EXHIBIT 10.1
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
dated as of July 31, 2014
among
TITAN MACHINERY INC.
a Delaware corporation
,
as Borrower,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
,
as Administrative Agent,
Swing Line Lender and L/C Issuer
BANK OF AMERICA, N.A.
as Syndication Agent
COBANK, ACB
as Documentation Agent
WELLS FARGO SECURITIES, LLC
Sole Lead Arranger and Sole Book Runner
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(“
Fourth Amendment
”), dated as of July 31, 2014 (“
Fourth Amendment Effective Date
”), is among
TITAN MACHINERY INC.
, a Delaware corporation (“
Borrower
”), the several financial institutions party to this Fourth Amendment as Lenders, and
WELLS FARGO BANK, NATIONAL ASSOCIATION
, a national banking association, as Administrative Agent, Swing Line Lender and L/C Issuer. Capitalized terms not otherwise defined herein shall have the meaning assigned to them in the Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS Borrower, Administrative Agent, Lenders, Swing Line Lender, and L/C Issuer are parties to that certain Amended and Restated Credit Agreement dated March 30, 2012, as amended by that certain First Amendment to Amended and Restated Credit Agreement dated as of December 4, 2012, that certain Second Amendment to Amended and Restated Credit Agreement dated as of November 14, 2013, and that certain Third Amendment to Amended and Restated Credit Agreement dated as of April 3, 2014 (as further amended from time to time, the “
Credit Agreement
”) and, as applicable, the other Loan Documents, pursuant to which Lenders have made available to Borrower certain extensions of credit referenced therein on the terms and conditions contained therein; and
WHEREAS Borrower has requested that Administrative Agent and Lenders (a) modify the Working Capital Borrowing Base and the Borrowing Base Certificate, and (b) further modify the Credit Agreement on the terms and conditions contained herein; and
WHEREAS the Administrative Agent and Lenders have agreed to modify the Credit Agreement on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows:
AGREEMENT
ARTICLE I – MODIFICATIONS & CONSENTS
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SECTION 1.1
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MODIFICATIONS TO CREDIT AGREEMENT
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As of the Fourth Amendment Effective Date, the Credit Agreement is modified as follows:
1.1.1
The definition of “CNH Intercreditor Agreement” in Section 1.01 of the Credit Agreement is hereby deleted in its entirety and the following is substituted therefor:
“
CNH Intercreditor Agreement
” means an Amended and Restated Intercreditor Agreement among CNH Industrial Capital America LLC, CNHI International S.A., and Wells Fargo Bank, National Association.
1.1.2
The following definition of “CNH Finance Reserve” is hereby inserted in Section 1.01 of the Credit Agreement in alphabetical order:
“
CNH Finance Reserve
” means the amount of $25,000,000 representing the maximum liability of Borrower under that certain Amended and Restated Guaranty in favor of CNHI International S.A.
1.1.3
The definition of “CNH Parts Reserve” in Section 1.01 of the Credit Agreement is hereby deleted in its entirety and the following is substituted therefor:
“
CNH Parts Reserve
” means an amount established by the Administrative Agent to reflect the amount of proceeds of Case New Holland parts which, in accordance with the terms of the CNH Intercreditor Agreement, CNH Industrial Capital America LLC is entitled to receive after deduction for the CNH Parts Debt (as defined in the CNH Intercreditor Agreement).
1.1.4
The following definition of “CNH Payables” is hereby inserted in Section 1.01 of the Credit Agreement in alphabetical order:
“
CNH Payables
” means payables owed by Borrower to CNH Industrial Capital America LLC or CNHI International S.A. in respect of Case New Holland Parts.
1.1.5
The definition of “Working Capital Borrowing Base” in Section 1.01 of the Credit Agreement is hereby deleted in its entirety and the following is substituted therefor:
“
Working Capital Borrowing Base
” means as of any date of calculation, an amount, as set forth on the most current Borrowing Base Certificate delivered to the Administrative Agent, equal to the sum of:
(a)
80% of Eligible Accounts;
plus
(b)
85% of the net book value of Eligible Rental Equipment;
plus
(c)
75% of the sum of (i) Eligible Parts and Attachments Inventory,
minus
(ii) CNH Payables,
minus
(iii) the CNH Finance Reserve,
minus
(iv) the CNH Parts Reserve;
plus
(d)
50% of Eligible Work in Process Inventory;
minus
(e)
the Working Capital Borrowing Base Reserve.
The Borrower, Administrative Agent and the Lenders acknowledge and agree that (i) the advance rates set forth in this definition are solely to establish the parameters for Availability, and (ii) this definition does not constitute nor shall it be deemed to constitute an express or implied representation or determination by Lenders that the recovery in a forced liquidation scenario would be equal to the advance rates established herein.
1.1.6
Exhibit H (Form of Borrowing Base Certificate) to the Credit Agreement is deleted and replaced with the Borrowing Base Certificate form attached to this Fourth Amendment as Exhibit A.
SECTION 1.2 APPROVAL OF INTERCREDITOR AGREEMENT.
The Lenders acknowledge receipt of a copy of the draft Amended and Restated Intercreditor Agreement among CNH Industrial Capital America LLC, CNHI International S.A., and Wells Fargo Bank, National Association (the “
Amended Intercreditor Agreement
”). Lenders hereby authorize the Administrative Agent to enter into the Amended Intercreditor Agreement in substantially the form previously provided to the Lenders.
ARTICLE II – COVENANTS
Borrower shall pay all reasonable expenses and costs of Administrative Agent (including, without limitation, the reasonable attorney fees and expenses of counsel for Administrative Agent) in connection with the preparation, negotiation, execution and approval of this Fourth Amendment and any and all other documents, instruments and things contemplated hereby, whether or not such transactions are consummated, together with all other reasonable expenses and costs incurred by Administrative Agent chargeable to Borrower pursuant to the terms of the Credit Agreement which are unpaid at such time.
