EXECUTIVE SEVERANCE PAY PLAN
OF
PROG HOLDINGS, INC.
Effective as of July 29, 2021
SECTION I
Establishment and Purpose of Plan
I.1PROG Holdings, Inc. (the “Company”) hereby establishes the Executive Severance Pay Plan of PROG Holdings, Inc. (the “Plan”), effective as of July 29, 2021 (the “Effective Date”). The Plan shall continue in effect until terminated by the Company, subject to the provisions of Section X below.
I.2The purposes of the Plan include (i) providing certain executives of the Company and/or any affiliate or subsidiary with severance pay benefits in the event of the termination of their employment, (ii) better enabling the Company and its affiliates and subsidiaries to attract and retain highly qualified executives, (iii) providing executives protection in the event of a change in control of the Company so that the executives are focused on pursuing transaction opportunities that are beneficial to shareholders, and (iv) retaining critical talent in the event of a potential change in control transaction.
SECTION II
Definitions
The following words and phrases shall have the meanings set forth below where used in the Plan, unless the context clearly indicates otherwise.
II.1“Administrator” means the Company in its capacity as Plan “administrator” and “named fiduciary” within the meaning of ERISA. The Committee shall act as the Administrator unless and until it delegates such authority and responsibility to one or more officers or a committee.
II.2“Annual Salary” means, with respect to a Participant, the Participant’s annual base salary, exclusive of any bonus pay, commissions, overtime pay or other additional compensation, in effect at the time of his or her Separation from Service.
II.3“Board” means the Board of Directors of the Company.
II.4“Cause” means, unless provided otherwise in an individual agreement between the Executive and his or her Employer, with respect to an Executive:
(a)the commission by the Executive of an act of fraud, embezzlement, theft or proven dishonesty, or any other illegal act or practice (whether or not resulting in criminal prosecution or conviction);
(b)the willful engaging by the Executive in misconduct which is deemed by the Committee, in good faith, to be materially injurious to the Company or an affiliate or subsidiary of the Company, monetarily or otherwise;
(c)the willful and continued failure or habitual neglect by the Executive to perform his or her duties with the Company or an affiliate or subsidiary of the Company substantially in accordance with the operating and personnel policies and procedures of the Company, affiliate or subsidiary generally applicable to all of their employees.
For purposes of this Plan, no act or failure to act by the Executive shall be deemed to be “willful” unless done or omitted to be done by the Executive not in good faith and without reasonable belief that the Executive’s action or omission was in the best interest of the Company and/or an affiliate or subsidiary of the Company. "Cause" under either (a), (b) or (c) shall be determined by the Committee in its sole discretion.
II.5A “Change in Control” means:
(a) The acquisition (other than from the Company) by any person of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (but without regard to any time period specified in Rule 13d-3(d)(1)(i))), of thirty-five percent (35%) or more of the combined voting power of then outstanding securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); excluding, however, (1) any acquisition by the Company or (2) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company;
(b) A majority of the members of the Board is replaced during any twelve (12)-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board before the date of the appointment or election; or
(c) Consummation by the Company of a reorganization, merger, or consolidation or sale of all or substantially all of the assets of the Company (a “Transaction”); excluding, however, a Transaction pursuant to which all or substantially all of the individuals or entities who are the beneficial owners, respectively, of the Outstanding Company Voting Securities immediately prior to such Transaction will beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the outstanding securities of such corporation entitled to vote generally in the election of directors of the corporation resulting from such Transaction (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or indirectly) in substantially the same proportions relative to each other as their ownership, immediately prior to such Transaction, of the Outstanding Company Voting Securities.
Provided, however, a Change in Control shall not be deemed to occur unless the transaction also constitutes a change in the ownership or effective control of the
Company or a change in the ownership of a substantial portion of the assets of the Company, each as defined in Code Section 409A(a)(2)(A)(v) and the regulations promulgated thereunder.
II.6“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
II.7“COBRA Charge” means the dollar amount of the Employer’s monthly premium in effect for continued coverage under the Employer’s group health insurance plan in which the Participant participates on the Executive’s Termination Date, pursuant to the requirements of COBRA, less the administrative charge imposed by the Employer for such coverage, less the portion of the premium paid by an active employee for the type of coverage in effect for the Participant under such health plan on the Participant’s Termination Date.
II.8“Code” means the Internal Revenue Code of 1986, as amended from time to time, and any regulations promulgated thereunder.
II.9“Committee” means the Compensation Committee of the Board.
II.10“Company” means PROG Holdings, Inc., its successors and assigns, or, following a Change in Control, the surviving entity resulting from such event.
II.11“Employer” means the Company, or any affiliate or subsidiary of the Company that has adopted the Plan as a participating employer with the consent of the Company, as reflected on Exhibit B from time to time.
II.12“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
II.13“Executive” means each executive of an Employer who has a title of President, Senior Vice President or Vice President or a similarly positioned senior officer who is designated by the Chief Executive Officer provided that the Chief Executive Officer does not participate in the Plan (or such other classification determined by the Committee from time to time) unless excluded from participation by the Committee or Section 3.1, and any other key employee of an Employer who is specifically designated on Exhibit A attached hereto as eligible to participate in the Plan by the Committee from time to time.
II.14“Good Reason” shall mean, without an Executive’s express written consent, the occurrence of any of the following circumstances within the two (2)-year period following the date of a Change in Control of the Company:
(a)A material diminution in the Executive’s annual base salary other than as a result of an across-the-board base salary reduction similarly affecting other Executives;
(b)A material diminution in the Executive’s authority, duties, or responsibilities;
(c)A material change in the geographic location at which the Executive must perform services for his or her Employer (for this purpose, the relocation of the Executive’s principal office location to a location more than fifty (50) miles from its current location will be deemed to be material); or
(d)A material breach of this Plan by the Company;
provided that any of the events described above shall constitute Good Reason only if (i) Executive provides the Company written notice of the existence of the event or circumstances constituting Good Reason (with sufficient specificity for the Company to respond to such claim) within sixty (60) days of the initial existence of such event or circumstances, (ii) Executive cooperates in good faith with the Company’s efforts to cure such event or circumstance for a period not less than thirty (30) days following Executive’s notice to the Company (the “Cure Period”), (iii) notwithstanding such efforts, the Company or the Employer fails to cure such event or circumstances prior to the end of the Cure Period, and (iv) Executive terminates employment with the Company and all affiliates and subsidiaries of the Company within sixty (60) days after the end of the Cure Period.
II.15“Involuntary Termination” means the termination of an Executive’s employment by his or her Employer without Cause; provided that for purposes of determining eligibility for Severance Pay Benefits under Section 5.1 of the Plan, in no event shall Executive be deemed to have been subject to an Involuntary Termination if he or she is offered employment in a different role or position with the Company, or any affiliate or subsidiary of the Company, which the Committee in its sole discretion determines is a comparable position (taking into account total compensation, benefits and location), and the Executive refuses to accept such new role or position.
II.16“Participant” means each Executive who is currently entitled to severance pay benefits under the Plan in the event of his or her Separation from Service.
II.17“Plan” means this Executive Severance Pay Plan of PROG Holdings, Inc. and its successors as set forth in this document, as it may be amended from time to time.
II.18“Section 409A” means Section 409A of the Code.
II.19“Separation from Service” means an Executive’s Involuntary Termination or, within two (2) years following the date of a Change in Control, the Executive’s resignation of his or her employment with the Company and all affiliates and subsidiaries of the Company for Good Reason.
II.20“Severance Pay Benefits” means the aggregate benefits payable to a Participant upon his or her Separation from Service, as determined pursuant to the provisions of Section V or VI below.
II.21“Target Bonus” means (a) with respect to a Participant whose annual target bonus is expressed as a percentage of Annual Salary, the Participant’s target annual bonus under his or her Employer’s annual bonus program in which the Participant is covered at the time of his or
her Separation from Service, (b) with respect to a Participant whose annual target bonus is expressed as a fixed target value, the Participant’s fixed target value under his or her Employer’s annual bonus program in which the Participant is covered at the time of his or her Separation from Service, and (c) with respect to all other Participants, the average of the Participant’s actual annual bonus payouts for each of the two (2) years prior to the year of the Participant’s Separation from Service.
II.22“Termination Date” means the date of the Participant’s Separation from Service.
II.23“Waiver and Release Agreement” means an agreement prepared by the Company, with terms satisfactory to the Company in its sole discretion, which will include, among other provisions, a legally-binding general waiver of claims against the Company and its affiliates and subsidiaries, a deadline for the Executive’s delivery of the Waiver and Release Agreement to the Company, a deadline for the Executive’s revocation of the Waiver and Release Agreement (if applicable), and affirmative and negative covenants (which may include, but which are not limited to, covenants regarding confidentiality, non-solicitation, non-disparagement and non-competition). Different forms of the Waiver and Release Agreement may be used from one business unit to another, from one state to another, and from one Executive to another, as determined by the Company in its sole discretion.
