Exhibit 10.1
January 12, 2024
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This Separation Agreement and Release of Claims (“Agreement”) is made by and between William W. Beard (“Mr. Beard”), and V2X, Inc. (“V2X”).
WHEREAS Mr. Beard and V2X mutually desire to end Mr. Beard’s employment with V2X; and
WHEREAS Mr. Beard and V2X desire to settle fully and finally, without admission of liability, any and all claims that Mr. Beard could bring against V2X;
NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained and to avoid the possibility unnecessary litigation, it is hereby agreed by and between the parties as follows:
1.End of Employment/Consideration. Mr. Beard and V2X agree that Mr. Beard’s employment with, and service as the Senior Vice President, Aerospace and Defense Services of V2X ended effective January 12, 2024. Mr. Beard shall be deemed to have resigned from all other positions with V2X and/or any of its affiliated entities that he holds.
a.Moreover, in full consideration of Mr. Beard’s execution of this Agreement and his agreement to be legally bound and abide by its terms, as well as his agreement to assist in any transition matters as requested by V2X, and subject to the terms below, V2X and Mr. Beard agree as follows:
i.V2X will pay to Mr. Beard the total sum of Four Hundred Eighty-Seven Thousand Five Hundred Dollars and Zero Cents ($487,500.00) (“Severance Pay”), which consists of thirteen (13) months of base pay, less required deductions, and withholdings to be paid in equal periodic installments aligned to the normal V2X payroll cycle.
ii.Mr. Beard shall be eligible for participation in applicable V2X employee welfare benefit plans that Mr. Beard participated in immediately prior to the end of his employment, at the level he participated in at that time, in accordance with the provisions of such plans and to the extent required by the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). The duration of this participation shall be thirteen (13) months from the date his employment with V2X ends. V2X shall pay its share of the monthly premium per the Company’s contribution strategy for this coverage. Mr. Beard’s participation in all other employee benefit plans will cease on January 12, 2024.
iii.Mr. Beard understands that V2X will deduct from the monies described in paragraph 1.a.i, above, all federal, state, and local withholding taxes and other deductions V2X is required by law to make from payments to employees. After the termination of his employment, Mr. Beard understands that he is not entitled to any compensation or
benefits or any other payment from V2X, including but not limited to any severance pay, commissions, termination allowance, notice pay or similar pay or allowance, other than as specifically provided in this Agreement.
iv.V2X agrees to make to Mr. Beard a lump sum payment for any accrued, unused Paid Time Off (“PTO”) in the form of a direct deposit on the first regular V2X payday, following the end of Mr. Beard’s employment. Mr. Beard will not continue to accrue PTO after the termination date of January 12, 2024.
v.Mr. Beard has been awarded Restricted Stock Units (“RSUs”) pursuant to the RSU Agreement dated July 5, 2022, of which 29,314 are currently outstanding. All 29,314 of these outstanding RSUs will vest as of the Effective Date. The terms and conditions of the Award Agreements pursuant to which the RSUs were awarded, including the restrictive covenants contained in the Appendices thereto, are incorporated herein by reference.
vi.Mr. Beard has been awarded 6,981 RSUs pursuant to an RSU Agreement dated March 10, 2023. These RSUs shall vest on a pro-rated basis as of the end of the performance period in accordance with the terms of the RSU Award Agreement. All unvested shares shall be forfeited as of the date of termination without the payment of any consideration.
vii.Mr. Beard has been awarded 6,981 Performance Stock Units (“PSUs”) pursuant to a TSR Award Agreement dated March 10, 2023 (the “TSR Award Agreement”). These PSUs shall vest on a pro-rated basis as of the end of the performance period in accordance with the terms of the TSR Award Agreement. All unvested shares shall be forfeited as of the date of termination without the payment of any consideration.
viii.The 8,209 Special Performance Restricted Stock Units that were granted to Mr. Beard on March 10, 2023, shall be forfeited as of the date of termination without the payment of any consideration.
b.The payments and benefits provided in this Section are inclusive of all claims Mr. Beard had, has, or may have had through the date of this Agreement for any alleged damages against V2X, including, but not limited to, any alleged claims for back pay, lost benefits, liquidated damages, physical injuries, emotional distress, attorney’s fees, and costs.
c.The payments provided above shall be governed by applicable federal, state, and local laws and regulations, including but not limited to all applicable tax laws, and Mr. Beard shall be solely responsible for the employee’s portion of any taxes, and liens, interest, and penalties that he might owe with respect to such payments. Mr. Beard acknowledges that he has obtained no advice from V2X or its attorneys and that neither V2X nor its attorneys have made any representations regarding the tax or other financial consequences, if any, regarding the payments provided for above. Mr. Beard shall indemnify V2X and hold V2X harmless for the employee’s portion of taxes, and all liens, penalties, interest, withholdings, amounts paid in settlement to any governmental authority, and expenses, including but not limited to, defense expenses and attorney fees, with regard to the payments.
d.Payment of the amounts described in paragraph 1.a shall not commence sooner than eight (8) days following Mr. Beard’s execution of this Agreement, provided that Mr.
Beard has not revoked this Agreement pursuant to paragraph 18, below, and no later than thirty (30) days from the date of his execution; provided, however, that the benefits described in paragraphs 1.a.v, vi and vii shall vest according to the terms of those paragraphs. Mr. Beard agrees that the payments and benefits described in paragraph 1.a.viii. are more than V2X is required to provide under its normal policies and procedures or by law.
2.Acknowledgments. By accepting the payments described in paragraph 1 of this Agreement, Mr. Beard acknowledges that he is agreeing to the terms set forth in this Agreement in return for V2X’s promise to provide his with money and benefits which he would otherwise not be entitled to receive. Further, Mr. Beard is representing, warranting, and agreeing that the following statements are true and correct:
a.V2X has paid Mr. Beard through the date of his signature below all wages, bonuses and other forms of compensation due to his for work performed on behalf of V2X, this than as described in this Agreement, including any overtime wages due his;
b.Except as otherwise provided in this Agreement, Mr. Beard is not entitled to receive compensation, fringe benefits, severance benefits or any other employee benefits or payments of any kind from V2X or its parent or affiliated companies, subsidiaries, divisions, related business entities;
c.V2X has properly provided Mr. Beard with leave for his or his family members’ health conditions and has not taken any adverse action against his as a result of his requesting or taking any such leave;
d.Mr. Beard has not suffered or incurred any workplace injury in the course of his employment with V2X on or before the date of his signature below, other than any injury that was made the subject of an injury report or workers’ compensation claim on or prior to the date of his signature below;
e.Mr. Beard is not currently aware of, does not have, and has not filed any complaint, charge, lawsuit, or other legal action that is now pending against V2X, or any other released party described in Section 3; and
f.Mr. Beard has had the opportunity to provide V2X with written notice of any and all concerns regarding suspected ethical and compliance issues or violations on the part of V2X or any other released party, including but not limited to: (i) gross mismanagement, (ii) gross waste of funds, (iii) abuse of authority, (iv) danger to public health or safety, or (v) violation of any law or regulation related to any federal agency contract or grant, and acknowledges that he is not aware of any such concerns, issues or violations; and
g.Mr. Beard shall seek written approval from V2X prior to entering into any transaction involving V2X securities, including the purchase or sale of any stock. Mr. Beard will no longer be subject to the requirement for prior approval before the purchase or sale of any such stock after three months following the termination of his employment. Mr. Beard is also subject to the securities laws and V2X’s “insider trading” policies in respect of any transaction Mr. Beard effects while in possession of material non-public information regarding such stock.