ARTICLE III – CONDITIONS TO FOURTH AMENDMENT; GENERAL PROVISIONS
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SECTION 3.1
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CONDITIONS PRECEDENT
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3.1.1
This Fourth Amendment and the transactions contemplated herein are expressly conditioned upon the satisfaction by Borrower of the following conditions, all in the sole but reasonable discretion of the Administrative Agent:
(a) Borrower shall have delivered to Administrative Agent such certificates of resolutions or other action, incumbency certificates or other certificates of Responsible Officers of Borrower as Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which Borrower is a party, each in form and substance reasonably acceptable to Administrative Agent;
(b) No Material Adverse Effect shall have occurred since Closing;
(c) No Default or Event of Default shall have occurred and be continuing; and
(d) Borrower shall have paid all amounts owed to Administrative Agent and Lenders in connection with this Fourth Amendment.
3.1.2
Without limiting the foregoing, the effectiveness of this Fourth Amendment shall be conditioned on receipt by Administrative Agent of the consent of Required Lenders.
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SECTION 3.2
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RATIFICATION; ESTOPPEL; REAFFIRMATION
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3.2.1
Borrower hereby reaffirms and ratifies the Credit Agreement and other Loan Documents, as amended, modified and supplemented hereby.
3.2.2
Borrower hereby reaffirms to Administrative Agent and to each Lending Party that each of the representations, warranties, covenants and agreements set forth in the Credit Agreement and the other Loan Documents with the same force and effect as if each were separately stated herein and made as of the date hereof except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date.
3.2.3
Borrower further represents and warrants that, as of the date hereof, it has no counterclaims, defenses or offsets of any nature whatsoever to the Obligations or any of the Loan Documents and that as of the date hereof no unwaived Default or Event of Default by Borrower, Administrative Agent or any Lending Party has occurred or exists under any of the Loan Documents.
3.2.4
Borrower hereby ratifies, affirms, reaffirms, acknowledges, confirms and agrees that the Credit Agreement and other Loan Documents, as amended, modified and supplemented hereby by this Fourth Amendment, represent the valid, binding, enforceable and collectible obligations of Borrower except to the extent enforceability may be limited by bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally and by equitable principles.
3.2.5
Borrower hereby affirms, acknowledges and confirms that the provisions of this Fourth Amendment shall be a part of the Credit Agreement and Loan Documents for all purposes.
3.2.6
Borrower affirms and acknowledges that the recitals to this Fourth Amendment are true and accurate and are hereby incorporated into this Fourth Amendment.
Borrower does hereby release, remise, acquit and forever discharge Administrative Agent and Lenders and Administrative Agent and Lenders’ employees, agents, representatives, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, subsidiary corporations, parent corporation, and related corporate divisions (all of the foregoing hereinafter called the
“
Released Parties
”), from any and all action and causes of action, judgments, executions, suits, debts, claims, demands, liabilities, obligations, damages and expenses of any and every character, known or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or nature, whether heretofore or hereafter arising, for or because of any matter or things done, omitted or suffered to be done by any of the Released Parties prior to and including the date of execution hereof, and in any way directly or indirectly arising out of or in any way connected to this Fourth Amendment, the Credit Agreement and the other Loan Documents, except, in each case, to the extent of the gross negligence or willful misconduct of the Released Parties (all of the foregoing hereinafter called the “
Released Matters
”). Borrower acknowledges that the agreements in this paragraph are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the Released Matters. Borrower represents and warrants to Administrative Agent and the Lenders that it has not purported to transfer, assign or otherwise convey any right, title or interest of Borrower in any Released Matter to any other Person and that the foregoing constitutes a full and complete release of all Released Matters.
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SECTION 3.4
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TIME OF THE ESSENCE
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Time is of the essence of the Fourth Amendment, the Credit Agreement and Loan Documents.
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SECTION 3.5
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GOVERNING LAW; JURISDICTION; ETC.
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3.5.1 GOVERNING LAW.
THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW
.
3.5.2 SUBMISSION TO JURISDICTION.
EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS FOURTH AMENDMENT OR ANY OTHER LOAN DOCUMENT TO WHICH EACH IS A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURTS OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURTS. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS FOURTH AMENDMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS FOURTH AMENDMENT
OR ANY OTHER LOAN DOCUMENT AGAINST ANY OTHER PARTY OR ANY OF ITS PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION.
3.5.3 WAIVER OF VENUE.
EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS FOURTH AMENDMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN SECTION 3.5.2. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
3.5.4 SERVICE OF PROCESS.
EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN S
ECTION 10.02
OF THE CREDIT AGREEMENT. NOTHING IN THIS FOURTH AMENDMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
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SECTION 3.6
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COUNTERPARTS; SEVERABILITY
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3.6.1
This Fourth Amendment may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument.
3.6.2
If any term or provision of this Fourth Amendment, or the application thereof to any person or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this Fourth Amendment, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Fourth Amendment shall be valid and shall be enforced to the fullest extent permitted by law.
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SECTION 3.7
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WAIVER OF RIGHT TO JURY TRIAL
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TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM. EACH OF THE PARTIES HERETO REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL ON SUCH MATTERS. IN THE EVENT OF LITIGATION, A COPY OF THIS FOURTH AMENDMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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SECTION 3.8
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FINAL EXPRESSION
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THIS WRITTEN AGREEMENT IS THE FINAL EXPRESSION OF THE FOURTH AMENDMENT TO THE CREDIT AGREEMENT AMONG THE PARTIES HERETO AS THE
SAME EXISTS TODAY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR OR CONTEMPORANEOUS ORAL AGREEMENT BETWEEN THE PARTIES HERETO.
BY SIGNING BELOW, THE PARTIES HERETO HEREBY AFFIRM THAT THERE IS NO UNWRITTEN ORAL CREDIT AGREEMENT BETWEEN THEMSELVES WITH RESPECT TO THE SUBJECT MATTER OF THIS FOURTH AMENDMENT OR OF THE CREDIT AGREEMENT GENERALLY.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed as of the date first written above.
BORROWER:
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TITAN MACHINERY INC.,
a Delaware corporation
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By:
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/s/ Ted O. Christianson, Treasurer
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Name:
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Ted O. Christianson
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Title:
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Treasurer
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
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ADMINISTRATIVE AGENT, L/C ISSUER AND SWING LINE LENDER:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, as Administrative Agent, L/C Issuer and Swing Line Lender
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By:
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/s/ Mark T. Lundquist
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Name:
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Mark T. Lundquist
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Title:
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Vice President
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, as a Lender
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By:
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/s/ Mark T. Lundquist
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Name:
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Mark T. Lundquist
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Title:
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Vice President
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
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By:
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/s/ Kathleen M. Roberts
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Name:
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Kathleen M. Roberts
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Title:
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VP
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
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LENDER:
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BANK OF AMERICA, N.A.