SECTION III
Participation; Contributions; General Provisions
III.1An Executive who has not entered into an individual employment or severance agreement with his or her Employer that provides for severance benefits will become a Participant in the Plan upon his or her Separation from Service. An Executive who has entered into an individual employment or severance agreement with his or her Employer that provides for severance benefits will not participate in the Plan; the severance benefits, if any, to which such an Executive is entitled from his or her Employer will be determined solely in accordance with the terms of such individual employment or severance agreement.
III.2If an Executive is rehired by the Company or an affiliate or subsidiary of the Company while receiving benefits under this Plan, any remaining, unpaid Severance Pay Benefits shall be forfeited upon rehire, and no additional benefits shall be paid.
III.3The Employer will pay the entire cost of all benefits provided under the Plan, solely from its general assets. The Plan is “unfunded,” and no Executive is required to make any contribution to the Plan.
III.4This Plan is not intended to constitute an “employee pension benefit plan” within the meaning of Section 3 of ERISA and the corresponding Department of Labor regulations and other guidance.
SECTION IV
Waiver and Release Agreement
A Participant’s entitlement to Severance Pay Benefits is conditioned upon the Participant’s execution and submission to the Administrator of, and failure to revoke, a Waiver and Release Agreement. The Administrator will present the Waiver and Release Agreement to a Participant at the time of the Participant’s Separation from Service. Failure to submit the signed Waiver and Release Agreement to the Administrator by the deadline, or revocation of a signed Waiver and Release Agreement, will render the Participant ineligible for Severance Pay Benefits. In addition, if a Participant breaches the terms of a Waiver and Release Agreement, the Participant shall not be eligible for any further Severance Pay Benefits and may be required to repay any Severance Pay Benefits already paid to the Participant.
SECTION V
Severance Pay Benefits
A Participant shall be entitled to Severance Pay Benefits in accordance with the terms of either Section 5.1 or 5.2 below. A Participant’s Severance Pay Benefits may be reduced or subject to forfeiture or recoupment upon the breach of any agreement with the Company or Employer, as determined by the Administrator.
V.1Termination other than in Connection with a Change in Control. A Participant shall be entitled to the following benefits in the event of his or her Separation from Service if Section 5.2 does not apply to the Participant and if the Participant timely signs, submits to the Company and, if applicable, does not revoke a Waiver and Release Agreement as described in Section 4 above:
(a)Salary Benefits. The Participant’s Employer shall continue to pay the Participant an amount equal to his or her Annual Salary in effect immediately prior to his or her Termination Date for a period of twelve (12) months following his or her Termination Date, subject to Section 5.3(a).
(b)COBRA Premiums. The Participant’s Employer will pay the Participant a lump sum payment equal to the monthly COBRA Charge, multiplied by twelve (12) (the number of months during which the Participant is entitled to salary continuation payments), grossed up for the estimated taxes payable on such payment (as determined by the Company).
(c) Annual Bonus. In addition to the amounts set forth in Sections 5.1(a) and (b) above, the Participant’s Employer will pay the Participant an amount equal to the Participant’s Target Bonus under the Employer’s annual bonus plan for the fiscal year of the Participant’s Separation from Service, payable in substantially equal installments over a period of twelve (12) months in accordance with Section 5.3(a). Notwithstanding the above, this Section 5.1(c) is not intended to provide the Participant with duplicative benefits and shall not apply to the extent that pursuant to the terms of the annual bonus plan, the Participant has received or is already entitled to receive a payment under or with
respect to such annual bonus plan for the fiscal year of the Participant’s Separation from Service.
V.2Termination in Connection with a Change in Control. A Participant shall be entitled to the following benefits in the event of his or her Separation from Service within the two (2)-year period following the effective date of a Change in Control if the Participant timely signs, submits to the Company and, if applicable, does not revoke a Waiver and Release Agreement as described in Section 4 above:
(a)Salary Benefits. A Participant who is employed by the Employer shall be entitled to receive the amount of severance pay based on the Participant’s title as indicated in the chart below. Any other Participant who is specifically designated by the Committee as eligible to participate in the Plan from time to time shall be entitled to receive the amount of severance pay indicated on Exhibit A.
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Title
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Amount of Severance Pay
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President
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24 months of Annual Salary
+ 24 months of Target Bonus
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Senior Vice President, Vice President and similarly positioned senior officers who are designated by the Chief Executive Officer in accordance with Section 2.13
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18 months of Annual Salary
+ 18 months of Target Bonus
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(b)COBRA Premiums. The Participant’s Employer will pay the Participant a lump sum amount equal to the monthly COBRA Charge, multiplied by the number of months during which the Participant is entitled to salary continuation payments as provided in the table in Section 5.2(a) above, grossed up for the estimated taxes payable on such payment (as determined by the Company).
(c)Annual Bonus. In addition to the amounts set forth in Sections 5.2(a) and (b) above, the Participant’s Employer will pay the Participant a lump sum amount equal to the Participant’s Target Bonus under the Employer’s annual bonus plan for the fiscal year of the Participant’s Separation from Service, prorated based on the number of days completed in the year as of the Termination Date. Notwithstanding the above, this Section 5.2(c) is not intended to provide the Participant with duplicative benefits and shall not apply to the extent that in connection with the Change in Control or pursuant to the terms of the annual bonus plan, the Participant has received or is already entitled to receive a payment under or with respect to such annual bonus plan for the fiscal year of the Participant’s Separation from Service.
V.3Payment of Severance Pay Benefits
(a)The salary continuation benefits payable to a Participant under Section 5.1(a) or Section 5.2(a) and the annual bonus payable to a Participant under Section 5.1(c) above shall be paid to the Participant in accordance with the Employer’s standard payroll schedule for the payment of base salary to executives, in substantially equal installments over the specified number of months (e.g., twelve (12) months under Section 5.1(a) and Section 5.1(c) or eighteen (18) or twenty-four (24) months under Section 5.2(a)). Payment will begin on the sixtieth (60th) day following the Participant’s Termination Date, with a lump sum catch-up payment made at that time in an amount equal to the aggregate amount of payments that would have been paid through such date had payments commenced on the Participant’s Termination Date. Notwithstanding the foregoing, to the extent that the salary benefits or annual bonus payable to a Participant under Section 5.1(a), Section 5.2(a) or Section 5.1(c) above are not exempt from Section 409A of the Code, such salary benefits or annual bonus shall be paid to the Participant in the original payment form specified under the Plan, except as otherwise permitted by Section 409A of the Code.
(b)The lump sum payment for COBRA Premiums payable under Section 5.1(b) or Section 5.2(b) and the lump sum payment of bonus payable under Section 5.2(c) will be paid to the Participant in a lump sum in cash on the sixtieth (60th) day following the date of the Participant’s Termination Date.
(c)The amount of the Severance Pay Benefits payable to a Participant that are exempt from Section 409A may be reduced, in the sole discretion of the Administrator, by any debt of the Participant to the Employer arising out of the employment relationship between the Participant and the Employer.
(d)The Employer shall deduct from the Severance Pay Benefits to be paid to a Participant or any beneficiary all federal, state and local withholding and other taxes and charges required to be deducted under applicable law.
V.4Restrictive Covenants. In consideration of the Severance Pay Benefits payable to a Participant under Section 5.1 or Section 5.2 above, the Participant shall be required to agree to certain covenants including, without limitation, covenants regarding maintaining the Employer’s confidential information, refraining from soliciting the Employer’s employees, suppliers, and customers, refraining from competing with the Employer, and refraining from making disparaging remarks, all of which shall be set forth in the Waiver and Release Agreement. If a Participant violates any of the provisions in the Waiver and Release Agreement, such Participant shall immediately forfeit his right to receive any Severance Pay Benefits, the Employer shall have no further obligation to make any payment of Severance Pay Benefits to such Participant, and such Participant shall be obligated to repay any Severance Pay Benefits already paid pursuant to the Plan.
V.5Section 280G Limitation. Notwithstanding any provision of this Plan to the contrary, if any payment or benefit to be paid or provided hereunder would be a “Parachute
Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided hereunder shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes a Parachute Payment; provided, however, that the foregoing reduction shall not be made if the total of the unreduced aggregate payments and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes), exceeds by at least ten percent (10%) the total after-tax amount of such aggregate payments and benefits after application of the foregoing reduction. The determination of whether any reduction in such payments or benefits to be provided hereunder is required pursuant to the preceding sentence shall be made at the expense of the Company, if requested by Executive or the Company, by the Company’s independent accountants. The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section shall not of itself limit or otherwise affect any other rights of Executive under this Agreement. In the event that any payment or benefit intended to be provided hereunder is required to be reduced pursuant to this Section and no such payment or benefit qualifies as a “deferral of compensation” within the meaning of and subject to Section 409A (“Nonqualified Deferred Compensation”), Executive shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section. The Company shall provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that any payment or benefit intended to be provided hereunder is required to be reduced pursuant to this Section and any such payment or benefit constitutes Nonqualified Deferred Compensation or Executive fails to elect an order in which payments or benefits will be reduced pursuant to this Section, then the reduction shall occur in the following order: (a) reduction of cash payments described in Sections 5.1 or 5.2 (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (b) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the underlying equity; and (c) cancellation of acceleration of vesting of equity awards not covered under (c) above. Within any category of payments and benefits (that is, (a), (b) or (c)), a reduction shall occur first with respect to amounts that are not Nonqualified Deferred Compensation within the meaning of Internal Revenue Code Section 409A and then with respect to amounts that are. In the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of such equity awards, that is, later equity awards shall be canceled before earlier equity awards.