3.Release of Claims.
a.Payment of the amounts described in paragraph 1.a to Mr. Beard is accepted by his in full and final release and settlement of any and all claims which he may have against V2X and each of its predecessors, subsidiaries, associates, affiliates and equity holders (including, for the avoidance of doubt, Vertex Aerospace Services Holding Corp., Andor Merger Sub, LLC and Vertex Aerospace Holdco LLC), and each of its and their respective former or current directors, managers, officers, employees, trustees, agents, attorneys, representatives, affiliates, subsidiaries, divisions, related business entities, general or limited partners, members, stockholders, equity holders, controlling persons, successors and assigns, or anyone employed by any of them or acting on any of their behalf, as well as insurers and reinsurers (collectively “Releasees), relating to his employment and/or separation from employment with V2X and which arise on or before the date of his signature below; provided, however, that it does not include any claim for workers compensation. The claims which he hereby releases and settles include, but are not limited to:
i.any claim of alleged discrimination, harassment, retaliation or failure to accommodate, under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Americans With Disabilities Act, the Age Discrimination in Employment Act (“ADEA”), the Equal Pay Act, the Rehabilitation Act, the Genetic Information Non Discrimination Act, any amendments to the foregoing, or any other federal, state, or local statute, regulation, or ordinance related to any aspect of employment;
ii.any claim of negligence, breach of an express or implied employment contract, violation of public policy, wrongful discharge, conspiracy, fraud, infliction of emotional distress, mental or physical injury, or defamation;
iii.any claim for benefits under any of V2X’s employee benefits plans;
iv.any claim for wages, bonuses, commissions, vacation pay, sick pay, severance or compensation of any kind other than those specified in this Agreement, including any claim for amounts payable to Mr. Beard in respect of any bonus and/or incentive plan of V2X for the year of his termination from employment or any prior period;
v.any claim or violation under any other federal, state, or local statute or common law that may apply in the context of Mr. Beard’s employment with V2X, including, but not limited to, the Family and Medical Leave Act, the Employee Retirement Income Security Act, and the federal Worker Adjustment and Retraining Notification Act (WARN Act) or any other or any similar state or local law governing plant closings or mass layoffs; and
vi.any claim for reinstatement, equitable relief, or damages of any kind whatsoever.
b.Mr. Beard also specifically understands that he is releasing any claim he might have under the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq., which prohibits discrimination on the basis of age forty or older.
c.Mr. Beard understands that he is releasing potentially unknown claims, and that he has limited knowledge with respect to some of the claims being released. Mr. Beard
acknowledges that these is a risk that, after signing this Agreement, he may learn information that might have affected his decision to enter into this Agreement. Mr. Beard assumes this risk and all other risks of any mistake in entering into this Agreement. Mr. Beard agrees that this release is fairly and knowingly made.
d.The release of claims set forth above does not affect Mr. Beard’s vested rights in and to any welfare or qualified retirement benefit plan to which he may be entitled. In addition, the release of claims set forth above does not apply to claims that cannot be released by private agreement; claims for worker’s compensation or unemployment benefits; or claims that arise after the date on which he signs this Agreement.
4.Covenant Not to Sue and Waiver of Additional Remedies. As further consideration for V2X’s payment to Mr. Beard, he agrees that he will not institute any court proceeding in order to pursue any claim that he has released in paragraph 3 hereof. Nothing in this Agreement, including the provisions of paragraphs 3, 6, 7, and 8 hereof and any and all of his other covenants herein, shall be construed to prevent Mr. Beard, in good faith, from challenging the validity of this Agreement under the ADEA or the Older Worker Benefit Protection Act or from filing a lawsuit of discrimination with, reporting – without prior notice to or consent from – possible waste, fraud, abuse, occupational injury or illness, or violations of any law or regulation to, providing supporting information or documents to, and/or participating in an investigation or testifying in any proceeding conducted by, the Equal Employment Opportunity Commission, National Labor Relations Board, Securities and Exchange Commission, OSHA, and/or any other similar local, state, or federal administrative agency charged with the enforcement of any laws. Nothing in this Agreement precludes Mr. Beard from testifying in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged unlawful employment practices regarding V2X, its agents, or employees, when Mr. Beard has been required or requested to do so pursuant to a court order, subpoena, or written request from an administrative agency or the legislature. However, in accordance with his release of claims in paragraph 3 of this Agreement, Mr. Beard waives his right to recover any individual relief (excluding the consideration provided to his under this Agreement, but including backpay, front pay, reinstatement, or other legal or equitable relief) in any lawsuit, complaint, or lawsuit or other proceeding brought by his or on his behalf by any third party, except where such a waiver of individual relief is prohibited by law and except for any right he may have to receive a bounty payment or other award from a government agency (and not V2X or any released parties) for information provided to the government agency. Further, Mr. Beard retains the right to challenge the knowing and voluntary nature of this Agreement under the Older Worker’s Benefit Protection Act (“OWBPA”) and the ADEA before a court, the EEOC, or any state or local agency permitted to enforce those laws, and this release does not impose any penalty or condition for doing so. Notwithstanding Mr. Beard’s confidentiality and non-disclosure obligations in this Agreement, Mr. Beard understands that as provided by the Federal Defend Trade Secrets Act, he will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
5.Opportunity to Consider the Agreement and Consult an Attorney. Mr. Beard acknowledges that he has been and is in connection with this Agreement advised by V2X to consult his own attorney prior to deciding whether to accept this Agreement and that he was
afforded a period of twenty-one (21) days to consider this Agreement and to decide whether to accept it. Mr. Beard further acknowledges that no representative of V2X ever stated or implied that he had less than twenty-one (21) days to consider this Agreement. Mr. Beard also acknowledges that, to the extent he decided to sign this Agreement prior to the expiration of the full twenty-one (21) day period, such decision was knowing and voluntary on his part and was in no way coerced by V2X. To the extent any changes were made in this Agreement as a result of discussions taking place after the date this Agreement was first provided to Mr. Beard, he and V2X agree that such changes, whether material or not, did not restart the running of the period of twenty-one (21) days to consider this Agreement.
6.Non-Disparagement.
a.Mr. Beard agrees not to make, now or at any time in the future, any disparaging statements concerning V2X, or any person associated with V2X that he is aware of, including any officer, partner, director, member, employee, expert, or legal representative of V2X, concerning their respective activities that he is aware of, or concerning their respective officers, trustees, directors, employees, representatives, products or services that he is aware of, to the press, to the respective present or former employees of V2X or any affiliate that he is aware of, or to any individual or entity with whom or which V2X has a working or business relationship that he is aware of, including, but not limited to, V2X’s respective customers, clients, suppliers, and distributors, or to any other person or entity that he is aware of, where such comment or statement could affect adversely the conduct of V2X’s or any affiliate’s business or their respective reputations. This paragraph does not prohibit giving information to a government agency. In the event of a conflict between the provisions of this paragraph and those of Section 4, Section 4 shall govern.
7.Mutual Nondisclosure Obligation.
a.The Parties agree that the terms of this Agreement and the amounts paid pursuant to this Agreement are STRICTLY AND COMPLETELY CONFIDENTIAL and shall not be disclosed to any person or entity except as expressly permitted in this paragraph. The Parties shall make no reference to this Agreement or the termination of Mr. Beard’s employment on social media. The Parties further represent that they have not, as of the date of this Agreement, disclosed the terms of this Agreement or the amount of the payments identified in this Agreement, except as would have been authorized by this Agreement.
b.Notwithstanding the foregoing provisions of this paragraph, the Parties shall be entitled to disclose the facts and terms of this Agreement: (i) to their respective attorneys, financial advisers, or accountants, and in the case of the V2X, to the members of the Board of Directors and/or any V2X employee who in his/his/their official capacity has reason to know about the Agreement; (ii) to a government agency and/or a verified contractor of a government agency and/or any applicable regulatory entities; (iii) in response to a valid and enforceable subpoena; (iv) as otherwise required by law; or (v) in connection with a dispute arising out of this Agreement. In addition, Mr. Beard may disclose the facts and/or terms of this Agreement to members of his family.
c.If Mr. Beard is required to disclose this Agreement, its terms or underlying facts pursuant to court order and/or subpoena, Mr. Beard shall notify V2X, in writing via
facsimile, email or overnight mail, within forty-eight (48) hours of his receipt of such court order or subpoena, and simultaneously provide V2X with a copy of such court order or subpoena. The notice shall be delivered to Jo Ann Bjornson, Chief Human Resources Officer, V2X, Inc., 7901 Jones Branch Drive, Suite 700, McLean, Virginia, 22102. Mr. Beard agrees to waive any objection to V2X’s request that the document production or testimony be done on camera and under seal.
d.In the event there is any litigation to enforce this Agreement, the prevailing party in a court of competent jurisdiction will be awarded his/its costs, expenses and reasonable attorneys’ fees in addition to any monetary recovery.
