0001534504FALSE0001645026000156601100015345042022-12-022022-12-020001534504pbf:PBFLLCMember2022-12-022022-12-020001534504pbf:PBFHoldingMember2022-12-022022-12-02
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________________
FORM 8-K
______________________________
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): December 2, 2022
PBF ENERGY INC.
PBF ENERGY COMPANY LLC
PBF HOLDING COMPANY LLC
(Exact Name of Registrant as Specified in its Charter)
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Delaware | 001-35764 | 45-3763855 |
Delaware | 333-206728-02 | 61-1622166 |
Delaware | 333-186007 | 27-2198168 |
(State or other jurisdiction of incorporation or organization) | (Commission File Number) | (I.R.S. Employer Identification Number) |
_____________________________________________
One Sylvan Way, Second Floor
Parsippany, New Jersey 07054
(Address of the Principal Executive Offices) (Zip Code)
(973) 455-7500
(Registrant’s Telephone Number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
_____________________________________________
Check the appropriate box below if the Form 8-K Filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
⃞ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
⃞ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
⃞ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
⃞ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of The Act: | | | | | | | | |
Title of each class | Trading Symbol | Name of each exchange on which registered |
Common Stock, par value $.001 | PBF | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12-b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter): o
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b) On December 7, 2022, PBF Energy Inc. (the “Company”) announced the appointment of Karen B. Davis as Interim Chief Financial Officer of the Company, effective January 1, 2023 (the “Effective Date”), to serve until such time as her successor is appointed, or until her earlier resignation or removal. From December 21, 2022 until the Effective Date, Thomas Nimbley, the Company’s Chief Executive Officer, will serve as the principal financial officer of the Company.
Ms. Davis most recently served as Executive Vice President and Chief Financial Officer of Western Refining, Inc. and its affiliated entities, Western Refining Logistics LP and Northern Tier Energy, LP, through May 2017. During her career, Ms. Davis has served in various chief financial officer and financial reporting officer positions with various public and private companies throughout the United States. Ms. Davis, age 66, currently serves on the Company’s Board of Directors, including as Chairwoman of the Audit Committee. She will resign as a director effective as of December 31, 2022 and will continue to be paid as a director through that date. Ms. Davis is not a party to any transaction with the Company that would require disclosure under Item 404(a) of Regulation S-K. Pursuant to the terms of an offer letter between Ms. Davis and the Company, beginning the Effective Date, Ms. Davis will receive a salary of $13,125 per week (approx. $52,500 on a monthly basis) in her role of Chief Financial Officer, less required deductions and tax withholdings and prorated for partial weeks. Ms. Davis has not been granted any equity awards. She will be eligible to participate in the Company’s health and welfare benefits program in connection with her interim role. The foregoing is qualified in its entirety by reference to the letter agreement between Ms. Davis and the Company, which is attached as Exhibit 10.1 to this Agreement.
(e) Effective December 2, 2022 (the “Grant Date”), the Compensation Committee of the Company’s Board of Directors approved grants of long-term incentive awards to the Company’s “named executive officers” (as defined in Item 402(a)(3) of Regulation S-K). The grants were made under the Company’s Amended and Restated 2017 Equity Incentive Plan, (as amended, the “Equity Incentive Plan”) and included awards of (i) restricted shares of the Company’s Class A common stock (“Common Stock”), with the form of the applicable agreement attached as Exhibit 10.2 to this Form 8-K, (ii) performance share units for the three-year performance period from January 1, 2023 through December 31, 2025 (the “Performance Period”), payable in shares of Common Stock, the amounts of which will range from zero to 200 percent of the number of performance share units granted based on the Company’s achievement of prescribed TSR rankings relative to its peers during the Performance Period plus additional shares of Common Stock may be awarded at vesting with respect to the computed value of dividend equivalents accrued during such performance measurement periods and (iii) performance units with a target value of $1.00 per unit payable in cash at the end of the Performance Period, the amount of which will range from zero to 200 percent of the target value based on the Company’s achievement of prescribed TSR rankings relative to its peers during the Performance Period. The performance share units and the performance units will vest on December 31, 2025, in each case subject to forfeiture or acceleration under certain circumstances set forth in the applicable award agreement, the forms of which agreements are attached as Exhibits 10.3 and 10.4 to this Form 8-K.
The specific grants made to each of the Company’s named executive officers on the Grant Date are listed below.
| | | | | | | | | | | |
Name and Title | Stock Options | Performance Share Units | Performance Units |
Thomas J. Nimbley, Chief Executive Officer | 64,164 | | 38,406 | | 3,148,614 | |
Matthew C. Lucey, President | 27,706 | | 16,584 | | 1,359,560 | |
Thomas L. O’Connor, Senior Vice President, Commodity Risk & Strategy | 24,017 | | 14,376 | | 1,178,571 | |
T. Paul Davis, Senior Vice President, Supply, Trading and Optimization | 24,017 | | 14,376 | | 1,178,571 | |
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| | | | | |
Exhibit No. | Description |
| |
| Letter Agreement dated as of December 7, 2022 between Karen B. Davis and PBF Energy Inc. |
| Form of Executive Restricted Stock Agreement. |
| Form of Amended and Restated 2017 Equity Incentive Plan Performance Share Unit Award Agreement for the 2023-2025 Performance Cycle. |
| Form of Amended and Restated 2017 Equity Incentive Plan Performance Unit Award Agreement for the 2023-2025 Performance Cycle. |
| Press Release dated December 7, 2022 Announcing Appointment of Karen Davis as Interim CFO. |
104 | Cover Page Interactive Data File (formatted as Inline XBRL). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrants have duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Date: | December 7, 2022 | PBF Energy Inc. |
| | (Registrant) |
| | | | |
| | By: | /s/ Trecia Canty | |
| | Name: | Trecia Canty |
| | Title: | Senior Vice President, General Counsel and Secretary |
| | | |
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Date: | December 7, 2022 | PBF Energy Company LLC |
| | (Registrant) |
| | | | |
| | By: | /s/ Trecia Canty | |
| | Name: | Trecia Canty |
| | Title: | Senior Vice President, General Counsel and Secretary |
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| | | | | | | | | | | | | | |
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Date: | December 7, 2022 | PBF Holding Company LLC |
| | (Registrant) |
| | | | |
| | By: | /s/ Trecia Canty | |
| | Name: | Trecia Canty |
| | Title: | Senior Vice President, General Counsel and Secretary |
| | | |
PBF Energy Inc.
1 Sylvan Way, 2nd fl.
Parsippany, NJ 07054
PH 973-455-7500
www.pbfenergy.com
December 7, 2022
Karen B. Davis
Dear Karen:
On behalf of PBF Energy Inc. (the “Company”), I am pleased to offer you the position of Interim Chief Financial Officer of the Company (“Interim CFO”) during the Company’s search for a permanent Chief Financial Officer. This letter agreement (the “Agreement”) sets forth the terms of your employment as Interim CFO and is effective as of January 1, 2023 (the “Start Date”).
1. Position.
(a) In your position as Interim CFO, you will report to the Chief Executive Officer of the Company. You agree to work out of the Company’s headquarters office in Parsippany, New Jersey.
(b) The Interim CFO position is a full-time position. While you render services to the Company as Interim CFO, you will not engage in any other employment, consulting or other business activity (whether full-time or part-time) that would create a conflict of interest with the Company. By signing this Agreement, you confirm to the Company that you have no contractual commitments or other legal obligations that would prohibit you from performing your duties for the Company.
2. Term. The parties anticipate that the term of your appointment as Interim CFO will not exceed twelve (12) months unless extended by mutual written agreement (such actual employment period, the “Employment Term”). Notwithstanding the foregoing, your employment is “at will,” and may be terminated by you or the Company at any time with or without cause or with or without advance notice. You will continue as a member of the Board of Directors through December 31, 2022 and you will continue to be compensated for that service. You will resign your service on the Board while you are acting as Interim CFO.
3. Compensation and Benefits.
(a) Salary. Effective as of the Start Date, you will be paid a salary of $13,125 per week (approx. $52,500 on a monthly basis), less required deductions and tax withholdings and prorated for partial weeks. Your salary will be payable bi-weekly pursuant to the Company’s regular payroll policy.
(b) Benefits. While you are an employee, you will be eligible to participate in the Company’s standard suite of health and welfare benefits made available to its senior executive officers.
Ms. Karen B. Davis, December 7, 2022
4. Expenses. The Company will reimburse you for all reasonable and necessary expenses incurred by you in connection with your performance of services as Interim CFO on behalf of the Company, and will provide you with temporary furnished housing in Parsippany, New Jersey, in accordance with applicable Company policies and guidelines.
5. Indemnification. The Company shall indemnify you with respect to activities in connection with your employment hereunder to the fullest extent provided by applicable law, and pursuant to the terms and conditions of any indemnification agreement entered with the Company. You will also be named as an insured in your capacity as Interim CFO of the Company on the director and officer liability insurance policy currently maintained or as may be maintained by the Company from time to time. The cost of such coverage will be borne by the Company.
6. Required Employment Forms. You will be required, as a condition of your employment with the Company, to sign all of the Company’s standard forms applicable to new employees (including, but not limited to, the Company’s employee confidentiality agreement).
7. Governing Law and Interpretation. This letter agreement shall be deemed to be made in, and in all respects shall be interpreted, construed, and governed by and in accordance with the laws of the State of New York, notwithstanding any choice of law provisions otherwise requiring application of other laws. It shall be interpreted according to the fair meaning of the terms herein and not strictly in favor of, or against, either party.
8. Miscellaneous. For purposes of federal immigration law, you will be required to provide to the Company documentary evidence of your identity and eligibility for employment in the United States. This Agreement sets forth the entire agreement and understanding between you and the Company relating to your employment and supersedes all prior agreements and discussions between us. This Agreement may not be modified or amended except by a written agreement, signed by an officer of the Company.
We are all delighted to be able to extend you this offer. To indicate your acceptance of the Company’s offer, please sign and date this Agreement in the space provided below and return it to me.
| | | | | | | | |
| | Very truly yours, |
| | /s/ Thomas Nimbley |
| | Thomas Nimbley |
| | Chairman of the Board of Directors and Chief Executive Officer |
| | |
ACCEPTED AND AGREED: | | |
| | |
/s/ Karen B. Davis | | |
Karen B. Davis | | |
PBF ENERGY INC.