SECTION VI
Special Severance Arrangements
The Administrator may in its sole discretion make exceptions to the severance pay guidelines set forth in this document at any time in its sole discretion. As a result, it is possible that an Executive will not receive severance benefits in a circumstance otherwise covered by this document; it is possible that the severance benefits of a Participant may be different than the terms set forth in this document; and it is possible that an employee of the Company or its
affiliates or subsidiaries who is not otherwise eligible for severance benefits may be designated as a Participant and awarded severance benefits under this Plan.
SECTION VII
Death Benefits
Upon the death of any Participant after his Termination Date and prior to his or her having received all of his or her Severance Pay Benefits, any unpaid amount of the Severance Pay Benefits shall be paid in a single lump sum to the Participant’s spouse, or if the Participant has no surviving spouse at the time such payment is to be made, to the Participant’s estate, within ninety (90) days after the date of the Participant’s death.
SECTION VIII
Rights and Duties of Participants
VIII.1No Participant or any other person shall have any interest in any fund or in any specific asset or assets of the Employers by reason of any amounts or benefits payable under the Plan. Any Executive, former Executive, Participant, former Participant, or other individual, person, entity, representative, or group of one or more of the foregoing (collectively, a “Claimant”) under this Plan shall have the status of a general unsecured creditor of the Employer.
VIII.2Every person receiving or claiming payments under the Plan shall be conclusively presumed to be mentally competent until the date on which the Administrator receives a written notice in a form and manner acceptable to the Administrator that such person is incompetent and that a guardian, conservator or other person legally vested with the interest of his or her estate has been appointed. In the event a guardian or conservator of the estate or any person receiving or claiming payments under the Plan shall be appointed by a court of competent jurisdiction, payments under this Plan may be made to such guardian or conservator provided that the proper proof of appointment and continuing qualification is furnished in a form and manner acceptable to the Administrator. Any such payments so made shall be a complete discharge of any liability or obligation of the Employer or Administrator regarding such payments.
VIII.3Each person entitled to receive a payment under this Plan, whether a Participant, a duly designated beneficiary, a guardian or otherwise, shall provide the Administrator with such information as it may from time to time deem necessary or in its best interest in administering the Plan. Any such person shall also furnish the Administrator with such documents, evidence, data or other information as the Administrator may from time to time deem necessary or advisable.
SECTION IX
Administrator
IX.1The Plan shall be administered by the Administrator. The Administrator may designate a committee or individual to carry out one or more of the Administrator’s responsibilities as Administrator. Any reference in this document to the “Administrator” shall be deemed to include any such committee or individual. An Executive who is such an individual or a member of such committee shall not participate in any decision involving an election made by
him or relating in any way to his individual rights, duties and obligations as a Participant under the Plan.
IX.2The Administrator shall have absolute and exclusive discretionary authority to decide all questions of eligibility for benefits and to determine the amount of such benefits, to establish rules, forms and procedures for the administration of the Plan, to construe and interpret any and all provisions of the Plan, including but not limited to the discretion to resolve ambiguities, inconsistencies, or omissions conclusively and to decide any and all questions of fact, interpretation, definition, computation or administration arising in connection with the operation of this Plan. As a result, benefits under the Plan will be paid only if the Administrator determines in its discretion that the Participant (or other Claimant) is entitled to them. All determinations of the Administrator in matters within its jurisdiction, irrespective of their character or nature, including, but not limited to, all questions of equity, construction and interpretation, including resolution of any ambiguity in the Plan, shall be final, binding and conclusive on all parties. In construing or applying the provisions of the Plan, the Administrator shall have the right to rely upon a written opinion of legal counsel, which may be independent legal counsel or legal counsel regularly employed by the Company, whether or not any question or dispute has arisen as to any distribution from the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be upheld on judicial review, unless it is shown that the interpretation or determination was arbitrary and capricious or an abuse of discretion.
IX.3The Administrator shall be responsible for maintaining books and records for the Plan.
SECTION X
Amendment or Termination
The Company hereby reserves the right to (and may, at any time, through action of the Board, the Committee or either entity’s delegate) amend, modify, terminate or discontinue the Plan at any time, provided, however, that no amendment or termination of, or discontinuance of participation in, the Plan will decrease the amount of any Severance Pay Benefits awarded but not yet fully paid to a Participant prior to the date of such amendment or termination without the written consent of the Participant and no such amendment that would have a material adverse effect on an Executive shall be effective until the one (1)-year anniversary of the date such amendment is adopted, unless the Executive provides written consent to such amendment. In addition, for the two (2)-year period following the date of a Change in Control, the Company may not amend, modify, terminate or discontinue the Plan in any manner that is materially adverse to an Executive, unless the Executive provides written consent to such amendment.
SECTION XI
Not a Contract of Employment
This Plan shall not be deemed to constitute a contract of employment between an Executive and the Employer, nor shall any provision hereof restrict the right of the Employer to
discharge an Executive or to restrict the right of an Executive to terminate his or her employment.
SECTION XII
Claims Procedure
XII.1A Claimant may make a claim for benefits under the Plan by filing a written claim with the Administrator. Determinations of each such claim shall be made as described below; provided, however, that the Claimant and the Administrator may agree to extended periods of time for making determinations beyond those periods described below.
XII.2The Administrator will notify a Claimant of its decision regarding his claim within a reasonable period of time, but not later than ninety (90) days following the date on which the claim is filed, unless special circumstances require a longer period for processing of the claim and the Claimant is notified in writing of the reasons for an extension of time prior to the end of the initial ninety (90) day period and the date by which the Administrator expects to make the final decision. In no event will the Administrator be given an extension for processing the claim beyond one hundred eighty (180) days after the date on which the claim is first filed with the Administrator unless otherwise agreed in writing by the Claimant and the Administrator.
XII.3If a claim is denied, the Administrator will notify the Claimant of its decision in writing. Such notification will be written in a manner calculated to be understood by the Claimant and will contain the following information: the specific reason(s) for the denial; a specific reference to the Plan provision(s) on which the denial is based; a description of additional information necessary for the Claimant to perfect his claim, if any, and an explanation of why such material is necessary; and an explanation of the Plan’s claim review procedure and the applicable time limits under such procedure and a statement as to the Claimant’s right to bring a civil action under ERISA after all of the Plan’s review procedures have been satisfied.
XII.4The Claimant shall have sixty (60) days following receipt of the notice of denial to file a written request with the Administrator for a review of the denied claim. The decision by the Administrator with respect to the review must be given within sixty (60) days after receipt of the request, unless special circumstances require an extension and the Claimant is notified in writing of the reasons for an extension of time prior to the end of the initial sixty (60) day period and the date by which the Administrator expects to make the final decision. In no event will the decision be delayed beyond one hundred twenty (120) days after receipt of the request for review unless otherwise agreed in writing by the Claimant and the Administrator.
XII.5Every Claimant will be provided a reasonable opportunity for a full and fair review of an adverse determination. A full and fair review means the following: the Claimant will be given the opportunity to submit written comments, documents, records, etc. with regard to the claim, and the review will take into account all information submitted by the Claimant, regardless of whether it was reviewed as part of the initial determination; and the Claimant will be provided, upon request and free of charge, with copies of all documents and information relevant to the claim for benefits.
XII.6The Administrator will notify the Claimant of its decision regarding an appeal of a denied claim in writing. The decision will be written in a manner calculated to be understood by the Claimant, and will include: the specific reason(s) for the denial and adverse determination; a reference to the specific Plan provisions on which the denial is based; a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of all information relevant to the Claimant’s claim for benefits; and a statement regarding the Claimant’s right to bring a civil action under ERISA.
XII.7If the Administrator fails to follow these procedures consistent with the requirements of ERISA with respect to any claim, the Claimant will be deemed to have exhausted all administrative remedies under the Plan and will have the right to bring a civil action under Section 502(a) of ERISA. This Article XII shall be interpreted such that the claims procedures applicable under the Plan conform to the claims review requirements of Part 5, Title I, of ERISA, and the applicable provisions set forth in Department of Labor Regulation Section 2560.503-1.