8.Confidentiality of Information. Mr. Beard acknowledges that, as an employee of V2X, he had access to and possesses confidential information and proprietary business information about V2X, and its respective clients, licensors, and suppliers (collectively “Confidential Information”), which information is the property of V2X and not generally known or available to the public. Confidential Information includes, without limitation, V2X’s professional, technical and administrative manuals, associated forms, processes and computer systems (including hardware, software, database and information technology systems); marketing, sales and business development plans and strategies; client and prospect files, lists and materials; V2X’s sales, costs, profits and other financial information; short- and long-term strategy information; and human resources strategies. Mr. Beard agrees that, except as otherwise may be required by law, and only as permitted by paragraphs 4 and 7 of this Agreement, he will not divulge, communicate, or in any way make use of any Confidential Information acquired in the performance of his duties for V2X and maintained as such by V2X. Nothing in this Agreement is intended to or will be used in any way to limit Mr. Beard’s rights to make truthful statements or disclosures regarding unlawful employment practices.
9. Non-Competition and Non-Solicitation.
a. Noncompete. For a period of one year after the date Mr. Beard’s employment with V2X ends, he will not provide services to a Competitor in any role or position (as an employee, consultant or otherwise) within or related to the Restricted Area that would involve Competitive Activity.
b. Customer Nonsolicit. For a period of one year after the date Mr. Beard’s employment with V2X ends, he will not, directly or through assistance to others, participate in soliciting a Covered Customer for the benefit of a Competitor, or for the purpose of causing or encouraging the Covered Customer to cease or reduce the extent to which the customer does business with V2X.
c. Employee Nonsolicit. For a period of one year after the date Mr. Beard’s employment with V2X ends, he will not, for the benefit of a Competitor, directly or through assistance to others, participate in soliciting a Covered Employee to leave the employment of V2X or assist a Competitor in efforts to hire a Covered Employee.
d. Definitions & Understandings. For purposes of the foregoing Restrictive Covenants, the following definitions and understandings will apply:
i. “Competitor” refers to a person or entity who is engaged in V2X’s business and/or provides (or is planning to provide) Competitive Products in the markets whise V2X does business.
ii. “Competitive Activity” means job duties or other business-related activities (as an employee, consultant, director, partner, owner or otherwise) that involve the performance of services that are the same as or similar in function or purpose to those Mr. Beard performed, supervised or managed for V2X in the Look Back Period.
iii. “Competitive Product” means goods or services of the type conducted, authorized, offered, or provided by V2X within two years prior to the termination of Mr. Beard’s employment that V2X remains in the business of providing and that would displace business opportunities for V2X’s goods or services (existing or under development) that Mr. Beard had involvement with.
iv. “Covered Customer” means a customer of V2X that Mr. Beard had material contact with or was provided Confidential Information about during the Look Back Period. Unless it would make the applicable restriction unenforceable, customers will be presumed to include active customer prospects as of the date Mr. Beard’s employment with V2X ended that he had material contact with.
v. “Covered Employee” means an employee that Mr. Beard worked with, gained knowledge of, or was provided Confidential Information about as a result of his employment with V2X during the Look Back Period. ‘
vi. “Look Back Period” means the last two (2) years of Mr. Beard’s employment with V2X (including any period of employment with a predecessor entity acquired by V2X) or any lesser period of his employment if employed less than two years.
vii. “Restricted Area” is each geographic territory or region assigned to Mr. Beard in the Look Back Period, or if his area of responsibility was not limited to a specific assigned territory or region then each state (or state equivalent) and county (parish or other county equivalent) within the United States where V2X did business during the Look Back Period that Mr. Beard had any material involvement in or was provided Confidential Information about, or if this geography is not enforceable then such other geographic area as may be the maximum permissible geographic area of enforceability of the covenant to which the Restricted Area applies. Unless Mr. Beard can prove otherwise by clear and convincing evidence, a reasonable Restricted Area shall be presumed to include, at a minimum, the state(s) and county(s) within the United States that Mr. Beard actively worked in during such the Look Back Period, and the states and counties where the Covered Customers and Company both do business.
10.Return of Property. By signing this Agreement, Mr. Beard agrees and represents that he has either already returned to V2X, or will do so to the extent he has not already done so, all documents, equipment and other materials belonging to V2X, or otherwise containing Confidential Information, that is in his possession or under his control, including but not limited to any information in any tangible form (any documents, memoranda and/or files, faxes, and any means of data storage such as computer disks, CDROMS and the like, and all copies thereof), concerning V2X or its businesses, employees, clients and/or projects, and any keys, credit
cards, equipment, computers, portable telephones, identification cards, books, notes, and any other property of V2X. Mr. Beard agrees that all memoranda, notes, records, or other documents compiled by his or made available to his during the term of his employment with V2X concerning its businesses or customers is its property, whether or not confidential, and has been returned by Mr. Beard to V2X. Mr. Beard further agrees that he shall not be entitled to any payments pursuant to this Agreement until such equipment and materials have been returned to V2X.
11.Unemployment Insurance, Future Employment. V2X agrees that it will not oppose any application by Mr. Beard for unemployment benefits. Mr. Beard agrees that he will not now or at any time in the future seek employment with V2X, and if for some reason he does so, V2X is entitled to reject any such application without any recourse by Mr. Beard.
12.Disqualifying Conduct. If Mr. Beard, in any material way: (i) breaches the terms of this Agreement; (ii) fails to comply with V2X’s Company Covenant Against Disclosure and Assignment of Rights to Intellectual Property executed by Mr. Beard or improperly utilizes V2X’s confidential or proprietary information or breaches paragraph 8 of this Agreement; (iii) fails to comply with applicable provisions of the V2X Code of Corporate Conduct or applicable policies; (iv) breaches any provision of the applicable Award Agreements referred to in paragraph 1, above; or (v) engages in fraud, misfeasance or malfeasance, as determined in the sole discretion of V2X (collectively, “Disqualifying Conduct”), then the PSUs identified in paragraph 1.a.v shall be immediately forfeited. Because of certain language in the OWBPA and associated regulations, and even though Mr. Beard is releasing claims under the ADEA and the OWBPA, this forfeiture does not apply to any challenge Mr. Beard may make to the knowing and voluntary nature of this Agreement under the ADEA and the OWBPA. Moreover, V2X will have no further obligation to make any other payments or benefits described in this Agreement, other than those to which Mr. Beard may be entitled. And, in the event that V2X has to file suit or take other action to recover any such payment, Mr. Beard will also be liable to V2X for the legal fees incurred by V2X.
13.Medicare Status and Satisfaction of Any Medicare Reimbursement Obligations
a.Mr. Beard represents and warrants that Mr. Beard is not enrolled in the Medicare program, was not enrolled in the Medicare program at the time of the Released Matters or anytime thereafter through the date of this Release, and has not received Medicare benefits for medical services or items related to the Released Matters. Mr. Beard understands that Releasees have requested certain personal information of Mr. Beard, including Mr. Beard’s Social Security Number, to meet Releasees’ reporting obligations under Section 111 of MMSEA. Mr. Beard has chosen not to provide such information to Releasees and agrees in paragraph 3 above to indemnify Releasees for any penalties or claims resulting from Releasees’ inability to report this settlement as may be required by law.
b.Mr. Beard represents and warrants that Mr. Beard has not received any medical services or items related to, arising from, or in connection with the Released Matters.
c.Mr. Beard acknowledges and agrees that it is Mr. Beard’s responsibility pursuant to this Release, and not the responsibility of Releasees, to reimburse Medicare for any Conditional Payments made by Medicare on behalf of Mr. Beard as of the date of this Agreement or in the future.
14.No Admissions. Nothing contained herein shall be construed as an admission of wrongdoing, violation of any federal, state, or local law, or violation of any V2X policy or procedure by V2X or any of its divisions, affiliates or any of their respective officers, directors, employees or Mr. Beard.
15.Entire Agreement. This Agreement, along with the attachments and other V2X policies and agreements referred to herein, and any other agreement applicable to Mr. Beard, including but not limited to the Award Agreements referred to in paragraph 1a, above, sets forth the entire agreement between Mr. Beard and V2X relating to his employment with and separation from V2X; provided, however, that if there is a conflict between any of these other policies and/or agreements and this Agreement, the terms of this Agreement shall govern the parties. Mr. Beard acknowledges that in entering into this Agreement he has not relied upon any representation, oral or written, not set forth in this Agreement.
