prohibit the Employee from making  other  disclosures  to  the  staff  of  the  SEC  that  are  protected  under  the  whistleblower  provisions of any federal securities laws or regulations or (iii) limit the Employee’s right  to  receive  an  award  for  information  provided  to  the  SEC  staff  in  accordance  with  the  foregoing. The Employee does  not  need  the prior  authorizations  of the Company  to  engage in such reports, communications or disclosures and Employee is not required to  notify the Company  if Employee engages  in  any  such  reports,  communications  or  disclosures.                                      3    11573700.6  





 






      Section 5. Limited Agreement Not to Compete/Solicit/Disparage.               (a)   While employed by the Company and for a period of twelve (12)  months  after  the  termination  of the Employee’s  employment  with the Company, the  Employee shall not, directly or indirectly, as an employee, employer, consultant, agent,  principal, partner, manager, stockholder, officer, director, or in  any  other individual or  representative capacity, engage, participate or in any way render services or assistance to  any business that is competitive with the business of the Company. Notwithstanding the  foregoing, the Employee may own less than two percent (2%) of any class of stock or  security  of  any  corporation  which  competes  with the Company  listed  on  a  national  securities exchange.               (b)   While employed by the Company and for a period of twelve (12)  months  after  the  termination  of the Employee’s  employment  with the Company, the  Employee shall not, directly or indirectly, solicit for employment or employ any person  who was employed by the Company at the time of the Employee’s termination from the  Company.               (c)   The Employee hereby agrees that prior to commencing  employment with, or commencing to provide services to, any other person or entity  during any period during which the Employee remains subject to any of the covenants set  forth in this Section 5, the Employee shall provide such employer with written notice of  such provisions of this Agreement (which may be effected by advising such prospective  employer of the location of the publicly filed agreements) with a copy of such notice or  advice delivered simultaneously to the Company, and the Employee authorizes the  Company and any of its affiliates to do the same.               (d)   The Employee hereby agrees from the date hereof and at all times  following  his termination of employment  (i) not to participate or engage in any trade or  commercial  disparagement  of  the  business  or  operations  of  the  Company  or  any  of  its  affiliates;  and  (ii) not  to  make  any  disparaging  remarks  or  communications  of  any  type  concerning the Company or any of its affiliates or any of the officers, directors, employees,  partners,  members,  managers,  shareholders  or  agents  of  the  Company  or  any  of  its  affiliates.  The Company hereby agrees from the date hereof and at all times following the  Employee’s termination of employment to instruct its directors and officers not to make  any  disparaging  remarks  or  communications  of  any  type  concerning the  Employee.   Nothing  in  this Section 5 shall  prohibit  disclosure  (x) as  may  be  ordered  by  any  regulatory  agency  or  court  or  as required  by  other  lawful  process,  or  (y) as  may  be  necessary for the prosecution of claims relating to the performance or enforcement of this  Agreement.         Section 6.  Company  Resources. The Employee  may  not  use  any  Company  equipment  for  personal  purposes  (other  than  incidental  personal  use)  without  written  permission from the Company.  The Employee may not unreasonably give access to the  Company’s  offices  or  files  to  any  person  not  in  the  employ  of  the  Company  without  written permission of the Company.                                       4    11573700.6  





 