XII.8Before filing any claim or action, the Claimant must first fully exhaust all of the Claimant’s actual or potential rights under the claims procedures of Article XII, including such rights as the Administrator may choose to provide in connection with novel claims or issues or in particular situations. For purposes of the prior sentence, any Claimant that has any claim, issue or matter that implicates in whole or in part –
(a) The interpretation of the Plan,
(b) The interpretation of any term or condition of the Plan,
(c) The interpretation of the Plan (or any of its terms or conditions) in light of applicable law,
(d) Whether the Plan or any term or condition under the Plan has been validly adopted or put into effect, or
(e) Any claim, issue or matter deemed similar to any of the foregoing by the Administrator,
(or two or more of these) shall not be considered to have satisfied the exhaustion requirement of this Section 12.8 unless the Claimant first submits the claim, issue or matter to the Administrator to be processed pursuant to the claims procedures of Section 12.1 or to be otherwise considered by the Administrator, and regardless of whether claims, issues or matters that are not listed above are of greater significance or relevance. The exhaustion requirement of this Section 12.8 shall apply even if the Administrator has not previously defined or established specific claims procedures that directly apply to the submission and consideration of such claim, issue or matter, and in which case the Administrator (upon notice of the claim, issue or matter) shall either promptly establish such claims procedures or shall apply (or act by analogy to) the claims procedures of Section XII that apply to claims for benefits. Upon review by any court or other
tribunal, this exhaustion requirement is intended to be interpreted to require exhaustion in as many circumstances as possible (and any steps necessary to effect this intent should be taken).
XII.9Any claim or action that is filed in court against or with respect to the Plan, Administrator, or Employer must be filed within the applicable time frame that relates to the claim or action, as follows:
(a)Claims or actions for Severance Pay Benefits must be filed within two (2) years of the later of the date the Participant received the Severance Pay Benefits or the date of the Claimant’s Separation from Service.
(b)For all other claims or actions, the claim or action must be filed within two (2) years of the date when the Claimant knew or should have known of the actions or events that gave rise to the claim or action.
Any claim or action filed after the applicable time frame stated above will be void.
XII.10Any claim or action in connection with the Plan must be filed in the United States District Court of the District of Utah.
XII.11If a claim for benefits arises during the twenty-four (24)-month period following the date of a Change in Control, the Company shall pay or reimburse Executive for all reasonable costs (including reasonable legal fees) incurred by the Executive to enforce his rights under this Plan if the Executive prevails on at least one material issue with respect to such claims.
SECTION XIII
Construction and Expense
XIII.1Whenever the context so requires, words in the masculine include the feminine and words in the feminine include the masculine and the definition of any term in the singular may include the plural.
XIII.2All expenses of administering the Plan shall be paid by the Company unless provided herein to the contrary.
XIII.3The Plan shall be construed, administered and governed in all respects under and by the applicable laws of the State of Utah, except to the extent preempted by ERISA.
XIII.4An Executive may not rely upon any oral statement regarding the Plan.
XIII.5This Plan and any properly adopted amendments shall be binding on the parties hereto and their respective heirs, administrators, trustees, successors, and assignees and on all Beneficiaries of the Participant.
XIII.6Service of legal process may be made upon the Administrator at the Company headquarters or upon such other person as may be designated by the Company for this purpose.
XIII.7The records of the Plan will be maintained on the basis of a year that begins each January 1 and ends the next following December 31.
XIII.8The Company intends that all benefits provided under this Plan shall either be exempt from or comply with Section 409A. However, the Administrator shall operate this Plan in accordance with the requirements of Section 409A and the corresponding Department of Treasury guidance with respect to those benefits provided under this Plan that are, in fact, subject to Section 409A. In order to ensure compliance with Section 409A, the provisions of this Section 13.8 shall govern in all cases over any contrary or conflicting provision in the Plan.
(a) It is the intent of this Plan to comply with the requirements of Section 409A and the corresponding Department of Treasury guidance with respect to any nonqualified deferred compensation subject to Section 409A, and any ambiguities in the Plan will be interpreted and this Plan will be applied to comply with these requirements with respect to such compensation.
(b) To the extent necessary to comply with Section 409A, references in this Plan to “termination of employment” or “terminates employment” (and similar references) shall have the same meaning as “separation from service” under Section 409A(a)(2)(A)(i), and no payment subject to Section 409A that is payable upon a termination of employment shall be paid unless and until the Participant incurs a “separation from service” under Section 409A(a)(2)(A)(i) (a “409A Separation from Service”). In addition, if the Participant is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) at the time of his or her 409A Separation from Service, any nonqualified deferred compensation subject to Section 409A that would otherwise have been payable on account of, and within the first six (6) months following, the Participant’s 409A Separation from Service, and not by reason of another event under Section 409A(a)(2)(A), will become payable on the first business day after six (6) months following the date of the Participant’s 409A Separation from Service or, if earlier, the date of the Participant’s death.
(c) Each installment payment of the salary continuation benefits payable pursuant to Section 5.3 and each other payment payable under Section 5.1 or 5.2 above is a separate payment within the meaning of the final regulations under Section 409A. Each such payment that is made within two and one-half (2-1/2) months following the end of the year that contains the date of the Participant’s Separation from Service is intended to be exempt from Section 409A as a short-term deferral within the meaning of the final regulations under Section 409A; each other payment is intended to be exempt under the two-times compensation exemption of Treasury Reg. § 1.409A-1(b)(9)(iii) up to the limitation on the availability of that exemption specified in the regulation; and each payment that is not exempt from Section 409A shall be subject to delay (if necessary) in accordance with subsection (b) above.
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IN WITNESS WHEREOF, this Plan has been executed by a duly authorized officer of the Company to be effective as of the Effective Date.
PROG HOLDINGS, INC.
By: /s/ Steven A. Michaels
Name: Steven A. Michaels
Title: President and Chief Executive Officer
SEVERANCE AND CHANGE-IN-CONTROL AGREEMENT
THIS SEVERANCE AND CHANGE-IN-CONTROL AGREEMENT (this “Agreement”), dated as of _____________________, 2021 (the “Effective Date”), is made by and between PROG Holdings, Inc., a corporation organized under the laws of the State of Georgia (“PROG”) and [●] (“Executive”).
WHEREAS, the Board of Directors of PROG (the “Board”) has determined that it is in the best interests of PROG and its stockholders to assure that PROG and its affiliates will have the continued dedication and objectivity of Executive, notwithstanding the possibility, threat or occurrence of a termination of employment or the occurrence of a Change in Control (as defined hereinbelow) of PROG;
WHEREAS, the Board believes that it is in the best interests of PROG and its stockholders to provide Executive with an incentive to continue Executive’s employment and to motivate Executive to maximize the value of PROG for the benefit of its stockholders;
WHEREAS, the Executive is employed by Prog Leasing, LLC, a subsidiary of PROG; and
WHEREAS, the Board further believes that it is imperative to provide Executive with certain severance benefits upon Executive’s termination of employment and with certain additional benefits upon a Change in Control to provide Executive with enhanced financial security and incentive to remain with PROG and its affiliates.
NOW, THEREFORE, in consideration of the promises, agreements and conditions contained in this Agreement, PROG and Executive agree as follows:
SECTION I
DEFINITIONS
For the purposes of this Agreement the following definitions shall apply:
I.1“Accrued Obligations” means the sum of (a) Executive’s Annual Salary through the Date of Termination to the extent not already paid, and (b) Executive’s business expenses that are reimbursable in accordance with the Company Group’s policies and for which Executive submits for reimbursement within thirty (30) calendar days following the Date of Termination, but have not been reimbursed by the Company Group as of the Date of Termination.
I.2“Affiliate” means any entity controlled by, controlling, or under common control with, PROG or the Company.
I.3“Annual Bonus” means Executive’s annual bonus under the Company’s or an Affiliate’s annual bonus program, as in effect from time to time, in which Executive is covered, if any.
I.4 “Annual Salary” means Executive’s annual base salary, exclusive of any bonus pay, commissions or other additional compensation, in effect on the Date of Termination.
I.5“Cause” means:
(a)the commission by Executive of an act of fraud, embezzlement, theft or proven dishonesty, or any other illegal act or practice (whether or not resulting in criminal prosecution or conviction);
(b)the willful engaging by Executive in misconduct which is deemed by the Board, in good faith, to be materially injurious to any member of the Company Group, monetarily or otherwise; or
(c)the willful and continued failure or habitual neglect by Executive to perform Executive’s duties with the Company Group, as applicable substantially in accordance with the operating and personnel policies and procedures of the Company Group generally applicable to all of their respective employees.
No act or failure to act by Executive shall be deemed to be “willful” unless done or omitted to be done by Executive not in good faith and without reasonable belief that Executive’s action or omission was in the best interest of the Company Group. “Cause” under (a), (b) or (c) shall be determined by the Board in its sole discretion.
I.6“Change in Control” means:
(a)The acquisition (other than from PROG) by any person of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (but without regard to any time period specified in Rule 13d-3(d)(l)(i))), of thirty-five percent (35%) or more of the combined voting power of then outstanding securities of PROG entitled to vote generally in the election of directors (the “Outstanding PROG Voting Securities”); excluding, however, (i) any acquisition by PROG or (ii) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by any member of the Company Group;
(b)A majority of the members of the Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Board before the date of the appointment or election; or
(c)Consummation by PROG of a reorganization, merger, or consolidation or sale of all or substantially all of the assets of PROG (“Transaction”); excluding, however, a Transaction pursuant to which all or substantially all of the individuals or entities who are the beneficial owners, respectively, of the Outstanding PROG Voting Securities immediately prior to such Transaction will beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the outstanding securities of such corporation entitled to vote generally in the election of directors of the corporation resulting from such Transaction (including, without limitation, a corporation which as a result of such Transaction owns PROG
or all or substantially all of PROG’s assets either directly or indirectly) in substantially the same proportions relative to each other as their ownership, immediately prior to such Transaction, of the Outstanding PROG Voting Securities.
