cicpolicyjune2019






                                Tech Data Corporation                         Change in Control Severance Policy    Article 1.  Establishment and Purpose        1.1   Establishment  of  the  Policy.  Tech  Data  Corporation,  a  Florida  corporation,  hereby  establishes  this change  in control  severance  policy to  be  known  as  the  “Tech  Data  Corporation Change in Control Severance Policy” (the “Policy”).         1.2   Purpose  of  the  Policy.  The  Board  of  Directors  of Tech  Data  Corporation has  determined  that  it  is  in  the  best  interests  of  the  Company  and  its  stockholders  to  secure  the  continued services, dedication and objectivity of certain key employees of the Company in the  event of any threat or occurrence of a Change in Control of the Company, without concern as to  whether  such  employees  might  be  hindered  or  distracted  by  personal  uncertainties  and  risks  created by any such actual or threatened Change in Control.   Article 2.  Definitions        Whenever  used  in  the  Policy,  the  following  terms  shall  have  the  meanings  set  forth  below:        (a)   “AAA” means the American Arbitration Association.        (b)   “Arbitration  Rules” means  the National  Rules for  the  Resolution  of  Employment  Disputes  of  the  AAA; provided that  discovery  shall  be  governed  by  the  Federal  Rules of Civil Procedure.        (c)   “Accounting Firm” has the meaning assigned in Article 7.1(a).        (d)   “Accrued Obligations” has the meaning assigned in Article 6.1(a).        (e)   “Base  Salary” means  a Covered  Person’s  annual  rate  of  salary  or  wages,  including any amounts of salary or wages deferred at the election of the Covered Person, as in  effect immediately prior to the Change in Control or, if higher, during the Protected Period.        (f)   “Beneficiary” means the persons or entities entitled to benefits hereunder upon a  Covered Person’s death, to the extent provided in Article 15.2(b), as determined in accordance  with the procedures in 15.2(a).        (g)   “Board” means the Board of Directors of the Company or its successor.        (h)   “Cause”, when  used  with  reference  to  a  termination  of  a Covered  Person’s  employment by the Company under the Policy, means the occurrence of any of the following  events, provided, however,  that  a Covered  Person’s  employment  may  not  be  terminated  for  Cause unless (1) the Company provides the Covered Person with written notice in accordance  with Article 15.8 which  shall  (A)  state  in  detail the  particular  act(s) or  failure(s) to  act  that  constitute the grounds on which the proposed termination for Cause is based and (B) be given  within fifteen (15) days of a member of the Committee’s learning of such act(s) or failure(s) to                                                                                      Matter 000952  CIC Policy  





 






   act; and (2) the Covered Person is given a reasonable opportunity to be heard by the Committee  and to cure, to the extent capable of cure, the grounds stated in such notice; but the Company  may suspend the Covered Person during the proceedings; provided, that if, following any such  hearing or waiver of such hearing by the Covered Person, the Covered Person is furnished with a  subsequent written  notice  by  the  Committee  confirming  that,  in  its  judgment,  grounds  for  termination for Cause on the basis of the original notice exist (the “Final Cause Notice”), the  Covered  Person shall  thereupon  be  terminated  for  Cause,  subject  to  de  novo  review,  at  the  Covered Person’s election, through arbitration in accordance with Article 12 hereof:                (i)    the willful  and  continued failure  of  the Covered  Person to  substantially       fulfill his or her obligations with respect to his or her employment or service (other than       any such failure resulting from incapacity due to physical or mental illness);              (ii)   the Covered Person’s conviction of or entering into a plea of guilty or nolo       contendere to, a felony, or  conduct  by  the Covered  Person that  constitutes  gross       negligence or gross misconduct in carrying out his or her duties with respect to his or her       employment or service; or              (iii)  the Covered Person’s material violation of any material, written agreement       with the Company or Company policy applicable to the Covered Person, which violation       adversely affects the business of the Company.        (i)   a “Change  in  Control” shall have  the  meaning  set  forth in  the  2009  Equity  Incentive Plan of  Tech  Data  Corporation,  or  any  successor plan thereto  as  determined  by  the  Committee from time to time; provided, that a Change in Control will not be deemed to occur for  any  purpose  under  this Policy unless  such  event or  events also constitute  a change  in  the  ownership or effective control of the Company or in the ownership of a substantial portion of the  assets of the Company, within the meaning of Section 409A of the Code.         (j)   “Code”  means  the  Internal  Revenue  Code  of  1986,  as  amended  from  time  to  time, including rules thereunder and successor provisions and rules thereto.        (k)   “Committee” means the Compensation Committee of the Board.        (l)   “Company”   means  Tech  Data  Corporation, and all  of  its  consolidated  subsidiaries as determined in accordance with U.S. Generally Accepted Accounting Principles,  and any successor or successors thereto.        (m)   “Confidential  Information”  means  any  and  all  information,  including,  but  not  limited to, information or ideas conceived or developed by a Covered Person, applicable to or in  any way related to (i) the present or future business of the Company or its affiliates, (ii) research  and  development  related  to the  Company’s or  its  affiliates’ business,  (iii)  the  business  of  any  customer  or  vendor  of the  Company or  any  of  its  affiliates,  (iv)  trade  secrets,  (v)  processes,  formulas,  data,  program  documentation,  algorithms,  source  codes,  object  codes,  know-how,  improvements, inventions, and techniques, (vi) all plans or strategies for marketing, development  and pricing, and (vii) all information concerning existing or potential customers or vendors, and  all  similar  information  disclosed  to the  Company or  its  affiliates by  other  persons  and  any                                         2  Matter 000952 CIC Policy  