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By:
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/s/ Don Stafford
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Name:
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Don Stafford
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Title:
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SVP
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
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LENDER:
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BANK OF THE WEST
a California banking corporation
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By:
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/s/ Ryan J. Mauser
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Name:
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Ryan Mauser
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Title:
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Vice President
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Signature Page to Fourth Amendment to Amended and Restated Credit Agreement
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LENDER:
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BREMER BANK, N.A.
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By:
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/s/ Wesley Well
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Name:
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Wesley Well
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Title:
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Branch Mgr / SVP
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By:
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/s/ Darren Grahsl
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Name:
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Darren Grahsl
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Title:
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Vice President
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EXHIBIT A
FORM OF BORROWING BASE CERTIFICATE
(attached)
Exhibit A to Fourth Amendment to Amended and Restated Credit Agreement
BORROWING BASE CERTIFICATE
Pursuant to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 30, 2012, among Titan Machinery Inc., a Delaware corporation (“
Borrower
”), the Subsidiary Guarantors party thereto, the several financial institutions thereto as Lenders, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent, Swing Line Lender and L/C Issuer (as amended from time to time, the “
Credit Agreement
”), the undersigned certifies that as of the close of business on the date set forth below, the Floorplan Availability and Working Capital Availability are computed as set forth below.
The undersigned represents and warrants that this Borrowing Base Certificate is a true and correct statement of, and that the information contained herein is true and correct in all material respects regarding, the status of Eligible Accounts, Eligible New Equipment Inventory, Eligible Used Equipment Inventory, Eligible Rental Equipment, and Eligible Parts and Attachments Inventory and that the amounts reflected herein are in compliance with the provisions of the Credit Agreement and the Exhibits thereto. The undersigned further represents and warrants that there is no continuing Event of Default and all representations and warranties continued in the Credit Agreement and other Loan Documents are true and correct in all material respects. The undersigned understands that Wells Fargo Bank, National Association, and the other Lenders will extend loans in reliance upon the information contained herein. In the event of a conflict between the following summary of eligibility criteria and the criteria set forth in the definition of Eligible Accounts, Eligible New Equipment Inventory, Eligible Used Equipment Inventory, Eligible Rental Equipment, and Eligible Parts and Attachments Inventory indicated in the Credit Agreement, the Credit Agreement shall govern. Capitalized terms used herein and not otherwise defined herein shall have the meanings specified in the Credit Agreement.
Calculation of Floorplan Borrowing Base as of __________________________:
New Equipment Inventory - NBV $__________________ [a]
Less: Ineligible New Equipment Inventory
Encumbered/Other U.S. New Equipment Inventory $____________
New Equipment Inventory located outside the U.S. $____________
New Equipment on Hand > 3 years $____________
Total Ineligible New Equipment Inventory $__________________ [b]
Total Eligible New Equipment Inventory ([a]-[b]) $__________________ [c]
Eligible New Equipment Inventory held one year or less $__________________ [d]
Available at 90% of net book value ([d]*0.90) $__________________ [e]
Eligible New Equipment Inventory held more than one year but less
than or equal to two years $__________________ [f]
Available at 80% of net book value ([f]*0.80) $__________________ [g]
Eligible New Equipment Inventory held more than two years but
less than or equal to three years $__________________ [h]
Available at 70% of net book value ([h]*0.70) $__________________ [i]
Used Equipment Inventory - NBV $__________________ [j]
Less: Ineligible Used Equipment Inventory
Encumbered/Other U.S. Used Equipment Inventory $____________
Used Equipment on Hand > 3 years $____________
Used Equipment Inventory located outside the U.S. $____________
Total Ineligible Used Equipment Inventory $__________________ [k]
Total Eligible Used Equipment Inventory ([e]-[f]) $__________________ [l]
Eligible Used Equipment Inventory held one year or less $__________________ [m]
Available at 85% of net book value ([m]*0.85) $__________________ [n]
Eligible Used Equipment Inventory held more than one year but less
than or equal to two years $__________________ [o]
Available at 75% of net book value ([o]*0.75) $__________________ [p]
Eligible Used Equipment Inventory held more than two years but
less than or equal to three years $__________________ [q]
Available at 65% of net book value ([q]*0.65) $__________________ [r]
Floor Plan Borrowing Base ([e] + [g] + [i] + [n] + [p] + [r]) $__________________ [s]
Total Floorplan Loans $__________________ [t]
Total Swing Line Loans $__________________ [u]
L/C Credit Extension $__________________ [v]
Total Floorplan Outstandings ([t]+[u]+[v]) $__________________ [w]
Aggregate Floorplan Commitment $__________________ [x]
Floorplan Availability (lesser of [s] minus [w] or; [x] minus [w]) $__________________
Calculation of WORKING CAPITAL Borrowing Base as of
__________________________:
Gross Accounts Receivable $__________________ [a]
Less: Ineligible Accounts Receivable
A/R Greater than 90 days Past Due $____________
Cross Agings > 20% $____________
Warranty Receivables $____________
Supplier Receivables $____________
Discount Receivables $____________
Other A/R Due From Suppliers $____________
Employee Receivables $____________
Encumbered A/R or Contracts in Transit $____________
Foreign Receivables $____________
Related Party/Intercompany Receivables $____________
Other Ineligible Receivables $____________
Total Ineligible Accounts Receivable $__________________ [b]
Total Eligible Accounts Receivable ([a]-[b]) $__________________ [c]
Available at 80% Advance Rate ([c]*0.80) $__________________ [d]
Rental Equipment Inventory - NBV $__________________ [e]
Less: Ineligible Rental Equipment Inventory $__________________ [f]
Total Eligible Used Rental Equipment Inventory ([e]-[f]) $__________________ [g]
Available at 85% of net book value ([g]*0.85) $__________________ [h]
Gross Parts and Attachments Inventory $__________________ [i]
Less: Ineligible Parts and Attachments Inventory
Trade/Notes Payables due to CNH $____________
CNH Finance Reserve $ 25,000
CNH Parts Reserve
1
$____________
Parts on Hand > 3 years in excess of $1MM $____________
Parts Subject to First Lien of Others (Non CNH) $____________
Foreign Parts $____________
Total Ineligible Parts and Attachments $__________________ [j]
Total Eligible Parts and Attachments Inventory ([i]-[j]) $__________________ [k]
Available at 75% Advance Rate ([k]*0.75) $__________________ [l]
Work in Process Inventory $__________________ [m]
Available at 50% Advance Rate ([m]*.50) $__________________ [n]
Total Parts and Attachments Inventory ([l] + [n]) $__________________ [o]
Working Capital Borrowing Base ([d] + [h] + [o]) $__________________ [p]
Working Capital Loans $__________________ [q]
L/C Credit Extension $__________________ [r]
Total Working Capital Outstandings ([q]+[r]) $__________________ [s]
Aggregate Working Capital Commitment $__________________ [t]
Working Capital Availability (lesser of [p] minus [s] or; [t] minus [s]) $__________________
IN WITNESS WHEREOF, this Borrowing Base Certificate has been duly executed as of the date first written above.