Provided, however, a Change in Control shall not be deemed to occur unless the Transaction also constitutes a change in the ownership or effective control of PROG or a change in the ownership of a substantial portion of the assets of PROG, each as defined in Section 409A(a)(2)(A)(v) of the Code and the regulations promulgated thereunder.
I.7“Change in Control Protection Period” means the period commencing on a Change in Control and ending on the second anniversary thereof.
I.8“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended from time to time.
I.9“Code” means the Internal Revenue Code of 1986, as amended from time to time.
I.10“Company Group” means PROG, the Company and their respective Affiliates.
I.11 “Date of Termination” means the effective date of Executive’s termination of employment with the Company Group.
I.12“Disability” shall be deemed the reason for the termination by the Company Group of Executive’s employment if Executive, due to physical or mental injury or illness, is unable to perform the essential functions of Executive’s position with or without reasonable accommodation for a period of one hundred eighty (180) days, whether or not consecutive, occurring within any period of twelve (12) consecutive months, subject to any limitation imposed by federal, state or local laws, including, without limitation, the Americans with Disabilities Act. Eligibility for disability benefits under any policy for long-term disability benefits provided to Executive by the Company Group, or a determination of total disability by the Social Security Administration, shall conclusively establish Executive’s Disability. Any purported termination for Disability that does not follow the notice provisions set forth in Section 1.15 shall be deemed not to be a termination for Disability.
I.13“Good Reason” means, without Executive’s express written consent, the occurrence of any of the following circumstances:
(a)A material diminution in Executive’s Annual Salary other than as a result of an across-the-board base salary reduction similarly affecting other executives of the Company;
(b)A material diminution in Executive’s authority, duties, or responsibilities;
(c)A material change in the geographic location at which Executive must perform services for the Company Group (for this purpose, the relocation of Executive’s principal office location to a location more than fifty (50) miles from its current location will be deemed to be material); or
(d)A material breach of this Agreement by PROG;
provided that any of the events described above shall constitute Good Reason only if (i) Executive provides PROG written notice of the existence of the event or circumstances constituting Good Reason (with sufficient specificity for PROG to respond to such claim) within sixty (60) days of the initial existence of such event or circumstances, (ii) Executive cooperates in good faith with the Company Group’s efforts to cure such event or circumstance for a period not less than thirty (30) days following Executive’s notice to PROG (the “Cure Period”), (iii) notwithstanding such efforts, the Company Group fails to cure such event or circumstances prior to the end of the Cure Period, and (iv) Executive terminates employment with the Company Group within sixty (60) days after the end of the Cure Period.
I.14“Notice of Termination” means the written notice of termination of Executive’s employment that is communicated in accordance with Section VIII of the Agreement. If the Company Group terminates Executive for Cause or Disability, the Notice of Termination shall specify in reasonable detail the grounds for the termination for Cause or Disability; provided that Executive’s employment shall terminate immediately upon Executive’s death and a Notice of Termination shall not be required.
I.15“Section 409A” shall mean Section 409A of the Code and any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section 409A by the U.S. Department of Treasury.
I.16“Target Bonus” means Executive’s annual target bonus under the Company’s or Affiliate’s annual bonus program, as in effect from time to time, in which Executive is covered, if any.
SECTION II
TERM OF AGREEMENT
II.1This Agreement shall become effective on the Effective Date and shall continue in effect for a three (3) year term (the “Term”). To the extent not previously terminated, the Term shall be automatically renewed for successive one (1) year periods upon the terms and conditions set forth herein, commencing at the end of the initial Term, and on each annual anniversary thereafter, unless either party gives the other party notice at least ninety (90) calendar days prior to the end of such initial or applicable renewal Term that the Term shall not be so extended. For purposes of this Agreement, any reference to the “Term” of this Agreement shall include the original term and any renewal thereof. Notwithstanding the foregoing, upon the execution of a definitive agreement for a Change in Control or the consummation of a Change in Control, the Term shall be automatically extended so that the Term shall continue in full force and effect until the second anniversary of the consummation of the Change in Control. If the definitive agreement for the Change in Control is terminated prior to consummation, the automatic extension described in the previous sentence shall not apply. Executive’s employment with the Company is “at will” and may be terminated by the Company for any reason in its sole and absolute discretion in accordance with any applicable provision of Section III and the payment or provision of such benefits as may be required under this Agreement.
SECTION III
SEVERANCE PAYMENTS AND BENEFITS
III.1Change in Control Protection Period.
(a)During the Term, if, during a Change in Control Protection Period, (1) the Company Group shall terminate Executive’s employment other than for Cause, Disability or death, or (2) Executive shall terminate employment for Good Reason, then PROG shall pay or provide the following amounts and benefits to Executive, in addition to the Accrued Obligations:
(i)Severance Payments. On the sixtieth (60th) day following the Date of Termination, Executive will be paid a lump sum payment in an amount equal to two (2) times the sum of (x) Executive’s Annual Salary in effect immediately prior to the Date of Termination or, if higher, immediately prior to the Change in Control, plus (y) Executive’s Target Bonus in effect immediately prior to the Date of Termination or, if higher, immediately prior to the Change in Control.
(ii)Bonus for Year of Termination. On the sixtieth (60th) day following the Date of Termination, Executive will be paid a lump sum cash payment in an amount equal to the product of (x) the average Annual Bonus earned by Executive for the two (2) calendar years immediately preceding the year in which the Date of Termination occurs, and (y) a fraction, the numerator of which is the number of days from January 1 of the year during which the Date of Termination occurs to the Date of Termination and the denominator of which is three hundred and sixty five (365).
(iii)COBRA Payments. On the sixtieth (60th) day following the Date of Termination, Executive will be paid a lump sum payment in an amount equal to the product of (x) Executive’s monthly premium amount for health insurance continuation coverage for Executive and Executive’s eligible dependents under COBRA (based on the monthly premium rate for such coverage in effect on the Date of Termination) and (y) twenty four (24).
(iv)Stock Options and Other Equity Awards. As of the Date of Termination, any and all outstanding stock options, stock appreciation rights, restricted stock units and other equity based awards granted to Executive under any PROG stock plan shall become fully vested (to the extent not already then vested) and exercisable or settled, as applicable, to the extent provided under the terms of the applicable PROG stock plan and award agreements.
In the event of Executive’s death following the Date of Termination and before all payments or benefits Executive is entitled to receive under this Section 3.1 have been paid, such
unpaid amounts will be paid to Executive’s estate in a lump-sum payment within thirty (30) days following Executive’s death.
(b)If (i) Executive is terminated by the Company Group without Cause, or an event constituting Good Reason occurs, following the public announcement of a definitive agreement that, when consummated, would constitute a Change in Control, and (ii) such Change in Control is consummated, then the termination or event constituting Good Reason will be deemed to occur within the Change in Control Protection Period, and Executive may exercise Executive’s rights under Section 3.1 following the consummation of such Change in Control.
III.2Outside of Change in Control Protection Period.
(a)If, during the Term, (1) the Company Group shall terminate Executive’s employment other than for Cause, Disability or death, or (2) Executive shall terminate employment for Good Reason, in either case other than during a Change in Control Protection Period, then PROG shall pay or provide the following amounts and benefits to Executive, in addition to the Accrued Obligations:
(i)Annual Salary and Target Bonus Continuation Payments. Commencing on the Company’s first normal payroll date that is on or immediately follows the sixtieth (60th) day following the Date of Termination, Executive will (x) continue to receive Executive’s Annual Salary in effect immediately prior to the Date of Termination for a period of twenty four (24) months following the Date of Termination, and (y) be paid an amount equal to one-twelfth (1/12th) of the Executive’s Target Bonus in effect on the Date of Termination in each of the twenty four (24) months following the Date of Termination, payable in normal payroll periods, in the same manner as it was paid as of the Date of Termination, and no less frequently than monthly; provided, however, any payments that would otherwise be payable during the period following the Date of Termination until the payment commencement date shall be accumulated without interest and paid on such commencement date. In the event of Executive’s death following the Date of Termination and before all payments or benefits Executive is entitled to receive under this Section 3.2 have been paid, such unpaid amounts will be paid to Executive’s estate in a lump-sum payment within thirty (30) days following Executive’s death.