AMENDED AND RESTATED 2017 EQUITY INCENTIVE PLAN, AS AMENDED
RESTRICTED STOCK AGREEMENT FOR EMPLOYEE
THIS AGREEMENT (the “Agreement”), is made effective as of the date set forth on the signature page hereto (the “Date of Grant”), between PBF Energy Inc. (the “Company”) and the individual named on the signature page hereto (the “Grantee”).
R E C I T A L S:
WHEREAS, the Company has adopted the Plan (as defined below), the terms of which are hereby incorporated by reference and made a part of this Agreement; and
WHEREAS, the Committee (as defined in the Plan) has determined that it would be in the best interests of the Company and its stockholders to grant the Restricted Shares (as defined below) provided for herein to the Grantee pursuant to the Plan and the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows:
1.Definitions. Whenever the following terms are used in this Agreement, they shall have the meanings set forth below. Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan.
(a)Company Group: The Company and its subsidiaries and Affiliates.
(b)Disability: Disabled or Disability with respect to a Grantee, means the definition of Disabled or Disability used in such Grantee’s employment agreement or agreement to provide services, or if no such agreement exists, or such term is not defined therein, “disabled” or “disability” means that such Grantee becomes physically or mentally incapacitated and is therefore unable for a period of six consecutive months or for an aggregate of nine months in any twenty-four consecutive month period to perform such Grantee’s duties as an employee of or service provider to the Company Group. The determination of a disability will be made by the Company, provided that, in the event that an Award under this Agreement should become subject to Section 409A, “Disabled” and “Disability” shall have the meaning set forth in Section 409A and Treasury Regulation Section 1.409A-3(i)(4) thereunder, unless determined otherwise in the discretion of the Committee.
(c)Good Reason: Good Reason means, without the Grantee’s consent: (i) with respect to the Grantee, a material breach by any member of the Company Group of any of its material covenants or obligations under this Agreement, the Plan or any service agreement of any member of the Company Group; or (ii) the failure of the Company Group to pay or cause to be paid the Grantee’s fees or other compensation when due; provided, that prior to the Grantee’s separation from service for Good Reason under clauses (i) and (ii) above, the Grantee must give written notice to the Company Group member to which he renders services of any such event that constitutes Good Reason within twenty (20) days of the
occurrence of such event and such event must remain uncorrected for thirty (30) days following receipt of such written notice; and provided further that any termination due to Good Reason must occur no later than sixty (60) days after the occurrence of the event giving rise to Good Reason.
(d)Plan: The Amended and Restated PBF Energy Inc. 2017 Equity Incentive Plan, as amended by Amendment No. 1 and as it may be further amended or supplemented from time to time.
(e)Restricted Share: A Share with respect to which the terms, conditions and restrictions are set forth in Section 3 of this Agreement.
(f)Retirement: The Grantee’s resignation from employment with the Company Group, so long as Grantee has attained age 55 1/2 with at least three consecutive years of service with the Company Group.
2.Grant of the Restricted Shares; Section 83(b) Election.
(a)The Company hereby grants to the Grantee, on the terms and conditions hereinafter set forth herein and in the Plan, the number of Shares set forth on the signature page hereto, subject to adjustment as set forth in the Plan.
(b)The Grantee hereby acknowledges that he or she has been informed that, with respect to the grant of the Restricted Shares, an election (the “Election”) may be filed by the Grantee with the Internal Revenue Service, within 30 days of the Grant Date, electing pursuant to Section 83(b) of the Code to be taxed currently on the fair market value of the Shares on the Grant Date. The Company believes this may result in recognition of U.S. federal taxable income to the Grantee on the Grant Date, equal to the fair market value of the Shares on such date. Absent such an Election, taxable income will be measured and recognized by the Grantee at the time or times at which Shares become vested. State, local and other tax considerations may also apply. The Grantee shall seek the advice of his or her own tax advisors in connection this Award and the advisability of filing the Election. The Grantee understands that any taxes paid as a result of the filing of the Election might not be recovered if the unvested portion of such Shares are forfeited to the Company. The Grantee acknowledges that it is the Grantee’s sole responsibility and not the Company’s to timely file the Election, even if the Grantee requests the Company or its representative to make this filing on the Grantee’s behalf. The Grantee agrees to notify the Company within 10 days of filing any such Election.
3.Vesting; Terms and Conditions.
(a)General. Subject to the Grantee’s continued service or employment with the Company Group through the applicable vesting date, the restrictions with respect to the Restricted Shares shall lapse and the Shares shall become nonforfeitable at the times set forth on the signature page hereto.
(b)Termination of Service. If the Grantee’s service or employment with the Company Group terminates for any reason prior to the vesting in accordance with Section 3(a), unless otherwise provided for in Section 3(c), the Restricted Shares, to the extent not then vested and exercisable, shall be immediately forfeited by the Grantee without consideration.
(c)Accelerated Vesting Under Certain Circumstances. Notwithstanding the foregoing, the Award shall vest as to 100% of the Shares subject to the Award (but only to the extent the Award has not otherwise previously been forfeited), and the Shares shall become nonforfeitable, in the event of (i) a Change in Control or (ii) the termination of the Grantee’s service as an employee (A) without Cause, (B) due to death or Disability, (C) upon Retirement, and (D) by the Grantee for Good Reason.
(d)Ownership of Shares. Subject to the restrictions set forth in the Plan and this Agreement, the Grantee shall possess from Date of Grant all incidents of ownership of the Restricted Shares granted hereunder, including, without limitation, the right to vote such Restricted Shares; provided, however, that such Restricted Shares shall not be entitled to receive dividends on a current basis until such Restricted Shares have vested. With respect to Restricted Shares that have not vested, as of the first day of each quarter, during the applicable restricted period, the Company shall credit to Grantee an amount equal to the value of all dividends and other distributions (whether in cash or other property) paid by the Company during the prior quarter on the equivalent number of shares of Common Stock. Any dividend equivalents or other distributions credited shall be distributed in cash to the Grantee only if, when and to the extent such Restricted Shares vest. The value of dividends and other distributions payable with respect to Restricted Shares that do not vest shall be forfeited. Any dividends received by Grantee shall be treated, to the extent required by applicable law, as additional compensation for tax purposes if paid on Restricted Shares.
4.No Right to Continued Employment or Service. Neither the Plan nor this Agreement shall be construed as giving the Grantee the right to be retained in the employ of, or in any consulting relationship to, any member of the Company Group. Further, any member of the Company Group may at any time dismiss the Grantee or discontinue any employment or consulting relationship, free from any liability or any claim under the Plan or this Agreement, except as otherwise expressly provided herein. Any determinations as to whether the Grantee continues to be employed shall be at the discretion of the Committee.
5.Certificate; Book Entry Form; Legend.
(a)The Company shall issue the Restricted Shares either (i) in certificate form or (ii) in book entry form, registered in the name of the Grantee, with legends or notations, as applicable referring to the terms, conditions and restrictions applicable to the Award. To the extent applicable, all certificates (or book entries) representing the Shares shall be subject to the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which such Shares are listed, and any applicable federal or state laws, and the Committee may cause a legend or legends to be put on any such certificates (or notations made next to the book entries) to make appropriate reference to such
restrictions. The Grantee further agrees that any certificate issued for Restricted Shares prior to the lapse of any outstanding restrictions relating thereto shall be inscribed with the following legend:
This certificate and the shares of stock represented hereby are subject to the terms and conditions, including forfeiture provisions and restrictions against transfer, contained in the Amended and Restated PBF Energy Inc. 2017 Equity Incentive Plan, as amended from time to time, and an agreement entered into between the registered owner and the Company, copies of which are on file at the principal offices of the Company.
(b)Upon the lapse of restrictions relating to any Restricted Shares, the Company shall, as applicable, either remove the notations on any such Shares of Restricted Stock issued in book-entry form or deliver to the Grantee or the Grantee’s personal representative a stock certificate representing a number of Shares, free of the restrictive legend described in Section 5(a) above, equal to the number of Shares with respect to which such restrictions have lapsed. If certificates representing such Shares shall have theretofore been delivered to the Grantee, such certificates shall be returned to the Company, complete with any necessary signatures or instruments of transfer prior to the issuance by the Company of such unlegended Shares.
(c)Any Restricted Shares forfeited pursuant to this Agreement shall be transferred to, and reacquired by, the Company without payment of any consideration by the Company, and neither the Grantee nor any of the Grantee’s permitted transferees, successors, heirs, assigns or personal representatives shall thereafter have any further rights or interests in such Shares. If certificates for any such Shares containing restrictive legends shall have theretofore been delivered to the Grantee (or his/her permitted transferees, successors, heirs, assigns or personal representatives), such certificates shall be returned to the Company, complete with any necessary signatures or instruments of transfer.
6.Transferability. The non-vested portion of the Restricted Shares shall not be transferable or assignable by the Grantee other than by will or by the laws of descent and distribution; provided, that, subject to the approval by the Committee, in its discretion, the Restricted Shares may be transferred for no consideration to, or for the benefit of, an “immediate family member” (to be defined by the Committee) or to a bona fide trust for the exclusive benefit of such immediate family member, or a partnership or limited liability company in which immediate family members are the only partners or members. Any sale, exchange, transfer, assignment, pledge, hypothecation, fractionalization, hedge or other disposition in violation of this Section 6 shall be void, and shall not be recognized by the Company. All of the terms and conditions of the Plan and this Agreement shall be binding upon any permitted successors and assigns or Permitted Transferees.
7.Taxes; Withholding. The Grantee may be required to pay to the Company Group and the Company Group shall have the right and is authorized to withhold any applicable withholding or other taxes in respect of the Award or any payment or transfer under or with respect to the Restricted Shares and to take such other action as may be necessary in the opinion of the Committee to satisfy all of the Company’s obligations for the payment of such withholding or other taxes. The Grantee acknowledges that he or she is solely responsible for the direct payment of any taxes owed by Grantee in connection with the Award for which the Company is not statutorily required to withhold, and with respect to
which the Company has not entered into an agreement with Grantee to withhold such taxes voluntarily.