TITAN MACHINERY INC.
a Delaware corporation
By: ____________________________
Name: __________________________
Title: ___________________________
1
CNH Parts Reserve = 50% of the sum of CNH Parts & Attachments less Trade/Notes Payable due to CNH less CNH Finance Reserve of $25,000,000.
EXHIBIT 10.2
RESTRICTED STOCK UNIT AGREEMENT
TITAN MACHINERY INC.
2014 EQUITY INCENTIVE PLAN
THIS AGREEMENT, made effective as of this ____ day of _______, 20___, by and between Titan Machinery Inc., a Delaware corporation (the “
Company
”), and ________________ (“
Participant
”).
W I T N E S S E T H:
WHEREAS, the Participant on the date hereof is an employee of the Company or one of its Affiliates; and
WHEREAS, the Company wishes to grant a restricted stock unit award to Participant for settlement in shares of the Company’s common stock pursuant to the Company’s 2014 Equity Incentive Plan (the “
Plan
”); and
WHEREAS, the Administrator of the Plan has authorized the grant of a restricted stock unit award to the Participant.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the parties hereto agree as follows:
1.
Grant of Restricted Stock Unit Award
. Pursuant to Section 11 of the Plan, the Company hereby grants to Participant on the date set forth above (the “
Grant Date
”) a restricted stock unit award (the “
Restricted Stock Units
”) enabling the Participant to receive up to __________________ (________) shares of the Company’s common stock subject to the terms, conditions, and restrictions set forth in this Agreement and the Plan. Capitalized terms that are used but not defined herein have the meaning ascribed to them in the Plan.
2.
Vesting of Restricted Stock Units
.
a.
The Restricted Stock Units will vest in accordance with the following schedule:
Vesting Date
Units
April 1, 20__
April 1, 20__
April 1, 20__
April 1, 20__
April 1, 20__
If the Participant’s employment is terminated for any reason other than employee’s death, or the Participant’s employment status changes from full-time to part-time, then Participant shall immediately forfeit all unvested Restricted Stock Units. The foregoing vesting schedule notwithstanding, in the event of the Participant’s death, 100% of the unvested Restricted Stock Units shall vest as of the date of death.
b.
Solely for purposes of this Agreement, “full-time” means regularly scheduled to work at least 40 hours per week, and “part-time” means regularly scheduled to work less than 40 hours per week.
c.
Upon vesting of any portion of the Restricted Stock Units, pursuant to the schedule above, the Company will cause to be issued to Participant either a share certificate or uncertificated book-entry shares bearing such legend as the Company deems advisable pursuant to the exercise of its discretion under Section 4(b) below.
3.
Rights as Shareholder; Dividends
.
Until the Restricted Stock Units vest and shares of common stock are issued to Participant, the Participant shall not be entitled to any of the rights of a shareholder of the Company including, without limitation, the right to vote such units and receive all dividends or other distributions paid with respect to such units.
4.
Miscellaneous
.
a.
Employment Status
. This Agreement shall not confer on Participant any right with respect to continuance of employment by the Company or any of its Affiliates, nor will it interfere in any way with the right of the Company to terminate such employment. Except to the extent otherwise set forth in any written employment agreement, Participant’s employment relationship with the Company and its Affiliates shall be employment-at-will, and nothing in this Agreement shall be construed as creating an employment contract for any specified term between Participant and the Company or any Affiliate.
b.
Transfers; Securities Law Compliance
. Prior to vesting, Participant shall not transfer, other than by will or the laws of descent and distribution, or otherwise dispose of the Restricted Stock Units received pursuant to this Agreement. The Participant may be required by the Company, as a condition of the effectiveness of this restricted stock unit award, to agree in writing that all shares to be issued upon vesting of the Restricted Stock Units subject to this Agreement shall be held, until such time that such shares are registered and freely tradable under applicable state and federal securities laws, for Participant’s own account without a view to any further distribution thereof, that the certificates for such shares shall bear an appropriate legend to that effect, and that such shares will be not transferred or disposed of except in compliance with applicable state and federal securities laws. A legend may be placed on any certificate(s) or other document(s) delivered to the Participant indicating restrictions on transferability of the shares pursuant to this Agreement or any other restrictions that the Company may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any applicable federal or
state securities laws or any stock exchange on which the shares of the Company’s common stock are then listed or quoted.
c.
Withholding Taxes
. In order to permit the Company to comply with all applicable income tax laws or regulations, the Company may take such action as it deems appropriate to insure that, if necessary, all applicable payroll, income or other taxes are withheld from any amounts payable by the Company to the Participant. If the Company is unable to withhold such federal and state taxes, for whatever reason, the Participant hereby agrees to pay to the Company an amount equal to the amount the Company would otherwise be required to withhold under applicable law.
d.
Restricted Stock Units Subject to Plan
. This Agreement is subject to the Plan as approved by the Company's shareholders. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
e.
Binding Agreement
. This Agreement shall bind and inure to the benefit of the Company, its Affiliates and its successors and assigns and Participant and any successor or successors of Participant permitted by this Agreement.
f.
Acceptance
. The Participant hereby acknowledges access to the Plan and receipt of this Agreement. The Participant has read and understands the terms and provisions thereof, and accepts the Restricted Stock Units subject to all of the terms and conditions of the Plan and this Agreement. The Participant acknowledges that there may be adverse tax consequences upon the vesting or settlement of the Restricted Stock Units or disposition of the underlying shares and that the Participant has been advised to consult a tax advisor prior to such vesting, settlement or disposition of the Restricted Stock Units or shares issued upon vesting.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.