 






   information in documents or computers that the Company designates as confidential by notation  therein or thereon.        (n)   “Covered  Person”  means an  employee  of  the  Company  who  fulfills  the  eligibility and participation requirements as provided in Article 4 hereof.        (o)   “Disability” means (1) a physical or mental condition entitling the Company to  terminate the Covered Person’s employment pursuant to an employment agreement between the  Covered  Person and  the  Company  or  (2)  in  the  absence  of  such  a  provision  for  disability  termination  or  in  the  absence  of  an  employment  agreement, the  Covered Person’s  inability  to  substantially  perform  his  or  her  duties  or  responsibilities  as  a  result  of  a  physical  or  mental  condition for 180 or more business days in any 365 day period.        (p)   “Effective Date” means the date the Policy is adopted by the Company.        (q)   “ERISA”   means  the  Employee  Retirement  Income  Security  Act  of  1974,  as  amended from  time  to  time,  including  rules  thereunder  and  successor  provisions  and  rules  thereto.        (r)   “Exchange Act” means the Securities Exchange Act of 1934, as amended from  time to time, including rules thereunder and successor provisions and rules thereto.        (s)   “Excise Tax” has the meaning assigned in Article 7.1(a).        (t)   “Final Cause Notice” has the meaning assigned in Article 2(h).        (u)   “Good  Reason”, when  used  with  reference to  a  termination  of  a Covered  Person’s  employment  with  the  Company,  means,  without  a Covered  Person’s  express  written  consent,  the  occurrence  of  any  of  the  following  events  during  the  Protected  Period, provided,  however, that none of the following shall constitute Good Reason unless (1) the Covered Person  provides written notice in accordance with Article 15.8 to the Company which shall (A) state in  detail the particular act(s) or failure(s) to act that constitute the grounds on which the proposed  termination for Good Reason is based and (B) be given within ninety (90) days of the Covered  Person’s learning of such act(s) or failure(s) to act; (2) the Company fails to cure the grounds  stated in such notice within fifteen (15) days of its receipt of such notice; and (3) the Termination  Date occurs no later than the earlier of sixty (60) days following the Company’s failure to cure  pursuant to the immediately preceding clause, and two (2) years following the initial existence of  one or  more  of  the  following events arising  without  the Covered  Person’s express written  consent:              (i)    a  material adverse  change  in  the  nature,  scope  or  status  of  the Covered       Person’s  position,  duties, responsibilities or  authorities effectuated  after  the  Change  in       Control from those held, exercised and/or assigned to Covered Person immediately prior       to such diminution, including, without limitation, if the Covered Person was an officer of       a  public  company  immediately  prior  to  the  Change  in  Control,  the  Covered  Person       ceasing  to  be  an  officer  of  a  public  company; provided,  that  a  change  in  a  Covered       Person’s  reporting  relationship  that  is  approved  by  the  Company  prior  to  a  Change  in                                         3  Matter 000952 CIC Policy  





 






        Control and is not made at the request of a third party incident to the Change in Control       shall not constitute Good Reason hereunder;               (ii)   a  reduction in  the Covered  Person’s annual base salary (or  a  material       change  in  the  frequency  of  payment)  or  annual  incentive  opportunity  in  effect       immediately prior to the Change in Control or, if higher, as in effect at any time during       the Protected Period;              (iii)  the  failure  by  the  Company  to  award  the Covered  Person equity-based       incentive compensation (such as stock options, shares of restricted stock, restricted stock       units  or  other  equity-based  compensation) on  a  periodic  basis  consistent  with  the       Company’s  practices  with  respect  to  timing,  value  and  terms  as  in  effect  prior  to  the       Change in Control or, if higher, as in effect at any time during the Protected Period;              (iv)   the  failure  by  the  Company  to  continue  to  provide  the Covered  Person       with welfare benefits, fringe benefits and perquisites that are substantially similar in the       aggregate to those made available or provided to the Covered Person immediately prior       to  the  Change  in  Control,  including  but  not  limited to  any  pension,  life  insurance,       medical, health and accident, disability and vacation benefits;              (v)    any requirement that the Covered Person’s services be rendered primarily       at  a  location that  is:   (1)  more  than  35  miles  from  the Covered  Person’s  base  office       immediately prior to the Change in Control  and (2) farther from the Covered Person’s       principal  residence  immediately  prior  to  the  Change  in  Control  than  was  the Covered       Person’s base office immediately prior to the Change in Control;               (vi)   a  material  breach  by the  Company of (1)  any  effective  written       employment agreement  with the Covered Person, or (2) this  Policy, including, without       limitation, the failure to obtain express written consent to assumption of the Policy from a       successor as required by Article 10 hereof; and              (vii)  any other event which is included in any Covered Person’s Participation       Schedule.    Notwithstanding the foregoing, for purposes of clarification, the Company’s suspension of the  Covered Person’s provision of services during the period in which the Company initiates  proceedings to determine whether or not the employment of the Covered Person should be  terminated for Cause pursuant to this Policy shall not constitute Good Reason.        (v)   “Initial  Covered  Persons”  means  those  Covered  Persons  listed  on Annex  1  maintained by the Company.        (w)   “Legal Fees” has the meaning assigned in Article 13.        (x)   “Non-Qualifying  Termination” means  a  termination  of  a Covered  Person’s  employment (1) by the Company for Cause, (2) by the Covered Person for any reason other than  Good Reason, or (3) as a result of the Covered Person’s death or Disability.                                          4  Matter 000952 CIC Policy  





 