(ii)Stock Options, RSUs and Performance Shares with Annual Vesting. Executive shall vest on the Date of Termination in a pro rata portion of any stock options, restricted stock units and performance shares granted under any PROG stock plan that are subject to annual vesting (to the extent not already then vested) and that: (x) were granted at least twelve (12) months prior to the Date of Termination and (y) would otherwise vest on the next anniversary of their grant date, based on a fraction, the numerator of which is the number of days that Executive was employed during the twelve (12) month vesting period in which the Date of Termination occurs and the denominator of which is three hundred and sixty five (365); provided, however, that if Executive was employed for at least one-hundred and eighty (180) days during the twelve (12) month vesting period in which the Date of Termination occurs, the fraction shall be one. Any stock options that vest under this Section 3.2(a)(ii) shall be exercisable to the extent provided under the terms of (and are otherwise subject to) the applicable
PROG stock plan and award agreements. Any restricted stock units and/or performance shares that vest under this Section 3.2(a)(ii) shall be paid on the Company’s first normal payroll date that is on or immediately follows the sixtieth (60th) day following the Date of Termination and are otherwise subject to the terms of the applicable PROG stock plan and award agreements. For the avoidance of doubt, stock options, restricted stock units and performance shares that were granted less than twelve (12) months prior to the Date of Termination shall not vest under this Section 3.2(a)(ii) and stock options, restricted stock units and performance shares that would not otherwise vest on the next anniversary of the grant date shall not vest under this Section 3.2(a)(ii). Further, any performance shares shall only be vested to the extent the performance measures are actually satisfied and/or only to the extent that other similarly situated executives are paid out on performance shares for the applicable performance period.
(iii)Performance Shares without Annual Vesting. Executive shall vest in a pro rata portion of any performance shares granted under any PROG stock plan (to the extent not already then vested) and that (x) were granted at least twelve (12) months prior to the Date of Termination and (y) are subject to a performance period greater than twelve (12) months, based on a fraction, the numerator of which is the number of days that Executive was employed during the performance period in which the Date of Termination occurs and the denominator of which is the total number of days in the performance period. Any performance shares that vest under this Section 3.2(a)(iii) shall be paid at the same time as such performance shares are paid for other executives and are otherwise subject to the terms of the applicable PROG stock plan and award agreements, including the satisfaction of all required performance measures. For the avoidance of doubt, performance shares that were granted less than twelve (12) months prior to the Date of Termination shall not vest under this Section 3.2(a)(iii) and performance shares shall only be vested to the extent the performance measures are actually satisfied and/or only to the extent that other similarly situated executives are paid out on performance shares for the applicable performance period.
III.3Voluntary Resignation without Good Reason. If, during the Term, Executive voluntarily resigns Executive’s employment without Good Reason, Executive will be paid the Accrued Obligations. No additional amounts or benefits shall be payable or provided under this Agreement.
III.4Termination Due to Disability or Death. If Executive’s employment with the Company Group is terminated due to Executive’s Disability or death, Executive (or the Executive’s estate, if applicable) will be paid the Accrued Obligations and an additional amount equal to the product of (x) Executive’s Annual Bonus for the year in which the Date of Termination occurs based on actual results, and (y) a fraction, the numerator of which is the number of days from January 1 of the year during which the Date of Termination occurs to the Date of Termination and the denominator of which is three hundred and sixty five (365). The pro rata Annual Bonus, if any, will be paid at the same time such amount would otherwise have been paid to Executive. No additional amounts or benefits shall be payable or provided under this Agreement.
III.5Release. Notwithstanding anything contained in this Agreement to the contrary, PROG shall not be obligated to provide any benefits to Executive under Section 3.1, 3.2, 3.3 or 3.4 hereof unless: (a) Executive first executes no later than forty-five (45) calendar days after the Date of Termination a general release of the Company Group and their respective employees, officers and directors in such form as is requested by the Company Group; (b) Executive does not revoke such general release within seven (7) days after signature; and (c) the release becomes effective and irrevocable in accordance with its terms.
III.6Exclusive Severance Benefit. Notwithstanding anything contained in this Agreement to the contrary, and except as specifically provided below, any severance payments or benefits received by Executive pursuant to this Agreement shall be in lieu of any benefits under the Executive Severance Pay Plan of PROG Holdings, Inc. (as may be in effect from time to time) or any other severance or reduction-in-force plan, program, policy, agreement or other similar arrangement maintained by the Company Group from time to time and in lieu of any severance or separation pay benefit that may be required under applicable law; provided, however, the exclusion provided in this Section 3.6 shall not include any equity award agreement, retirement or deferred compensation plan or similar plan or agreement which may provide benefits upon the termination of Executive’s employment. Executive shall not be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to Executive under this Agreement.
III.7Tax Withholding. The Company Group shall deduct from payments to be paid to Executive or any beneficiary all federal, state and local withholding and other taxes and charges required to be deducted under applicable law.
III.8Coordination with WARN Act. To the extent that the Company Group determines that Executive’s termination may be subject to the Worker Adjustment and Retraining Notification Act or any other similar federal, state or local law regarding mass employment separations (collectively, “WARN Act”), notwithstanding any other provision of this Agreement, the Company Group shall endeavor to comply with the WARN Act, to the extent applicable, by giving notice of the termination (“WARN Act Notice”) at least sixty (60) days in advance of the termination date. The period between the WARN Act Notice date and the termination date is hereinafter referred to as “WARN Act Notice Period”. The Company Group’s determination that Executive may be subject to the WARN Act and/or any corresponding actions taken or statements made are not an admission or indication that any WARN Act or WARN Act obligations are applicable, triggered, invoked or owed and do not waive or otherwise hinder the Company Group’s ability to argue the WARN Act does not apply or to take other similar positions.
The Company Group may excuse Executive from work during all or part of the WARN Act Notice Period and provide Executive with a payment or payments intended to satisfy all or part of any potential WARN Act obligations, including those during the WARN Act Notice Period. If this occurs, any payments or benefits under this Agreement shall be reduced and offset by and may be coordinated with any payment(s) Executive receives during the WARN Act
Notice Period. After any reduction and offset, PROG will provide the remaining benefits (subject to the release requirement described in Section 3.5) to Executive.
If Executive is not excused from work following the WARN Act Notice date, the regular salary or wages paid to Executive during the WARN Act Notice Period will constitute Executive’s usual compensation and not a benefit under this Agreement.
III.9No Duplication. In no event shall payments and benefits provided in accordance with this Agreement be made in respect of more than one of Section 3.1, 3.2, 3.3 or 3.4.
SECTION IV
TAX INFORMATION
IV.1Section 280G Parachute Payments. Notwithstanding any provision of this Agreement to the contrary, if any payment or benefit to be paid or provided hereunder would be a “Parachute Payment,” within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided hereunder shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes a Parachute Payment; provided, however, that the foregoing reduction shall not be made if the total of the unreduced aggregate payments and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes), exceeds by at least ten percent (10%) the total after-tax amount of such aggregate payments and benefits after application of the foregoing reduction. The determination of whether any reduction in such payments or benefits to be provided hereunder is required pursuant to the preceding sentence shall be made at the expense of the Company Group, if requested by Executive or the Company, by the Company Group’s independent accountants. The fact that Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 4.1 shall not of itself limit or otherwise affect any other rights of Executive under this Agreement. In the event that any payment or benefit intended to be provided hereunder is required to be reduced pursuant to this Section 4.1 and no such payment or benefit qualifies as a “deferral of compensation” within the meaning of and subject to Section 409A (“Nonqualified Deferred Compensation”), Executive shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this Section 4.1. The Company Group shall provide Executive with all information reasonably requested by Executive to permit Executive to make such designation. In the event that any payment or benefit intended to be provided hereunder is required to be reduced pursuant to this Section 4.1 and any such payment or benefit constitutes Nonqualified Deferred Compensation or Executive fails to elect an order in which payments or benefits will be reduced pursuant to this Section 4.1, then the reduction shall occur in the following order: (a) reduction of cash payments described in Sections 3.1 and 3.2 (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (b) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the underlying equity; and (c)
cancellation of acceleration of vesting of equity awards not covered under (b) above. Within any category of payments and benefits (that is, (a), (b) or (c)), a reduction shall occur first with respect to amounts that are not Nonqualified Deferred Compensation within the meaning of Section 409A and then with respect to amounts that are. In the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of such equity awards, that is, later equity awards shall be canceled before earlier equity awards.
IV.2Section 409A.
(a)Section 409A imposes payment restrictions on Nonqualified Deferred Compensation (potentially including payments owed to Executive upon termination of employment). Failure to comply with these restrictions could result in negative tax consequences to Executive. It is PROG’s intent that this Agreement be exempt from the application of, or otherwise comply with, the requirements of Section 409A. Specifically, any taxable benefits or payments provided under this Agreement are intended to be separate payments that qualify for the “short-term deferral” exception to Section 409A to the maximum extent possible and, to the extent they do not so qualify, are intended to qualify for the separation pay exceptions to Section 409A to the maximum extent possible. To the extent that none of these exceptions applies, and to the extent that the Company Group determines it is necessary to comply with Section 409A (e.g., if Executive is a “specified employee” within the meaning of Section 409A), then notwithstanding any provision in this Agreement to the contrary, all amounts that would otherwise be paid or provided to Executive during the first six months following the Date of Termination shall instead be accumulated through and paid or provided (without interest) on the first business day that is more than six (6) months after Executive’s separation from service.
(b)A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits subject to Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A and Executive is no longer providing services (at a level that would preclude the occurrence of a “separation from service” within the meaning of Section 409A) to the Company Group as an employee or consultant, and for purposes of any such provision of this Agreement, references to the “Date of Termination,” a “termination,” “termination of employment” or like terms shall mean “separation from service” within the meaning of Section 409A.