TITAN MACHINERY INC.
By: ____________________________________
[Name of Authorized Officer]
[Title]
__________________________________________
(Signature of Participant)
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644 East Beaton Drive
West Fargo, North Dakota 58078
Phone: (701) 356-0130
Fax: (701) 356-0139
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Mark Kalvoda
c/o Titan Machinery Inc.
644 East Beaton Drive
West Fargo, ND 58078-2648
Dear Mark:
This letter agreement confirms our discussions regarding your continuing as the Chief Financial Officer of Titan Machinery Inc. (the “
Company
”), and sets out the terms and conditions of your employment with the Company, as follows:
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Title:
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You will serve as the Company’s Chief Financial Officer (“
CFO
”).
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Term:
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Unless terminated by either party as provided in this letter agreement, the term of your employment as CFO of the Company under this letter agreement shall be for a rolling three-year period (the “
Term
”) as follows: the initial term shall commence on
February 1, 2014
(“
Effective Date
”) and end on
January 31, 2017
, which end date shall be automatically extended by one year on each anniversary of the Effective Date. Thus, for example, on February 1, 2014, the end date shall be extended to January 31, 2017, and on February 1, 2015, the end date shall be extended to January 31, 2018. Such automatic extensions shall continue unless either party provides the other with written notice terminating the automatic extensions prior to August 1 of any year.
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Responsibilities:
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During your employment with the Company as CFO, you will report to the Chief Executive Officer of the Company (the “
CEO
”) and will be responsible for the overall operations and direction and financial matters of the Company. You agree to serve the Company faithfully and to the best of your ability, and to devote your full working time, attention and efforts to the business of the Company. You further agree to make yourself available as needed, in a timely manner, to address business issues that may arise. You may, to a reasonable extent, participate in charitable activities, personal investment activities and outside businesses that are not competitive with the business of the Company and serve on boards of directors, so long as such activities and directorships do not interfere with the performance of your duties and responsibilities to the Company; provided, that you shall report on all such activities and directorships to the CEO at least annually.
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Representations:
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By signing below, you represent and confirm that you are under no contractual or legal commitments that would prevent you from fulfilling your duties and responsibilities to the Company as CFO.
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Initial Base Salary:
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You will be paid a base salary as established by the Compensation Committee for services performed, in accordance with the regular payroll practices of the Company with annual review by the Compensation Committee of the Board (the “
Committee
”). Your performance and base salary will be reviewed by the Committee annually and may be adjusted upward from time to time in the discretion of the Committee, but will not be reduced during the Term.
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Incentive Bonus:
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For each full fiscal year of the Company that you are employed during the Term, you will be eligible for an annual cash incentive award payable pursuant to the terms and conditions established by the Committee on an annual basis. Any annual incentive bonus earned for a fiscal year will be paid to you within two and one-half (2½) months after the end of such fiscal year.
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Long-Term Equity Incentive:
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On June 1, 2015 and on June 1 of each year thereafter, or such other date as determined by the Committee, that this letter agreement is in effect, you will be entitled to receive an equity award, as determined by the Committee. Each award shall be granted in accordance with the terms of the Company’s Equity Grant Policy. The award will be subject to such terms (including, without limitation, vesting, risk of forfeiture, or similar terms) as shall be determined by the Committee.
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Benefits:
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During your employment with the Company, you will be eligible to participate in the employee benefit plans and programs generally available to other executive officers of the Company, and in such other employee benefit plans and programs to the extent that you meet the eligibility requirements for each individual plan or program and subject to the provisions, rules and regulations applicable to each such plan or program as in effect from time to time. The plans and programs of the Company may be modified or terminated by the Company in its discretion.
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Vacation:
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During your employment with the Company, you will receive vacation time off in accordance with the policies and practices of the Company. Vacation time shall be taken at such times so as not to unduly disrupt the operations of the Company. While away from the office during vacation time or otherwise, you agree that business issues may arise that require your attention, whether remotely or in person.
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Office Location:
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Your employment will be based at the Company’s headquarters in West Fargo, North Dakota. Of course, regular travel will be required in the course of performing your duties and responsibilities as CFO.
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Confidential Information:
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You have had and will continue to have access to and familiarity with the confidential and proprietary information of the Company. You agree that all Confidential Information, whether or not in writing, concerning the Company is and shall be the exclusive property of the Company. For purposes of this paragraph, the term “Confidential Information” means information that is not generally known and that is proprietary to the Company or that has been made available to the Company in a manner reasonably understood to require confidential treatment, including, without limitation, trade secret information about the Company and its products; information relating to the business of the Company or anticipated to be conducted by the Company; any of the Company’s past, current or anticipated products; information about the Company’s research, development, manufacturing, purchasing, accounting, engineering, marketing, selling, leasing, servicing, discoveries, improvements, inventions, designs, graphs, drawings, methods, techniques, plans, strategies, customer lists, licensee lists, marketing plans, pricing and other policies, forecasts, budgets, customer information, financial data, personnel data; and any other material relating to Confidential Information, however documented. All information that you have a reasonable basis to consider Confidential Information or that is treated by the Company as being Confidential Information shall be presumed to be Confidential Information, without regard to the manner in which you obtain access to such information.
During the time you are employed with the Company and for a period of ten (10) years following the date your employment with the Company ends for any reason (except with respect to trade secrets, which you agree to keep confidential for so long as such information remains a trade secret), and except (i) in the ordinary course of performing your employment duties for the Company, (ii) as expressly authorized in writing by the Board, or (iii) as compelled to disclose Confidential Information by judicial or governmental authority, you agree not to disclose any Confidential Information to persons or entities outside the Company, or to use any Confidential Information for any other purpose, either during or after your employment, unless and until such Confidential Information has become public knowledge without fault by you. You also agree to deliver all written, electronic, magnetic, computer or other recorded or tangible material and copies thereof containing Confidential Information to the Company upon the earlier of a request by the Company or the date your employment with the Company ends. You further agree to treat all confidential information and know-how of any affiliate, employee, customer, contractor, vendor, or supplier of the Company, as applicable, in the same manner as the Confidential Information.
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Noncompetition:
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In consideration of you and the Company entering into this letter agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and to protect the reasonable business interests of the Company, you agree that while you are an employee of the Company, and for a period of 24 months after termination of your employment for any reason, you will not directly or indirectly, whether on your own behalf or that of a third party (other than the Company), engage in the business (whether as an owner of, or as employee, director or officer of or consultant to any business, other than the Company, that is engaged in the business), of owning or operating agricultural or construction equipment stores in any state or Canadian province in which the Company or its subsidiaries owns or operates any agricultural or construction equipment stores during the term of your employment. You agree that the Company will be entitled to equitable relief without the requirement of posting a bond to enforce the terms of such noncompetition restriction, in addition to any other rights or remedies that the Company may have. In the event that any provision of this noncompetition clause (or any other provision contained in this letter agreement) shall be determined by any court of competent jurisdiction to be unenforceable, such provision shall be interpreted to extend only over the maximum period of time for which it may be enforceable and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which they may be enforceable, all as determined by such court in such action so as to be enforceable to the extent consistent with then applicable law. This noncompetition clause shall survive the termination of your employment, and shall apply whether the termination of your employment is voluntary or involuntary and regardless of the reason for such termination.
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Non-Solicitation of Employees:
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You agree that for a period of three (3) years following your employment with the Company, you will, not directly or indirectly, either for yourself or any other person or entity solicit, induce, or attempt to induce any employee of the Company to leave the employ of the Company.
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Termination:
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You may terminate the employment relationship during the Term with at least 60 days’ written notice. The Company may terminate the employment relationship during the Term for Cause at any time with written notice or without Cause with at least 60 days’ written notice. Upon termination of your employment by either party for any reason, you will promptly resign any and all positions you then hold as officer or director of the Company or any of its affiliates.
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Severance:
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In case of involuntary termination of your employment by the Company without Cause prior to the expiration of the Term or in the case of voluntary resignation of your employment for Good Reason prior to the expiration of the Term (each a “
Qualifying Termination
”), the Company will pay you as severance pay an amount equal to the sum of (a) your annual base salary at the rate in effect on your last day of employment plus (b) the annual incentive bonus last paid to you preceding the Qualifying Termination. In addition, upon a Qualifying Termination the Company will, for a period of 12 months following the effective date of termination of your employment, allow you to continue to participate in the Company’s group medical and dental plans at the Company’s expense (with premiums payable on a monthly basis), to the extent you were a participant as of your last day of employment; however, if your participation in any such plan is barred or not permitted under the terms thereof, the Company will arrange to provide you with substantially similar coverage at its expense up to the expense. Benefits provided by the Company may be reduced if you become eligible for comparable benefits from another employer or third party.
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Payment by the Company of any severance pay or premium reimbursements under this paragraph will be conditioned upon you (1) signing and not revoking a full release of all claims against the Company, its affiliates, officers, directors, employees, agents and assigns, substantially in the form attached to this letter agreement as
Exhibit A,
within 30 days of the Qualifying Termination, (2) complying with your obligations under this letter agreement, including the noncompetition covenant herein, or any other agreement continuing between you and the Company then in effect, (3) cooperating with the Company in the transition of your duties, and (4) agreeing not to disparage or defame the Company, its affiliates, officers, directors, employees, agents, assigns, products or services.
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Any severance pay will be paid to you over 12 months in accordance with the Company’s normal payroll practices commencing on the first day of the month coincident with or following the 40
th
day after the Qualifying Termination,. All payments under this severance clause are subject to applicable withholding for income and FICA taxes and any other proper deductions. Notwithstanding the foregoing, if any of the amounts described in this severance clause are treated as deferred compensation subject to the requirements of Section 409A of the Internal Revenue Code, as amended (the “
Code
”), and the Company determines that you are a “specified employee” as defined in Section 409A of the Code, then such amounts which are payable within the first six months following your “separation from service” as determined under Section 409A of the Code will be accumulated and will be paid on the first day of the seventh month following your separation from service.
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For purposes of this letter agreement, “Cause” and “Good Reason” have the following definitions:
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“
Cause
” means a determination in good faith by the Company of the existence of one or more of the following: (i) commission by you of any act constituting a felony; (ii) any intentional and/or willful act of fraud or material dishonesty by you related to, connected with or otherwise affecting your employment with the Company, or otherwise likely to cause material harm to the Company or its reputation; (iii) the willful and/or continued failure, neglect, or refusal by you to perform in all material respects your duties with the Company as an employee, officer or director, or to fulfill your fiduciary responsibilities to the Company, which failure, neglect or refusal has not been cured within fifteen (15) days after written notice thereof to you from the Company; or (iv) a material breach by you of the Company’s policies or codes of conduct or of your material obligations under this letter agreement or any other agreement between you and the Company.
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“
Good Reason
” means any one or more of the following occur without your consent: (i) the assignment to you of material duties inconsistent with your status or position as CFO, or other action that results in a substantial diminution in your status or position, which has not been cured by the Company within fifteen (15) days after written notice thereof to the Company from you; (ii) the relocation of your principal office for Company business to a location more than forty (40) miles from the Company’s current headquarters; (iii) a material reduction in the sum of your base salary and your target cash incentive compensation, other than a general reduction in base salary and/or the target cash incentive compensation that affects all similarly situated executives in substantially the same proportions; or (iv) a material breach by the Company of any terms or conditions of this letter agreement. A condition will not be considered “Good Reason” unless you give the Company written notice of the condition within 30 days after the condition comes into existence and the Company fails to substantially remedy the condition within 30 days after receiving your written notice.
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In the event of termination of your employment by the Company for Cause, resignation by you other than for Good Reason, or termination due to your death or any disability for which you are qualified for benefits under the Company’s group long-term disability program, the Company’s only obligation hereunder shall be to pay such compensation and provide such benefits as are earned by you through the date of termination of employment.
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Non-Vested Stock Options and Restricted Stock:
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In the event of a Qualifying Termination, the Company agrees that, your non-vested stock options and restricted equity awards that vest with the passage of time will not be forfeited due to your separation of employment and will be earned by you under the normal vesting schedule, conditioned upon you:
(a)
signing and not revoking a full release of all claims against the Company, its affiliates, officers, directors, employees, agents and assigns, substantially in the form attached to this letter agreement as
Exhibit A
, within 30 days of the Qualifying Termination,
(b)
cooperating with the Company in the transition of your duties,
(c)
agreeing not to disparage or defame the Company, its affiliates, officers, directors, employees, agents, assigns, products or services,
(d)
not directly or indirectly, whether on your own behalf or that of a third party (other than the Company), engaging in the business (whether as an owner of, or as employee, director or officer of or consultant to any business, other than the Company, that is engaged in the business), of owning or operating agricultural or construction equipment stores in any state in which the Company or its subsidiaries owns or operates any agricultural or construction equipment stores during the term of your employment; and
(e)
not directly or indirectly, either for yourself or any other person or entity solicit, inducing, or attempting to induce any employee of the Company to leave the employ of the Company.
In the event of any non-compliance with the obligations set forth above, your then non-vested restricted equity awards will immediately be forfeited.
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Indemnification:
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The Company will indemnify you in connection with your duties and responsibilities for the Company in accordance with the Company’s bylaws and as set forth in any indemnification agreement between you and the Company from time to time.
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Taxes:
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The Company may withhold from any compensation payable to you in connection with your employment such federal, state and local income and employment taxes as the Company shall determine are required to be withheld pursuant to any applicable law or regulation.
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Remedies:
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You acknowledge that your covenants and obligations hereunder are of special, unique, and intellectual character, which gives them a peculiar value, the actual or threatened breach of which may result in substantial injuries and damages, for which monetary relief may fail to provide an adequate remedy at law. Accordingly, if the Company institutes any action or proceeding to enforce the provisions hereof, seeking injunctive relief or specific performance, you hereby waive the claim or defense that the Company has an adequate remedy at law, and you will not urge in any such action or proceeding the claim or defense that the Company has an adequate remedy at law. Nothing in this provision limits the parties’ rights to seek any and all remedies available under applicable law, including equitable and legal relief, either separately or cumulatively, for breach or threatened breach of contract.
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Section 409A:
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Notwithstanding anything to the contrary in this letter agreement, and to the maximum extent permitted by law, this letter agreement shall be interpreted in such a manner that all payments to you are either exempt from, or comply with, Section 409A of the Code and the regulations and other interpretive guidance issued thereunder (collectively, “Section 409A”), including without limitation any such regulations or other guidance that may be issued in the future. It is intended that payments under this Agreement will be exempt from Section 409A, including the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind distributions, so as not to subject you to payment of interest or any additional tax under Section 409A. To the extent any reimbursements or in-kind benefit payments under this Agreement are subject to Section 409A, such reimbursements and in-kind benefit payments shall be made in accordance with Treasury Regulation §1.409A-3(i)(1)(iv) (or any similar or successor provisions). In furtherance thereof, if the provision of any reimbursement or in-kind benefit payment hereunder that is subject to Section 409A at the time specified herein would subject such amount to any additional tax under Section 409A, the provision of such reimbursement or in-kind benefit payment shall be postponed to the earliest commencement date on which the provision of such amount could be made without incurring such additional tax. In addition, to the extent that any regulations or other guidance issued under Section 409A (after application of the previous provisions of this paragraph) would result in you being subject to the payment of interest or any additional tax under Section 409A, the parties agree, to the extent reasonably possible, to amend this letter agreement to the extent necessary (including retroactively) in order to avoid the imposition of any such interest or additional tax under Section 409A, which amendment shall have the minimum economic effect necessary and be reasonably determined in good faith by the Company and you. You acknowledge and agree that the Company has made no representation to you as to the tax treatment of the compensation and benefits provided pursuant to this letter agreement and that you are solely responsible for all taxes due with respect to such compensation and benefits.
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Applicable Law:
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This letter agreement shall be interpreted and construed in accordance with the laws of the State of Delaware.
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Construction:
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Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.
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Entire Agreement:
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This letter agreement and the documents referenced herein constitute the entire agreement between the parties, and supersedes all prior discussions, agreements, and negotiations between us. No amendment or modification of this letter agreement will be effective unless made in writing and signed by you and an authorized officer or director of the Company.
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[
signature page follows
]
Sincerely,
TITAN MACHINERY INC.
By:
/s/ Stanley Dardis
Stanley Dardis
Chair of the Compensation Committee
I accept and agree to the terms and conditions of employment with Titan Machinery Inc. as set forth above.
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/s/ Mark Kalvoda
Mark Kalvoda
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September 5, 2014
Dated
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Exhibit A
FORM OF RELEASE BY MARK KALVODA
Definitions
.
I intend all words used in this Release to have their plain meanings in ordinary English. Specific terms that I use in this Release have the following meanings:
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A.
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I
,
me
, and
my
include both me (Mark Kalvoda) and anyone who has or obtains any legal rights or claims through me.
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B.
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Titan
means Titan Machinery Inc., any company related to Titan Machinery Inc. in the present or past (including without limitation, its predecessors, parents, subsidiaries, affiliates, joint venture partners, and divisions), and any successors of Titan Machinery Inc.
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C.
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Company
means Titan; the present and past officers, directors, committees, shareholders, and employees of Titan; any company providing insurance to Titan in the present or past; the present and past fiduciaries of any employee benefit plan sponsored or maintained by Titan (other than multiemployer plans); the attorneys for Titan; and anyone who acted on behalf of Titan or on instructions from Titan.
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D.
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Agreement
means the letter agreement between me and Titan with an Effective Date of February 1, 2014, including all of the documents attached to such agreement.
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E.
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My Claims
mean all of my rights that I now have to any relief of any kind from the Company, whether I now know about such rights or not, including without limitation:
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1.
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all claims arising out of or relating to my employment with Titan or the termination of that employment;
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2.
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all claims arising out of or relating to the statements, actions, or omissions of the Company;
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3.
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all claims for any alleged unlawful discrimination, harassment, retaliation or reprisal, or other alleged unlawful practices arising under any federal, state, or local statute, ordinance, or regulation, including without limitation, claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, 42 U.S.C. § 1981, the Employee Retirement Income Security Act, the Equal Pay Act, the Worker Adjustment and Retraining Notification Act, the Sarbanes-Oxley Act, the Family and Medical Leave Act, the Fair Credit Reporting Act, the North Dakota Human Rights Act, N.D. Stat. § 14.02-4-01 et seq., the North Dakota Equal Pay Act, N.D. Stat. § 34-06.1-01 et seq., the North Dakota Age Discrimination Act, N.D. Stat. § 34-01-17, and workers’ compensation non-interference or non-retaliation statutes;
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4.
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all claims for alleged wrongful discharge; breach of contract; breach of implied contract; failure to keep any promise; breach of a covenant of good faith and fair dealing; breach of fiduciary duty; estoppel; my activities, if any, as a “whistleblower”; defamation; infliction of emotional distress; fraud; misrepresentation; negligence; harassment; retaliation or reprisal; constructive discharge; assault; battery; false imprisonment; invasion of privacy; interference with contractual or business relationships; any other wrongful employment practices; and violation of any other principle of common law;
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5.
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all claims for compensation of any kind, including without limitation, bonuses, commissions, stock-based compensation or stock options, vacation pay and paid time off, perquisites, and expense reimbursements;
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6.
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all claims for back pay, front pay, reinstatement, other equitable relief, compensatory damages, damages for alleged personal injury, liquidated damages, and punitive damages; and
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7.
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all claims for attorneys’ fees, costs, and interest.
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However,
My Claims
do not include any claims that the law does not allow to be waived; any claims that may arise after the date on which I sign this Release; any rights I may have to indemnification from Titan as a current or former officer, director or employee of Titan; any claims for payment of severance benefits under the Agreement; any rights I have to severance pay or benefits under the Agreement; or any claims I may have for earned and accrued benefits under any employee benefit plan sponsored by the Company in which I am a participant as of the date of termination of my employment with Titan.
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Consideration
.
I am entering into this Release in consideration of Titan’s obligations to provide me certain severance benefits as specified in the Agreement. I will receive consideration from Titan as set forth in the Agreement if I sign and do not rescind this Release as provided below. I understand and acknowledge that I would not be entitled to the consideration under the Agreement if I did not sign this Release. The consideration is in addition to anything of value that I would be entitled to receive from Titan if I did not sign this Release or if I rescinded this Release. I acknowledge and represent that I have received all payments and benefits that I am entitled to receive (as of the date of this Release) by virtue of any employment by the Company.
Agreement to Release My Claims
. In exchange for the consideration described in the Agreement, I give up and release all of My Claims. I will not make any demands or claims
against the Company for compensation or damages relating to My Claims. The consideration that I am receiving is a fair compromise for the release of My Claims.
Cooperation
.
Upon the reasonable request of the Company, I agree that I will (i) timely execute and deliver such acknowledgements, instruments, certificates, and other ministerial documents (including without limitation, certification as to specific actions performed by me in my capacity as an officer of the Company) as may be necessary or appropriate to formalize and complete the applicable corporate records; (ii) reasonably consult with the Company regarding business matters that I was involved with while employed by the Company; and (iii) be reasonably available, with or without subpoena, to be interviewed, review documents or things, give depositions, testify, or engage in other reasonable activities in connection with any litigation or investigation, with respect to matters that I may have knowledge of by virtue of my employment by or service to the Company. In performing my obligations under this paragraph to testify or otherwise provide information, I will honestly, truthfully, forthrightly, and completely provide the information requested, volunteer pertinent information and turn over to the Company all relevant documents which are or may come into my possession.
My Continuing Obligations
.
I understand and acknowledge that I must comply with all of my post-employment obligations under the Agreement. I will not defame or disparage the reputation, character, image, products, or services of Titan, or the reputation or character of Titan’s directors, officers, employees and agents, and I will refrain from making public comment about the Company except upon the express written consent of an officer of Titan.
Additional Agreements and Understandings
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Even though Titan will provide consideration for me to settle and release My Claims, the Company does not admit that it is responsible or legally obligated to me. In fact, the Company denies that it is responsible or legally obligated to me for My Claims, denies that it engaged in any unlawful or improper conduct toward me, and denies that it treated me unfairly.
Advice to Consult with an Attorney
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I understand and acknowledge that I am hereby being advised by the Company to consult with an attorney prior to signing this Release and I have done so. My decision whether to sign this Release is my own voluntary decision made with full knowledge that the Company has advised me to consult with an attorney.
Period to Consider the Release
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I understand that I have 21 days from the date I received this Release (or 21 days after the last day of my employment with Titan, if later) to consider whether I wish to sign this Release. If I sign this Release before the end of the 21-day period, it will be my voluntary decision to do so because I have decided that I do not need any additional time to decide whether to sign this Release. I understand and agree that if I sign this Release prior to my last day of employment with Titan it will not be valid and Titan will not be obligated to provide the consideration described in the Release.
My Right to Rescind this Release
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I understand that I may rescind this Release at any time within 7 days after I sign it, not counting the day upon which I sign it. This Release will not become effective or enforceable unless and until the 7-day rescission period has expired without my rescinding it. I understand that if I rescind this Release Titan will not be obligated to provide the consideration described in the Release.
Procedure for Accepting or Rescinding the Release
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To accept the terms of this Release, I must deliver the Release, after I have signed and dated it, to Titan by hand or by mail within the 21-day period that I have to consider this Release. To rescind my acceptance, I must deliver a written, signed statement that I rescind my acceptance to Titan by hand or by mail within the 7-day rescission period. All deliveries must be made to Titan at the following address:
Chief Executive Officer
_______________________
_______________________
If I choose to deliver my acceptance or the rescission by mail, it must be postmarked within the period stated above and properly addressed to Titan at the address stated above.
Interpretation of the Release
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This Release should be interpreted as broadly as possible to achieve my intention to resolve all of My Claims against the Company. If this Release is held by a court to be inadequate to release a particular claim encompassed within My Claims, this Release will remain in full force and effect with respect to all the rest of My Claims. I agree that the provisions of this Release may not be amended, waived, changed or modified except by an instrument in writing signed by an authorized representative of Titan and by me.
My Representations
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I am legally able and entitled to receive the consideration being provided to me in settlement of My Claims. I have not been involved in any personal bankruptcy or other insolvency proceedings at any time since I began my employment with Titan. No child support orders, garnishment orders, or other orders requiring that money owed to me by Titan be paid to any other person are now in effect.
I have read this Release carefully. I understand all of its terms. In signing this Release, I have not relied on any statements or explanations made by the Company except as specifically set forth in the Agreement. I am voluntarily releasing My Claims against the Company. I intend this Release and the Agreement to be legally binding.
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Dated:__________________
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______________________________
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Mark Kalvoda
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