        (y)   “Participation  Schedule” means a schedule  evidencing  the Covered  Person’s  participation in and coverage by this Policy, which may be in the form attached as Exhibit B to  this Policy or may be provided in such other form as the Committee determines from time to  time.         (z)   “Payment” has the meaning assigned in Article 7.1(a).        (aa)  “Protected Period” means the period beginning on the first date, following the  Effective Date, on which a Change in Control occurs, and ending twenty four (24) months after  such Change in Control.         (bb)  “Qualifying  Termination” means  a  termination  of  a Covered  Person’s  employment during  the  Protected  Period (1)  by  the  Company Without  Cause  or  (2)  by  the  Covered Person for Good Reason, in each case in accordance with the procedures set forth in  Article 5.        (cc)  “Restrictive Covenants” means the covenants set forth in Article 11.        (dd)  “Severance Factor” means the factor used to determine the Severance Payment  payable to a Covered Person pursuant to Article 6.1(a)(v) hereof, which factor shall be: (1) 2.5  for the Chief Executive Officer of the Company, (2) 2 for each Initial Covered Person other than  the Chief Executive Officer and the Senior Vice President, Chief Financial Officer, Europe of the  Company,  and  (3)  for  all  Covered  Persons  not  described  in  (1)  or  (2)  and  the  Senior  Vice  President, Chief Financial Officer, Europe, the number determined by the Company and set forth  in such Covered Person’s Participation Schedule.        (ee)  “Severance Payment” has the meaning assigned in Article 6.1(a)(v).        (ff)  “Target Annual Bonus” means the Covered Person’s target annual bonus for the  last full fiscal year ending immediately prior to the Change in Control or, if higher, the Covered  Person’s highest target annual bonus in effect  for any  fiscal  year during the Protected Period;  provided that if no target annual bonus is set for such Covered Person, the Target Annual Bonus  will be determined by reference to the target annual bonuses set for an employee or employees in  comparable positions or performing similar functions and duties during the three fiscal years that  were completed prior to the Termination Date.        (gg)  “Term” means the period commencing on the Effective Date and continuing until  the Committee shall terminate the Policy in accordance with Article 15.5.        (hh)  “Termination Date” means the effective date of a Covered Person’s termination  of employment with the Company as provided in Article 5.1.        (ii)  “Without Cause”, when used in reference to a termination of a Covered Person’s  employment with the Company, means any termination of the Covered Person’s employment by  the Company which is not a termination of employment for Cause, Disability or death.                                          5  Matter 000952 CIC Policy  





 






   Article 3.  Administration        The  Policy shall  be  administered  by  the  Committee.   The  Committee  shall  have  full  authority,  consistent  with  the  Policy,  to  administer  the  Policy,  including, without  limitation,  authority to interpret and construe any and all provisions of the Policy.    Article 4.  Coverage        The  Board  or  the  Committee  shall  designate  those  key  employees  of  the  Company  entitled  to be  covered  by the  Policy  from  time  to  time. Each  key  employee  designated to be  covered by the Policy as a Covered Person shall be required to execute a Participation Schedule,  or other written agreement that may be specified by the Committee, to evidence such employee's  agreement to be bound by the terms and conditions of this Policy, including the provisions of  Article 11 hereof, as a Covered Person.          The Board or the Committee may amend, modify or terminate the Policy at any time and  from time to time, subject to the limitations and restrictions set forth in Section 15.5; provided  that  with  respect  to each Initial  Covered  Person, the  Committee  may  not amend,  modify or  terminate the Policy in a manner that would adversely affect such Initial Covered Person prior to  the second anniversary of the Effective Date without the express written consent of such Initial  Covered Person. In addition, any amendments, modifications or terminations of the Policy that  impact a Covered Person will be subject to any additional, express restrictions or limitations as  may be set forth in such Covered Person’s Participation Schedule from time to time.   Article 5.  Termination of Employment        5.1   Termination  of  Employment  of  a Covered  Person during  the  Protected  Period.        (a)   During  the  Protected  Period, the  employment  of  a Covered  Person may  be  terminated by the Company due to the Covered Person’s Disability, on account of the Covered  Person’s death, by the Company Without Cause or for Cause, or by the Covered Person with or  without Good  Reason.   The  termination  of  the Covered  Person’s  employment  will  become  effective as of the date hereinafter specified.        (b)   Termination  of  a Covered  Person’s  employment  for  Disability  shall  become  effective thirty (30) days after a notice of intent to terminate the Covered Person’s employment,  specifying Disability as the basis for such termination, is received by the Covered Person from  the Committee.  Termination of a Covered Person’s employment on account of his or her death  shall become effective automatically as of the date of his or her death.        (c)   The  Company  shall  have  the  absolute  right  to  terminate  a Covered  Person’s  employment  Without  Cause  at  any  time.  Termination  of  a Covered  Person’s  employment  Without Cause shall become effective on the date specified by the Company.        (d)   Termination of a Covered Person’s employment for Cause shall become effective  on the date the Company issues the Final Cause Notice to such Covered Person in accordance  with the procedures set forth in Article 2(h).                                         6  Matter 000952 CIC Policy  





 






        (e)   Termination of a Covered Person’s employment for Good Reason shall become  effective thirty  (30)  days  after the Covered  Person’s  notice  of  termination  to  the  Company,  provided  that  the Covered  Person terminates  his  or  her  employment  in  accordance  with  the  procedure  specified  in the  definition  of  Good  Reason.   Termination  of  a Covered  Person’s  employment  without  Good  Reason  shall  become  effective  thirty  (30)  days  after  the Covered  Person’s  notice  of  termination  to  the  Company or  such  earlier  date  as  the  Company  may  determine upon receipt of notice by the Company of such termination.        5.2   Separation from Service.  For purposes of any provision of the Policy providing  for the payment of any amounts or benefits subject to 409A of the Code upon or following a  termination of employment, references to a “termination,” “termination of employment” or like  terms shall mean “separation from service” within the meaning of Section 409A of the Code.     Article 6.  Payments Upon Termination of Employment in Certain Circumstances        6.1   Qualifying Termination.  If, during the Protected Period, the employment of a  Covered Person shall terminate by reason of a Qualifying Termination, then:        (a)   Payment of Certain Amounts.  The Company shall pay to the Covered Person:               (i)    a  lump  sum  cash payment equal  to  the  sum  of the Covered  Person’s       earned but unpaid Base Salary as in effect at the time of the Termination Date (without       regard  to  any  reduction  constituting  Good  Reason and  excluding  any  amounts  the       Covered  Person elected  to  defer) and  accrued  vacation  (the  “Accrued  Obligations”),       within thirty (30) days following the Termination Date or sooner if required by applicable       law;              (ii)   any deferred compensation  amounts (including, without  limitation, any       amounts of base salary earned but unpaid that the Covered Person elected to defer), at the       times provided in the applicable plan, program, or agreement governing the deferral;              (iii)    any annual bonus awards earned by the Covered Person but not yet paid       as of the Termination Date, on the regularly scheduled payment date; provided that for       purposes of this clause (iii), in order to have earned any such award the Covered Person       must have remained employed through the last day of the applicable performance period       for such award;               (iv)   a pro-rata annual bonus for the fiscal year of the Company in which the       Termination Date occurs, on the regularly scheduled payment date, determined based on       actual  performance  of  the  Company  (and  in  a  manner  consistent  with  how  bonus       determinations  are  made  for  continuing,  active  employees  of  the  Company),  prorated       based on the number of days the Covered Person was employed in such fiscal year;  and              (v)    subject to the Covered Person’s satisfaction of the conditions set forth in       Article 15.10 hereof, on the sixtieth (60th) day following the Termination Date, a lump       sum  cash severance payment  equal  to  the  product  of  the Covered  Person’s  Severance       Factor  times the  sum  of  (1)  the Covered  Person’s  Base  Salary  and  (2) Target  Annual       Bonus (the “Severance Payment”).                                         7  Matter 000952 CIC Policy  





 






        (b)   Outstanding Equity  Awards.  All equity and equity-based  awards  held  by a  Covered Person and outstanding as of his or her Termination Date shall be treated in accordance  with the terms of the applicable plan and award agreement governing such awards, treating such  Covered Person’s Qualifying Termination hereunder as a termination of employment “without  cause”  or  for  “good  reason”  (or such other  terms  of  similar  import as  may  be  used  in  the  applicable plan or award agreement governing such awards) following a Change in Control.        (c)   Benefit Continuation.  Subject to the Covered Person’s satisfaction of the       condition set forth in Article 15.10 hereof:             (i)    the Company shall pay to the Covered Person a monthly cash payment       equal to the Covered Person’s monthly COBRA premiums to continue medical coverage       under the Company’s medical plans under which the Covered Person was covered       immediately before the Termination Date for twelve months following the Termination       Date; it being understood that the Covered Person shall not be required to use the       monthly payments for such premiums.  Any payment that otherwise would be made       before the sixtieth (60th) day following the Termination Date shall be paid on the sixtieth       (60th) day.             (ii)   the Company shall reimburse the Covered Person for reasonable expenses       incurred by the Covered Person for outplacement counseling services (i) which do not       exceed $20,000, and (ii) which are incurred by the Covered Person within twelve months       following the Termination Date.  The provision of outplacement services is intended to       be exempt from Section 409 of the Code pursuant to the in-kind benefits exception as set       forth in Section 1.409A-1(b)(9)(v)(c) of the regulations promulgated thereunder.  Any       reimbursement payment that otherwise would be made before the sixtieth (60th) day       following the Termination Date shall be paid on the sixtieth (60th) day.       6.2   Non-Qualifying  Termination. The  employment  of  a  Covered  Person may  terminate  or  be  terminated by  reason  of  a Non-Qualifying  Termination during  the  Protected  Period, in which case the Company shall pay the Covered Person the Accrued Obligations and  any other payments or benefits to which the Covered Person is entitled under applicable law and  any other benefit plan, program, agreement or arrangement covering the Covered Person.        6.3   Other  Agreements.  A Covered  Person  who  receives  a  Severance  Payment  hereunder shall not be entitled to receive any other cash severance payment pursuant to any other  severance plan, program, policy, agreement or arrangement maintained by the Company or any  additional annual bonus payment other than as specified above; provided that in the event that  applicable law mandates that the Company provide to the Covered Person benefits in the nature  of  severance, then  the  amounts  of  benefits  provided  hereunder  shall be  reduced,  in  a  manner  consistent with the requirements of Section 409A, to the extent applicable, by the amount of such  legally mandated benefits. Except to the extent specifically provided in the Policy with respect to  the  Severance  Payment, annual  bonus  payment, COBRA  reimbursement  payment  and  outplacement  services, a  Covered  Person  will  be  entitled  to  receive  other  accrued,  vested  or  deferred compensation, rights or benefits upon termination of employment in accordance with  the  terms  of  the  applicable  benefit  plans,  programs,  policies,  agreements  or  arrangements  in  which such Covered Person participates, including but not limited to amounts or benefits payable  under any stock purchase policy, disability policy or similar or successor policy.                                           8  Matter 000952 CIC Policy  





 






   Article 7.  Code Section 280G        7.1   (a) In  the  event  it  shall  be  determined by the  Company’s  independent  auditors  immediately prior to a Change in Control or, if such auditors are unable to perform the services,  by an independent, nationally recognized accounting firm selected by the Company in its sole  discretion immediately prior to a Change in Control (in either case, the “Accounting Firm”) that  any payment or distribution by the Company to or for the benefit of the Covered Person, whether  paid or payable or distributed or distributable pursuant to the terms of the Policy or otherwise (a  “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code, or any  interest  or penalties are  incurred by the Covered Person with respect  to such excise tax  (such  excise tax, together with any such interest and penalties, are hereinafter collectively referred to as  the  “Excise  Tax”), then  the  amount  of  Payments  payable  to  such Covered  Person shall  be  reduced if  (1)  the  net  amount  of  such Payments,  as  so  reduced  (and  after subtracting  the  net  amount of federal, state and local income taxes on such reduced Payments and after taking into  account  the  phase  out  of  itemized  deductions  and  personal  exemptions  attributable  to  such  reduced Payments) is greater than (2) the net amount of such Payments without such reduction  (but after subtracting the net amount of federal, state and local income taxes on such Payments  and the amount of Excise Tax to which the Covered Person would be subject in respect of such  unreduced  Payments  and  after  taking  into  account  the  phase  out  of  itemized  deductions  and  personal exemptions attributable to such unreduced Payments).        (b)   The  Accounting  Firm  shall  make  an  initial  determination  as  to  whether  a  reduction in Payments is required under Article 7.1(a) above.  If the Payments must be reduced  as  provided  in  the  previous  paragraph,  the  reduction  shall  occur  in  the  following  order:  (1)  reduction of cash payments for which the full amount is treated as a “parachute payment” (as  defined under Code Section 280G and the regulations thereunder); (2) cancellation of accelerated  vesting (or, if necessary, payment) of cash awards for which the full amount is not treated as a  parachute payment; (3) reduction of any continued employee benefits and (4) cancellation of any  accelerated vesting of equity awards.  In selecting the equity awards (if any) for which vesting  will be reduced under clause (4) of the preceding sentence, awards shall be selected in a manner  that  maximizes  the  after-tax  aggregate  amount  of  reduced  Total  Payments  provided  to  the  Covered Person, provided that if (and only if) necessary in order to avoid the imposition of an  additional tax under Section 409A of the Code, awards instead shall be selected in the reverse  order  of  the  date  of  grant.   For  the  avoidance  of  doubt,  for  purposes  of  measuring  an  equity  compensation award’s value to the Covered Person when performing the determinations under  the preceding paragraph, such award’s value shall equal the then aggregate fair market value of  the vested shares underlying the award less any aggregate exercise price less applicable taxes.  If  two or more equity awards are granted on the same date, each award will be reduced on a pro- rata basis.          (c)   All determinations required under this Article 7 shall be made in writing by the  Accounting  Firm.   Any  reasonable  determination  of  the  Accounting  Firm  made  in  good  faith  shall be binding upon the Company and the applicable Covered Person.  The Company and the  Covered  Person shall  furnish  to  the  Accounting  Firm  such  information  and  documents  as  the  Accounting  Firm  may  reasonably  request  to  make  a  determination  under  this  Article.  For  purposes of making the calculations required by this Article 7, the Accounting Firm may make  reasonable  assumptions  and  approximations  concerning  applicable  taxes  and  may  rely  on                                         9  Matter 000952 CIC Policy  





 






   reasonable  good  faith  interpretations  concerning  the  application  of  Code  Sections  280G  and  4999.  The  Accounting  Firm  shall  provide  detail  supporting  its  determinations  both  to  the  Company  and  the  applicable Covered  Person within  fifteen  (15)  business  days  of  the  Termination Date or such earlier time as is requested by the Company.  If the Accounting Firm  determines  that  no  Excise  Tax  is  payable  by  the Covered  Person,  it  shall,  if  requested  by  the  Covered Person, furnish the Covered Person with an opinion that he/she has substantial authority  not to report any Excise Tax on his/her federal, state, local income or other tax return. The fees  and  expenses  of  the  Accounting  Firm  for  its  services  in  connection  with  the  determinations  contemplated by this Article 7 shall be borne by the Company.        (d)   Each Covered Person shall be responsible for all taxes imposed on the Covered  Person on account of payments and benefits under this Policy, including without limitation any  excise taxes imposed under Section 4999 of the Code.  Article 8.  Withholding Taxes        The Company may withhold from all payments due hereunder to a Covered Person (or  his  or  her  Beneficiary)  all  taxes  which,  by  applicable  federal,  state,  local or  other  law,  the  Company is required to withhold therefrom.   Article 9.  the Company’s Payment Obligation; No Mitigation        9.1   Payment Obligations are Absolute.        (a)   The  Company’s  obligation  to  a Covered  Person to  make  the  payments  and  the  arrangements provided for herein shall be absolute and unconditional, and shall not be affected  by  any  circumstances,  including,  without  limitation,  any  offset,  counterclaim,  recoupment,  defense, or other right which the Company may have against the Covered Person or anyone else,  except to the extent so provided in Articles 7 and 15.12, if applicable, or mandated by applicable  law.  All amounts payable by the Company hereunder shall be paid without notice or demand.   Each and every payment made hereunder by the Company shall be final, and the Company shall  not seek to recover all or any part of such payment from Covered Persons or from whomsoever  may be entitled thereto, except to the extent mandated by applicable law.         (b)   Covered Persons shall  not be obligated to seek other employment or take other  action by way of mitigation of the amounts payable or arrangements made under any provision  of  the Policy,  and  the  obtaining  of  any  such  other  employment  shall  in  no  event  effect  any  reduction of the Company’s obligations to make the payments and arrangements required to be  made under the Policy.        9.2   Contractual Rights to Benefits.  Subject to the provisions of Article 15.5 hereof,  the Policy, together with the applicable Covered Person’s Participation Schedule, establishes and  vests in each Covered Person a contractual right to the benefits to which he is entitled hereunder.   Article 10.  Successors.         The Company will require any successor (whether direct or indirect, by purchase, merger,  consolidation, or otherwise) of all or substantially all of the business and/or assets of the                                        10  Matter 000952 CIC Policy  





 