16.Severability. By signing this Agreement, Mr. Beard acknowledges that he understands that in the event that any provision contained herein, except paragraphs 3 and 4, becomes or is declared by a court or other tribunal of competent jurisdiction to be illegal, unenforceable, or void, this Agreement shall continue in full force and effect without said provision. In the event that paragraph 3 and/or paragraph 4 is declared by a court or other tribunal of competent jurisdiction to be illegal, unenforceable or void, then this Agreement shall be deemed null and void, and he agrees to re-pay to V2X the payment provided to his in this Agreement.
17.Cooperation. By signing this Agreement, Mr. Beard agrees to reasonably cooperate with V2X and its attorneys in the prosecution and/or defense of any legal action wherein V2X is a party and that involves any facts or circumstances arising during the course of his employment with V2X, including its subsidiaries and affiliated entities. Such cooperation includes, but is not limited to, meeting with V2X’s attorneys at reasonable times and places to discuss his knowledge of pertinent facts, appearing as required at deposition, arbitration, trial, or other proceeding to testify as to those facts and testifying to the best of his abilities at any such proceeding. Mr. Beard will be reimbursed for all reasonable costs and expenses incurred during his cooperation. Mr. Beard also agrees that, for a period of six months after his employment with V2X ends, he will make herself reasonably available to V2X for any assistance with transition issues as is needed by V2X. Mr. Beard will not be compensated for any such time.
18.Right to Revoke Agreement. Mr. Beard understands and agrees that he: (a) has carefully read and fully understands all of the provisions of this Agreement; (b) has been given a full twenty-one (21) days within which to consider this Agreement before executing it; (c) is, through this Agreement, releasing V2X, and the parties identified in paragraph 3, from any and all claims he may have against them, to the maximum extent permitted by law; (d) knowingly and voluntarily agrees to all of the terms set forth in this Agreement; (e) knowingly and voluntarily intends to be legally bound by this Agreement; (f) had the opportunity to consult with an attorney before executing this Agreement; (g) had a full seven (7) calendar days following his execution of this Agreement to revoke this Agreement; (h) understands that rights or claims under the ADEA that may arise after the effective date of this Agreement are not waived; and (i) understands that this Agreement shall not become effective or enforceable until the Effective Date, which is the first calendar day after the expiration of the seven-day revocation period described above. No money and/or benefits payable solely by virtue of this Agreement shall be
made during the seven-day revocation period. In order to revoke this Agreement, Mr. Beard must deliver or cause to be delivered to Jo Ann Bjornson, at the address identified in paragraph 7(c), above, an express written revocation, no later than 11:59 p.m. EDT on the seventh calendar day following the date Mr. Beard signs this Agreement.
19.No Reliance. Mr. Beard acknowledges that he has had the opportunity to conduct an investigation into the facts and evidence relevant to his decision to sign this Agreement. Mr. Beard acknowledges that, in deciding to enter into this Agreement, he has not relied on any promise, representation, or other information not contained in this Agreement, and also has not relied on any expectation that V2X has disclosed all material facts to his. By entering into this Agreement, Mr. Beard is assuming all risks that he may be mistaken as to the true facts, that may have been led to an incorrect understanding of the true facts, or that facts material to his decision to sign this Agreement may have been withheld from his. Mr. Beard will have no claim to rescind this Agreement on the basis of any alleged mistake, misrepresentation, or failure to disclose any fact. None of the foregoing, however, will affect his right to challenge the validity of this Agreement under the Older Worker Benefit Protection Act.
20.Authority.
a.Mr. Beard represents and warrants that he has all necessary authority to enter into this Agreement (including, if he is married or in a domestic partnership, on behalf of his marital community or domestic partnership community) and that he has not transferred any interest in any claims to his spouse or domestic partner or to any other third party.
b.This Agreement shall be binding upon and inure to the benefit of Mr. Beard and V2X and their respective heirs, executors, successors, representatives, and agents.
21.Choice of Law. This Agreement shall be governed and interpreted by the laws of the Commonwealth of Virginia, without regard to any conflict of laws principles that would apply another jurisdiction’s laws. The parties also agree that any action to enforce this Agreement shall be brought exclusively in a court located in Virginia encompassing the geographic area of V2X’s headquarters office. The parties consent to the personal jurisdiction of any such court, and waive any objections to lack of personal jurisdiction or inconvenience of this forum.
22.Compliance with IRC 409A. This Agreement is intended to comply with I.R.C. Section 409A and will be interpreted in a manner intended to comply with Section 409A. Each payment made under this Agreement shall be designated as a “separate payment” within the meaning of Section 409A. If, as of the last day worked by Mr. Beard, he is a “specified employee” as defined in Section 409A and the deferral of any other payment or commencement of any other payments or benefits otherwise payable by V2X to Mr. Beard as a result of Mr. Beard’s separation of service is necessary in order to prevent any accelerated or additional tax under Section 409A, then V2X will defer the commencement of the payment of any such payments or benefits until the date that is six months following his last day of employment.
23.Effective Date. This Agreement shall be effective on the first day after the expiration of the seven-day expiration period described above (the “Effective Date”).
24.Counterparts and Signatures. This Agreement may be signed in counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute the
same instrument. A signature made on a faxed or electronic copy of the Agreement or a signature transmitted by facsimile or email shall have the same effect as an original signature.
PLEASE READ CAREFULLY. THIS AGREEMENT CONTAINS
A RELEASE OF KNOWN AND UNKNOWN CLAIMS.
V2X, Inc. William W. Beard
/s/ Jo Ann Bjornson /s/ William W. Beard
Jo Ann Bjornson
1/23/24__________ 1/12/24_______
Date Date
V2X, INC.
Second Amendment and Restatement of the V2X, Inc. 2014 Omnibus Incentive Plan, as amended and restated as of October 27, 2022
RESTRICTED STOCK UNIT AWARD AGREEMENT
(Stock Settled)
THIS AGREEMENT (the “Agreement”), effective as of ###GRANT_DATE###, by and between V2X, Inc. (the “Company”) and ###PARTICIPANT_NAME### (the “Grantee”), WITNESSETH:
WHEREAS, the Grantee is now employed by the Company or an Affiliate (as defined in the Second Amendment and Restatement of the V2X, Inc. 2014 Omnibus Incentive Plan, as amended and restated as of October 27, 2022, (the “Plan”)) as an employee, and in recognition of the Grantee’s valued services, the Company, through the Compensation and Personnel Committee of its Board of Directors (the “Committee”), desires to provide an inducement to remain in service of the Company and as an incentive for increased efforts during such service pursuant to the provisions of the Plan and this Agreement.
NOW, THEREFORE, in consideration of the terms and conditions set forth in this Agreement and the provisions of the Plan, a copy of which is attached hereto and incorporated herein as part of this Agreement, and any administrative rules and regulations related to the Plan as may be adopted by the Committee, the parties hereto hereby agree as follows:
1.Grant of Restricted Stock Units. In accordance with, and subject to, the terms and conditions of the Plan and this Agreement, the Company hereby confirms the grant on ###GRANT_DATE### (the “Grant Date”) to the Grantee of ###TOTAL_AWARDS### Restricted Stock Units. The Restricted Stock Units are notional units of measurement denominated in Shares of common stock of the Company (i.e., one Restricted Stock Unit is equivalent in value to one share of common stock of the Company (a “Share”)).
The Restricted Stock Units represent an unfunded, unsecured right to receive Shares in the future if the conditions set forth in the Plan and this Agreement are satisfied.
2.Terms and Conditions. It is understood and agreed that the Restricted Stock Units are subject to the following terms and conditions:
(a)Restrictions. Except as otherwise provided in the Plan and this Agreement, neither this Award nor any Restricted Stock Units subject to this Award may be sold, assigned, pledged, exchanged, transferred, hypothecated or encumbered, other than to the Company as a result of forfeiture of the Restricted Stock Units.
(b)Stockholder Rights. The Grantee shall not have any privileges of a stockholder of the Company with respect to the Restricted Stock Units or any Shares that may be delivered hereunder, including without limitation any right to vote such Shares or to receive dividends or dividend equivalents, unless and until such Shares are delivered upon vesting of the Restricted Stock Units.
(c)Vesting of Restricted Stock Units and Payment. Subject to subsections 2(d) and 2(e) below, the Restricted Stock Units shall vest (meaning the Period of Restriction shall lapse with respect to the applicable vesting Restricted Stock Units) as follows:
(i)1/3 of the Restricted Stock Units shall vest on ###GRANT_DATE###, 2025
(ii)1/3 of the Restricted Stock Units shall vest on ###GRANT_DATE###, 2026, and
(iii)1/3 of the Restricted Stock Units shall vest on ###GRANT_DATE###, 2027.
Except as provided in subsections 2(j)(i) and 2(j)(ii) below, upon vesting of the Restricted Stock Units (including vesting pursuant to subsections 2(d) or 2(e) below), the Company will deliver to the Grantee one Share for each vested Restricted Stock Unit, with any fractional Share resulting from proration resulting from the fractional vesting set forth above or otherwise set forth herein to be rounded to the nearest whole Share (with 0.5 to be rounded up), less any Shares and/or cash withheld in accordance with subsection 2(f) below.
(d)Effect of Acceleration Event. Notwithstanding anything in this Agreement to the contrary, the Restricted Stock Units shall, to the extent outstanding and unvested, immediately become 100% vested if, on the date of, or within twenty- four months following, an Acceleration Event which occurs following the Grant Date, the Grantee’s employment is terminated by the Company (or an Affiliate or any successor, as the case may be), without Cause (as defined below) or by the Grantee for Good Reason (as defined below).
For purposes of this Agreement, the term “Cause” shall mean (1) the Grantee’s misconduct, (2) the Grantee’s violation of Company policies, rules or Code of Conduct or any other terms or conditions relating to the Grantee’s employment or any agreement with the Grantee or (3) any other conduct of the Grantee that the Committee in its sole discretion determines constitutes Cause for purposes of this Agreement.
For purposes of this Agreement, the term “Good Reason” shall mean, without the Grantee’s express written consent and excluding for this purpose any action which is remedied by the Company (or an Affiliate or any successor, as the case may be) within thirty (30) days after receipt of notice thereof given by the Grantee, (i) a reduction in the Grantee’s annual base compensation (whether or not deferred); (ii) the assignment to the Grantee of any duties inconsistent in any material respect with the Grantee’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities; (iii) any other action by the Company (or an Affiliate or any successor, as the case may be) which results in a material diminution in such position, authority, duties or responsibilities; or (iv) the Company’s (or an Affiliate or any successor, as the case may be) requiring the Grantee’s work location to be other than within thirty-five (35) miles of the location where such Grantee was principally working immediately prior to the Acceleration Event; provided that “Good Reason” shall cease to exist for an event on the 90th day following the later of its occurrence or the Grantee’s knowledge thereof, unless the Grantee has given the Company (or an Affiliate or any successor, as the case may be) notice thereof prior to such date, and the date of the Grantee’s termination of employment for Good Reason must occur, if at all, within one hundred and eighty (180) days following the later of the occurrence of the Good Reason event or the Grantee’s knowledge thereof.
(e) Effect of Death, Disability and Termination of Employment
(i)Death or Disability. If the Grantee dies or becomes Disabled (as defined below) while employed, the Restricted Stock Units shall immediately become 100% vested as of the date of the death or the date the Grantee becomes Disabled, as the case may be. For purposes of this Agreement, the term “Disability” shall mean the complete and permanent inability of the Grantee to perform all of his or her duties under the terms of his or her employment, as determined by the Company upon the basis of such evidence, including independent medical reports and data, as the Company deems appropriate or necessary; provided however, that with respect to any portion of the Award that constitutes deferred compensation for purposes of Section 409A of the Code and any related regulations or other effective guidance promulgated thereunder (“Section 409A”), the Grantee shall not be deemed to be Disabled unless and until the date the Grantee becomes “disabled” as that term is used in Section 409A.
(ii)Termination by the Company Without Cause. If the Grantee's employment terminates due to an involuntary termination of employment by the Company (or an Affiliate, as the case may be) for other than Cause (provided that subsection 2(d) is not applicable and the termination is not deemed a Retirement pursuant to subsection 2(e)(iii)), the Grantee shall be entitled to vest in a prorated portion of the Restricted Stock Units (as described below), with any remaining unvested portion of the Award expiring as of the date of the termination of the Grantee’s employment. Such prorated vesting shall occur on the original vesting schedule set forth in subsection 2(c), not at the time of the Grantee’s termination of employment. The prorated portion of the Restricted Stock Units to which the Grantee is entitled pursuant to this paragraph shall be determined by (A) multiplying the total number of Restricted Stock Units subject to this Award by a fraction, the numerator of which is the number of full months during which the Grantee has been continually employed since the Grant Date (not to exceed 36 in the aggregate), and the denominator of which is 36, and (B) reducing the product thereof by the number of Restricted Stock Units that had already become vested as of the date of the termination of the Grantee’s employment. For this purpose, full months of employment shall be based on monthly anniversaries of the Grant Date, not calendar months.
(iii)Termination due to Retirement. If the Grantee's employment terminates due to Retirement (as defined below), the Grantee shall be entitled to vest in the entire Award which shall continue to vest on the original vesting schedule as if the Grantee had remained employed through any remaining vesting dates; provided that the Grantee has not at any time violated the terms of any restrictive covenant set forth in Appendix A. If the Grantee does violate such restrictive covenant at any time prior to the date that the Award would otherwise have vested under its original grant terms, the Award will terminate and expire in all respects, without further action by the Company and the Grantee hereby agrees that the Company shall have all of the remedies and rights set forth in subsection 2(h) below.
For purposes of this Agreement, the term “Retirement” shall mean the termination of the Grantee’s employment following the one-year anniversary of the Grant Date if, at the time of such termination, the Grantee is at least age 60 with at least 5 years of service. For this purpose, “years of service” means service as an Employee of the Company or of the Predecessor Corporation. For the avoidance of doubt, (i) the Grantee shall not be considered employed during any period in which the Grantee is receiving severance payments, (ii) termination of the Grantee’s employment (a) by the Company for Cause, (b) due to the Grantee’s death or Disability or (c) described in subsection 2(d) shall not constitute Retirement, regardless of the Grantee’s age and years of service, and (iii) if the
Grantee’s employment is terminated by the Company or an Affiliate other than for Cause and before an Acceleration Event and on the termination date one year has elapsed from the Date of Grant and the Grantee is at least age 60 with at least five years of service, such termination shall be treated as a termination due to Retirement for purposes of subsection 2(e)(ii).
(iii) Termination for Any Other Reason. If the Grantee's employment with the Company and its Affiliates is terminated for any reason not described in subsection 2(d) or 2(e)(ii) or (iii), and the termination is not due to the Grantee’s death or Disability, any unvested Restricted Stock Units shall be immediately forfeited as of the date of such termination.
(f)Tax Withholding. In accordance with Article 14 of the Plan, the Company may make such provisions and take such actions as it may deem necessary for the withholding of all applicable taxes attributable to the Restricted Stock Units. Unless the Committee determines otherwise, the minimum statutory tax withholding required to be withheld upon delivery of the Shares shall be satisfied by withholding a number of Shares having an aggregate Fair Market Value equal to the minimum statutory tax required to be withheld. If such withholding would result in a fractional Share being withheld, the number of Shares so withheld shall be rounded up to the nearest whole Share. Notwithstanding the foregoing, the Grantee may elect to satisfy such tax withholding requirements by timely remittance of such amount by cash or check or such other method that is acceptable to the Company, rather than by withholding of Shares, provided such election is made in accordance with such conditions and restrictions as the Company may establish. If FICA taxes are required to be withheld while the Award is outstanding, such withholding shall be made in the manner described in the second sentence of this subsection 2(f).
(g)Grantee Bound by Plan and Rules. The Grantee hereby acknowledges receipt of a copy of the Plan and this Agreement and agrees to be bound by the terms and provisions thereof. The Grantee agrees to be bound by any rules and regulations for administering the Plan as may be adopted by the Committee prior to the date the Restricted Stock Units vest. Capitalized terms used herein and not otherwise defined shall be as defined in the Plan.
(h)Restrictive Covenant Violation. Grantee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees to the provisions of Appendix A to this Agreement. If the Grantee breaches such restrictions in Appendix A to this Agreement, the Grantee hereby agrees that, in addition to any other remedy available to the Company in respect of such activity or breach, (i) the Grantee’s Restricted Stock Units will be forfeited, (ii) upon demand by the Company, the Grantee shall return to the Company any Shares issued upon vesting of any of the Restricted Stock Units, and (iii) if the Grantee has sold or otherwise disposed of all or any portion of such Shares, the Grantee shall repay to the Company an amount equal to the aggregate after-tax proceeds (taking into account all amounts of tax that would be recoverable upon a claim of loss for payment of such proceeds in the year of repayment) the Grantee received upon the sale or other disposition of, or distributions in respect of, such Shares.