(c)Whenever a payment under this Agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company Group. In the event the payment period under this Agreement for any nonqualified deferred compensation commences in one calendar year and ends in a second calendar year, the payments shall not be paid (or installments commenced) until the later of the first payroll date of the second calendar year, or the date that the release described in Section 3.5 becomes effective and irrevocable, to the extent necessary to comply with Section
409A. For purposes of Section 409A, Executive’s right to receive installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.
(d)Although the Company Group will use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A, the tax treatment of the benefits provided under this Agreement is not warranted or guaranteed. Neither the Company Group nor their respective directors, officers, employees or advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by Executive (or any other individual claiming a benefit through Executive) as a result of this Agreement.
SECTION V
RESTRICTIVE COVENANTS
V.1Executive acknowledges and agrees that the restrictions set forth in this Section V are reasonable and necessary to protect the legitimate business interests of the Company Group, and they will not impair or infringe upon Executive’s right to work or earn a living when Executive’s employment with the Company Group ends for any reason, and (i) Executive (1) served the Company Group as a Key Employee; and/or (2) served the Company Group as a Professional; and/or (3) customarily and regularly solicited Customers and/or Prospective Customers for the Company Group; and/or (4) customarily and regularly engaged in making sales or obtaining orders or contracts for products or services to be provided or performed by others in the Company Group; and/or (5) (A) had a primary duty of managing a department or subdivision of the Company Group, (B) customarily and regularly directed the work of two or more other employees, and (C) had the authority to hire or fire other employees; and/or (ii) Executive’s position was a position of trust and responsibility with access to (1) Confidential Information, (2) Trade Secrets, (3) information concerning Employees of the Company Group, (4) information concerning Customers of the Company Group, and/or (5) information concerning Prospective Customers of the Company Group.
(a)Trade Secrets and Confidential Information. Executive shall not: (i) use, disclose, reverse engineer, divulge, sell, exchange, furnish, give away, or transfer in any way the Trade Secrets or the Confidential Information for any purpose other than the Company Group’s Business, except as authorized in writing by the Company Group; (ii) retain any Trade Secrets or Confidential Information, including any copies existing in any form (including electronic form) that are in Executive’s possession or control; or (iii) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company Group’s prior written consent. The obligations under this subsection shall: (1) with regard to the Trade Secrets, remain in effect as long as the information constitutes a trade secret under applicable law; and (2) with regard to the Confidential Information, remain in effect for so long as such information constitutes Confidential Information as defined in this Agreement. The confidentiality, property, and proprietary rights protections set forth in this Agreement are in addition to, and not exclusive of, any and all other rights to which the Company Group is entitled under federal and state law, including, but not limited to, rights provided under copyright laws, trade secret and confidential information laws, and laws concerning fiduciary duties.
(b)Defend Trade Secrets Act. Notwithstanding anything to the contrary set forth in this Agreement, pursuant to the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)(1)), no individual shall be held criminally or civilly liable under federal or state law for the disclosure of a trade secret that: (1) is made (x) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (y) solely for the purpose of reporting or investigating a suspected violation of law; or (2) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(c)Non-Solicitation of Customers. During the Restricted Period, Executive shall not, directly or indirectly, solicit any Customer of the Company Group for the purpose of selling or providing any products or services competitive with the Business. The restrictions set forth in this subsection shall apply only to those Customers (a) with whom or which Executive dealt on behalf of the Company Group, (b) whose dealings with the Company Group were coordinated or supervised by Executive, (c) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with the Company Group, or (d) who received products or services authorized by the Company Group, the sale or provision of which resulted in compensation, commissions, or earnings for Executive within two (2) years prior to the Date of Termination.
(d)Non-Solicitation of Prospective Customers. During the Restricted Period, Executive shall not, directly or indirectly, solicit any Prospective Customer of the Company Group for the purpose of selling or providing any products or services competitive with the Business. The restrictions set forth in this subsection shall apply only to those Prospective Customers (i) with whom or which Executive dealt on behalf of the Company Group, (ii) whose dealings with the Company Group were coordinated or supervised by Executive, or (iii) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with the Company Group.
(e)Non-Recruit of Employees. During the Restricted Period, Executive shall not, directly or indirectly, solicit, recruit, or induce any Employee to (i) terminate his or her employment relationship with the Company Group, or (ii) work for any other person or entity engaged in the Business. For the avoidance of doubt, the foregoing restriction shall prohibit Executive from disclosing to any third party the names, background information, or qualifications of any Employee, or otherwise identifying any Employee as a potential candidate for employment. The restrictions set forth in this subsection shall apply only to Employees (1) with whom Executive had Material Interaction, or (2) Executive, directly or indirectly, supervised.
(f)Non-Competition. During the Restricted Period, Executive shall not, on Executive’s own behalf or on behalf of any person or entity, engage in the Business within the Territory; provided, however, that Executive may work for a competitor within the Territory and during the Restricted Period if Executive first obtains express written permission from the Company’s Chief Executive Officer or the Board. For purposes of this subsection, the term “engage in the Business” shall include: (i) performing or participating in any activities which are the same as, or substantially similar to, activities which Executive performed or in which
Executive participated, in whole or in part, for or on behalf of the Company Group; (ii) performing activities or services about which Executive obtained Confidential Information or Trade Secrets as a result of Executive’s association with the Company Group; and/or (iii) interfering with or negatively impacting the business relationship between the Company Group and a Customer, Prospective Customer, or any other third party about whom Executive obtained Confidential Information or Trade Secrets as a result of Executive’s association with the Company Group.
(g)Definitions. For purposes of this Section V only, the capitalized terms shall be defined as follows:
(i)“Business” means (1) those activities, products, and services that are the same as or similar to the activities conducted and products and services offered and/or provided by the Company Group within two (2) years prior to the Date of Termination, and (2) (A) renting, leasing, and/or selling new or reconditioned consumer electronics, computers (including hardware, software, and accessories), appliances, household goods, residential furniture, and home furnishings, (B) providing web-based, virtual or remote lease-to-own programs, buy-now-pay-later programs or financing, or (C) issuing consumer credit cards and credit card and other consumer credit accounts, making consumer loans, cash advances and other extensions of credit and engaging in any other programs or activities for the origination or acquisition of loans, receivables or other payment obligations of consumers.
(ii)“Confidential Information” means: (1) information of the Company Group, to the extent not considered a Trade Secret under applicable law, that: (A) relates to the business of the Company Group, (B) was disclosed to Executive or of which Executive became aware of as a consequence of Executive’s relationship with the Company Group (C) possesses an element of value to the Company Group, and (D) is not generally known to the Company Group’s competitors, and (2) information of any third party provided to the Company Group which the Company Group is obligated to treat as confidential, including, but not limited to, information provided to the Company Group by their licensors, suppliers or customers. Confidential Information includes, but is not limited to: (A) methods of operation; (B) price lists; (C) financial information and projections; (D) personnel data; (E) future business plans; (F) the composition, description, schematic or design of products, future products or equipment of the Company Group or any third party; (G) advertising or marketing plans; (H) information regarding independent contractors, employees, clients, licensors, suppliers, Customers, Prospective Customers or any third party, including, but not limited to, the names of Customers and Prospective Customers, Customer and Prospective Customer lists compiled by the Company Group, and Customer and Prospective Customer information compiled by the Company Group; and (I) personal information concerning owners and members of the Company Group. Confidential Information shall not include any information that: (1) is or becomes generally available to the public other than as a result of an unauthorized disclosure, (2) has been independently developed and disclosed by others without violating this Agreement or the legal rights of any party, or (3) otherwise enters the public domain through lawful means.
(iii)“Customer” means any person or entity to which the Company Group has sold its products or services.
(iv)“Employee” means any person who (1) is employed by the Company Group on the Date of Termination, or (2) was employed by the Company Group during the last year of Executive’s employment with the Company Group.
(v)“Key Employee” means that, by reason of the Company Group’s investment of time, training, money, trust, exposure to the public, or exposure to Customers, vendors, or other business relationships during the course of Executive’s employment with the Company Group, Executive will gain a high level of notoriety, fame, reputation, or public persona as the Company Group’s representative or spokesperson, or will gain a high level of influence or credibility with the Company Group’s Customers, vendors, or other business relationships, or will be intimately involved in the planning for or direction of the business of the Company Group or a defined unit of the business of the Company Group. Such term also means that Executive will possess selective or specialized skills, learning, or abilities or customer contacts or customer information by reason of having worked for the Company Group.
(vi)“Material Interaction” means any interaction with an Employee which related, directly or indirectly, to the performance of Executive’s duties or the Employee’s duties for the Company Group.
(vii)“Professional” means an employee who has a primary duty the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. Such term shall not include employees performing technician work using knowledge acquired through on-the-job and classroom training, rather than by acquiring the knowledge through prolonged academic study, such as might be performed, without limitation, by a mechanic, a manual laborer, or a ministerial employee.