      Section 7.  Post-Termination Period. Because of the difficulty of establishing  when any idea, process or invention is first conceived or developed by the Employee, or  whether it results from access to Confidential Information or the Company’s equipment,  facilities,  and  data, the Employee  agrees  that  any  idea,  invention,  research,  plan  for  products  or services,  marketing plan,  computer software (including, without  limitation,  source code), computer program, original work of authorship, character, know-how, trade  secret,  information,  data,  developments,  discoveries,  technology,  algorithm,  design,  patent or copyright, or any improvement, rights, or claims relating to the foregoing, shall  be  presumed  to  be  an  Invention  if  it  is  conceived,  developed,  used,  sold,  exploited  or  reduced to practice by the Employee or with the aid of the Employee within one (1) year  after termination of employment. The Employee can rebut the above presumption if he  proves  that  the  idea,  process  or  invention  (i)  was  first  conceived  or  developed  after  termination of employment, (ii) was conceived or developed entirely on the Employee’s  own  time  without  using the Company’s  equipment,  supplies,  facilities,  personnel  or  Confidential  Information,  and  (iii)  did  not  result  from  or  is  not  derived  directly  or  indirectly, from any work performed by the Employee for the Company or from  work  performed by another employee of the Company to which the Employee had access.         Section 8.  Injunctive Relief. The Employee agrees that the remedy at law for  any breach of the provisions of Section 3, Section 4 or Section 5 of this Agreement shall  be  inadequate, the Company  will  suffer  immediate  and  irreparable  harm,  and the  Company  shall  be  entitled  to injunctive  relief  in  addition  to  any  other  remedy  at  law  which the Company may have.           Section 9.  Severability. In the event any of the provisions of this Agreement  shall be held by a court or other tribunal of competent jurisdiction to be unenforceable,  the other provisions of this Agreement shall remain in full force and effect.         Section 10. Survival. Sections 3, 4, 5, 7, 8, 12, 13 and 14 of this Agreement  and Sections 3, 5 and 6 of the Addendum shall survive the termination of this Agreement.         Section 11. Representations  and  Warranties. Each  of  the  Company  and  the  Employee represents and warrants that (i) it has the full right, authority and capacity to  enter into this Agreement and perform its obligations hereunder, (ii) upon the execution  and delivery of this Agreement, this Agreement shall be the valid and binding obligation  of  each  party,  enforceable  in  accordance  with  its  terms, and  (iii) the  execution  and  delivery of this Agreement by it shall not result in any breach or violation of, or a default  under, any existing obligation, commitment or agreement to which it is subject (including  but not limited to any agreement not to disclose any proprietary information); provided  that  notwithstanding  the  foregoing,  in  the  event  that  the  Employee  determines  that  an  action  which  the  Company  requests  him  to  pursue  (other  than  the  entry  into  this  Agreement and the commencement of employment with the Company) would cause him  to violate any such agreement, so informs the Company, and the Company instructs him  to  proceed  with  such  action,  the  Employee’s  proceeding  with  such  action  shall  not  be  deemed  to  be  a  violation  of  this  representation  and  warranty.  Further,  the  Employee  represents and warrants that he is not under any contractual obligation to any third party                                       5    11573700.6  





 






which  conflicts  with,  prevents,  restricts  or  otherwise  would  reasonably  be  expected  to  interfere with the Employee’s performance under this Agreement.         Section 12. Governing Law; Venue; Waiver of Trial by Jury.                 (a)   This  Agreement  shall  be  deemed  to  be  made  in  the  State  of  New York,  and  the  validity,  interpretation,  construction  and  performance  of  this  Agreement in all respects shall be governed by the laws of the State of New York without  regard to its principles of conflicts of law.  No provision of this Agreement or any related  document will be construed against or interpreted to the disadvantage of any party hereto  by any court or other governmental or judicial authority by reason of such party having or  being deemed to have structured or drafted such provision.  The Employee acknowledges  and agrees that the Employee was represented by counsel and has expressly agreed to the  provisions in this Agreement, including without limitation this Section 12.                 (b)   The Employee and the Company each hereby irrevocably submits  to  the  exclusive  jurisdiction  of  the federal  courts  located  in  the  City  and  County  of  Denver, Colorado (or, if subject matter jurisdiction in that court is not available, in any  state  court  located  within  the City  and  County  of  Denver,  Colorado)  over any  dispute  arising out of or relating to this Agreement.  The parties undertake not to commence any  suit, action or proceeding arising out of or relating to this Agreement in a forum other than  a  forum described  in  this Section 12(b); provided, however,  that  nothing  herein  shall  preclude a  party from  bringing  any  suit,  action  or  proceeding  in  any  other  court  for  the  purposes of  enforcing  the  provisions  of  this Section 12(b) or  enforcing  any  judgment  obtained by the Company.  The agreement of the parties to the forum described in this  Section 12 is  independent  of  the  law  that  may  be  applied  in  any  suit,  action,  or  proceeding and the parties agree to such forum even if such forum may under applicable  law  choose  to  apply non-forum  law.   The parties  hereby  waive,  to  the  fullest  extent  permitted by applicable law, any objection which they now or hereafter have to personal  jurisdiction or to the laying of venue of any such suit, action or proceeding brought in an  applicable court described in this Section 12(b), and the parties agree that they shall not  attempt to deny or defeat such personal jurisdiction by motion or other request for leave  from any such court.  The parties agree that, to the fullest extent permitted by applicable  law, a final and non-appealable judgment in any suit, action or proceeding brought in any  applicable  court  described  in  this Section 12 shall  be  conclusive  and  binding  upon  the  parties and may be enforced in any other jurisdiction.                 (c)   Each party hereto hereby waives, to the fullest extent permitted by  applicable law, any right it may have to a trial by jury in respect of any suit, action or  proceeding  arising out  of or relating to  this  Agreement.  Each party hereto  (i) certifies  that no representative, agent or attorney of any other party has represented, expressly or  otherwise, that such party would not, in the event of any action, suit or proceeding, seek to  enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto has  been induced to enter into this Agreement by, among other things, the mutual waiver and  certifications in this Section 12.  Each party shall bear its own costs and expenses (including  reasonable attorneys’ fees and expenses) incurred in connection with any dispute arising                                       6    11573700.6  