(i)Governing Law. This Agreement (including Appendix A) shall be governed by the laws of the Commonwealth of Virginia, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction.
.
(j)Section 409A Compliance. To the extent applicable, it is intended that the Plan and this Agreement comply with the requirements of Section 409A, and the Plan and this Agreement shall be interpreted accordingly.
(i) If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, and if the Grantee is a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, at the time of the Grantee’s separation from service, then, to the extent required under Section 409A, any Shares that would otherwise be distributed upon the Grantee’s separation from service, shall instead be delivered on the date determined by the Company within the thirty (30) day period following the earlier of (x) the first business day of the seventh month following the date of the Grantee’s separation from service or (y) the date of the Grantee’s death.
(ii)If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, to the extent required to comply with Section 409A, an Acceleration Event shall not be deemed to have occurred for purposes of Section 2(d) unless it also constitutes a “change in control event” (as that term is used in Treasury Regulation Section 1.409A-3(i)(4).
(iii)Each portion of this Award that could vest pursuant to subsection 2(c) and/or 2(e)(ii) is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its Chief Executive Officer and President, or a Senior Vice President, as of ###GRANT_DATE###.
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| Agreed to: | | | | V2X, INC. | |
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| ###PARTICIPANT_NAME### | | |
| Grantee | | | | Charles L. Prow |
| (Online acceptance constitutes agreement) | | | | |
| | | | | | |
| Dated: | ###ACCEPTANCE_DATE### | | Dated: | ###GRANT_DATE### |
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| Enclosures | | | | | | |
| | | | | | |
Appendix A
Restrictive Covenants
1.Non-Solicit.
(a)Grantee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and accordingly agrees as follows:
(i)Grantee will not, within twelve months following the termination of his employment with the Company for any reason (the “Post-Termination Period”) or during Grantee’s employment (collectively with the Post-Termination Period, the “Restricted Period”), influence or attempt to influence customers of the Company or its subsidiaries or any of its present or future subsidiaries or affiliates, either directly or indirectly, to divert their business to any individual, partnership, firm, corporation or other entity then in competition with the business of the Company or any subsidiary or affiliate of the Company.
(ii)During the Restricted Period, Grantee will not, and will not, directly or indirectly, cause any other person to, initiate or respond to communications with or from, any employee of the Company or its subsidiaries during the twelve-month period prior to the termination of such employee’s employment with the Company, for the purpose of soliciting such employee, or facilitating the hiring of any such employee, to work for any other business, individual, partnership, firm, corporation, or other entity; and
(b)It is expressly understood and agreed that although Grantee and the Company consider the restrictions contained in Section 1 of this Appendix A to be reasonable, if a final judicial determination is made by a court of competent jurisdiction, that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Grantee, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(c)The period of time during which the provisions of Section 1 of this Appendix A shall be in effect shall be extended by the length of time during which Grantee is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
2.Non-Competition.
(a)Grantee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and agrees as follows:
(i)Grantee will not, during Grantee’s employment or engagement with the Company and during the twelve month period immediately following the termination of Grantee’s engagement or employment with the Company for any reason (collectively, the “Competition Restricted Period”), accept any employment or consulting relationship with (or own or have any financial interest in), directly or indirectly, any entity engaged in any business area in
which the Company or any of its Affiliates engage in business or are actively planning to engage in business during Grantee’s employment or engagement with the Company.
Notwithstanding anything to the contrary in this Agreement, Grantee may, directly or indirectly own, solely as an investment, securities of any Person which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Grantee (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(a)It is expressly understood and agreed that although Grantee and the Company consider the restrictions contained in Section 2 of this Appendix A to be reasonable, if a final judicial determination is made by a court of competent jurisdiction, that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Grantee, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(b)The period of time during which the provisions of Section 2 of this Appendix A shall be in effect shall be extended by the length of time during which Grantee is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
3.Survival.
The provisions of this Appendix A shall survive the termination of Grantee’s employment for any reason.
V2X, INC.
PERFORMANCE STOCK UNIT – 2024 TSR AWARD AGREEMENT
THIS AGREEMENT (the “Agreement”), effective as of ###GRANT_DATE###, by and between V2X, Inc. (the “Company”) and ###PARTICIPANT_NAME### (the “Participant” or “Executive”), WITNESSETH:
WHEREAS, the Participant is now employed by the Company or an Affiliate of the Company as an employee, and in recognition of the Participant’s valued services, the Company, through the Compensation and Personnel Committee of its Board of Directors (the “Committee”), desires to provide an opportunity for the Participant to receive a performance-based long-term incentive award, pursuant to the provisions of the Second Amendment and Restatement of the V2X, Inc. 2014 Omnibus Incentive Plan, as amended and restated as of October 27, 2022 (the “Plan”).
NOW, THEREFORE, in consideration of the terms and conditions set forth in this Agreement and the provisions of the Plan, a copy of which is attached hereto and incorporated herein as part of this Agreement, and any administrative rules and regulations related to the Plan as may be adopted by the Committee, the parties hereto hereby agree as follows:
1.Grant of Target Award and Performance Periods. In accordance with, and subject to, the terms and conditions of the Plan and this Agreement, the Company hereby grants to the Participant a target award of ###TOTAL_AWARDS### Performance Stock Units (the “Target Award”) relating to the four performance periods described on Exhibit 1 (each a “Performance Period” and together the “Performance Periods”). The number of Performance Stock Units that become vested and earned may range from 0% to 200% of the Target Award, with the number of Performance Stock Units that become vested and earned dependent upon the degree to which the performance goals described in Section 3 are achieved. The Performance Stock Units are notional units of measurement denominated in Shares of common stock of the Company (i.e., one Performance Share Unit is equivalent in value to one share of common stock of the Company (a “Share”)).
The Performance Stock Units represent an unfunded, unsecured right to receive Shares (and dividend equivalent payments pursuant Section 2(b) hereof) in the future if the conditions set forth in the Plan and this Agreement are satisfied.
2.Terms and Conditions. It is understood and agreed that this Award is subject to the following terms and conditions:
(a)Restrictions. Except as otherwise provided in the Plan and this Agreement, neither this Award nor any Performance Stock Units subject to this Award may be sold, assigned, pledged, exchanged, transferred, hypothecated or encumbered, other than to the Company as a result of forfeiture of the Performance Stock Units.
(b)Stockholder Rights. The Participant shall not have any rights or privileges of a stockholder of the Company with respect to the Performance Stock Units or any Shares that may be delivered hereunder, including without limitation any right to vote such Shares or to receive dividends or dividend equivalents, unless and until such Shares are delivered upon vesting of the Performance Stock Units (in which case the Participant shall be entitled to receive dividend equivalents with respect to any dividends which were declared with respect to Shares following the date hereof any prior to such delivery).
3.Vesting and Settlement of Performance Stock Units.
(a)Normal Vesting and Settlement.
(i)The number of Performance Stock Units that become eligible to vest will be determined in accordance with the TSR calculations set forth on Exhibit 1.
(ii)Except as provided in the Agreement, each Performance Share Unit that becomes eligible to vest in accordance with Exhibit 1 will vest in full on the later of (x) December 31, 2026, or (y) the date the Compensation and Personnel Committee certifies the performance set forth on Exhibit 1 (the “Vesting Date”), subject to the Participant’s continuous employment with the Company or an Affiliate through the Vesting Date. For the avoidance of doubt, continuous employment of the Participant by the Company or an Affiliate for purposes of vesting and earning the Performance Stock Units granted hereunder shall include continuous employment with either the Company or an Affiliate for so long as the Grantee continues working at any such entity.
(iii)Except as provided in the Agreement, the Company will deliver to the Participant one Share for each Performance Share Unit that fully vests in accordance with Section 3(a)(i) as soon as practicable after the Vesting Date and in no event later than March 15, 2027. Any fractional Share will be rounded to the nearest whole Share (with 0.5 to be rounded up).