   Company to expressly assume and agree to perform the Company’s obligations under the Policy.   Failure of the Company to obtain such an assumption agreement prior to the effective date of any  such succession shall be a material breach of the Policy.   Article 11.  Restrictive Covenants        (a)   As a condition to participation in the Policy, a Covered Person shall agree to be  bound by the following Restrictive Covenants:              (i)    the Covered  Person acknowledges  that  the  Company’s  Confidential       Information is the exclusive property of the Company, is material and confidential, and       greatly affects the effective and successful conduct of the business of the Company.  The       Covered  Person  agrees  to  use  the  Company’s  Confidential  Information  only  for  the       benefit  of  the  Company  and  shall  not  at  any  time,  directly  or  indirectly,  either  during       employment  with  the  Company  or  afterward,  divulge,  reveal  or  communicate  the       Company’s  Confidential  Information  to  any  person,  firm,  corporation  or  entity       whatsoever, or use the Company’s Confidential Information for such Covered Person’s       own benefit or for the benefit of others;              (ii)   the  Covered  Person shall  not,  at  any  time,  denigrate  or  disparage the       Company or any of its Board of Directors or officers;              (iii)  the Covered Person agrees to make a prompt and complete disclosure to       the  Company of  any  Confidential  Information  in his  or  her possession,  upon  such  a       request by the Company. Upon termination of employment and at any other time upon       request, the Covered Person further agrees to surrender to the Company all documents,       writings  and  other  such  materials  produced  by the  Covered  Person or  coming  into the       Covered Person’s possession by  or through employment  with the Company during the       term  of  such  employment,  and  agrees  that  all  such  materials  are  at  all  times the       Company’s property;              (iv)   the Covered Person agrees to fully cooperate, in all  reasonable respects,       with the Company in regard to any internal or external investigations of the Company, its       business,  its  business  practices  or  the  like  relating  to  the  period  in  which  the  Covered       Person  is  or  was  employed  by  the  Company.  If  the  Covered  Person  is  requested  to       provide assistance after termination of his employment, then he will be reimbursed for       any reasonable expenses within 30 days of submission of applicable receipts or invoices.               (v)    for a period of one (1) year following the Termination Date, anywhere in       the world (and each incorporated and unincorporated area thereof), the Covered Person       will not own, manage, operate, control, be employed by, act as an agent for, participate in       or be connected in any manner with the ownership, management, operation or control of       any business which is engaged in business that is competitive to the Company’s business,       including but not limited to the companies listed on Exhibit C. Nothing contained in this       paragraph shall  be  interpreted  to  prohibit the  Covered  Person from  owning  stock  in       publicly traded corporations that may compete with the Company so long as such stock       ownership does not represent a majority or controlling interest in such corporations;                                         11  Matter 000952 CIC Policy  





 






              (vi)   for a period of one (1) year following the Termination Date, the Covered       Person will not: (i) directly or indirectly, hire or participate in the hiring of any employee       of the Company or any of its affiliates, provided, however that this restriction shall not       apply  either  to  former  employees  of  the  Company  or  to  employees  who  respond  to  a       general advertisement; (ii) solicit or induce, or attempt to solicit or induce, any employee       of the Company or its affiliates to leave the Company or such affiliates for any reason;       and (iii) solicit or induce, or attempt to solicit or induce any customer of or vendor to the       Company  or  its  affiliates to  stop  doing  business  with  or  move  some  or  all  of  such       customer or vendor business to a person or entity other than the Company.         (b)   The Restrictive Covenants are in addition to any rights the Company may have in  law or at equity or under any other agreement.        (c)   As a condition to participation in the Policy, a Covered Person shall further agree  that it is impossible to measure in money the damages which will accrue to the Company in the  event the Covered Person breaches the Restrictive Covenants.  Therefore, if the Company shall  institute  any  action  or  proceeding  to  enforce  the  provisions  hereof,  the Covered  Person shall  agree to waive the claim or defense that the Company has an adequate remedy at law and the  Covered Person shall agree not to assert in any such action or proceeding the claim or defense  that  the  Company has  an  adequate  remedy  at  law.   The  foregoing  shall  not  prejudice  the  Company’s right to require the Covered Person to account for and pay over to the Company any  profit obtained by the Covered Person as a result of any transaction constituting a breach of the  Restrictive Covenants.        (d)   The  validity  or  unenforceability  of  any  provision  of  this  Section 11 shall  not  affect the validity or enforceability of any other provision of this Policy. The Covered Person and  the Company have specifically agreed and acknowledged that the provisions in Section 11 are  fair, reasonable and material. If the scope of any restriction or covenant contained herein should  be  or  become  too  broad  or  extensive  to  permit  enforcement  to  its  fullest  extent,  then  such  restriction  or  covenant  shall  be  enforced  to  the  maximum  extent  permitted  by  law,  and the  Covered Person hereby consents and agrees that (a) it is the parties intention and agreement that  this  Section 11 be  enforced  as  written,  and  (b)  in  the  event  a  court  of  competent  jurisdiction  should determine that any restriction or covenant is too broad or extensive to permit enforcement  to its fullest extent, the scope of any such restriction or covenant may be modified but only as  necessary as the court, in its judgment, deems warranted in order to have the fullest enforcement  possible consistent with governing law.        (e)   The Covered Person’s agreement to be bound by the provisions of this Article 11  shall be effected by the Covered Person’s execution of his or her Participation Schedule in such  form as the Committee may determine from time to time.        (f)   Notwithstanding  the  foregoing, if  a  Covered  Person  is  otherwise  party  to  an  agreement with the Company or its affiliates pursuant to which the Covered Person is subject to  noncompetition  obligations  for  a  period  of  at  least  one  year  following  a  termination  of  employment,  then  the  restrictions  set  forth  in  this  Section  11  shall  not  apply  to  the  Covered  Person, and the noncompetition provisions of such other agreement shall instead remain in effect                                         12  Matter 000952 CIC Policy  





 






   and apply to such Covered Person if and to the extent provided in such Covered Person’s other  agreement.        (g)   Notwithstanding anything to the contrary set forth herein, no confidentiality, non- disparagement or other obligation owed by the Covered Person to the Company or its affiliates  shall prohibit the Covered Person from reporting, whether anonymously or on a disclosure basis,  possible  violations  of  federal  law  or  regulation  to  any  governmental  agency  or  entity  in  accordance  with  the  provisions  of  and  rules  promulgated  under  Section  21F  of  the  Securities  Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or shall require the  Covered Person to notify the Company or any of its affiliates of any such report, and none of the  Company or any of its affiliates will retaliate against the Covered Person for any such report. In  making  any  such  report,  however,  the  Covered  Person  is  not  authorized  to  disclose  communications  with  counsel  that  were  made  for  the  purpose  of  receiving  legal  advice,  that  contain legal advice or that are protected by the attorney work product or similar privilege.   Article 12.  Arbitration of Disputes        (a)   Any disagreement, dispute, controversy or claim arising out of or relating to the  Policy or the interpretation or validity hereof shall be settled exclusively and finally by binding  arbitration to be conducted in Clearwater, Florida or, solely in respect of any Covered Person  with a principal work location in the European Union, London, England, or such other location  as may be specified in the Covered Person’s Participation Schedule.  It is specifically understood  and agreed that any disagreement, dispute or controversy which cannot be resolved between the  parties, including without limitation any matter relating to the interpretation of the Policy, shall  be submitted to arbitration irrespective of the magnitude thereof, the amount in controversy or  whether such disagreement, dispute or controversy would otherwise be considered justifiable or  ripe for resolution by a court or arbitral tribunal.  Nothing in this Article 12(a) shall preclude the  Company from seeking specific performance of the Restrictive Covenants set forth in Article 11  hereof in such jurisdiction as the Company may deem appropriate.        (b)   The  arbitration  shall  be  conducted  in  accordance  with  the  Arbitration  Rules,  except as otherwise provided below.        (c)   The arbitral tribunal shall consist of one arbitrator.  The parties to the arbitration  jointly shall directly appoint such arbitrator within thirty (30) days of initiation of the arbitration.   If  the  parties  shall  fail  to  appoint  such  arbitrator  as  provided  above,  such  arbitrator  shall  be  appointed in accordance with the Arbitration Rules and shall be a person who has had substantial  experience  in executive  compensation  issues  in  the  context  of  mergers  and  acquisitions.  The  Company shall pay all of the fees, if any, and expenses of such arbitrator.        (d)   At  any  oral  hearing  of  evidence  in  connection  with  the  arbitration,  each  party  thereto or its legal counsel shall have the right to examine its witnesses and to cross-examine the  witnesses  of  any  opposing  party.   No  evidence  of  any  witness  shall  be  presented  unless  the  opposing party or parties shall have the opportunity to cross-examine such witness, except as the  parties to the dispute otherwise agree in writing.                                         13  Matter 000952 CIC Policy  





 






        (e)   Any decision or award of the arbitral tribunal shall be final and binding upon the  parties to the arbitration proceeding.  The parties hereto hereby waive to the extent permitted by  law any rights to appeal or to seek review of such award by any court or tribunal.  The parties  hereto  agree  that  the  arbitral  award  may  be  enforced  against  the  parties  to  the  arbitration  proceeding  or  their  assets  wherever  they  may  be  found  and  that  a  judgment  upon  the  arbitral  award may be entered in any court having jurisdiction.        (f)   Nothing  herein  contained  shall  be  deemed  to  give  the  arbitral  tribunal  any  authority, power, or right to alter, change, amend, modify, add to, or subtract from any of the  provisions of the Policy.   Article 13.  Legal Fees.          If the Covered Person prevails on at least one material claim that forms part of a dispute  with the Company regarding the validity or enforceability of, or liability under, any provision of  the Policy (including as a result of any contest by the Covered Person about the amount of any  payment pursuant to Article 6), the Company shall promptly reimburse the Covered Person for  all reasonable attorneys’ fees and related expenses (“Legal Fees”) incurred by the Covered  Person in connection with such dispute.  In no event shall the payments by the Company under  this Article 13 be made later than the end of the calendar year next following the calendar year in  which such Legal Fees were incurred, provided that Covered Person shall have submitted an  invoice for such Legal Fees at least 10 days before the end of the calendar year next following  the calendar year in which such Legal Fees were incurred.  The amount of such Legal Fees that  the Company is obligated to pay in any given calendar year shall not affect the Legal Fees that  the Company is obligated to pay in any other calendar year, and Covered Person’s right to have  the Company pay such Legal Fees may not be liquidated or exchanged for any other benefit.   Article 14.  Trusts; Unfunded Status of Policy        14.1  Unfunded Status of Policy.  The Policy is intended to constitute an “unfunded”  Policy and Covered Persons shall have no claim against the Company or its assets other than as  unsecured  general  creditors.   Notwithstanding  the  foregoing,  the  Company  may,  in  its  sole  discretion, establish  a  trust  or  purchase  other  property  to  assist  it  in  meeting  its  obligations  hereunder  as  set  forth  in Article 14.2 below; provided, however,  that  in  no event  shall  any  Covered Person have any interest in such trust or property other than as an unsecured general  creditor.        14.2  Creation of Trusts.  The Committee may, in its discretion, authorize the creation  of one or more trusts (including sub-accounts under such trust(s)), and deposit therein amounts  of cash, stock, or other property not exceeding the amount of the Company’s obligations with  respect to the Policy, or make other arrangements to meet the Company’s obligations under the  Policy, which trusts or other arrangements shall be consistent with the “unfunded” status of the  Policy.   Article 15.  Miscellaneous        15.1  Employment  Status.  Except  as  may  be  provided  under  any  other  agreement  between  a Covered  Person and  the  Company,  the  employment  of  the Covered  Person by  the                                        14  Matter 000952 CIC Policy  





 