 






out of or relating to this Agreement (except to the extent that a court orders one of the  parties to pay the fees, costs and expenses of the other party).         Section 13. General.  This  Agreement  supersedes  and  replaces  any  existing  agreement between the Employee and the Company relating generally to the same subject  matter, and may  be modified only in  a writing signed by the parties  hereto.  Failure to  enforce any provision of this Agreement shall not constitute a waiver of any term herein.   This  Agreement  contains  the  entire  agreement  between  the  parties with  respect  to  the  subject matter herein.  The Employee agrees that it will not assign, transfer, or otherwise  dispose  of,  whether  voluntarily  or  involuntarily,  or  by  operation  of  law,  any  rights  or  obligations under this Agreement.  Except with respect to assignments, transfers, or other  dispositions to any affiliate (which affiliate shall become the “Company” for the purposes  of  this  Agreement)  or  person  or  entity  who  acquires  all  or  substantially  all  of  the  Company’s  assets  or  voting  equity, whether  by merger,  sale,  purchase  or  similar  corporate transaction, neither the Company nor any of its successors or permitted assigns  may assign, transfer, or otherwise dispose of any of its rights or obligations under this  Agreement. Any purported assignment, transfer, or disposition in violation of this Section  13 shall be null and void.  Subject to the foregoing, this Agreement shall be binding upon  and  shall  inure  to  the  benefit  of  the  parties  and  their  respective  heirs,  legal  representatives,  successors,  and  permitted  assigns,  and  shall  not  benefit  any  person  or  entity other than those enumerated.         Section 14. Notices.  Any notice, request, claim, demand, document, and other  communication hereunder to any party hereto shall be effective upon receipt (or refusal  of receipt) and shall be in writing and delivered personally or sent by telex, telecopy, or  sent by nationally recognized overnight courier, or certified or registered mail, postage  prepaid, to the following address (or at any other address as any party hereto shall have  specified by notice in writing to the other party hereto):               (a)   If to the Company:               Dice Inc.              1040 Avenue of the Americas              New York, New York  10019              Attention: General Counsel     and              If to the Employee, at his most recent address on the payroll records of the              Company.                Section 15. Employee Acknowledgment.  The Employee acknowledges  (i) that he has consulted with or has had the opportunity to consult with independent  counsel of his own choice concerning this Agreement and has been advised to do so by  the Company, and (ii) that he has read and understands this Agreement, is fully aware of  its legal effect, and has entered into it freely based on his own judgment.                                                                 7    11573700.6  





 






 





 






       Addendum to Employment Agreement – Art Zeile (the “Employee”)               Section 1.  Title  and  Job  Description.  The  Employee  shall  be  employed  on  a  full-time  basis,  as  the President  and Chief Executive Officer  of  the  Company  and  of  Parent and  will  be elected to  serve  as  a  member  of  the  Board  of  Directors (the “Board”) of Parent at the next meeting of the Board and, from and after the  date of his election, shall continue to be nominated to serve on the Board so long as he is  then serving as the President and Chief Executive Officer of the Company or Parent.  In  such  capacity,  the  Employee  shall  be  responsible  for  such  duties  and  any  other  responsibilities as  are customary  for such positions  and such duties  as  may reasonably  assigned  by the  Board from  time  to  time.   The  Employee  shall  report directly  and  exclusively to the Board.  The Employee shall perform his duties and responsibilities in,  and  the principal  office  at  which  the  Employee  is  employed shall  be,  the  Company’s  offices  in  Denver,  Colorado and  at  such  other  location(s)  to  which  the  Company  may  reasonably  require  the  Employee  to  travel  for  Company  business  purposes.   Notwithstanding anything to the contrary in this Agreement or any Company policy: (a)  serve as a director or trustee of other for-profit corporations or businesses that are not in  competition with the business of the Company or any of its affiliates, present or future;  provided that, the  Employee  shall  promptly  notify  the  Company  of  each  for-profit  corporation or business on which he serves as a director or trustee, and if the Company  determines  that  a  directorship  would  be  with  a  competitive  entity,  it  shall  notify the  Employee in writing and the Employee shall have a reasonable period of time to resign  such  directorship; (b) serve  on  civic  or  charitable  boards  or  committees; and  (c) fulfill  speaking engagements; provided, however, that the Employee may not engage in any of  the activities described in this Section 1 to the extent such activities materially interfere  with the performance of the Employee’s duties and responsibilities to the Company.               Section 2.  Compensation.                (a)   In  consideration  of  the  services  to  be  rendered  hereunder:  the  Employee shall be paid an annual base salary of $550,000 per year (prorated for calendar  year  2018)  plus  an  annual  bonus  (the  “Annual  Bonus”)  targeted  at 100%  of  the  Employee’s then-current annual base salary, determined in accordance with the terms of  the Senior Bonus Plan (or any successor annual cash bonus plan applicable to the other  senior  executives  of  the  Company).  Each  year  during  the  term  of  the  Employee’s  employment  with  the  Company,  the Compensation  Committee  (the  “Compensation  Committee”)  of  the  Board shall  consult  with  the  Employee  regarding  the  terms  and  conditions  applicable  to  the  Employee’s  Annual  Bonus  and  achievement  thereof  and  consider the Employee’s comments and suggestions regarding such terms and condition  in  good  faith.  Any  Annual  Bonus  compensation  payable  to  the Employee shall  be  payable at the  same  time  as  annual  bonuses  are  payable  generally  to  the  other  senior  executives of the Company, but in any event by March 15 of the calendar year following  the calendar year to which such Annual Bonus relates, subject to the condition that the  Employee remain employed by the Company through the last day of the year in respect  of  which  the  Annual  Bonus  is  earned,  and has  not  resigned  (or  given  notice  of  such  resignation) without  Good  Reason and  has  not  been  terminated  for  Cause  prior  to  the  payment date.                                         9    11573700.6  





 






            (b)   Subject  to  approval  by  the  Compensation  Committee,  the  Employee  shall receive  grants from  Parent  of  equity-based awards,  including  without  limitation the following grants in connection with the parties’ entry into this Agreement:  (i) a grant of 1,750,000 shares of time-based restricted stock (“Restricted Stock”), which  shall  vest  as  to  25%  of such  shares on  the first anniversary  of  the Employment  Commencement Date, and as to 6.25% of the Restricted Stock on the first day of each  succeeding  calendar quarter, subject  to  the Employee’s continued employment  through  each  such  vesting  date;  and  (ii)  a  grant  of 750,000  performance-based  restricted  stock  units (“PSUs”) which shall be made in accordance with a PSU program to be created by  the Company in consultation with the Employee by December 31, 2018.  It is expected  that the Employee shall work with the head of Human Resources for the Company and  the  compensation  consultants  for  the  Compensation  Committee  (or  the  Company)  to  develop for review and approval by the Compensation Committee the applicable terms  and conditions  (including vesting and performance  criteria) that will apply to the PSU  program on a prospective basis (for grants to other senior executives of the Company as  well  as  the  Employee’s  PSU  grant  contemplated  by  the  foregoing  clause  (ii)).  It  is  contemplated that the PSU program would provide that one-third of the PSUs would vest  at the end of each year of the three-year performance period, subject to achievement of  the applicable performance criteria.  The Restricted Stock and PSU grants described in  this Section 2(b) will not be made under Parent’s 2012 Omnibus Equity Award Plan (the  “Plan”) but  will  each  be  granted  outside  the  Plan  as  an  “inducement  award.”   Notwithstanding  the  foregoing,  each  grant  described  in  this  paragraph  will  be  granted  subject to and in accordance with the terms and conditions of the Plan as if they were  granted under the Plan, to the extent applicable.                (c)   The Employee shall be eligible for all employee benefits under the  Company’s benefit plans in effect from time to time, including health, life, dental, vision,  short-term  disability,  and  401(k)  Plan,  in  accordance  with  the  terms  and  conditions  of  those benefit  plans.  The Employee shall be  entitled to five (5) weeks  of annual  leave  consistent with Company policy (prorated during the Employee’s first calendar year of  employment based on the Employment Commencement Date).               (d)   The  Employee’s  compensation  shall  be  reviewed  on  at  least  an  annual basis, with the first such review occurring no later than January of 2019, and may  be increased in the Board’s discretion.  The Employee’s base salary, as increased from  time to time, may not be decreased without the Employee’s prior written consent.               (e)   The Company shall pay or shall  reimburse the  Employee for the  Employee’s reasonable business expenses incurred by the Employee in carrying out the  Employee’s  duties  under  this  Agreement  that  are  documented  in  accordance  with  applicable  Company  policy.  For  the  avoidance  of  doubt,  the  Employee’s Young  President’s Organization (YPO)/World President’s Organization (WPO) dues, event and  travel  expenses  shall  be  considered  reasonable  business  expenses  for  professional  development and networking.  In addition, the Company shall pay the reasonable legal  fees incurred by the Employee in connection with the negotiation, drafting and execution  of this Agreement up to a maximum aggregate amount of $15,000 within 21 days of the  Company’s receipt of the invoice(s) for such legal services.                                      10    11573700.6  