8.Notices. Any notice under this Agreement shall be addressed to the Company in care of its Secretary, and to the Grantee at the address appearing in the personnel records of the Company for the Grantee or to either party at such other address as either party hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
9.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware without regard to conflicts of laws.
10.Arbitration. Any dispute with regard to the enforcement of this Agreement shall be exclusively resolved by a single experienced arbitrator licensed to practice law in the State of New York, selected in accordance with the American Arbitration Association (“AAA”) rules and procedures, at an arbitration to be conducted in the State of New York pursuant to the Commercial Arbitration Rules of AAA with the arbitrator applying the substantive law of the State of Delaware as provided for under Section 9 hereof. The AAA shall provide the parties hereto with lists for the selection of arbitrators composed entirely of arbitrators who are members of the National Academy of Arbitrators and who have prior experience in the arbitration of disputes between employers and senior executives. The determination of the arbitrator shall be final and binding on the parties hereto and judgment therein may be entered in any court of competent jurisdiction. Each party shall pay its own attorneys fees and disbursements and other costs of the arbitration.
11.Amendment. This Agreement may be amended only by a written instrument executed by the parties hereto, which specifically states that it is amending this Agreement.
12.Restricted Shares Subject to Plan; Conflict. By entering into this Agreement the Grantee agrees and acknowledges that the Grantee has received and read a copy of the Plan. The Restricted Shares are subject to the Plan. The terms and provisions of the Plan, as they may be amended from time to time, are hereby incorporated 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, except where the terms of this Agreement are more restrictive than the terms of the Plan.
Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
13.Restrictive Covenants.
(a)Non-Competition. The Grantee shall not, at any time beginning on the Date of Grant and ending on the date that is six (6) months following the Grantee’s separation from service from the Company Group for any reason, be a more than 5% shareholder, director, officer or employee of any person, firm, corporation, partnership or business that engages in a business which competes directly with the Business (as defined below).
(b)Non-Solicitation. During the period beginning on the Date of Grant and ending on the date that is twelve months following the Grantee’s separation from service from the Company Group for any reason, the Grantee shall not directly recruit or otherwise solicit or induce any employee of the Company Group to terminate his or her employment with the Company Group in order to be hired by the Grantee in a business which competes directly with the Business; provided, however, that general solicitation or advertising for employment by the Grantee shall not be prohibited by this Section 13(b).
(c)Non-Disparagement. During the Grantee’s employment and at any time following his termination, the Grantee agrees not to disparage, either orally or in writing, in any material respect any member of the Company Group.
(d)Reformation. In the event the terms of this Section 13 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(e)Business. As used in Sections 13 and 14 hereof, the term “Business” shall mean the crude oil refining business in the specific geographic areas in which the Company’s oil refining operations primarily conduct business at the date of the Grantee’s termination.]
14.Non-Disclosure of Confidential Information.
(a)Protection of Confidential Information. All items of information, documents (including electronically stored documents like email), and materials pertaining to the business and operations of the Company Group that are not made public by the Company Group through authorized means will be considered confidential (hereafter, “Confidential Information”). Confidential Information includes, but is not limited to, customer lists, business referral source lists, internal cost and pricing data and analysis, marketing plans and strategies, personnel files and evaluations, financial and accounting data, operational and other business affairs and methods, contracts, technical data, know-how, trade secrets, computer software and other proprietary and intellectual property, and plans and strategies for future developments relating to any of the foregoing. Except in connection with the faithful performance of the Grantee’s duties hereunder or as permitted pursuant to Section 14(c), (d) and (e), the Grantee shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any Confidential Information, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such Confidential Information. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company Group, or any of its successors.
(b)Return of Confidential Information. Upon termination of the Grantee’s service or employment with the Company for any reason, the Grantee upon the request of the Company will promptly either destroy or deliver to the Company any and all Confidential Information in the Grantee’s possession and any other documents concerning the customers, business plans, marketing strategies, products or processes of the Company Group.
(c)No Prohibition. Nothing in this Agreement shall prohibit the Grantee from (i) disclosing information and documents when required by law, subpoena or court order (provided the Grantee gives reasonable notice thereof and makes reasonably available to the Company and its counsel the documents and other information sought and assists such counsel, at the Company’s expense, in resisting or otherwise responding to such order or process), (ii) disclosing information and documents to his attorney or tax adviser for the purpose of securing legal or tax advice, (iii) disclosing the post-employment restrictions in this Agreement to any potential new employer, (iv) retaining, at any time, his personal correspondence, his personal rolodex or outlook contacts and documents related to his own personal benefits, entitlements and obligations, or (v) disclosing or retaining information that, through no act of the Grantee in breach of this Agreement or any other party in violation of an existing confidentiality agreement with the Company, is generally available to the public, is in the public domain at the time of disclosure or is available from other sources.
(d)Whistleblower Protection. Notwithstanding anything herein or in any other agreement with or policy (including without limitation any code of conduct or employee manual) of the Company, nothing herein or therein is intended to or shall (i) prohibit or restrict the Grantee or his or her attorney from reporting possible violations of federal or state law or regulation to any government agency, commission or entity, including, but not limited to, the Department of Justice, the Commodities Futures Trading Commission, the Securities and Exchange Commission, the Department of Labor, Congress, any state Attorney General, any self-regulatory organization or any agency Inspector General (“Government Agencies”); (ii) prohibit or restrict the Grantee or his or her attorney from initiating communications directly with; responding to any inquiry from; volunteering information to; or testifying or otherwise participating in or assisting in any inquiry, investigation or proceeding brought by Government Agencies in connection with a disclosure made under a whistleblower law or regulation; (iii) prohibit or restrict the Grantee or his or her attorney from making disclosures that are protected under the whistleblower provisions of federal or state law or regulation; (iv) require the Grantee to provide notice to or receive authorization from the Company prior to making reports or disclosures to Government Agencies; or (v) result in a waiver or other limitation of the Grantee’s rights and remedies as a whistleblower, including to a monetary award. The Company will not take action under any agreement or policy against or sanction anyone who reports suspected violations of Company policies or any law or regulation. Furthermore, the Company prohibits retaliation against anyone who reports suspected violations of Company policies or any law or regulation.
(e)Disclosure of Trade Secrets. The Grantee will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret
that is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting or investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or proceeding, if such filings are made under seal.
15.Specific Performance. The Grantee acknowledges and agrees that remedies at law available to the Company for a breach or threatened breach of any of the provisions of Sections 13 or 14 would be inadequate and any member of the Company Group would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, the Grantee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company without posting any bond, shall be entitled to obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available.
16.Conformity to Section 409A. It is intended that the Award either be exempt from or avoid taxation under Section 409A. Any ambiguity in this Agreement shall be interpreted to preserve exemption from, or comply with, Section 409A. To the extent applicable, as determined in the sole discretion of the Committee with and upon advice of counsel, (a) each amount or benefit payable pursuant to this Agreement shall be deemed a separate payment for purposes of Section 409A and (b) in the event the equity interests of the Company are publicly traded on an established securities market or otherwise and the Grantee is a “specified employee” (as determined under the Company’s administrative procedure for such determinations, in accordance with Section 409A) at the time of the Grantee’s separation from service, any payments under this Agreement that are deemed to be deferred compensation subject to Section 409A shall not be paid or begin payment until the earlier of the Grantee’s death and the first day following the six (6) month anniversary of the Grantee’s date of separation from service. The Committee shall use commercially reasonable efforts to implement the provisions of this Section 16 in good faith; provided that neither the Company, the Board, the Committee nor any of the Company’s employees, directors or representatives shall have any liability to Grantee with respect to this Section 16.
17.Section Headings; Construction. The section headings contained herein are for the purpose of convenience only and are not intended to define or limit the contents of the sections. All words used in this Agreement shall be construed to be of such gender or number, as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.
18.Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
[The remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.
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PBF ENERGY INC. |
By:____________________________ |
Name: |
Title:
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GRANTEE: |
________________________________ [Name] |
The Date of Grant is December 2, 2022.
The number of Restricted Shares is [Number of Shares].
The Fair Market Value on the date of the grant is $36.64 per Share.
Subject to the Grantee’s continued service or employment with the Company Group through the applicable vesting date, unless otherwise set forth herein, the restrictions with respect to the Restricted Shares shall lapse at the following times:
| | | | | |
Date Shares Subject to Award Vest | Percentage of Shares As to Which Award Vests |
| |
Upon the first anniversary of the Grant Date | 33-1/3% |
| |
Upon the second anniversary of the Grant Date | 33-1/3% |
| |
Upon the third anniversary of the Grant Date | 33-1/3% |
[Signature Page to Restricted Share Agreement]
SECTION 83(b) ELECTION
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in taxpayer’s gross income as compensation for services the excess (if any) of the fair market value of the shares described below over the amount paid for those shares.
1.The name, taxpayer identification number, address of the undersigned, and the taxable year for which this election is being made are:
| | | | | |
NAME: | |
| |
ADDRESS: |
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TAXPAYER I.D. NO.: | |
| |
TAXABLE YEAR: Calendar Year | |
2.The property which is the subject of this election is ____ shares of Series A Common Stock (the “Shares”) of PBF Energy Inc. (the “Company”).
3.The property was transferred to the undersigned on _______________________.
4.The property is subject to the following restrictions:
The Shares are subject to transfer restrictions, forfeiture and certain repurchase provisions under the terms of certain agreements with the Company.
5.The fair market value at the time of transfer (determined without regard to any restriction other than a nonlapse restriction as defined in Section 1.83-3(h) of the Income Tax Regulations) is:
$____ per Share x ______ Shares =$_______.
6.For the property transferred, the undersigned paid $0.00 per Share x ________ Shares= $0.00.
7.The amount to be include in gross income is $_________. [This is the result of the amount reported in Item 5 minus the amount reported in Item 6.]
The undersigned taxpayer will files this election with the Internal Revenue Service office with which taxpayer files his or her annual income tax return not later than 30 days after the date of transfer of the property. A copy of the election also will be furnished to the Company. Additionally, the undersigned will include a copy of the election with his or her income tax return for the taxable year in which the property is transferred. The undersigned is the person performing the services in connection with which the property was transferred.
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Dated: _______________, 20_ | Taxpayer’s Signature: _______________________________ |
PBF ENERGY INC.
AMENDED AND RESTATED 2017 EQUITY INCENTIVE PLAN
PERFORMANCE SHARE UNIT AWARD AGREEMENT
2023- 2025 PERFORMANCE PERIOD
As evidenced by this Award Agreement under the PBF Energy Inc. Amended and Restated 2017 Equity Incentive Plan (as amended, the “Plan”), PBF ENERGY INC. (the “Company”) has granted to [Name] (the “Grantee”), an employee of the Company Group, on [Date] (the “Grant Date”), [Number of Performance Share Units] performance share units (“Performance Share Units”), representing the right to receive shares of Common Stock of the Company, conditioned upon the Company’s TSR ranking relative to the Peer Group for the Performance Period as established by the Compensation Committee of the Board of Directors of the Company (the “Committee”), and as set forth herein.
In addition to the Performance Share Units granted hereunder, the Grantee is granted a Dividend Equivalent Award payable in shares of Common Stock, as provided herein. On the Normal Vesting Date (or, if earlier, the consummation of a Change in Control or Grantee’s termination of employment under Section 5 or 6 hereof) the amount of dividends paid to holders of Common Stock during the Performance Period shall be determined with respect to the Grantee’s Performance Share Units that are vesting on that Normal Vesting Date (or, if earlier, the consummation of a Change in Control or Grantee’s termination of employment under Section 5 or 6 hereof) calculated as if the Performance Share Units were outstanding shares of Common Stock (the resulting value being hereafter referred to as the “Target Dividend Equivalent Value”). The Target Dividend Equivalent Value shall then be subject to further calculation according to the Company’s TSR performance during the Performance Period as prescribed in Section 3 (i.e., payout from 0% to 200% depending on the Payout Percentage). The number of shares of Common Stock payable to Grantee with respect to the Dividend Equivalent Award is equal to (x) the Target Dividend Equivalent Value multiplied by the Performance Period’s Payout Percentage calculated per Section 3, divided by (y) the Fair Market Value of the Common Stock on the Normal Vesting Date (or, if earlier, the Grantee’s termination of employment under Section 5 or 6 hereof) (the resulting number being rounded up to the nearest whole number of shares). See Exhibit A for an example of this calculation.
The Performance Share Units are subject to the following terms and conditions:
1. Relationship to the Plan. This grant of Performance Share Units is subject to all of the terms, conditions and provisions of the Plan and administrative interpretations thereunder, if any, that have been adopted by the Committee. Except as otherwise defined in this Award Agreement, capitalized terms shall have the same meanings given to them under the Plan. To the extent that any provision of this Award Agreement conflicts with the express terms of the Plan, the terms of this Award Agreement shall control. References to the Grantee also include the heirs or other legal representatives of the Grantee.
2. Performance Periods; Payout Determinations. The performance period shall be from January 1, 2023 to December 31, 2025 (the “Performance Period).
The payout shall be equally determined based upon the TSR Performance Rank and the TSR Performance Percentile. The Committee shall determine the TSR Performance Rank, TSR Performance Percentile, the TSR Performance Rank Payout Percentage and the TSR Performance Percentile Payout Percentage for the Performance Period as follows:
(a)First, the Committee shall determine the TSR Performance Rank, and then the TSR Performance Rank Payout Percentage for the Performance Period as follows:
| | | | | |
TSR Performance Rank | TSR Performance Rank Payout Percentage |
Ranked Seventh | 0% |
Ranked Sixth | 33.33% |
Ranked Fifth | 66.67% |
Ranked Fourth | 100% |
Ranked Third | 133.33% |
Ranked Second | 166.67% |
Ranked First | 200% |
Provided, however, that in the event that the number of Peer companies is six, the Committee shall determine the TSR Performance Rank and then the TSR Performance Rank Payout Percentage for the Performance Period as follows:
| | | | | |
TSR Performance Rank | TSR Performance Rank Payout Percentage |
Ranked Sixth | 0% |
Ranked Fifth | 50% |
Ranked Third or Fourth | 100% |
Ranked Second | 150% |
Ranked First | 200% |
Provided, however, that in the event that the number of Peer companies is five, the Committee shall determine the TSR Performance Rank and then the TSR Performance Rank Payout Percentage for the Performance Period as follows:
| | | | | |
TSR Performance Rank | TSR Performance Rank Payout Percentage |
Ranked Fifth | 0% |
Ranked Fourth | 50% |
Ranked Third | 100% |
Ranked Second | 150% |
Ranked First | 200% |
(b)Second, the Committee shall determine the TSR Performance Percentile and then the TSR Performance Percentile Payout Percentage for the Performance Period as follows (using straight-line interpolation between levels above threshold):
| | | | | |
TSR Performance Percentile1 | TSR Performance Percentile Payout Percentage |
25% or more below the average TSR for the Peer Group | 0% |
0% of the average TSR for the Peer Group | 100% |
25% or more above the average TSR for the Peer Group | 200% |
(c)Third, the Committee shall determine the Payout Percentage for the Performance Period by calculating the average of the TSR Performance Rank Payout Percentage and the TSR Performance Percentile Payout Percentage, provided, that, if the Company’s TSR calculated for the Performance Period is negative, then the Payout Percentage for that Performance Period shall not exceed 100% regardless of the TSR Performance Percentile and Performance Rank for the Performance Period.
(d)Notwithstanding anything herein to the contrary, the Committee has sole and absolute authority and discretion to increase or decrease the Payout Percentage for the Performance Period as it may deem appropriate; provided that in no event shall any increase in the Payout Percentage result in the Payout Percentage exceeding 200% or any decrease in the Payout Percentage result in the Payout Percentage being less than 0%.
3. Vesting; Delivery of Shares. Unless otherwise provided in accordance with Paragraphs 5 or 6 of this Award Agreement, the Grantee must continue in continuous Employment from the date hereof through the last day of the Performance Period, to be entitled to be issued and delivered shares of Common Stock of the Company. If the Grantee remains in continuous Employment from the date hereof through the last day of the Performance Period (the “Normal Vesting Date”), the Grantee shall be entitled to receive a number of shares of Common Stock of the Company equal to the Performance Period Payout (if any). The number of shares of Common Stock, if any, that Grantee will be entitled to receive in settlement of the vested Performance Share Units will be determined as soon as administratively feasible following the Committee’s determination of the Performance Period Payout under Paragraph 2 and, in any event, between January 1 and March 15 immediately following the end of the Performance Period. If, in accordance with the Committee’s determination under Paragraph 2, the Performance Period Payout is zero, the Grantee shall immediately forfeit any and all rights to the Performance Units. Upon the vesting and/or forfeiture of the Performance Units pursuant to Paragraphs 2 and 3 and the delivery of shares of Common Stock, if any, the rights of the Grantee and the obligations of the Company under this Award Agreement shall be satisfied in full.
_______________________
1To be determined based on the percentage point difference in average TSR for the Peer Group and the Company TSR.
4. Termination of Employment. Except as provided in Paragraphs 5 or 6, if the Grantee’s Employment is terminated prior to the last day of the Performance Period, the Grantee’s right to the Performance Share Units shall be forfeited in its entirety as of the date of such termination, and the rights of the Grantee and the obligations of the Company under this Award Agreement shall be terminated. To the extent that a Grantee’s Employment is terminated following the close of the Performance Period but prior to the delivery of shares of Common Stock with respect to the Performance Share Units, the Grantee shall be entitled to shares of Common Stock with respect to the Performance Share Units (if any) hereunder as determined in accordance with Paragraphs 2 and 3.
5. Change in Control; Disability or Death. In the event of (i) a Change in Control or (ii) the Grantee’s Employment is terminated by reason of disability or death, the Grantee’s right to receive the Performance Share Units shall vest in full as of the date of the consummation of the Change in Control or such termination of employment, as applicable, and the Payout Percentage for the Performance Period in the Performance Period shall be deemed to be 100%. The Company shall delivery to the Grantee a number of shares of Common Stock of the Company equal to the Performance Share Units multiplied by the Payout Percentage specified in the prior sentence within sixty days of the consummation of the Change in Control or Grantee’s termination of employment, as applicable; provided, however, that the timing of the delivery of shares of Common Stock within such sixty-day period shall be determined in the sole discretion of the Committee and the Grantee shall not directly or indirectly designate the taxable year of payment or delivery. Upon the vesting and/or forfeiture of the Performance Share Units pursuant to this Paragraph 5 and the delivery of shares the rights of the Grantee and the obligations of the Company under this Award Agreement shall be satisfied in full.
6. Termination of Employment due to Retirement. In the event of the Retirement of the Grantee after nine months of the Performance Period have elapsed, the Grantee’s Performance Share Units shall be settled based on the performance for the Performance Period and payable on a pro-rata basis as determined and certified by the Committee after the close of the Performance Period, as described below. Subject to the negative discretion of the Committee, the Grantee will be entitled to receive shares of Common Stock with a value equal to the product of (i) the pro-rata vesting percentage equal to the days of Grantee’s Employment during the Performance Period divided by the total days in the Performance Period and (ii) the Performance Period Payout Value. Such transfer of shares of Common Stock shall be made in accordance with Paragraph 3 as soon as administratively feasible following the Committee’s determination under Paragraph 2 and, in any event, between January 1 and March 15 immediately following the end of the Performance Period. If, in accordance with the Committee’s determination under Paragraph 2, the Performance Period Payout is zero, the Grantee shall immediately forfeit any and all rights to the Performance Share Units. Upon the vesting and/or forfeiture of the Performance Share Units pursuant to this Paragraph 6 and the delivery of shares as provided above, if any, the rights of the Grantee and the obligations of the Company under this Award Agreement shall be satisfied in full. The death of the Grantee following Retirement but prior to the close of the Performance Period shall have no effect on this Paragraph 6.
7. Specified Employees. Notwithstanding any other provision of this Award Agreement to the contrary, if the Grantee is a “specified employee” as determined by the Company in accordance with its established policy, any settlement of Awards under this Award Agreement that would be a payment of deferred compensation within the meaning of Section 409A of the Code with respect to the Grantee as a result of the Grantee’s “separation from service” as defined under Section 409A of the Code (other than as a result of death) and that would otherwise be paid within six months of the Grantee’s separation from service shall be payable on the date that is one day after the earlier of (i) the date that is six months after the Grantee’s separation from service, or (ii) the date that otherwise complies with the requirements of Section 409A of the Code. The payment of amounts and delivery of shares under this Award Agreement described herein is hereby designated as a “separate payment” for purposes of Section 409A of the Code.
8. Taxes. Pursuant to the applicable provisions of the Plan, the Company or its designated representative shall have the right to withhold applicable taxes from the shares of Common Stock and cash otherwise payable to the Grantee, or from other compensation payable to the Grantee (to the extent consistent with Section 409A of the Code), at the time of the delivery of such shares. Such withholding may be effected through the netting of shares of Common Stock deliverable hereunder.
9. No Shareholder Rights. The Grantee shall in no way be entitled to any of the rights of a shareholder as a result of this Award Agreement unless and until such time as shares of Common Stock have been issued and delivered to the Grantee in settlement of the Performance Share Units.
10. Nonassignability. Upon the Grantee’s death, the Performance Share Units may be transferred by will or by the laws governing the descent and distribution of the Grantee’s estate. Otherwise, the Grantee may not sell, transfer, assign, pledge or otherwise encumber any portion of the Performance Share Units, and any attempt to sell, transfer, assign, pledge, or encumber any portion of the Performance Share Units shall have no effect.
11. No Right to Continued Employment or Service. Neither the Plan nor this Award Agreement shall be construed as giving the Grantee the right to be retained in the employ of, or in any consulting relationship to, any member of the Company Group. Further, any member of the Company Group may at any time dismiss the Grantee or discontinue any employment or consulting relationship, free from liability or any claim under the Plan or this Award Agreement, except as otherwise expressly provided herein. Any determinations as to whether the Grantee continues to be employed shall be at the discretion of the Committee.
12. Modification of Award Agreement. Any modification of this Award Agreement shall be binding only if evidenced in writing and signed by an authorized representative of the Company, provided that no modification may, without the consent of the Grantee, adversely affect the rights of the Grantee hereunder.
13. Notices. Any notice under this Award Agreement shall be addressed to the Company in care of its Secretary, and to the Grantee at the address appearing in the personnel records of the Company for the Grantee or to either party at such other address as either party hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
14. Governing Law. This Award Agreement shall be governed by and construed in accordance with the laws of the state of Delaware without regard to conflicts of laws.
15. Arbitration. Any dispute with regard to the enforcement of this Award Agreement shall be exclusively resolved by a single experienced arbitrator, selected in accordance with the American Arbitration Association (“AAA”) rules and procedures, at an arbitration to be conducted in the State of New York pursuant to the National Rules for the Resolution of Employment Disputes rules of AAA with the arbitrator applying the substantive law of the State of Delaware as provided for under Section 11 hereof. The AAA shall provide the parties hereto with lists for the selection of arbitrators composed entirely of arbitrators who are members of the National Academy of Arbitrators and who have prior experience in the arbitration of disputes between employers and senior executives. The determination of the arbitrator shall be final and binding on the parties hereto and judgment therein may be entered in any court of competent jurisdiction. Each party shall pay its own attorneys’ fees and disbursements and other costs of the arbitration.
16. Section Headings; Construction. The section headings contained herein are for the purpose of convenience only and are not intended to define or limit the contents of the sections. All words used in this Award Agreement shall be construed to be of such gender or number, as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.
17. Restrictive Covenants.
(a) Non-Competition. The Grantee shall not, at any time beginning on the Date of Grant and ending on the date that is six (6) months following the Grantee’s separation from service from the Company Group for any reason, be a more than 5% shareholder, director, officer or employee of any person, firm, corporation, partnership or business that engages in a business which competes directly with the Business (as defined below).
(b) Non-Solicitation. During the period beginning on the Date of Grant and ending on the date that is twelve months following the Grantee’s separation from service from the Company Group for any reason, the Grantee shall not directly recruit or otherwise solicit or induce any employee of the Company Group to terminate his or her employment with the Company Group in order to be hired by the Grantee in a business which competes directly with the Business; provided, however, that general solicitation or advertising for employment by the Grantee shall not be prohibited by this Section 17(b).
(c) Non-Disparagement. During the Grantee’s employment and at any time following his or her termination, the Grantee agrees not to disparage, either orally or in writing, in any material respect any member of the Company Group.
(d) Reformation. In the event the terms of this Section 17 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(e) Business. As used in Sections 17 and 18 hereof, the term “Business” shall mean the crude oil refining business in the specific geographic areas in which the Company’s oil refining operations primarily conduct business at the date of the Grantee’s termination.
18. Non-Disclosure of Confidential Information.
(a) Protection of Confidential Information. All items of information, documents (including electronically stored documents like email), and materials pertaining to the business and operations of the Company Group that are not made public by the Company Group through authorized means will be considered confidential (hereafter, “Confidential Information”). Confidential Information includes, but is not limited to, customer lists, business referral source lists, internal cost and pricing data and analysis, marketing plans and strategies, personnel files and evaluations, financial and accounting data, operational and other business affairs and methods, contracts, technical data, know-how, trade secrets, computer software and other proprietary and intellectual property, and plans and strategies for future developments relating to any of the foregoing. Except in connection with the faithful performance of the Grantee’s duties hereunder or as permitted pursuant to Sections 18(c), (d) and (e), the Grantee shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his or her benefit or the benefit of any person, firm, corporation or other entity any Confidential Information, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such Confidential Information. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company Group, or any of its successors.
(b) Return of Confidential Information. Upon termination of the Grantee’s service or employment with the Company for any reason, the Grantee upon the request of the Company will promptly either destroy or deliver to the Company any and all Confidential Information in the Grantee’s possession and any other documents concerning the customers, business plans, marketing strategies, products or processes of the Company Group.
(c) No Prohibition. Nothing in this Agreement shall prohibit the Grantee from (i) disclosing information and documents when required by law, subpoena or court order (provided, except as stipulated in Sections 18(c), (d) and (e), the Grantee gives reasonable notice thereof and makes reasonably available to the Company and its counsel the documents and other information sought and assists such counsel, at the Company’s expense, in resisting or otherwise responding to such order or process), (ii) disclosing information and documents to his or her attorney or tax adviser for the purpose of securing legal or tax advice, (iii) disclosing the post-employment restrictions in this Agreement to any potential new employer, (iv) retaining, at any time, his or her personal correspondence, his or her personal rolodex or outlook contacts and documents related to his or her own personal benefits, entitlements and obligations, or (v) disclosing or retaining information that, through no act of the Grantee in breach of this Agreement or any other party in violation of an existing confidentiality agreement with the Company, is generally available to the public, is in the public domain at the time of disclosure or is available from other sources.
(d) Whistleblower Protection. Notwithstanding anything herein or in any other agreement with or policy (including without limitation any code of conduct or employee manual) of the Company, nothing herein or therein is intended to or shall (i) prohibit or restrict the Grantee or his or her attorney from reporting possible violations of federal or state law or regulation to any government agency, commission or entity, including, but not limited to, the Department of Justice, the Commodities Futures Trading Commission, the Securities and Exchange Commission, the Department of Labor, Congress, any state Attorney General, any self-regulatory organization or any agency Inspector General (“Government Agencies”); (ii) prohibit or restrict the Grantee or his or her attorney from initiating communications directly with; responding to any inquiry from; volunteering information to; or testifying or otherwise participating in or assisting in any inquiry, investigation or proceeding brought by Government Agencies in connection with a disclosure made under a whistleblower law or regulation; (iii) prohibit or restrict the Grantee or his or her attorney from making disclosures that are protected under the whistleblower provisions of federal or state law or regulation; (iv) require the Grantee to provide notice to or receive authorization from the Company prior to making reports or disclosures to Government Agencies; or (v) result in a waiver or other limitation of the Grantee’s rights and remedies as a whistleblower, including to a monetary award. The Company will not take action under any agreement or policy against or sanction anyone who reports suspected violations of Company policies or any law or regulation. Furthermore, the Company prohibits retaliation against anyone who reports suspected violations of Company policies or any law or regulation.
(e) Disclosure of Trade Secrets. The Grantee will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting or investigating a suspected violation of
law or (ii) in a complaint or other document filed in a lawsuit or proceeding, if such filings are made under seal.
19. Definitions. For purposes of this Award Agreement:
“Beginning Stock Price” means the average of the daily closing price of common stock for the thirty (30) calendar days immediately prior to the commencement of the Performance Period, historically adjusted, if necessary, for any stock split, stock dividend, recapitalizations, or similar corporate events that occur during the measurement period.
“Change in Control” for purposes of this Award Agreement shall have the same definition as under the PBF Energy Inc. Amended and Restated 2017 Equity Incentive Plan, as in effect on the Grant Date, and such definition and associated terms are hereby incorporated into this Award Agreement by reference.
“Company Group” means the Company and its Subsidiaries and Affiliates.
“Employment” means employment with, or the provision of services to, the Company Group. For purposes of this Award Agreement, Employment shall also include any period of time during which the Grantee is on temporarily disability status. The length of any period of Employment shall be determined by the member of the Company Group that either (i) employs the Grantee or (ii) employed the Grantee immediately prior to the Grantee’s termination of Employment.
“Ending Stock Price” means the average of the daily closing price of common stock for the thirty (30) calendar days prior to the end of the Performance Period historically adjusted, if necessary, for any stock split, stock dividend, recapitalizations, or similar corporate events that occur during the measurement period.
“Payout Percentage” means the average of the TSR Performance Rank Payout Percentage and the TSR Performance Percentile Payout Percentage (from 0% to 200%) determined by the Committee in accordance with the procedures set forth in Paragraph 2, which shall be used to determine the Performance Period Payout for the Performance Period.
“Peer Group” means (x) CVR Energy, Inc., Marathon Petroleum Corporation, Valero Energy Corporation, Delek US Holdings, Inc., HF Sinclair Corporation and Phillips 66 Company or (y) such other group of companies and indices (such as the S&P 1000 Energy Index) that are pre-established by the Committee which principally represent a group of selected peers, or such other group of companies as selected and pre-established by the Committee. In the event that there are less than four members of the Peer Group, the S&P 1000 Energy Index shall be added to the Peer Group. In addition, such pre-established Peer Group is subject to the following adjustments:
(a) If a member of the Peer Group is substantially acquired by another company, the acquired Peer Group company will be removed from the Peer Group for the performance periods not yet completed and for the entire 36-month Performance Period.
(b) If a member of the Peer Group sells, spins-off, or disposes of a portion of its business, then such Peer Group company will remain in the Peer Group for the Performance Period unless such disposition(s) results in the disposition of more than 50% of such company’s total assets during the Performance Period.
(c) If a member of the Peer Group acquires another company, the acquiring Peer Group company will remain in the Peer Group for the Performance Period, unless the newly formed company’s primary business no longer satisfies the criteria for which such member was originally selected as a member of the Peer Group, then in such case the company shall be removed from the Peer Group.
(d) If any member of the Peer Group splits its stock, such company’s TSR performance will be adjusted for the stock split so as not to give an advantage or disadvantage to such company by comparison to the other companies.
(e) If a member of the Peer Group is (x) delisted on all major U.S. stock exchanges, (y) is no longer publicly traded or (z) files for bankruptcy, liquidation or reorganization during the Performance Period, such member will remain in the Peer Group positioned below the lowest performing non-bankrupt member of the Peer Group for performance periods not yet completed and for the entire 36-month Performance Period.
In addition, the Compensation Committee shall have the discretionary authority to make other appropriate adjustments, in response to a change in circumstances after the commencement of the Performance Period that results in a member of the Peer Group no longer satisfying the criteria for which such member was originally selected. In applying the described adjustments, in the event that any adjustment is made to the Peer Group during any Performance Period, PBF’s TSR ranking within the peer group will be calculated for any incomplete or future performance periods (including the entire 36-month Performance Period) as if that company was not a peer at the start of each incomplete performance period. TSR ranking for performance periods completed prior to the removal of the peer will not be recalculated.
“Performance Period Payout” means for the Performance Period, the product of the Payout Percentage and the number of Performance Share Units.
“Retirement” means for a Grantee with five or more years of Employment, termination on or after the Grantee's 55th birthday, provided that such termination constitutes a separation from service within the meaning of Section 409A of the Code.
“TSR Performance Percentile” means the ranking of the Company’s Total Shareholder Return for the Performance period as compared to the average Total Shareholder Return of the Peer Group companies, as determined at the end of the Performance Period.
“TSR Performance Rank” means the ranking of the Company’s Total Shareholder Return for the Performance period among the Total Shareholder Returns of the Peer Group companies, ranked in descending order, as determined at the end of the Performance Period.
“Total Shareholder Return” or “TSR” means for the Company and each entity in the Peer Group, the number derived using the following formula:
(End Stock Price – Beginning Stock Price) + Cumulative Dividends
Beginning Stock Price
21. Deferral of Payout. A Grantee who qualifies as a Participant under an LTIP Performance Unit Deferral Plan may, subject to such restrictions and requirements under Section 409A of the Code, irrevocably elect to defer to a date that is at least five years after the date of the conversion of vested Performance Share Units into shares of Common Stock. The election to defer must be made no later than the end of the second year of the performance measurement period, or such earlier date as may be specified by the Committee. The election will not be effective for 12 months following the election date in accordance with Section 409A of the Code. The amount subject to a deferral election will be converted to deferred share units that will convert into shares of Common Stock on the distribution date as specified in the deferral election and the LTIP Performance Unit Deferral Plan. Deferred share units will be credited with Dividend Equivalent Awards. Under U.S. income tax law, a recipient will generally not be subject to income tax until the resulting share units are converted to shares of Common Stock and distributed. The deferred share units will not be funded by the Company. In this regard, a recipient’s rights to deferred share units are those of a general unsecured creditor of the Company. Details of the deferral of Performance Share Units into deferred share units will be provided with the election materials. The opportunity to make such an election is subject to changes in Federal tax law. The Committee reserves the right to discontinue offering Performance Share deferral elections at any time for any reason it deems appropriate in its sole discretion.
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| PBF ENERGY INC. |
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| By: | |
| | Name: Title: |
Exhibit A
The Company does not currently pay dividends. However, below is an example of Potential Payout of Dividend Equivalent Award in Shares of Common Stock
Assumptions and Calculations (for illustration purposes only):
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1. | Assume the Participant was granted 12,000 Performance Share Units on December 2, 2022. |
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2. | Assume the cumulative amount of dividends paid to holders of Common Stock through the Normal Vesting Date of the Performance Period is $2.40 per share (determined as follows). |
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dividends paid in 1Q22 | | $0.20 |
2Q22 | | $0.20 |
3Q22 | | $0.20 |
4Q22 | | $0.20 |
1Q23 | | $0.20 |
2Q23 | | $0.20 |
3Q23 | | $0.20 |
4Q23 | | $0.20 |
1Q24 | | $0.20 |
2Q24 | | $0.20 |
3Q24 | | $0.20 |
4Q24 | | $0.20 |
| | $2.40 per share |
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3. | The “Target Dividend Equivalent Value” for the Performance Period is $10,800.00 (12,000 Performance Share Units vesting, multiplied by $2.40 accumulated dividends per share, equals $28,800.00). |
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4. | The Payout Percentage for the Performance Period is determined (per Section 3) to generate a payout of 80.0%. |
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5. | The Fair Market Value of the Common Stock on the vesting date is $60.00. |
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Performance Period Payout: | | 12,000 | | | Performance Period Performance Share Units |
| | x 80% | | | multiply by Performance Period Payout Percentage |
| | 9,600 | | | |
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Dividend Equivalent Shares:
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Performance Cycle: | | | $28,800.00 | | | | Target Dividend Equivalent Value multiply by Performance Period Payout |
| | x 80% | | | Percentage |
| | | | | | | dividend equivalent based on Performance |
| | | $23,040.00 | | | | Period |
| | / $60.00 | | | divided by FMV per share |
| | | | | | | common shares earned for Dividend |
| | 384 | | | Equivalent Award (rounded up) |
Total Common Stock Earned on Normal Vesting Date: 9,984
PBF ENERGY INC.
AMENDED AND RESTATED 2017 EQUITY INCENTIVE PLAN
PERFORMANCE UNIT AWARD AGREEMENT
2023- 2025 PERFORMANCE PERIOD
As evidenced by this Award Agreement under the PBF Energy Inc. Amended and Restated 2017 Equity Incentive Plan (as amended, the “Plan”), PBF ENERGY INC. (the “Company”) has granted to [Name] (the “Grantee”), an employee of the Company Group, on [Date] (the “Grant Date”), [Number of Units] performance units (“Performance Units”), conditioned upon the Company’s TSR ranking relative to the Peer Group for the Performance Period as established by the Compensation Committee of the Board of Directors of the Company (the “Committee”), and as set forth herein. The Performance Units are subject to the following terms and conditions:
1. Relationship to the Plan. This grant of Performance Units is subject to all of the terms, conditions and provisions of the Plan and administrative interpretations thereunder, if any, that have been adopted by the Committee. Except as otherwise defined in this Award Agreement, capitalized terms shall have the same meanings given to them under the Plan. To the extent that any provision of this Award Agreement conflicts with the express terms of the Plan, the terms of this Award Agreement shall control. References to the Grantee also include the heirs or other legal representatives of the Grantee.
2. Performance Periods; Payout Determinations. The performance periods shall be from January 1, 2023 to December 31, 2025 (the “Performance Period”):
The payout shall be equally determined based upon the TSR Performance Rank and the TSR Performance Percentile. The Committee shall determine the TSR Performance Rank, TSR Performance Percentile, the TSR Performance Rank Payout Percentage and the TSR Performance Percentile Payout Percentage for the Performance Period as follows:
(a)First, the Committee shall determine the TSR Performance Rank, and then the TSR Performance Rank Payout Percentage for the Performance Period as follows:
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TSR Performance Rank | TSR Performance Rank Payout Percentage |
Ranked Seventh | 0% |
Ranked Sixth | 33.33% |
Ranked Fifth | 66.67% |
Ranked Fourth | 100% |
Ranked Third | 133.33% |
Ranked Second | 166.67% |
Ranked First | 200% |
Provided, however, that in the event that the number of Peer companies is six, the Committee shall determine the TSR Performance Rank and then the TSR Performance Rank Payout Percentage for the Performance Period as follows:
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TSR Performance Rank | TSR Performance Rank Payout Percentage |
Ranked Sixth | 0% |
Ranked Fifth | 50% |
Ranked Third or Fourth | 100% |
Ranked Second | 150% |
Ranked First | 200% |
Provided, however, that in the event that the number of Peer companies is five, the Committee shall determine the TSR Performance Rank and then the TSR Performance Rank Payout Percentage for the Performance Period as follows:
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TSR Performance Rank | TSR Performance Rank Payout Percentage |
Ranked Fifth | 0% |
Ranked Fourth | 50% |
Ranked Third | 100% |
Ranked Second | 150% |
Ranked First | 200% |
(b)Second, the Committee shall determine the TSR Performance Percentile and then the TSR Performance Percentile Payout Percentage for the Performance Period as follows (using straight-line interpolation between levels above threshold):
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TSR Performance Percentile1 | TSR Performance Percentile Payout Percentage |
25% or more below the average TSR for the Peer Group | 0% |
0% of the average TSR for the Peer Group | 100% |
25% or more above the average TSR for the Peer Group | 200% |
_______________________
1To be determined based on the percentage point difference in average TSR for the Peer Group and the Company TSR.
(c)Third, the Committee shall determine the Payout Percentage for the Performance Period by calculating the average of the TSR Performance Rank Payout Percentage and the TSR Performance Percentile Payout Percentage, provided that, if the Company’s TSR calculated for the Performance Period is negative, then the Payout Percentage for that Performance Period shall not exceed 100% regardless of the TSR Performance Percentile and Performance Rank for the Performance Period.
(d)Notwithstanding anything herein to the contrary, the Committee has sole and absolute authority and discretion to increase or decrease the Payout Percentage for the Performance Period as it may deem appropriate; provided that in no event shall any increase in the Payout Percentage result in the Payout Percentage exceeding 200% or any decrease in the Payout Percentage result in the Payout Percentage being less than 0%.
3. Vesting of Performance Units. Unless otherwise provided in accordance with Paragraphs 5 or 6 of this Award Agreement, the Grantee must continue in continuous Employment from the date hereof through the last day of the Performance Period (the “Normal Vesting Date”), to be entitled to receive a payment, if any, equal to the Performance Period Payout. If the Grantee remains in continuous Employment from the date hereof through the last day of the Performance Period, the Grantee shall be entitled to receive the Performance Period Payout (if any), payable in a cash payment. Such payment shall be made as soon as administratively feasible following the Committee’s determination of the Performance Period Payout under Paragraph 2 and, in any event, between January 1 and March 15 immediately following the end of the Performance Period. If, in accordance with the Committee’s determination under Paragraph 2, the Performance Period Payout is zero, the Grantee shall immediately forfeit any and all rights to the Performance Units. Upon the vesting and/or forfeiture of the Performance Units pursuant to Paragraphs 2 and 3 and the making of the related cash payment, if any, the rights of the Grantee and the obligations of the Company under this Award Agreement shall be satisfied in full.
4. Termination of Employment. Except as provided in Paragraphs 5 or 6, if Grantee’s Employment is terminated prior to the last day of the Performance Period, the Grantee’s right to the Performance Units shall be forfeited in its entirety as of the date of such termination, and the rights of the Grantee and the obligations of the Company under this Award Agreement shall be terminated. To the extent that a Grantee’s Employment is terminated following the close of the Performance Period but prior to the payment of the Performance Period Payout, the Grantee shall be entitled to the Performance Period Payout (if any) hereunder as determined in accordance with Paragraphs 2 and 3.
5. Change in Control; Disability or Death. In the event of (i) a Change in Control or (ii) the Grantee’s Employment is terminated by reason of disability or death, the Grantee’s right to receive the Performance Units shall vest in full as of the date of the consummation of the Change in Control or such termination of employment, as applicable, and the Payout Percentage for the Performance Period in the Performance Period shall be deemed to be 100%. The Company shall pay the Grantee an amount equal to the Performance Period Payout determined using the Payout Percentage in the prior sentence within sixty days of the consummation of the Change in Control or Grantee’s termination of employment, as applicable; provided, however, that the timing of the payment within such sixty-day period shall be determined in the sole discretion of the Committee and the Grantee shall not directly or indirectly designate the taxable year of payment. Upon the vesting and/or forfeiture of the Performance Units pursuant to this Paragraph 5 and the related cash payment the rights of the Grantee and the obligations of the Company under this Award Agreement shall be satisfied in full.
6. Termination of Employment due to Retirement. In the event of the Retirement of the Grantee after nine months of the Performance Period have elapsed, the Grantee’s Performance Units shall be settled based on the performance for the Performance Period and payable on a pro-rata basis as determined and certified by the Committee after the close of the Performance Period, as described below. Subject to the negative discretion of the Committee, the Grantee will be entitled to receive a payment equal to the product of (i) the pro-rata vesting percentage equal to the days of Grantee’s Employment during the Performance Period divided by the total days in the Performance Period and (ii) the Performance Period Payout Value. Such payment shall be made in accordance with Paragraph 3 as soon as administratively feasible following the Committee’s determination under Paragraph 2 and, in any event, between January 1 and March 15 immediately following the end of the Performance Period. If, in accordance with the Committee’s determination under Paragraph 2, the Performance Period Payout is zero, the Grantee shall immediately forfeit any and all rights to the Performance Units. Upon the vesting and/or forfeiture of the Performance Units pursuant to this Paragraph 6 and the making of the related cash payment, if any, the rights of the Grantee and the obligations of the Company under this Award Agreement shall be satisfied in full. The death of the Grantee following Retirement but prior to the close of the Performance Period shall have no effect on this Paragraph 6.
7. Specified Employees. Notwithstanding any other provision of this Award Agreement to the contrary, if the Grantee is a “specified employee” as determined by the Company in accordance with its established policy, any settlement of Awards under this Award Agreement that would be a payment of deferred compensation within the meaning of Section 409A of the Code with respect to the Grantee as a result of the Grantee’s “separation from service” as defined under Section 409A of the Code (other than as a result of death) and that would otherwise be paid within six months of the Grantee’s separation from service shall be payable on the date that is one day after the earlier of (i) the date that is six months after the Grantee’s separation from service, or (ii) the date that otherwise complies with the requirements of Section 409A of the Code. The payment of amounts under this Award Agreement described herein is hereby designated as a “separate payment” for purposes of Section 409A of the Code.
8. Taxes. Pursuant to the applicable provisions of the Plan, the Company or its designated representative shall have the right to withhold applicable taxes from the payment otherwise payable to the Grantee, or from other compensation payable to the Grantee (to the extent consistent with Section 409A of the Code), at the time of the delivery of such cash payment.
9. No Shareholder Rights. The Grantee shall in no way be entitled to any of the rights of a shareholder as a result of this Award Agreement.
10. Nonassignability. Upon the Grantee’s death, the Performance Units may be transferred by will or by the laws governing the descent and distribution of the Grantee’s estate. Otherwise, the Grantee may not sell, transfer, assign, pledge or otherwise encumber any portion of the Performance Units, and any attempt to sell, transfer, assign, pledge, or encumber any portion of the Performance Units shall have no effect.
11. No Right to Continued Employment or Service. Neither the Plan nor this Award Agreement shall be construed as giving the Grantee the right to be retained in the employ of, or in any consulting relationship to, any member of the Company Group. Further, any member of the Company Group may at any time dismiss the Grantee or discontinue any employment or consulting relationship, free from liability or any claim under the Plan or this Award Agreement, except as otherwise expressly provided herein. Any determinations as to whether the Grantee continues to be employed shall be at the discretion of the Committee.
12. Modification of Award Agreement. Any modification of this Award Agreement shall be binding only if evidenced in writing and signed by an authorized representative of the Company, provided that no modification may, without the consent of the Grantee, adversely affect the rights of the Grantee hereunder.
13. Notices. Any notice under this Award Agreement shall be addressed to the Company in care of its Secretary, and to the Grantee at the address appearing in the personnel records of the Company for the Grantee or to either party at such other address as either party hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
14. Governing Law. This Award Agreement shall be governed by and construed in accordance with the laws of the state of Delaware without regard to conflicts of laws.
15. Arbitration. Any dispute with regard to the enforcement of this Award Agreement shall be exclusively resolved by a single experienced arbitrator, selected in accordance with the American Arbitration Association (“AAA”) rules and procedures, at an arbitration to be conducted in the State of New York pursuant to the National Rules for the Resolution of Employment Disputes rules of AAA with the arbitrator applying the substantive law of the State of Delaware as provided for under Section 11 hereof. The AAA shall provide the parties hereto with lists for the selection of arbitrators composed entirely of arbitrators who are members of the National Academy of Arbitrators and who have prior experience in the arbitration of disputes between employers and senior executives. The determination of the arbitrator shall be final and binding on the parties hereto and judgment therein may be entered in any court of competent
jurisdiction. Each party shall pay its own attorneys’ fees and disbursements and other costs of the arbitration.
16. Section Headings; Construction. The section headings contained herein are for the purpose of convenience only and are not intended to define or limit the contents of the sections. All words used in this Award Agreement shall be construed to be of such gender or number, as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.
17. Restrictive Covenants.
(a) Non-Competition. The Grantee shall not, at any time beginning on the Date of Grant and ending on the date that is six (6) months following the Grantee’s separation from service from the Company Group for any reason, be a more than 5% shareholder, director, officer or employee of any person, firm, corporation, partnership or business that engages in a business which competes directly with the Business (as defined below).
(b) Non-Solicitation. During the period beginning on the Date of Grant and ending on the date that is twelve months following the Grantee’s separation from service from the Company Group for any reason, the Grantee shall not directly recruit or otherwise solicit or induce any employee of the Company Group to terminate his or her employment with the Company Group in order to be hired by the Grantee in a business which competes directly with the Business; provided, however, that general solicitation or advertising for employment by the Grantee shall not be prohibited by this Section 17(b).
(c) Non-Disparagement. During the Grantee’s employment and at any time following his or her termination, the Grantee agrees not to disparage, either orally or in writing, in any material respect any member of the Company Group.
(d) Reformation. In the event the terms of this Section 17 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(e) Business. As used in Sections 17 and 18 hereof, the term “Business” shall mean the crude oil refining business in the specific geographic areas in which the Company’s oil refining operations primarily conduct business at the date of the Grantee’s termination.
18. Non-Disclosure of Confidential Information.
(a) Protection of Confidential Information. All items of information, documents (including electronically stored documents like email), and materials pertaining to the business and operations of the Company Group that are not made public by the Company Group through authorized means will be considered confidential (hereafter, “Confidential Information”). Confidential Information includes, but is not limited to, customer lists, business referral source lists, internal cost and pricing data and analysis, marketing plans and strategies, personnel files and evaluations, financial and accounting data, operational and other business affairs and methods, contracts, technical data, know-how, trade secrets, computer software and other proprietary and intellectual property, and plans and strategies for future developments relating to any of the foregoing. Except in connection with the faithful performance of the Grantee’s duties hereunder or as permitted pursuant to Sections 18(c), (d) and (e), the Grantee shall, in perpetuity, maintain in confidence and shall not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his or her benefit or the benefit of any person, firm, corporation or other entity any Confidential Information, or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such Confidential Information. The parties hereby stipulate and agree that as between them the foregoing matters are important, material and confidential proprietary information and trade secrets and affect the successful conduct of the businesses of the Company Group, or any of its successors.
(b) Return of Confidential Information. Upon termination of the Grantee’s service or employment with the Company for any reason, the Grantee upon the request of the Company will promptly either destroy or deliver to the Company any and all Confidential Information in the Grantee’s possession and any other documents concerning the customers, business plans, marketing strategies, products or processes of the Company Group.
(c) No Prohibition. Nothing in this Agreement shall prohibit the Grantee from (i) disclosing information and documents when required by law, subpoena or court order (provided, except as stipulated in Sections 18(c), (d) and (e), the Grantee gives reasonable notice thereof and makes reasonably available to the Company and its counsel the documents and other information sought and assists such counsel, at the Company’s expense, in resisting or otherwise responding to such order or process), (ii) disclosing information and documents to his or her attorney or tax adviser for the purpose of securing legal or tax advice, (iii) disclosing the post-employment restrictions in this Agreement to any potential new employer, (iv) retaining, at any time, his or her personal correspondence, his or her personal rolodex or outlook contacts and documents related to his or her own personal benefits, entitlements and obligations, or (v) disclosing or retaining information that, through no act of the Grantee in breach of this Agreement or any other party in violation of an existing confidentiality agreement with the Company, is generally available to the public, is in the public domain at the time of disclosure or is available from other sources.
(d) Whistleblower Protection. Notwithstanding anything herein or in any other agreement with or policy (including without limitation any code of conduct or employee manual) of the Company, nothing herein or therein is intended to or shall (i) prohibit or restrict the Grantee or his or her attorney from reporting possible violations of federal or state law or regulation to any government agency, commission or entity, including, but not limited to, the Department of Justice, the Commodities Futures Trading Commission, the Securities and Exchange Commission, the Department of Labor, Congress, any state Attorney General, any self-regulatory organization or any agency Inspector General (“Government Agencies”); (ii) prohibit or restrict the Grantee or his or her attorney from initiating communications directly with; responding to any inquiry from; volunteering information to; or testifying or otherwise participating in or assisting in any inquiry, investigation or proceeding brought by Government Agencies in connection with a disclosure made under a whistleblower law or regulation; (iii) prohibit or restrict the Grantee or his or her attorney from making disclosures that are protected under the whistleblower provisions of federal or state law or regulation; (iv) require the Grantee to provide notice to or receive authorization from the Company prior to making reports or disclosures to Government Agencies; or (v) result in a waiver or other limitation of the Grantee’s rights and remedies as a whistleblower, including to a monetary award. The Company will not take action under any agreement or policy against or sanction anyone who reports suspected violations of Company policies or any law or regulation. Furthermore, the Company prohibits retaliation against anyone who reports suspected violations of Company policies or any law or regulation.
(e) Disclosure of Trade Secrets. The Grantee will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting or investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or proceeding, if such filings are made under seal.
19. Definitions. For purposes of this Award Agreement:
“Beginning Stock Price” means the average of the daily closing price of common stock for the thirty (30) calendar days immediately prior to the commencement of the Performance Period, historically adjusted, if necessary, for any stock split, stock dividend, recapitalizations, or similar corporate events that occur during the measurement period.
“Change in Control” for purposes of this Award Agreement shall have the same definition as under the PBF Energy Inc. Amended and Restated 2017 Equity Incentive Plan, as in effect on the Grant Date, and such definition and associated terms are hereby incorporated into this Award Agreement by reference.
“Company Group” means the Company and its Subsidiaries and Affiliates.
“Employment” means employment with, or the provision of services to, the Company Group. For purposes of this Award Agreement, Employment shall also include any period of time during which the Grantee is on temporarily disability status. The length of any period of Employment shall be determined by the member of the Company Group that either (i) employs the Grantee or (ii) employed the Grantee immediately prior to the Grantee’s termination of Employment.
“Ending Stock Price” means the average of the daily closing price of common stock for the thirty (30) calendar days prior to the end of the Performance Period, historically adjusted, if necessary, for any stock split, stock dividend, recapitalizations, or similar corporate events that occur during the measurement period.
“Payout Percentage” means the average of the TSR Performance Percentage and the TSR Performance Percentage (from 0% to 200%) determined by the Committee in accordance with the procedures set forth in Paragraph 2, which shall be used to determine the Performance Period Payout for the Performance Period.
“Peer Group” means (x) CVR Energy, Inc., Marathon Petroleum Corporation, Valero Energy Corporation, Delek US Holdings, Inc., HF Sinclair Corporation and Phillips 66 Company or (y) such other group of companies and indices (such as the S&P 1000 Energy Index) that are pre-established by the Committee which principally represent a group of selected peers, or such other group of companies as selected and pre-established by the Committee. In the event that there are less than four members of the Peer Group, the S&P 1000 Energy Index shall be added to the Peer Group. In addition, such pre-established Peer Group is subject to the following adjustments:
(a) If a member of the Peer Group is substantially acquired by another company, the acquired Peer Group company will be removed from the Peer Group for the performance periods not yet completed and for the entire 36-month Performance Period.
(b) If a member of the Peer Group sells, spins-off, or disposes of a portion of its business, then such Peer Group company will remain in the Peer Group for the Performance Period unless such disposition(s) results in the disposition of more than 50% of such company’s total assets during the Performance Period.
(c) If a member of the Peer Group acquires another company, the acquiring Peer Group company will remain in the Peer Group for the Performance Period, unless the newly formed company’s primary business no longer satisfies the criteria for which such member was originally selected as a member of the Peer Group, then in such case the company shall be removed from the Peer Group.
(d) If any member of the Peer Group splits its stock, such company’s TSR performance will be adjusted for the stock split so as not to give an advantage or disadvantage to such company by comparison to the other companies.
(e) If a member of the Peer Group is (x) delisted on all major U.S. stock exchanges, (y) is no longer publicly traded or (z) files for bankruptcy, liquidation or reorganization during the Performance Period, such member will remain in the Peer Group positioned below the lowest performing non-bankrupt member of the Peer Group for performance periods not yet completed and for the entire 36-month Performance Period.
In addition, the Compensation Committee shall have the discretionary authority to make other appropriate adjustments, in response to a change in circumstances after the commencement of the Performance Period that results in a member of the Peer Group no longer satisfying the criteria for which such member was originally selected. In applying the described adjustments, in the event that any adjustment is made to the Peer Group during any Performance Period, PBF’s TSR ranking within the peer group will be calculated for any incomplete or future performance periods (including the entire 36-month Performance Period) as if that company was not a peer at the start of each incomplete performance period. TSR ranking for performance periods completed prior to the removal of the peer will not be recalculated.
“Performance Period” means the period from January 1, 2023 to December 31, 2025.
“Performance Period Payout” means the product of the Payout Percentage for the Performance Period and the number of Performance Units, multiplied by $1.00.
“Retirement” means for a Grantee with five or more years of Employment, termination on or after the Grantee's 55th birthday, provided that such termination constitutes a separation from service within the meaning of Section 409A of the Code.
“TSR Performance Percentile” means the ranking of the Company’s Total Shareholder Return for the Performance Period as compared to the average Total Shareholder Return of the Peer Group companies, as determined at the end of the Performance Period.
“TSR Performance Rank” means the ranking of the Company’s Total Shareholder Return for the Performance Period among the Total Shareholder Returns of the Peer Group companies, ranked in descending order, as determined at the end of the Performance Period.
“Total Shareholder Return” or “TSR” means for the Company and each entity in the Peer Group, the number derived using the following formula:
(End Stock Price – Beginning Stock Price) + Cumulative Dividends
Beginning Stock Price
21. Deferral of Payout. A Grantee who qualifies as a Participant under an LTIP Performance Unit Deferral Plan may, subject to such restrictions and requirements under Section 409A of the Code, irrevocably elect to defer to a date that is at least five years after the scheduled payment date of the payment of cash. The election to defer must be made no later than the end of the second year of the performance measurement period, or such earlier date as may be specified by the Committee. The election will not be effective for 12 months following the election date in accordance with Section 409A of the Code. The amount subject to a deferral election will be converted to unfunded deferred cash. Under U.S. income tax law, a recipient will generally not be subject to income tax until the deferred cash is paid. The deferred cash will not be funded by the Company. In this regard, a recipient’s rights to deferred cash are those of a general unsecured creditor of the Company. Details of the deferral of Performance Units into deferred cash will be provided with the election materials. The opportunity to make such an election is subject to changes in Federal tax law. The Committee reserves the right to discontinue offering Performance Unit deferral elections at any time for any reason it deems appropriate in its sole discretion.
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| PBF ENERGY INC. |
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| By: | |
| | Name: Title: |
PBF Energy Names Karen B. Davis as Interim Chief Financial Officer
PARSIPPANY, NJ – December 7, 2022 – PBF Energy Inc. (NYSE: PBF) today announced that Karen B. Davis will assume the role of Chief Financial Officer, on an interim basis, of PBF Energy Inc., effective January 1, 2023.
Ms. Davis previously served as Executive Vice President and Chief Financial Officer of Western Refining, Inc. and its affiliated entities, Western Refining Logistics LP and Northern Tier Energy, LP through May 2017. During her career, she has served in various chief financial officer and financial reporting officer positions with various public and private companies throughout the United States. Ms. Davis has served as an independent director of PBF Energy since January 1, 2020 and the Chairperson of the Audit Committee since October 1, 2020. From 2017 through 2019, she served as a director of PBF Logistics LP, where she was a member of the Audit and the Conflicts Committees.
Tom Nimbley, PBF Energy’s Chairman and CEO, said, “On behalf of the Board of Directors and management team, we are grateful that Karen is willing to assume the position of Chief Financial Officer of PBF Energy on an interim basis. Not only is she eminently qualified as a seasoned financial executive with refining industry experience as a Chief Financial Officer, her current experience as member of the PBF Board of Directors ensures a smooth transition.”
In connection with the assumption of the duties of Interim Chief Financial Officer, Ms. Davis will step down from the Board of Directors of PBF Energy Inc.
About PBF Energy
PBF Energy Inc. (NYSE: PBF) is one of the largest independent refiners in North America, operating, through its subsidiaries, oil refineries and related facilities in California, Delaware, Louisiana, New Jersey and Ohio. Our mission is to operate our facilities in a safe, reliable and environmentally responsible manner, provide employees with a safe and rewarding workplace, become a positive influence in the communities where we do business, and provide superior returns to our investors.
Forward-looking Statements
Statements in this press release relating to future plans, results, performance, expectations, achievements and the like are considered “forward-looking statements” (as that term is defined under the federal securities laws). These forward-looking statements involve known and unknown risks, uncertainties and other factors, many of which may be beyond PBF Energy’s control, that may cause actual results to differ materially from any future results, performance or achievements expressed or implied by the forward-looking statements. Factors and uncertainties that may cause actual results to differ include but are not limited to the risks disclosed in PBF Energy’s filings with the SEC. All forward-looking statements speak only as of the date hereof. PBF Energy do not undertake any obligation to revise or update any forward-looking statements except as may be required by applicable law.
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Contacts:
Colin Murray (investors)
ir@pbfenergy.com
Tel: 973.455.7578
Michael C. Karlovich (media)
mediarelations@pbfenergy.com
Tel: 973.455.8994