   Company is “at will.”  The Policy does not constitute a contract of employment or impose on the  Company any obligation to retain the Covered Person as an employee, to change the status of the  Covered Person’s employment, or to change the policies of the Company regarding termination  of employment.        15.2  Beneficiaries.          (a)   Except  with  regard  to  the  equity  awards  referenced  in Article 6.1(b),  each  Covered Person may designate one or more persons or entities as the primary and/or contingent  Beneficiaries of any amounts owing to the Covered Person under the Policy.  Covered Persons  may make or change such designations at any time; provided, that such designation must be in  the form of a signed writing acceptable to the Committee and filed with the Company prior to the  Covered Person’s death.  If the Covered Person has not named a Beneficiary, then such amounts  shall be paid to the Covered Person’s estate.        (b)   The Policy shall inure to the benefit of and be enforceable by the Covered Person  or the Beneficiary or the Covered Person’s estate.  If a Covered Person dies while any amount  would still  be payable to the Covered Person hereunder had the Covered  Person continued to  live, all  such amounts, unless otherwise provided herein, shall  be paid in accordance with the  terms of the Policy to the Beneficiary or the Covered Person’s estate or, with respect to any stock  options,  restricted  shares,  restricted  stock units  and  other  equity  awards and  payments,  as  provided in the applicable documents governing such arrangements.          15.3  Number.   Except  where  otherwise  indicated  by  the  context,  the  plural  shall  include the singular, and the singular shall include the plural.        15.4  Severability.  Every provision of this Policy is intended to be severable. If any  term or provision hereof is declared invalid by a court of competent jurisdiction for any reason  whatsoever and cannot be modified to be enforceable, its invalidity will not affect the validity of  the remainder of the Policy, which shall remain in full force and effect.        15.5  Modification and Termination.  The Policy may be amended in any manner and  from time to time or terminated at any time, each at the discretion of the Committee; provided  that, except with regard to an amendment pursuant to Article 15.11:        (a)   with  respect  to  any Initial Covered  Person, the  Committee  may  not  amend,  modify or terminate the Policy in a manner that  adversely affects such Initial Covered Person  prior to the second anniversary of the Effective Date without the express written consent of such  Initial Covered Person;        (b)   no  termination  or amendment that  is adverse to a Covered  Person shall  be  effective with respect to such Covered Person prior to the date that is six (6) months from the  date written notice of such amendment or termination is given to such Covered Person; and        (c)   no termination or amendment that is adverse to a Covered Person and that would  otherwise be effective within six (6) months before or twenty four (24) months after a Change in  Control shall apply to any termination of employment of a Covered Person during such Covered                                        15  Matter 000952 CIC Policy  





 






   Person’s Protected  Period,  as  defined  herein  prior  to  giving  effect  to  any  such  termination  or  amendment(s) of the Policy.        15.6  Applicable Law.  This Policy shall  be subject to, and  construed in accordance  with, the laws of the State of Florida, without reference to its conflict of laws rules.        15.7  Headings.  The section headings or subsection headings have been included for  convenience only, are not part of this Policy, and are not to be taken as an interpretation of any  provision hereof.  References to gender shall include each other gender, as appropriate.        15.8  Notice.  Notices and all other communications contemplated by this Policy shall  be in writing and shall be deemed to have been duly given when personally delivered or when  mailed  by  overnight  courier,  U.S.  registered  or  certified  mail,  return  receipt  requested  and  postage  prepaid.  In  the  case  of a  Covered  Person,  mailed  notices  shall  be  addressed  to such  Covered  Person at  the  home  address  that Covered  Person most  recently  communicated  to  the  Company in  writing.  In  the  case  of  the Company,  mailed  notices  shall  be  addressed  to  its  corporate headquarters, and all notices shall be directed to the attention of its Secretary.        15.9  Joint and Several Obligations.  If the Covered Person is employed during the  Protected Period by one  or more entities that  form part of the Company, whether or not such  Covered Person is also employed by the Company during the Protected Period, each such entity  shall  be  jointly  and  severally liable  together  with the  Company for  the  obligations  of the  Company to the Covered Person hereunder.        15.10 Release.  Payments to be provided to the Covered Person by the Company under  Article 6.1(a)(v) hereof  shall  be  paid  to  the Covered  Person on the  date specified  in  the  respective Article, subject to the condition that the Covered Person has executed and delivered to  the Company a release substantially in the form of Exhibit A hereto and that such release has  become effective, enforceable and irrevocable in accordance with its terms.        15.11 Section 409A of the Code.  It is intended that any amounts payable under this  Policy  and  any exercise  of  authority  or  discretion  hereunder  shall  be  exempt  from  or  comply  with Section 409A of the Code (including the Treasury regulations and other published guidance  relating  thereto)  so  as  not  to  subject a  Covered  Person to  the  payment  of  any  interest  or  additional tax imposed under Section 409A of the Code; provided that the Company makes no  representations  regarding  the  tax  implications  of  any  compensation  or  benefits  to  be  paid  or  provided hereunder under Section 409A of the Code.  In furtherance of this intent, if the date of  payment or the commencement of any installment payments  must be delayed for six months in  order to meet the requirements of Section 409A(a)(2)(B) of  the Code applicable to “specified  employees,” then such payment or payments shall be so delayed and paid upon the expiration of  such six month period.  With regard to any provision herein that provides for reimbursement of  expenses, or in-kind benefits, such reimbursements or in-kind benefits shall be paid in a manner  consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).        15.12 Clawback.  Notwithstanding anything in this Policy to the contrary, the Company  may  be  entitled  or  required  by  law, any  applicable  Company policy  (any  such  policy,  a  “Clawback  Policy”)  or  the  requirements  of  an  exchange  on  which the  Company’s shares  are                                        16  Matter 000952 CIC Policy  





 






   listed for trading, to recoup compensation paid to a Covered Person pursuant to this Policy or  otherwise,  and each  Covered  Person  selected  to  be  covered  by  the  Policy  shall  be  deemed  to  have agreed to  comply  with  any such  Company request  or  demand  for  recoupment.  Each  Covered Person shall also be deemed to have acknowledged and agreed that the Clawback Policy  may  be  modified  from  time  to  time  in  the  sole  discretion  of the  Company and  without  the  consent of the Covered Person, and that such modification will be deemed to amend this Policy;  provided, that,  except  as  otherwise required by  applicable  law  (including  the  terms  of  any  exchange  on  which  the  Company’s  shares  are  then  listed  for  trading), the  effect  of any  such  amendment or modification on amounts payable or benefits to be provided hereunder shall be  subject to the limitations set forth in Section 15.5.  Each Covered Person shall also be deemed to  have acknowledged and agreed that, subject to the limitations set forth in the foregoing sentence,  the Clawback  Policy  as  in  effect  from  time  to  time  shall  apply  to  any  and  all  payments  of  compensation and benefits (other than such Covered Person’s base salary and benefits under any  tax-qualified retirement plan or health and welfare plan) as specified in the Clawback Policy.                                         17  Matter 000952 CIC Policy