 






            Section 3.  Severance.  In  lieu  of  any  severance  pay  or  severance  benefits  otherwise  payable  to  the  Employee  under  any  plan,  policy,  program  or  arrangement of the Company or its subsidiaries, the following shall apply:                (a)   Subject  to Section  3(d),  if  there  is  a  Termination  (as  herein  defined) of the Employee’s employment with the Company other than during the Change  of  Control  Period (as  herein  defined),  the  Employee shall  be  entitled  to  receive (i)  a  lump-sum severance payment equal to one hundred percent (100%) of his then-current  annual base salary, (ii) his Annual Bonus with respect to any completed year for which  the Employee has not yet been paid, based on actual performance, paid at the time that  executives are generally paid their annual bonuses for the applicable bonus year but in  any  event  no  later  than  March  15  of  the  calendar  year  following  the  last  day  of  such  completed  year, and  (iii)  accelerated  vesting,  effective  upon  such  Termination, with  respect to 100% of his outstanding equity-based awards (if any); provided, that, vesting  of  any  performance-based  awards  shall  be  governed  by  and  determined  in  accordance  with the applicable governing documents.               (b)   Subject to Section 3(d), if there is a Termination of the Employee’s  employment with the Company during the Change of Control Period, the Employee shall  be entitled to receive (i) a lump-sum severance payment equal to (A) one hundred percent  (100%) of  his  then  current  annual base salary  plus  (B) the  amount  of  his  then-current  bonus  target (or,  if  higher,  the  amount  of  any  Annual  Bonus  paid  in  respect  of  the  calendar year prior to the calendar year of termination of employment), (ii) his Annual  Bonus with respect to any completed year for which the Employee has not yet been paid,  based  on  actual  performance,  paid  at  the  time  that  executives  are  generally  paid  their  annual bonuses for the applicable bonus year but in any event no later than March 15 of  the  calendar  year  following  the  last  day  of  such  completed  year, and  (iii) accelerated  vesting, effective upon such Termination, with respect to 100% of his outstanding equity- based awards (if any); provided, that, vesting of any performance-based awards shall be  governed by and determined in accordance with the applicable governing documents.               (c)   Subject  to Section  3(d),  following  a  Termination,  the  Employee  shall  be  reimbursed for  the  cost  of  health  insurance  continuation  coverage  under  the  Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), in excess of the  cost  of  such  benefits  that  active  employees  of  the  Company  are  required  to  pay,  for  a  period  of  twelve  (12) months  (or  until  the  Employee  obtains  individual  or  family  coverage through another employer, if earlier) (the “COBRA Period”), provided that the  Employee elects COBRA coverage and subject to the conditions that: (i) the Employee is  responsible  for promptly notifying  the  Company  if  the  Employee  obtains  alternative  insurance coverage, (ii) the Employee will be responsible for the entire COBRA premium  amount  after  the  end  of  the  COBRA  Period;  (iii)  if  the  Employee  declines  COBRA  coverage, then the Company shall not make any alternative payment to the Employee in  lieu of paying for COBRA premiums, and (iv) such COBRA reimbursement payments  shall be paid on an after tax basis as additional taxable compensation to the Employee.               (d)   The  severance  pay  and  severance  benefits  described  in  the  foregoing  provisions  of  this Section  3 are  expressly  conditioned  upon  the  Employee’s                                      11    11573700.6  





 






execution and delivery of the Company’s customary general waiver and release of claims  in favor of the Company and its affiliates, that has become effective and irrevocable in  accordance  with  its  terms  within  60  days  following  the  date  of  termination  of  employment.   All  payments  (including  any  payments  that  would  have  been  made  between the date of termination of employment and the effective date of such release but  excluding any payments in respect of equity awards) shall be made as soon as practicable  but in any event within 10 days following the effective date of such release; provided that  if such 60-day period spans two calendar years, in no event will any payments or benefits  that constitute “deferred compensation” within the meaning of Section  409A (“Section  409A”) of  the  Internal  Revenue  Code  of  1986,  as  amended  from  time  to  time (the  “Code”), be paid prior to the first day of such second calendar year.  Any payments in  respect  of  the  settlement  of  equity  awards  (including  equity  awards  that  vested  in  accordance  with  this Section  3)  shall  be  made  in  accordance  with  the  agreements  governing such grants.               (e)   Upon termination of the Employee’s employment for any reason,  this  Agreement  shall  terminate  (and  the  Company  shall  not  have  any  obligation  to  provide  any  compensation  or  benefits  to  the  Employee  except  as  specifically  contemplated herein).  Upon termination of the Employee’s employment for any reason,  whether  voluntarily  or  involuntarily,  the  Employee  shall  be  deemed  to  have  resigned  from all positions, directorships, and memberships held with the Company or any of its  affiliates, whether as an employee, officer, director, trustee, consultant, or otherwise, and  such resignations  shall be effective upon such termination of employment  without any  other  action  required  by  the  Employee.   The  Employee  hereby  agrees  to  execute  all  documentation  reasonably  requested  by  the  Company  to  effectuate  the foregoing,  or  otherwise authorizes the officers of the Company to execute all such documentation on  his/her behalf.                (f)   Post-Employment  Cooperation.   The  Employee agrees  that  upon  reasonable notice and without any requirement that the Company obtain a subpoena or  court order, the Employee shall provide reasonable cooperation in connection with any  suit, action, or proceeding and any investigation or defense of any claims asserted against  the Company or any of its affiliates, in either case that relates to events occurring during  the  Employee’s  employment  with  the  Company as  to  which the  Employee may  have  relevant  information  (including  but  not  limited  to  furnishing  relevant  information  and  materials  to  the  Company  or  its designee  or  providing  testimony  at  depositions  and  at  trial).                                       12    11573700.6  





 






            (g)   No Duty to Mitigate.  The Employee shall have no duty to mitigate  damages  by  seeking  other  employment.  The  Company  shall  have  no  right  to  offset  hereunder with respect to any compensation or benefits received by the Employee from  or in  connection with  any employment subsequent  to  such Employee’s  Termination of  employment with the Company.               Section 4.  Definitions.               (a)   For  purposes  of  this  Agreement  only,  a  “Change  of  Control”  of  Parent  shall  be  deemed  to  have  occurred  if  at  any  time  on  or  after  the  date  of  the  Agreement one or more of the following events shall have occurred:               (i)   the direct or indirect acquisition by any person or related group of  persons  (other  than  an  acquisition  from  or  by  Parent  or  by  a  Company-sponsored  employee benefit plan or by a person that directly or indirectly controls, is controlled by,  or is under common control with, Parent) of beneficial ownership (within the meaning of  Rule l3d-3 of the Securities Exchange Act of 1934, as amended) of securities possessing  more than fifty percent (50%) of the total combined voting power of Parent’s outstanding  securities; or                (ii)  any  stockholder-approved  transfer  or  other  disposition  of  all  or  substantially all of Parent’s assets; or                (iii) Parent adopts any plan of liquidation providing for the distribution  of all or substantially all of its assets; or                (iv)  the  consummation  by  Parent  of  a  reorganization,  merger  or  consolidation or sale or other disposition of all or substantially all of the assets of Parent  or the acquisition, of assets or stock of another corporation (a “Business Combination”),  in each case, unless, following such Business Combination, (a) all or substantially all of  the  individuals  and  entities  who  were  the  beneficial  owners,  respectively,  of  the  outstanding common stock and outstanding company voting securities immediately prior  to such Business Combination beneficially own, directly or indirectly, more than 60% of,  respectively,  the  then  outstanding  shares  of  common  stock  and  the  combined  voting  power of the then outstanding voting securities entitled to vote generally in the election of  directors,  as  the  case  may  be,  of  the  corporation  resulting  from  such  Business  Combination  (including,  without  limitation,  a  corporation  which  as  a  result  of  such  transaction  owns  Parent  or  all  or  substantially  all  of  Parent’s  assets  either  directly  or  through  one  or  more  subsidiaries)  in  substantially  the  same  proportions  as  their  ownership, immediately prior to such Business Combination of the outstanding Company  common  stock  and  outstanding  Company  voting  securities,  as  the  case  may  be,  (b) no  person  (excluding  any  corporation  resulting  from  such  Business  Combination  or  any  employee benefit plan (or related trust) of Parent or such corporation resulting from such  Business  Combination)  beneficially  owns, directly  or  indirectly,  20%  or  more  of,  respectively, the then outstanding shares  of common  stock of the  corporation resulting  from such Business Combination or the combined voting power of the then outstanding  voting  securities  of  such  corporation  except to  the  extent  that  such  ownership  existed                                      13    11573700.6  





 






prior to the Business Combination and (c) at least a majority of the members of the board  of directors of the corporation resulting from such Business Combination were members  of the incumbent  board  at  the time of the execution of the initial  agreement, or of the  action of the board of directors, providing for such Business Combination; or               (v)   a change in the composition of the Board over a period of thirty-six  (36) months or less such that a majority of the Board members (rounded up to the next  whole  number)  ceases,  by  reason  of  one  or  more  contested  elections  for  Board  membership, to be comprised of individuals who are continuing directors.               (b)   For purposes of this Agreement only, “Change of Control Period”  shall mean the period commencing immediately prior to a Change of Control and ending  12 months after the consummation of such Change of Control.               (c)   For  purposes  of  this  Agreement  only,  “Cause”  shall  mean  (i) embezzlement by the Employee, (ii) misappropriation by the Employee of funds of the  Company,  (iii) conviction  of  a  felony,  (iv) commission  of  any  other  act  of  dishonesty  which causes material economic harm to the Company, (v) acts of fraud or deceit by the  Employee which causes material economic harm to the Company, (vi) material breach of  any provision of this Agreement by the Employee, (vii) willful and repeated failure by  the  Employee  to  substantially  perform  such  Employee’s  duties  hereunder,  (viii) willful  breach of fiduciary duty by the Employee to the Company involving personal profit or  (ix) significant violation of Company policy of which the Employee is made aware (or  such Employee should reasonably be expected to be aware) or other contractual, statutory  or  common  law  duties  to  the  Company.   No  act,  or  failure  to  act  on  the  part  of  the  Employee,  shall  be  deemed  willful  unless  it  is  done,  or  omitted  to  be  done,  by  the  Employee  in  bad  faith  or  without  reasonable  belief  that  the  Employee’s  action  or  omission was in the best interests of the Company.  Any act, or failure to act, based upon  and consistent with authority given pursuant to a resolution of the Board or based upon  and consistent  with  advice of Company counsel  shall not  constitute an act  constituting  Cause.  A  termination  of  the  Employee’s  employment  shall  not  be  deemed  to  be  for  Cause unless and until (A) the Employee is delivered, within a period not to exceed 90  days of the Board’s knowledge of the initial existence of the condition alleged to give rise  to Cause, a copy of a resolution duly adopted by the affirmative vote of a majority of the  entire membership of the Board (excluding the Employee), finding that, in the good faith  opinion of the Board, the Employee is guilty of the conduct described in one or more of  clauses  (i)  through  (ix)  above  and  setting  forth  in  reasonable  detail  why  the  Board  believes that Cause exists, and (B) solely with respect to an act described in clauses (vi)  or (ix) which may, in the good faith opinion of the Board, be curable, the Employee is  provided with 15 days during which he may remedy the condition (the “Cure Period”).   The Employee’s date of termination of employment for Cause shall be the date specified  in  the  notice  described  in  the  foregoing  clause  (A)  or,  if  clause  (B)  applies,  and  the  conduct  has  not  been  cured during  the  applicable  Cure  Period,  the  date  of  termination  shall be the end of such Cure Period, if later.               (d)   For purposes of this Agreement only, “Good Reason” shall mean  the  occurrence  of  any  of  the  following  without  the  Employee’s  consent:  (i)  a material                                      14    11573700.6  





 






diminution in the responsibilities, title, duties and reporting lines of the Employee, (ii) a  material reduction in salary, incentive compensation and other employee benefits of the  Employee,  (iii)  relocation  of  the  Employee  to  an  office  more  than  40  miles from  the  principal  office  at  which  the  Employee  is  employed,  (iv)  any  material  breach  by  the  Company of this Agreement or (v) the failure of any successor to assume, in writing, all  obligations under this Agreement.               (e)   For purposes of this Agreement only, “Termination” shall mean (i)  a termination of the Employee’s employment by the Company without Cause (and other  than due to death or disability) or (ii) a termination of employment by the Employee for  Good Reason.                 (f)   Prior  to  resigning  for  Good  Reason,  the Employee  shall  give  written notice to the Company of the facts and circumstances claimed to provide a basis  for such resignation not more than 30 days  following his knowledge of such facts and  circumstances, and the Company shall have 30 days after receipt of such notice to cure  such facts and circumstances (and if so cured then the Employee shall not be permitted to  resign  for  Good  Reason  in  respect  thereof).   Any  termination  of  employment  by  the  Employee for Good Reason shall be communicated to the Company by  written notice,  which shall include the Employee’s date of termination of employment (which, except as  set forth in the preceding sentence, shall be a date not later than 30 days after delivery of  such notice).               Section 5.  Withholding Taxes.  All amounts  payable hereunder shall  be subject to and paid net of all required withholding taxes.               Section 6.  Compliance with Section 409A; 280G.               (a)   It  is  intended  that  the  payments  and  benefits  provided  under  Section 3 of this Addendum shall be exempt from or compliant with the application of  the  requirements  of  Section  409A (“Section 409A”) of the Internal  Revenue Code of  1986, as amended (the “Code”).  This Addendum shall be construed, administered, and  governed in a manner that effects such intent, and the Company shall not take any action  that would be inconsistent with such intent. Specifically, any severance benefits payable  pursuant to Section 3 above, to the extent they are required to be paid, and are actually or  constructively  received,  during  the  period  from  the  date  on  which the  Employee’s  employment  with the  Company terminates  through  March  15  of  the  calendar  year  following such termination, are intended to constitute separate payments for purposes of  Section  409A  and  thus  be  exempt  from  application  of  Section  409A  by  reason  of  the  “short-term deferral” rule. To the extent payments are required to be paid commencing  after that date, they are intended to constitute separate payments that are exempt from the  application  of  Section  409A  by  reason  of  the  exceptions  under  Sections  1.409A- 1(b)(9)(iii)  or  1.409A-1(b)(9)(v)  of  the  Treasury  Regulations,  as  applicable,  to  the  maximum  extent  permitted  by  those  provisions.  In  no  event  whatsoever  shall  the  Company or any of its affiliates be liable for any additional tax, interest, or penalties that  may be imposed on the Employee as a result of Section 409A or any damages for failing  to comply with Section 409A.                                      15    11573700.6  





 






            (b)   Notwithstanding anything to the contrary in this Agreement, if the  Employee is  a  “specified  employee,”  as  determined  under  the  Company’s  policy  for  determining  specified  employees  on  the  date  on  which the  Employee’s employment  terminates, all payments or benefits provided hereunder that for any reason constitute a  “deferral of compensation” within the meaning of Section 409A, that are provided upon a  “separation from service” within the meaning of Section 409A and that would otherwise  be paid or provided during the first six months following such date of termination, shall  instead  be  accumulated  through  and  paid  or provided  (without  interest)  on  the  first  business  day  following  the  six (6) month  anniversary  of  such  date  of  termination.  Notwithstanding  the  foregoing,  payments  delayed  pursuant  to  this Section 6(b) shall  commence within 10 calendar days following the Employee’s death prior to the end of  the  six  month  period.   Reimbursement  of  any  eligible  expenses  shall  be  made  in  accordance with the Company’s policies and practices and as otherwise provided herein,  provided,  that,  in  no  event  shall  reimbursement  be  made  after  the  last  day  of  the  year  following the year in which the expense was incurred.  The right to reimbursement is not  subject  to  liquidation  or  exchange  for  another  benefit.  The  amount  of  expenses  reimbursed  in  one  year  shall  not  affect  the  amount  eligible  for  reimbursement  in  any  subsequent year.  The amount of any in-kind benefits provided in one year shall not affect  the amount of in-kind benefits provided in any other year.               (c)   If  any  amounts  or  benefits  to  be  paid  or  provided  under  this  Agreement or otherwise would cause payments or benefits (or other compensation) to not  be fully deductible by the Company for federal income tax purposes because of Section  280G  of  the Code,  or  any  successor  provision  thereto  (or  that  would  subject  the  Employee  to  the  excise  tax  imposed  by  Section  4999  of  the  Code,  or  any  successor  provision thereto), such payments and benefits (and other compensation) will be reduced  to  the  extent  necessary  such  that  no  portion  of  such  payments  or  benefits  (or  other  compensation) will be subject to the excise tax imposed by Section 4999 of the Code, or  any successor provision thereto; provided, that such a reduction will be made only if, by  reason of such reduction, the Employee’s net after-tax benefit exceeds the net after-tax  benefit the Employee would realize if such reduction were not made.  The determination  of  whether  any  such  payments  or  benefits  to  be  provided  under  this  Agreement  or  otherwise would not be so deductible (or whether the Employee would be subject to such  excise tax) shall be made by a firm of independent accountants or a law firm selected by  the Board.  If such payments are reduced pursuant to the foregoing, they will be reduced  in  the  following  order: first,  by  reducing  any  cash  severance  payments and  then  by  reducing  any  other  payments  and  benefits  due  to  the  Employee  that  constitute  a  “parachute payment” for purposes of Section 280G of the Code, with any cash payments  being reduced first before any non-cash payments in inverse order from the last date of  payment and all amounts that are not subject to calculation under Treas. Reg. §1.280G-1,  Q&A-24(b) or (c) being reduced before any amounts that are subject to calculation under  Treas. Reg. §1.280G-1, Q&A-24(b) or (c).  Notwithstanding the foregoing, to the extent  the  parties  agree  that  any  of  the  foregoing  amounts  are  not  parachute  payments,  such  amounts shall not be reduced.                                         16    11573700.6