(b)Effect of Termination of Employment. Except as otherwise provided below, if the Participant’s employment with the Company (and all Affiliates) is terminated for any reason before the Vesting Date, the Award shall be immediately forfeited.
(i)Termination due to Death or Disability. If the Participant’s termination of employment is due to death or Disability (as defined below), then the Participant shall receive settlement of the applicable number of Performance Stock Units determined in accordance with the methodology set forth in Section 3(c) except that the date of such termination shall be substituted for the Acceleration Date for purposes of making such calculation, which settlement shall be made on or as soon as practicable (but in all events within 30 days) following the date the Participant’s employment terminates. Any fractional Share will be rounded to the nearest whole Share (with 0.5 to be rounded up).
(ii)Termination by the Company for Other than Cause. If the Participant’s termination of employment is by the Company (or an Affiliate) for other than Cause, then the number of Performance Stock Units that vest, if any, will be equal to the product of (x) the number of Performance Stock Units that become eligible to vest in accordance with Exhibit 1 (or if an Acceleration Event occurs following the date hereof and on or before December 31, 2026, in accordance with Section 3(c)) as if the termination had not occurred and (y) a fraction, the numerator of which is the number of calendar days the Participant has been continually employed from (and including) January 1, 2024 to (and including) the date of termination, and the denominator of which is 1,095, and such number of vested Performance Stock Units shall be delivered at the time and in the form set forth in Section 3(a)(iii).
(iii)Termination Due to Retirement. If the Participant’s termination of employment is due to Retirement (as defined below), then the number of Performance Stock Units that vest, if any, will be equal to the number of Performance Stock Units that become eligible to vest in accordance with Exhibit 1 (or if an Acceleration Event occurs following the date hereof and on or before December 31, 2026, in accordance with Section 3(c)) as if the termination had not occurred and so long as the Participant complies with the covenants in Appendix A, then the number of
Performance Stock Units that become vested and earned shall be determined in accordance with Exhibit 1 (or if an Acceleration Event occurs on before December 31, 2026, in accordance with Section 3(c)) as if the termination had not occurred, and if the Participant violates any such restrictive covenant at any time before the delivery of the Shares underlying the vested Performance Stock Units, the Award will terminate and expire in all respects, without further action by the Company, and the Participant hereby agrees that the Company shall have all of the remedies and rights set forth in Section 4. Any Performance Stock Units that become vested under this Section 3(b)(iii) shall be delivered at the time and in the form set forth in Section 3(a)(iii).
(iv)Qualifying Terminations On or Following an Acceleration Event. Notwithstanding anything in this Agreement to the contrary, if (a) the Participant’s employment is terminated by the Company (or an Affiliate or any successor, as the case may be) without Cause (as defined below) or by the Participant for Good Reason (as defined below), and (b) such termination occurs on the date of, or within twenty-four months following, an Acceleration Event which occurs following the date hereof and on or before December 31, 2026, then the Participant shall receive settlement of the applicable number of Performance Stock Units set forth in Section 3(c) on or as soon as practicable (but in all events within 30 days) following the date the Participant’s employment terminates. Any fractional Share will be rounded to the nearest whole Share (with 0.5 to be rounded up).
(c)Acceleration Event. Notwithstanding anything in this Agreement to the contrary, if an Acceleration Event occurs following the date hereof and on or before December 31, 2026, then (x) a pro-rated portion of the Performance Stock Units shall be eligible to vest based on the actual performance though the date of the Acceleration Event (determined as provided below in this Section 3(c)) and (y) the remaining portion of the Award shall be determined by reference to the Target Award (determined as provided below in this Section 3(c)).
(i)The portion of the Award described in subpart (x) above shall be determined by multiplying (A) the number of Performance Stock Units that become eligible to vest in accordance with Exhibit 1 but with the average Vesting Factor equal to the sum of the Vesting Factors for any completed Performance Periods and the open (including the final) Performance Periods in which the Acceleration Event occurs (with Vesting Factor for the open (including the final) Performance Periods in which the Acceleration Event occurs determined based on the achievement of the applicable performance measures over the thirty trading days preceding the date on which the Acceleration Event occurs), divided by the number of such Performance Periods, by (B) a fraction, the numerator of which is the number of calendar days from (and including) January 1, 2024 to (and including) the date preceding the date on which the Acceleration Event occurs, and the denominator of which is 1,095.
(ii)The portion of the Award described in subpart (y) in the first sentence of this Section 3(c) shall be determined by multiplying (A) the Target Award by (B) a fraction, the numerator of which is the number of calendar days from the date of the Acceleration Event (including day of the Acceleration Event) to (and including) December 31, 2026, and the denominator of which is 1,095.
(iii)The Performance Stock Units eligible to vest in accordance with this Section 3(c) shall be subject to the Participant’s continuous employment with the Company or an Affiliate through December 31, 2026, subject to Section 3(b)(iv). Upon such
vesting, the vested Performance Stock Units shall be delivered to the Participant as soon as practicable after December 31, 2026, and in no event later than March 15, 2027. Any fractional Share will be rounded to the nearest whole Share (with 0.5 to be rounded up).
(iv)For the avoidance of doubt, this Section 3(c) is intended only to apply if an Acceleration Event occurs on or before December 31, 2026. The Award shall otherwise remain subject to the terms and conditions set forth in this Agreement.
(d)Defined Terms.
(i)Cause. For purposes of this Agreement, the term “Cause” shall mean (1) the Participant’s misconduct, (2) the Participant’s violation of Company policies, rules or Code of Conduct or any other terms or conditions relating to the Participant’s employment or any agreement with the Participant or (3) any other conduct of the Participant that the Committee in its sole discretion determines constitutes Cause for purposes of this Agreement.
(ii)Disability. For purposes of this Agreement, the term “Disability” shall mean the complete and permanent inability of the Participant to perform all of his or her duties under the terms of his or her employment, as determined by the Company upon the basis of such evidence, including independent medical reports and data, as the Company deems appropriate or necessary.
(iii)Good Reason. For purposes of this Agreement, the term “Good Reason” shall mean, without the Participant’s express written consent and excluding for this purpose any action which is remedied by the Company (or an Affiliate or any successor, as the case may be) within thirty (30) days after receipt of notice thereof given by the Participant, (i) a reduction in the Participant’s annual base compensation (whether or not deferred); (ii) the assignment to the Participant of any duties inconsistent in any material respect with the Participant’s position (including status, offices, titles and reporting requirements), authority, duties or responsibilities; (iii) any other action by the Company (or an Affiliate or any successor, as the case may be) which results in a material diminution in such position, authority, duties or responsibilities; or (iv) the Company’s (or an Affiliate or any successor, as the case may be) requiring the Participant’s work location to be other than within thirty-five (35) miles of the location where such Participant was principally working immediately prior to the Acceleration Event; provided that “Good Reason” shall cease to exist for an event on the 90th day following the later of its occurrence or the Participant’s knowledge thereof, unless the Participant has given the Company (or an Affiliate or any successor, as the case may be) notice thereof prior to such date, and the date of the Participant’s termination of employment for Good Reason must occur, if at all, within one hundred and eighty (180) days following the later of the occurrence of the Good Reason event or the Participant’s knowledge thereof.
(iv)Retirement. For purposes of this Agreement, the term “Retirement” shall mean the termination of the Participant’s employment following the first anniversary of the date hereof if, at the time of such termination, the Participant is at least age 60 with at least five years of service. For this purpose, “years of service” means service as an Employee of the Company or an Affiliate and, if applicable, service as an employee of a Predecessor Corporation (or an Affiliate). For the avoidance of doubt, (1) the Participant shall not be considered employed during any period in which the Participant is receiving severance payments, (2) termination of the
Participant’s employment (a) by the Company (or an Affiliate or successor, as the case may be) for Cause, (b) due to the Participant’s death or Disability or (c) described in subsection 3(b)(iv) shall not constitute Retirement, regardless of the Participant’s age and years of service, and (3) if the Participant’s employment is terminated by the Company or an Affiliate before an Acceleration Event and on the termination date the Participant is at least age 60 with at least five years of service, such termination shall be treated as a termination due to Retirement for purposes of subsection 3(b)(iii).
4.Additional Provisions.
(a)Tax Withholding. In accordance with Article XIV of the Plan, the Company may make such provisions and take such actions as it may deem necessary for the withholding of all applicable taxes attributable to the Performance Stock Units. Unless the Committee determines otherwise, the minimum statutory tax withholding required to be withheld upon delivery of the Shares shall be satisfied by withholding a number of Shares having an aggregate Fair Market Value equal to the minimum statutory tax required to be withheld. If such withholding would result in a fractional Share being withheld, the number of Shares so withheld shall be rounded up to the nearest whole Share. Notwithstanding the foregoing, the Grantee may elect to satisfy such tax withholding requirements by timely remittance of such amount by cash or check or such other method that is acceptable to the Company, rather than by withholding of Shares, provided such election is made in accordance with such conditions and restrictions as the Company may establish. If FICA taxes are required to be withheld while the Award is outstanding, such withholding shall be made in a manner determined by the Company.
(b)Participant Bound by Plan and Rules. The Participant hereby acknowledges receipt of a copy of the Plan and this Agreement and agrees to be bound by the terms and provisions thereof. The Participant agrees to be bound by any rules and regulations for administering the Plan as may be adopted by the Committee before the date the Performance Stock Units become vested and earned. Terms used herein and not otherwise defined shall be as defined in the Plan.
(c)Restrictive Covenant Violation. Participant acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees to the provisions of Appendix A to this Agreement. If the Participant breaches such restrictions in Appendix A to this Agreement, the Participant hereby agrees that, in addition to any other remedy available to the Company in respect of such activity or breach, the Participant’s Performance Stock Units will be forfeited and, if the Participant has disposed of all or any portion of such Performance Stock Units before the date of such forfeiture, then, in respect of all or any portion of such Performance Stock Units, the Participant shall repay to the Company an amount equal to the aggregate after-tax proceeds (taking into account all amounts of tax that would be recoverable upon a claim of loss for payment of such proceeds in the year of repayment) the Participant received upon the sale or other disposition of, or distributions in respect of, the Grantee’s Performance Stock Units.
(d)Governing Law. This Agreement (including Appendix A) shall be governed by the laws of the Commonwealth of Virginia, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction.
(e)Section 409A Compliance. To the extent applicable, it is intended that the Plan and this Agreement comply with the requirements of Section 409A, and the Plan and this Agreement shall be interpreted accordingly.
(i)If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, and if the Participant is a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, at the time of the Participant’s separation from service, then, to the extent required under Section 409A, any Shares that would otherwise be distributed upon the Participant’s separation from service, shall instead be delivered on the date determined by the Company within the thirty (30) day period following the earlier of (x) the first business day of the seventh month following the date of the Participant’s separation from service or (y) the date of the Participant’s death.
(ii)If it is determined that all or a portion of the Award constitutes deferred compensation for purposes of Section 409A, upon an Acceleration Event that does not constitute a “change in the ownership” or a “change in the effective control” of the Company or a “change in the ownership of a substantial portion of a corporation’s assets” (as those terms are used in Section 409A), the Performance Stock Units shall vest at the time of the Acceleration Event, but distribution of any Performance Stock Units that constitute deferred compensation for purposes of Section 409A shall not be accelerated (i.e., distribution shall occur when it would have occurred absent the Acceleration Event).
(iii)Each portion of this Award that could vest is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).
Signature Page Follows
IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its Chief Executive Officer and President, or a Senior Vice President, as of ###GRANT_DATE###.
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| Agreed to: | | | | V2X, INC. | |
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| ###PARTICIPANT_NAME### | | |
| Grantee | | | | Charles L. Prow |
| (Online acceptance constitutes agreement) | | | | |
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| Dated: | ###ACCEPTANCE_DATE### | | Dated: | ###GRANT_DATE### |
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| Enclosures | | | | | | |
Exhibit 1
TSR Calculations
The number of Performance Stock Units that become eligible to vest will be determined as follows:
TSR Group. A total of 100% of the Performance Stock Units subject to the Target Award (the “Target TSR Group”) shall become eligible to vest in accordance with the following table (with vesting determined by linear interpolation for performance between the designated percentiles):
| | | | | |
If the Company’s TSR performance relative to that
of the listed peer companies (the “Peer Group”) is1 | The Vesting Factor is |
| less than the 35th percentile | 0% |
| at the 35th percentile | 50% |
| at the 50th percentile | 100% |
| at or above the 80th percentile | 200% |
The actual number of Performance Stock Units that become eligible to vest, if any, under this Paragraph 1 shall be equal to the product of (i) the average Vesting Factor over each of the Performance Periods referenced below (determined by adding the Vesting Factors for each Performance Period and dividing the sum by four) and (ii) the number of Target TSR Group.
3. Performance Periods. The four performance periods applicable to the Performance Stock Units (each, a “Performance Period”) are as follows:
| | |
Period 1: January 1, 2024 to December 31, 2024 |
| Period 2: January 1, 2025 to December 31, 2025 |
| Period 3: January 1, 2026 to December 31, 2026 |
| Period 4: January 1, 2024 to December 31, 2026 |
4. TSR Determination. With respect to each Performance Period, TSR is the percentage change in value of a shareholder’s investment in the applicable entity’s common stock from the beginning to the end of the Performance Period, assuming reinvestment of dividends and any other shareholder payouts during the Performance Period. For purposes of this Agreement, the stock price at the beginning of the Performance Period will be the average closing stock price over the trading days in the month immediately preceding the start of the Performance Period, and the stock price at the end of the Performance Period will be the average closing stock price over the trading days in the last month of the Performance Period. Any company included in the measurement group which (i) ceases to be publicly traded during the Performance Period shall be removed from the measurement group or (ii) subsequently reorganizes under the United States Bankruptcy Code (or any successor or comparable law) shall remain in the measurement group and all such companies (if any) shall be deemed to be ranked below all other companies in the measurement group.
1 Peer Group for purposes of the TSR Group, as approved by the Company’s Compensation and Human Capital Committee, include the following companies: AAR Corp., Axon Enterprise, Inc., Booz Allen Hamilton, BWX Technologies, Inc., CACI International Inc., Curtiss-Wright Corporation, Hexcel Corporation, Huntington Ingalls Industries, Inc., Jacobs Solutions Inc., KBR, Inc., Leidos Holdings, Inc., Leonardo DRS, Inc., Moog Inc., Parsons Corporation, SAIC, Spirit AeroSystems Holdings, Inc., Triumph Group, Inc., VSE Corporation.
Appendix A
Restrictive Covenants
1.Non-Solicit.
(a)Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees as follows:
(i)Executive will not, within twelve months following the termination of his or her employment with the Company for any reason (the “ Post-Termination Period “) or during Executive’s employment (collectively with the Post-Termination Period, the “Restricted Period”), influence or attempt to influence customers of the Company or its Affiliates or any of its present or future Affiliates, either directly or indirectly, to divert their business to any individual, partnership, firm, corporation or other entity then in competition with the business of the Company or any Affiliate of the Company.
(ii)During the Restricted Period, Executive will not, and will not directly or indirectly, cause any other person to, initiate or respond to communications with or from, any employee of the Company or its Affiliates during the twelve-month period before the termination of such employee’s employment with the Company or an Affiliate, for the purpose of soliciting such employee, or facilitating the hiring of any such employee, to work for any other business, individual, partnership, firm, corporation, or other entity; and
(b)It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in Section 1 of this Appendix A to be reasonable, if a final judicial determination is made by a court of competent jurisdiction, that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(c)The period of time during which the provisions of Section 1 of this Appendix A shall be in effect shall be extended by the length of time during which Executive is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
2.Non-Competition.
(a)Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees as follows:
(i)Executive will not, during Executive’s employment or engagement with the Company and during the twelve month period immediately following the termination of Executive’s engagement or employment with the Company for any reason (collectively, the “Competition Restricted Period”), accept any employment or consulting relationship with (or own or have any financial interest in), directly or indirectly, any entity engaged in any business area in which the Company or any of its Affiliates engage in business or are actively planning to engage in business during Executive’s employment or engagement with the Company.
Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person which are publicly traded on a national or regional stock exchange or on the over-the- counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such Person and
(ii)does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(b)It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in Section 2 of this Appendix A to be reasonable, if a final judicial determination is made by a court of competent jurisdiction, that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(c)The period of time during which the provisions of Section 2 of this Appendix A shall be in effect shall be extended by the length of time during which Executive is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.
3.Survival.
(a)The provisions of this Appendix A shall survive the termination of Executive’s employment for any reason.