(viii)“Prospective Customer” means any person or entity to which the Company Group has solicited to purchase the Company Group’s products or services.
(ix)“Restricted Period” means: (i) with respect to Sections 5.1(c), (d) and (e), twenty-four (24) months after the Date of Termination or (ii) with respect to Section 5.1(f), twelve (12) months after the Date of Termination.
(x)“Territory” means within each of the following discrete, severable, geographic areas:
(A)any state or province in which Executive performed services for or on behalf of the Company Group during the last two (2) years of Executive’s employment with the Company Group (or during Executive’s employment if employed less than two (2) years); and/or if this subclause or any portion thereof is found to be unenforceable;
(B)the United States of America (including the following states: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, as well as the District of Columbia); and/or if this subclause or any portion thereof is found to be unenforceable;
(C)Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wyoming, the District of Columbia; and/or if this subclause or any portion thereof is found to be unenforceable;
(D)the state of Utah; and/or if this subclause or any portion thereof is found to be unenforceable;
(E)the Metropolitan Statistical Area of Salt Lake City, Utah as designated by the Office of Management and Budget and used by the U.S. Census Bureau in its most recent census as of the Date of Termination; and/or if this clause of any portion thereof is found to be unenforceable;
(F)the counties of Salt Lake, Utah, Summit and Tooele, Utah; and/or if this subclause or any portion thereof is found to be unenforceable;
(G)the city of Draper, Utah; and/or if this subclause or any portion thereof is found to be unenforceable; then
(H)a fifteen (15) air mile radius of 256 West Data Drive, Draper, Utah 84020.
The Company Group and Executive acknowledge and agree that the Territory described above (x) represents a good faith estimate of the geographic areas that are applicable at the time of termination of Executive’s employment; (y) shall be construed ultimately to cover only so much of such estimate as relates to the geographic areas actually involved within a reasonable period of time prior to Executive’s termination; and (z) is drafted in such a way that a court may modify the definition and grant only the relief reasonably necessary to protect such legitimate business interests.
(xi)“Trade Secrets” means information of the Company Group, and its licensors, suppliers, clients, and customers, without regard to form, including, but not limited to,
technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, a list of actual customers, clients, licensors, or suppliers, or a list of potential customers, clients, licensors, or suppliers which is not commonly known by or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
V.2Injunctive Relief. If Executive breaches or threatens to breach any portion of this Agreement, Executive agrees that: (a) the Company Group would suffer irreparable harm; (b) it would be difficult to determine damages, and money damages alone would be an inadequate remedy for the injuries suffered by the Company Group; and (c) if the Company Group seeks injunctive relief to enforce this Agreement, Executive shall waive and shall not (i) assert any defense that the Company Group has an adequate remedy at law with respect to the breach, (ii) require that the Company Group submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the Company Group to post a bond or any other security. Nothing contained in this Agreement shall limit the Company Group’s right to any other remedies at law or in equity.
V.3Independent Enforcement. Each of the covenants set forth in Section 5.1 above shall be construed as an agreement independent of (a) each of the other covenants set forth in Section 5.1, (b) any other agreements, or (c) any other provision in this Agreement, and the existence of any claim or cause of action by Executive against the Company Group, whether predicated on this Agreement or otherwise, regardless of who was at fault and regardless of any claims that either Executive or the Company Group may have against the other, shall not constitute a defense to the enforcement by the Company Group of any of the covenants set forth in Section 5.1 above. The Company Group shall not be barred from enforcing any of the covenants set forth in Section 5.1 above by reason of any breach of (i) any other part of this Agreement, or (ii) any other agreement with Executive.
V.4Protected Rights. Nothing contained in this Agreement limits Executive’s ability to file a charge or complaint with the Equal Employment Opportunity Commission or any other federal, state or local governmental agency or commission (collectively, “Government Agencies”), or prevents Executive from providing truthful testimony in response to a lawfully issued subpoena or court order. Further, this Agreement does not limit Executive’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company Group.
V.5Survival of Restrictive Covenants. Upon termination of Executive’s employment for any reason whatsoever (whether voluntary on the part of Executive, for Cause, or other reasons), the obligations of Executive pursuant to Section V shall survive and remain in effect for the periods described herein.
SECTION VI
DISPUTES
VI.1Arbitration.
(a)Rules; Jurisdiction. Any controversy, dispute or claim between the parties, including any controversy, dispute or claim arising out of, relating to or concerning this Agreement, the breach of this Agreement, the employment of Executive, or the termination of Executive’s employment (a “Disputed Matter”) will be resolved pursuant to this Section VI. Any such controversy, dispute or claim will be settled in Salt Lake County, Utah in accordance with the applicable rules of the American Arbitration Association (the “AAA”) then in effect; provided, however, that a breach of the obligations under Section V may be enforced by an action for injunctive relief and damages in a court of competent jurisdiction. If the rules of the AAA differ from any provisions of this Agreement, the provisions of this Agreement will control.
(b)Terms of Arbitration. The arbitrator chosen in accordance with these provisions shall not have the power to alter, amend or otherwise affect the terms of these arbitration provisions or the provisions of this Agreement except as otherwise expressly provided herein.
(c)Binding Effect. The arbitrator will have the authority to grant only such equitable and legal remedies that would be available in any judicial proceeding instituted to resolve a Disputed Matter, and the decision of the arbitrator within the scope of the submission will be final and conclusive upon the parties. Judgment upon any award rendered by the arbitrator may be entered in any court having subject matter jurisdiction to render such judgment. In the event any provision of this Section VI is found to be unenforceable for any reason by a court or an arbitrator, the court or arbitrator, as the case may be, shall reform this Section VI to the extent necessary to render it enforceable.
(d)Time for Arbitration. Any demand for arbitration involving an alleged breach of this Agreement shall be filed within one (1) year of the date the claim became known or should have become known; provided, however, any claim involving an alleged statutory obligation may be filed with the AAA and served on the other party at any time within the period covered by the applicable statute of limitations.
(e)Payment of Costs. To the extent permitted by applicable law, each party hereby agrees to pay one half the arbitrator’s fees, the costs of transcripts and all other expenses of the arbitration proceedings; provided, however, that the arbitrator shall have the authority to determine payment of costs as part of the award or to allocate costs in accordance with the AAA rules.
(f)Burden of Proof; Basis of Decision. For any claim submitted to arbitration, the burden of proof shall be as it would be if the claim were litigated in a judicial proceeding except where otherwise specifically provided in this Agreement, and the decision
shall be based on the application of the law of the State of Utah (as determined from statutes, court decisions and other recognized authorities) to the facts found by the arbitrator.
SECTION VII
SUCCESSORS
VII.1In addition to any obligations imposed by law upon any successor to PROG, PROG shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of PROG expressly to assume and agree to perform this Agreement in the same manner and to the same extent that PROG would be required to perform it if no such succession had taken place. The provisions of this Section VII shall continue to apply to each subsequent employer of Executive bound by this Agreement in the event of any merger, consolidation or transfer of all or substantially all of the business or assets of that subsequent employer.
VII.2This Agreement shall inure to the benefit of and be enforceable by Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
SECTION VIII
NOTICES
VIII.1For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by (a) United States registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon actual receipt; or (b) personal delivery to the Chief Executive Officer:
To PROG:
PROG Holdings, Inc.
256 West Data Drive
Draper, Utah 84020
Attention: Chief Executive Officer
Copy to (which shall not constitute notice):
PROG Holdings, Inc.
256 West Data Drive
Draper, Utah 84020
Attention: General Counsel
To Executive: At Executive’s most recent mailing address in the records of the Company Group, or at Executive’s employee email address (during employment)
SECTION IX
MISCELLANEOUS
IX.1Any compensation paid or payable to Executive pursuant to this Agreement which is subject to recovery under any law, government regulation, order or stock exchange listing requirement, will be subject to such deductions and clawback (recovery) as may be required to be made pursuant to law, government regulation, order, stock exchange listing requirement (or any policy of the Company Group adopted from time to time). Executive specifically authorizes the Company Group to withhold from future salary or wages any amounts that may become due under this provision. This Section 9.1 shall survive the termination of this Agreement for a period of three (3) years.
IX.2This Agreement embodies the entire agreement of PROG and Executive relating to separation or severance pay and, except as specifically provided herein, no provisions of any employee manual, personnel policies, corporate directives or other agreement or document shall be deemed to modify the terms of this Agreement. Except as otherwise provided in Section 5.1, no amendment or modification of this Agreement shall be valid or binding upon Executive or PROG unless made in writing and signed by PROG and Executive. This Agreement supersedes all prior understandings and agreements addressing severance or separation pay to which Executive and the Company Group are or were parties, including any previous change in control agreement, severance plan, offer letter provisions, or other employment agreements.
IX.3No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
IX.4No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not expressly set forth in this Agreement.
IX.5The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
IX.6The Agreement shall be construed, administered and governed in all respects under and by the applicable laws of the State of Utah.
IX.7This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
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[Signature page to Severance and Change-in-Control Agreement]
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date set forth above.
PROG HOLDINGS, INC.
By:
Name:
Title:
Date:
EXECUTIVE
[●]
Date: