UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported) July 20, 2026

 

Fermi Inc.

(Exact name of registrant as specified in its charter)

 

Texas		001-42888		33-3560468
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

620 S. Taylor St., Suite 301 Amarillo, TX		79101
(Address of principal executive offices)		(Zip Code)

 

Registrant's telephone number, including area code: (214) 894-7855

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, $0.001 par value		FRMI		The Nasdaq Stock Market LLC
Common Stock, $0.001 par value		FRMI		The London Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☒

 

 

 

 

 

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On July 20, 2026, the Board of Directors (the "Board") of Fermi Inc. (the "Company") appointed the following individuals as officers of the Company: George Wentz as General Counsel, Anna Bofa as Chief Commercial Officer, Jacobo Ortiz as Chief Operating Officer, and Rob Masson as Chief Financial Officer (the "Officer Appointments" and each such individual, an "Officer"). The Officer Appointments are effective as of July 22, 2026. Ms. Bofa and Mr. Ortiz will continue to serve as Co-Chairs of the Interim Office of the CEO in addition to their respective Officer Appointments.

 

Mr. Wentz, age 68, is a seasoned energy attorney and legal strategist with over four decades of experience at the intersection of law, economics, and energy infrastructure. In January 2020, Mr. Wentz founded MAD Energy, a company focused on large-scale transitional energy infrastructure and next-generation energy technologies, where he serves as CEO. Mr. Wentz has been a partner at Davillier Law Group, LLC since January 2008, where he handles complex international litigation, oil and gas matters, maritime law, and international transactions.

 

In connection with the Officer Appointments, the Board has approved forms of Employment Agreements with each of Mr. Wentz, Ms. Bofa, Mr. Ortiz, and Mr. Masson (collectively, the "Employment Agreements" and each an "Employment Agreement"). The Employment Agreements provide for an initial term of five years and an annualized base salary of $500,000 for Mr. Wentz, Ms. Bofa, and Mr. Ortiz and an annualized base salary of $650,000 for Mr. Masson. Each of the Officers is eligible to receive a target annual bonus equal to 100% of base salary with a maximum bonus equal to 200% of the target bonus, and severance equal to 18 months of base salary plus 1.5x target bonus, payment of unpaid bonus for the year preceding the year of termination, and up to 18 months' worth of subsidized COBRA participation. Ms. Bofa and Mr. Masson are also eligible for accelerated vesting of a sign-on equity award as part of their potential severance packages. Ms. Bofa is also eligible for additional lease-related and incremental sales-related equity awards, subject to the applicable performance thresholds and vesting terms set forth in her Employment Agreement.

 

The Employment Agreements provide for each Officer's participation in the Company's 2025 Long-Term Incentive Plan (the "2025 LTIP") and provides for awards having an aggregate grant date value of (a) $2,250,000 for Mr. Wentz, (b) $3,000,000 for Ms. Bofa, prorated to the date of hire for 2026, (c) $3,000,000 for Mr. Ortiz and (d) $3,000,000 for Mr. Masson, prorated to the date of hire for 2026. Such awards consist of 30% restricted stock units and 70% performance stock units, in each case subject to the terms and conditions of the 2025 LTIP, the form Restricted Stock Unit Award Agreement (the "RSU Award Agreement") attached hereto as Exhibit 10.5, and the form of Performance Restricted Stock Unit Agreement (the "PSU Award Agreement") attached hereto as Exhibit 10.6. The Employment Agreements with Mr. Wentz, Ms. Bofa, and Mr. Masson further provide for one-time sign-on equity awards pursuant to the 2025 LTIP, consisting of (a) 1,500,000 restricted stock units to Mr. Wentz, vesting on the grant date; (b) 2,000,000 restricted stock units to Ms. Bofa, vesting one percent on the grant date, which is subject to a claw back in the event of a termination prior to the first anniversary of the grant date, forty-nine percent on the first anniversary of the grant date, twenty-five percent on the second anniversary of the grant date and the remainder on the third anniversary of the grant date; and (c) 975,000 restricted stock units to Mr. Masson, cliff vesting on the first anniversary of the grant date.

 

The summaries of the Employment Agreements, the RSU Award Agreement, and the PSU Award Agreement set forth above do not purport to be complete statements of the terms of such documents. The summaries are qualified in their entirety by reference to the full text of the Employment Agreements, the RSU Award Agreement, and the PSU Award Agreement, which are set forth as Exhibits 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6 to this Current Report on Form 8-K.

 

In connection with the Officer Appointments, the Board also approved the Company's entry into standard indemnification agreements for directors and officers, in the form attached hereto as Exhibit 10.7, with each of the Officers.

 

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Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.		Description
10.1†		Form of Employment Agreement for George Wentz
10.2†		Form of Employment Agreement for Anna Bofa
10.3†		Form of Employment Agreement for Jacobo Ortiz
10.4†		Form of Employment Agreement for Rob Masson
10.5†		Form of Restricted Stock Unit Award Agreement under the Company's 2025 Long-Term Incentive Plan
10.6†		Form of Performance Restricted Stock Unit Award Agreement under the Company's 2025 Long-Term Incentive Plan
10.7†		Form of Indemnification Agreement
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

†	Indicates a management contract or compensatory plan.

 

*	Furnished herewith.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	FERMI INC.
Date: July 23, 2026	By:	/s/ George Wentz
	Name:	George Wentz
	Title:	General Counsel

 

 

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Exhibit 10.1

 

FORM OF EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (this "Agreement") is dated as of [_], 2026 and is entered into by and between George Wentz ("Executive") and Fermi Inc., a Texas corporation (the "Company"). The Company and Executive shall be referred to herein as the "Parties."

 

RECITALS

 

WHEREAS, Executive is currently employed by the Company as General Counsel;

 

WHEREAS, the Company and Executive desire to set forth in writing the terms and conditions of their agreement and understandings with respect to Executive's employment by the Company, which, as of the Effective Date (as defined below), shall supersede and replace the terms and conditions of Executive's employment with the Company prior to the Effective Date; and

 

WHEREAS, the Company desires to continue to employ Executive, and Executive hereby accepts employment with the Company, for the period and upon the terms and conditions contained in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

 

ARTICLE I

 SERVICES TO BE PROVIDED BY EXECUTIVE

 

A. Position and Responsibilities. During the Term (as defined below), the Company shall employ Executive as General Counsel. Executive shall report directly to the Company's Chief Executive Officer. Executive shall also have such other duties and responsibilities that are commensurate with Executive's position as specifically delegated to him from time to time by the Chief Executive Officer, which duties and responsibilities may include providing services to other members of the Company Group (as defined below) in addition to the Company, and Executive agrees to diligently perform such duties and responsibilities.

 

B. Performance. During the Term, Executive shall devote on a full-time basis all of Executive's business time to the performance of Executive's duties hereunder in a manner that will faithfully and diligently further the business and interests of the Company and its direct and indirect subsidiaries (the "Company Group"), and Executive shall exercise Executive's best efforts to perform Executive's duties in a diligent, trustworthy, good faith and business-like manner, all for the purpose of advancing the business of the Company Group. During the Term, Executive shall act in a manner consistent with Executive's position. During the Term, without the prior written consent of the Board of Directors (the "Board"), Executive (i) shall not be employed by any other entity, and (ii) shall not serve as a member of any board of directors or similar governing body of any Person (as defined below) other than a member of the Company Group. Notwithstanding the foregoing, Executive (x) may make charitable donations and engage in such civic, religious, trade or industry group activities as Executive determines (and following notice to the Board, may hold board, trustee and similar positions in connection with the foregoing), (y) may, following notice to the Board, serve as a trustee of, or in any other similar capacity with, any present or future agency or not-for-profit organization, and (z) may manage his personal investments and affairs, provided that such activities referenced in clauses (x), (y) and (z) do not interfere with Executive's ability to fulfill Executive's duties to the Company Group (whether individually or in the aggregate), create a conflict of interest, or otherwise violate the terms of this Agreement. Executive hereby represents and warrants that as of the Effective Date (as defined below) there exist (i) no actual or potential Conflict of Interest (as defined below), and (ii) except as previously disclosed by Executive in writing to the Company, there are no current or pending lawsuits, claims, charges or arbitrations filed or threatened against or involving Executive or any trust or vehicle owned or controlled by Executive. Promptly (and in any event, within ten Business Days) upon becoming aware of (i) any actual or potential Conflict of Interest or (ii) any lawsuit, claim, charge or arbitration filed against or involving Executive or any trust or vehicle owned or controlled by Executive, in each case, Executive shall disclose such actual or potential Conflict of Interest or such lawsuit, claim, charge or arbitration to the Board. "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York or Dallas, Texas are authorized or required by law to be closed. A "Conflict of Interest" shall exist when Executive engages in, or plans to engage in, any activities, associations, or interests that conflict with, or create an appearance of a conflict with, Executive's duties, responsibilities, authorities, or obligations for and to any member of the Company Group.

 

 

 

C. Conduct and Compliance with Policies. During the Term, Executive shall act in accordance with high business and ethical standards. During the Term, Executive shall comply with the written policies, codes of conduct, codes of ethics and written manuals of the Company Group (collectively, the "Policies"), in each case, which are applicable to Executive.

 

D. Prior Employer Representations. Executive represents that, except as disclosed to the Company in writing prior to the Effective Date, Executive is not bound by the terms of any agreement with any previous employer or other party that prohibits Executive from assuming employment with the Company or performing services on any member of the Company's Group's behalf (including, for the avoidance of doubt, any non-competition, non-solicitation or non-recruitment obligations). Executive further represents that the performance of Executive's job duties for the Company and any other member of the Company Group does not and will not violate or breach any agreement with any previous employer or other party, or any legal obligation that Executive may owe to any previous employer or other party, including any non-disclosure, non-competition, non-solicitation or non-recruitment obligations. Executive shall abide by all obligations that Executive may owe to prior employers and other third parties, and shall not disclose to the Company or any other member of the Company Group or induce any member of the Company Group to use any confidential, proprietary or trade secret information belonging to any previous employer or others Executive acknowledges and agrees that Executive is strictly prohibited from using or disclosing any confidential information belonging to any prior employer in the course of performing services for any member of the Company Group, and Executive promises that Executive shall not do so. Executive shall not introduce documents or other materials containing confidential information of any prior employer to the premises or property (including computers and computer systems) of any member of the Company Group.

 

ARTICLE II

COMPENSATION

 

A. Compensation. During the Term (as defined below), the Company shall pay Executive an annualized base salary in the amount of $500,000 less applicable taxes and other withholdings ("Base Salary"), payable in accordance with the Company's payroll practices applicable to executive employees. Executive's Base Salary may be increased, but not decreased, from time to time in the Company's sole discretion, provided that Executive's Base Salary shall be reviewed for potential increase no less frequently than annually.

 

B. Annual Bonus. With respect to each complete calendar year during the Term, Executive shall be eligible to participate in the Company's short-term incentive plan (the "STIP") as in effect from time to time. Executive's target annual bonus opportunity under the STIP shall initially be equal to 100% of Executive's Base Salary, subject to adjustments by the Company in its sole discretion. The actual amount of any annual bonus (the "Annual Bonus") shall be determined by the Company based on achievement of performance goals established by the Company in its sole discretion, up to a maximum of 200% of Executive's target Annual Bonus. Any earned Annual Bonus with respect to any calendar year during the Term shall be paid to Executive after the Board (or a committee thereof) certifies whether the applicable performance targets for the applicable year have been achieved, and in the time and manner provided by the Company's short-term incentive plan, provided that Executive is employed by the Company on the date such Annual Bonus is paid. The payment of any Annual Bonus shall be subject to all federal, state and withholding taxes, social security deductions and other general withholding obligations. Award of an Annual Bonus with respect to a particular calendar year does not guarantee the award of an Annual Bonus in any subsequent calendar year. The Company may elect to pay any applicable Annual Bonus in cash or in shares of common stock of the Company based on the then-fair-market-value of such stock.

 

C. Equity Awards. With respect to each calendar year during the Term, Executive shall be eligible to participate in the Company's long-term equity incentive plan (the "LTIP") as in effect from time to time. Executive's target annual long-term incentive opportunity under the LTIP shall initially have an aggregate grant date value of $2,250,000. The value and other terms and conditions of any long-term equity incentive awards granted to Executive shall be determined by the Company in its sole discretion. In addition, in connection with the commencement of Executive's employment, the Company shall grant Executive a one-time sign-on equity award of 1,500,000 Restricted Stock Units that shall be vested on the grant date subject to the terms and conditions of the LTIP and the applicable award agreement (the "Sign-On Award"). All awards granted to Executive under the LTIP shall be subject to and governed by the terms and provisions of the LTIP as in effect from time to time and the individual award agreements evidencing such awards.

 

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D. Business Expenses. The Company agrees that, during Executive's employment, it will reimburse Executive for out-of-pocket expenses reasonably incurred in connection with Executive's performance of Executive's services hereunder, upon the presentation by Executive of an itemized accounting of such expenditures, with supporting receipts, provided that Executive submits such expenses for reimbursement in accordance with the Company's expense reimbursement policy.

 

E. Benefits. Executive shall be eligible to participate in the same benefit plans and programs in which other similarly situated executives of the Company are eligible to participate subject to the terms and conditions of the applicable plans and programs in effect from time to time. Such plans may be modified, amended, terminated, or replaced from time to time by the Company, in its sole discretion.

 

ARTICLE III

TERM; TERMINATION

 

A. Term of Employment. The term of Executive's employment under this Agreement shall begin on July 20, 2026 (the "Effective Date") and shall continue in effect until the fifth (5) anniversary of the Effective Date (the "Initial Term"), unless earlier terminated by any Party in accordance with ARTICLE III.B. Upon the expiration of the Initial Term, so long as Executive's employment hereunder has not earlier terminated, this Agreement shall automatically renew for additional, successive one (1) year terms (each, a "Renewal Term") unless either Party delivers written notice to the other Party not less than thirty (30) days prior to the expiration of the Initial Term or any Renewal Term of such Party's intention not to renew this Agreement. For the avoidance of doubt, Executive's employment hereunder may be terminated during the Initial Term or any Renewal Term in accordance with ARTICLE III.B. The period from the Effective Date through the expiration of this Agreement or, if sooner, the termination of Executive's employment pursuant to this Agreement, regardless of the time or reason for such termination, shall be referred to herein as the "Term."

 

B. Termination of Employment. Any Party may terminate Executive's employment at any time during the Term upon sixty (60) days' written notice of termination (the "Notice Period"), except that the Company need not provide advance notice for termination of Executive's employment for Cause pursuant to ARTICLE III.B.i (except as otherwise provided therein) and neither the Company nor Executive shall be required to give more than thirty (30) days' notice of non-renewal of the then-existing Initial Term or Renewal Term as set forth in ARTICLE III.A. The date of Executive's termination (the "Termination Date") shall be (i) if Executive's employment is terminated by Executive's death, the date of Executive's death; or (ii) the date stated in the notice of termination. Upon termination of Executive's employment for any reason, the Company shall pay Executive (i) any unpaid Base Salary earned and accrued through the date of termination (payable in the normal course or such earlier time required by applicable law); (ii) any accrued but unused vacation through the date of termination (payable at the time of the payment described in clause (i)); (iii) vested benefits in accordance with the Company Group's employee benefit plans; and (iv) any unreimbursed business expenses properly incurred prior to such termination, to be reimbursed in accordance with the Company's business expense reimbursement policy (collectively, the "Accrued Obligations").

 

i.

Termination for Cause by the Company or Resignation by Executive without Good Reason. If, at any time during the Term, the Company terminates Executive's employment for Cause (as defined below) or Executive resigns from employment without Good Reason the Company may, in its sole discretion, shorten or eliminate the Notice Period and determine the date of termination without any obligation to pay Executive any additional compensation other than the Accrued Obligations, and without triggering a termination of Executive's employment without Cause.

 

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ii.

Termination Without Cause by the Company; Resignation by Executive for Good Reason; Non-Renewal by the Company. If, at any time during the Term, the Company terminates Executive's employment without Cause, or if Executive's employment hereunder terminates for Good Reason or upon the expiration of the Initial Term or any Renewal Term due to delivery of a notice of non-renewal by the Company pursuant to ARTICLE III.A, the Company Group shall have no further liability or obligation to Executive under this Agreement for compensation or employee benefits, but the Company shall pay or provide the following amounts to Executive: (a) the Accrued Obligations; and (b) subject to Executive's continued compliance with this Agreement, and execution and return to the Company during the Release Consideration Period (as defined below), and non-revocation within any time provided by the Company to do so, of a release of claims in a form acceptable to the Company (the "Release"), which Release shall be provided to Executive by the Company within seven (7) days following the Termination Date, (1) continued payment of Executive's Base Salary as of immediately prior to such Termination Date (the "Base Salary Continuation") for a period of eighteen (18) months following the Termination Date (the "Severance Period"); (2) a payment equal to the product of (x) 1.5 and (y) Executive's target Annual Bonus for the year in which the Termination Date occurs (the "Severance Bonus"); (3) the Prior Year Bonus (as defined below); and (4) subject to Executive's timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or the state equivalent ("COBRA"), and Executive's continued copayment of premiums at the same level and cost to the Executive as if Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee's ability to pay premiums with pre-tax dollars), provide continued participation in the Company's group health plan (to the extent permitted under applicable law and the terms of such plan) that covers Executive (and Executive's eligible dependents) for a period of eighteen months following the date of termination; provided that Executive is eligible and remains eligible for COBRA coverage and that any amounts paid by the Company toward such COBRA coverage shall be reported as additional taxable income to Executive; and provided, further, that such continuation of coverage by the Company shall immediately cease upon the date that Executive is eligible to receive group health benefits from a subsequent employer (such coverage being referred to as the "COBRA Payments" and, collectively with the Base Salary Continuation, Severance Bonus, and the Prior Year Bonus, the "Severance Benefits"). The first installment of the Base Salary Continuation shall be provided on the Company's first payroll date after the effective date of the Release, provided that the first installment shall include (without interest) a catch-up for any payments that would have been made prior to such first installment had the Release been effective on the date of Executive's termination of employment; provided, that, if the Release Consideration Period spans two (2) calendar years, the first payment shall not be made sooner than the first day of the second year, and shall include any missed payments. In the event Executive fails to comply with the terms of ARTICLE IV or does not timely execute and return (or revokes) the Release, no amount shall be payable to Executive pursuant to this ARTICLE III.B.ii (other than the Accrued Obligations). For the avoidance of doubt, if the Release is not executed and returned to the Company during the Release Consideration Period, or Executive revokes the Release, then Executive shall not be entitled to any portion of the Severance Benefits. As used herein, the "Release Consideration Period" is the period of time starting on the date that is twenty-one (21) days following the date upon which the Company delivers the Release to Executive or, in the event that such termination of employment is "in connection with an exit incentive or other employment termination program" (as such phrase is defined in the Age Discrimination in Employment Act of 1967) and Executive is age 40 or over as of the Termination Date, the date that is forty-five (45) days following such delivery date.

 

iii.

Termination Due to Death or Disability. If, at any time during the Term, Executive's employment is terminated due to Executive's death or Disability (as defined below), the Company Group shall have no further liability or obligation to Executive for compensation or employee benefits under this Agreement, except that the Company shall pay or provide the following amounts: (a) the Accrued Obligations; (b) the Prior Year Bonus; and (c) a payment equal to Executive's target Annual Bonus for the year in which the Termination Date occurs, payable at the same time as bonuses are paid to other senior executives of the Company. Notwithstanding the foregoing, Executive's (or, following Executive's death, Executive's estate's) right to receive the amounts described in ARTICLE III.B.iii(b)-(c) shall be subject to Executive's (or an authorized representative of Executive's estate's) timely satisfying the same requirements with respect to the Release (including signing and returning the Release within the Release Consideration Period, and not exercising any revocation right set forth in the Release) that are a condition of Executive's receipt of the Severance Benefits following a termination described in ARTICLE III.B.ii. All amounts that become due to Executive under ARTICLE III.B.iii(b)-(c) shall be paid to Executive (or Executive's estate, if applicable) on the Company's first payroll date that is thirty (30) days after the effective date of the Release.

 

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iv.

Expiration due to Delivery of Notice of Non-Renewal by Executive. If Executive's employment hereunder is terminated upon the expiration of the Initial Term or any Renewal Term due to delivery of a notice of non-renewal by Executive pursuant to ARTICLE III.A, the Company Group shall have no further liability or obligation to Executive for compensation or employee benefits under this Agreement, except that the Company shall pay or provide the Accrued Obligations.

 

v.

Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)

"Affiliate" of any Person means any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person.

 

(b)

"Cause" means the occurrence of any of the following events: (i) an act or acts of theft, embezzlement, fraud, or dishonesty by Executive, regardless of whether it relates to the Company; (ii) a willful or material misrepresentation by Executive that relates to the Company Group and has (or would be reasonably expected to have) an adverse impact on the Company Group; (iii) any violation by Executive of any fiduciary duties owed by Executive to the Company Group; (iv) Executive's conviction of, or pleading nolo contendere or guilty to, a felony (other than a traffic infraction); (v) Executive's breach of the Company's written code of conduct and business ethics or other material written policy or procedure applicable to Executive in effect from time to time relating to personal conduct, which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged violation; (vi) Executive's willful failure to substantially perform Executive's responsibilities to the Company under this Agreement, after written demand for substantial performance has been given by the Board that specifically identifies how Executive has not substantially performed Executive's responsibilities, which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged failure or refusal; (vii) a material breach by Executive of this Agreement which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged breach; or (viii) Executive fails or refuses to comply with any applicable law or regulation, whether such failure or refusal occurred before or during Executive's employment with the Company, and such failure, in the reasonable judgment of the Company, has harmed or is reasonably likely to harm the Company, or otherwise interferes with Executive's ability to carry out Executive's job duties for the Company. Further, (1) a resignation by Executive at a time when grounds for Cause exist shall be deemed to be a termination of Executive's employment by the Company for Cause and (2) "Cause" will be deemed to have occurred immediately as of the time that Executive engages in any of the circumstances described in clauses (i) through (viii) if Executive has previously received notice of and thereafter cured such circumstances.

 

(c)

"Disability" means that the Board determines that Executive is unable to perform the essential functions of Executive's position (after accounting for reasonable accommodation, if applicable and required by applicable law), due to physical or mental impairment that continues, or can reasonably be expected to continue, for a period in excess of one hundred twenty consecutive days or one hundred eighty days, whether or not consecutive (or for any longer period as may be required by applicable law), in any twelve-month period.

 

(d)

"Good Reason" means the occurrence of any of the following events without Executive's prior consent: (i) a material diminution in Executive's authority, responsibilities, title and duties; (ii) a material reduction in Executive's Base Salary, target Annual Bonus opportunity or target annual LTI opportunity other than a uniform reduction applied to substantially all senior officers of the Company; (iii) a breach of this Agreement by the Company; (iv) a relocation of Executive's primary office location to a distance of more than fifty (50) miles from its location as of the Effective Date (which primary office location, the parties agree, shall be in Dallas, Texas as of the Effective Date). Notwithstanding the foregoing, in order for Executive's termination to be for Good Reason, Executive must provide the Company written notice within thirty (30) days after the initial occurrence of the event or events alleged to constitute Good Reason of Executive's intent to terminate Executive's employment for Good Reason and specifying the reasons for such alleged Good Reason, and provide the Company with thirty (30) days after receipt of such notice from Executive to remedy the alleged action(s) giving rise to the Good Reason event. In the event the Company does not timely cure the violation, if Executive does not terminate Executive's employment within fifteen (15) days following the last day of the cure period, the occurrence of the violation shall not subsequently serve as Good Reason for purposes of this Agreement. Further notwithstanding the foregoing, no suspension of Executive or a reduction in Executive's authority, responsibilities, title or duties in conjunction with any leave required, or any other action taken, by the Company as part of an investigation into alleged wrongdoing by Executive shall give rise to Good Reason.

 

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(e)

"Person" means a natural person or any corporation, limited liability company, partnership, limited partnership, joint venture, unincorporated organization, trust, estate, governmental entity, or other entity.

 

(f)

"Prior Year Bonus" means the Annual Bonus payable with respect to the calendar year immediately preceding the calendar year in which Executive's employment with the Company terminates, to the extent unpaid prior to such termination of employment, and to be paid at the same time as if no such termination of employment had occurred.

 

ARTICLE IV

RESTRICTIVE COVENANTS

 

A. Confidentiality. In the course of Executive's employment with the Company and the performance of Executive's duties on behalf of the Company Group hereunder, Executive will be provided with, and will have access to, Confidential Information (defined below). In consideration of Executive's receipt of and access to such Confidential Information, and as a condition of Executive's employment hereunder, Executive shall comply with this ARTICLE IV.A.

 

i.

Both during the Term and thereafter, except as expressly permitted by this Agreement or by directive of the Board, Executive shall not disclose any Confidential Information to any Person or entity and shall not use any Confidential Information except for the benefit of the Company Group. Executive shall follow all Company Group policies and protocols regarding the security of all documents and other materials containing Confidential Information (regardless of the medium on which Confidential Information is stored). Except to the extent required for the performance of Executive's duties on behalf of the Company Group, Executive shall not remove from the facilities of any member of the Company Group any equipment, drawings, notes, reports, manuals, invention records, computer software, customer information, or other data or materials that relate in any way to the Confidential Information, whether paper or electronic and whether produced by Executive or obtained by the Company Group.

 

ii.

Notwithstanding any provision of this ARTICLE IV to the contrary, Executive may make the following disclosures and uses of Confidential Information:

 

(a)

disclosures to other employees of a member of the Company Group who have a need to know Confidential Information in connection with the businesses of the Company Group;

 

(b)

disclosures and uses that are approved in writing by the Board; or

 

(c)

disclosures to a Person or entity that has been retained by a member of the Company Group to provide services to one or more members of the Company Group and agreed in writing to abide by the terms of a confidentiality agreement in a form acceptable to the Company.

 

iii.

Upon the expiration of the Term, and at any other time upon request of the Company, Executive shall promptly surrender and deliver to the Company all documents (including electronically stored information) and all copies thereof and all other materials of any nature containing or pertaining to all Confidential Information and any other Company Group property (including any Company Group-issued computer, mobile device or other equipment) in Executive's possession, custody or control and Executive shall not retain any such documents or other materials or property of the Company Group. Within five days of such expiration or any such request, Executive shall certify to the Company in writing that all such documents, materials and property have been returned to the Company.

 

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iv.

"Confidential Information" means all confidential, competitively valuable, non-public or proprietary information that is conceived, made, developed or acquired by or disclosed to Executive (whether conveyed orally or in writing), individually or in conjunction with others, during the period that Executive is or has been employed or engaged by the Company or any other member of the Company Group (whether during business hours or otherwise and whether on the Company's premises or otherwise) including: (i) technical information of any member of the Company Group, its affiliates, its customers or other third parties, including computer programs, software, databases, data, ideas, know-how, formulae, compositions, processes, discoveries, machines, inventions (whether patentable or not), designs, developmental or experimental work, techniques, improvements, work in process, research or test results, original works of authorship, training programs and procedures, diagrams, charts, business and product development plans, and similar items; (ii) information relating to any member of the Company Group's businesses or properties, products or services (including all such information relating to corporate opportunities, operations, future plans, methods of doing business, business plans, strategies for developing business and market share, research, financial and sales data, pricing terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or acquisition targets or their requirements, the identity of key contacts within customers' organizations or within the organization of acquisition prospects, or marketing and merchandising techniques, prospective names and marks); (iii) other valuable, confidential information and trade secrets of any member of the Company Group, its affiliates, its customers or other third parties; and (iv) any other information that is competitively valuable to any member of the Company Group by virtue of not being known to the general public. Moreover, all documents, videotapes, written presentations, brochures, drawings, memoranda, notes, records, files, correspondence, manuals, models, specifications, computer programs, e-mail, voice mail, electronic databases, maps, drawings, architectural renditions, models and all other writings or materials of any type including or embodying any of such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of expression are and shall be the sole and exclusive property of the Company or the other applicable member of the Company Group and be subject to the same restrictions on disclosure applicable to all Confidential Information pursuant to this Agreement. For purposes of this Agreement, Confidential Information shall not include any information that is or becomes generally available to the public other than as a result of a disclosure or wrongful act of Executive or any of Executive's agents; was available to Executive on a non-confidential basis before its disclosure by a member of the Company Group to Executive at any time; or becomes available to Executive on a non-confidential basis from a source other than a member of the Company Group; provided, however, that such source is not bound by a confidentiality agreement with, or other obligation with respect to confidentiality to, a member of the Company Group.

 

v.

Executive acknowledges and agrees that Confidential Information is a special and unique asset of the Company Group, and that any unauthorized disclosure or unauthorized use of any Confidential Information by Executive will cause irreparable harm and loss to the Company Group. Executive understands and acknowledges that Confidential Information (i) has been developed by the Company Group at significant effort and expense and is sufficiently secret to derive economic value from not being generally known to other parties, and (ii) constitutes a protectable business interest of the Company Group. Executive acknowledges and agrees that the Company Group owns the Confidential Information. Executive agrees not to dispute, contest, or deny any such ownership rights either during or after Executive's employment with any member of the Company Group. Executive agrees to preserve and protect the confidentiality of all Confidential Information. Executive agrees that during the period of Executive's employment with any member of the Company Group and after Executive's termination from employment for any reason, Executive shall not directly or indirectly, disclose to any unauthorized Person or entity or use for Executive's own account any Confidential Information without the Board's prior written consent. Throughout Executive's employment with any member of the Company Group and thereafter: (x) Executive shall hold all Confidential Information in the strictest confidence, take all reasonable precautions to prevent its inadvertent disclosure to any unauthorized person, and follow all Company Group policies protecting the Confidential Information; and (y) Executive shall not, directly or indirectly, utilize, disclose or make available to any other Person or entity, any of the Confidential Information, other than in the proper performance of Executive's duties on behalf of the Company Group. Further, Executive shall not, directly or indirectly, use the Company Group's Confidential Information to: (1) call upon, solicit business from, attempt to conduct business with, conduct business with, interfere with or divert business away from any customer, client, service provider, supplier or vendor of the Company Group with whom or which the Company Group conducted business or (2) recruit, solicit, hire or attempt to recruit, solicit, or hire, directly or by assisting others, any Persons employed or engaged by any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, or to engage in or participate within the Market Area (as defined below) in any aspect of the Business (as defined below).

 

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vi.

Notwithstanding the foregoing, nothing in this Agreement or any other agreement between Executive and any member of the Company Group shall prohibit or restrict Executive from: (i) initiating communications directly with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting in an investigation by, any governmental agency (including the Department of Justice, Securities and Exchange Commission, Department of Labor, Equal Employment Opportunity Commission, National Labor Relations Board, Congress, any Inspector General and any other governmental agency, commission, or regulatory authority) regarding a possible violation of any law; (ii) responding to any inquiry or legal process directed to Executive from any governmental agency; (iii) testifying, participating or otherwise assisting in any action or proceeding by any governmental agency relating to a possible violation of law; (iv) disclosing an act of sexual abuse or facts related to an act of sexual abuse to any other person; or (v) making any other disclosures that are protected under the whistleblower provisions of any applicable law. Nothing in this Agreement requires Executive to obtain prior authorization before engaging in any conduct described in the preceding sentence, or to notify the Company or any other member of the Company Group that Executive has engaged in any such conduct. Additionally, pursuant to the federal Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney and (2) solely for the purpose of reporting or investigating a suspected violation of law; (B) is made to the individual's attorney in relation to a lawsuit for retaliation against the individual for reporting a suspected violation of law; or (C) is made in a complaint or other document filed in a lawsuit or proceeding, if such filing is made under seal.

 

B. Non-Competition; Non-Solicitation.

 

i.

The Company shall provide Executive access to Confidential Information for use only during the Term, and Executive acknowledges and agrees that the Company will be entrusting Executive, in Executive's unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Executive hereunder, Executive has voluntarily agreed to the covenants set forth in this ARTICLE IV.B. Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, do not interfere with public interests, will not cause Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group's Confidential Information, goodwill and other legitimate business interests.

 

ii.

During the Prohibited Period (as defined below), Executive shall not, without the prior written approval of the Board, directly or indirectly (other than on behalf of the Company Group), for Executive or on behalf of or in conjunction with any other Person or entity of any nature:

 

(a)

engage in or participate within the Market Area (as defined below) in competition with the Company or any other member of the Company Group in or with respect to any aspect of the Business (as defined below), which prohibition shall prevent Executive from directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any Person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Executive's duties or responsibilities involve the Business and are the same as or similar to (or involve direct or indirect oversight over duties or responsibilities that are the same as or similar to) the duties or responsibilities that Executive had on behalf of or with respect to the Company during the Term;

 

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(b)

solicit, canvass, approach, encourage, entice or induce any actual or prospective customer, supplier, client, service provider, vendor or other business relation of any member of the Company Group for whom or which Executive had direct or indirect responsibility for any member of the Company Group or about whom or which Executive obtained Confidential Information during the Term to cease or lessen (or refrain from) such actual or prospective customer's, supplier's, client's, service provider's, vendor's or other business relation's business or relationship with any member of the Company Group; or

 

(c)

solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, or to engage in or participate within the Market Area (as defined below) in any aspect of the Business (as defined below). Notwithstanding the foregoing, nothing in this ARTICLE IV.B.ii.(c) shall prohibit Executive from engaging in general solicitations of employment not specifically directed at employees of the Company Group (including through general advertisements or other broadly disseminated recruiting efforts), provided that the Executive did not directly or indirectly target or solicit any such employee or group of employees.

 

iii.

Because of the difficulty of measuring economic losses to the Company as a result of a breach or threatened breach of the covenants set forth in this ARTICLE IV, and because of the immediate and irreparable damage that would be caused to the Company for which it would have no other adequate remedy, the Company and the other members of the Company Group shall be entitled to enforce the provisions of this ARTICLE IV in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy. If a bond is required to secure such equitable relief, the Parties agree that a bond not to exceed $1,000 shall be sufficient and adequate in all respects to protect the rights and interests of the Parties. The aforementioned equitable relief shall not be the Company's or any of its Affiliates' exclusive remedy for a breach, but instead shall be in addition to all other rights and remedies available to the Company and each of its affiliates, at law and equity, including the recovery of damages and reasonable attorneys' fees from Executive, Executive's agents, any future employer of Executive, and any Person that conspires or aids and abets Executive in a breach or threatened breach of this Agreement. In the event of a breach by Executive of ARTICLE IV, Executive immediately forfeits any unpaid Severance Benefits, as applicable, from the date of such breach, and the Company Group shall be entitled (in addition to all other remedies available, at law and equity) to (i) cease payment of any unpaid Severance Benefits, as applicable, and (ii) recover any Severance Benefits, as applicable, paid to Executive from the date of such breach. Further, if Executive violates any of the restrictions contained in this ARTICLE IV, the Prohibited Period with respect to such restriction shall be suspended and shall not run in favor of Executive from the time of the commencement of any violation until the time when Executive is no longer in violation of such provision; the period of time in which Executive is in breach shall be added to the Prohibited Period,

 

iv.

The covenants in this ARTICLE IV, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the Parties that such restrictions be severed or reformed, and then enforced to the fullest extent which court deems reasonable, and this Agreement shall thereby be reformed.

 

v.

Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)

"Business" shall mean the business and operations that are the same or similar to those performed by the Company or any other member of the Company Group for which Executive provided services during the Term, which business and operations include (x) services related to behind-the-meter ("BTM") power generation or data center co-location, (y) the operation of nuclear, natural gas, or solar generation assets; the development or management of BTM energy provisioning for hyperscale tenants; the deployment of advanced cooling technologies, including air-cooled condensers; the creation or operation of turnkey digital and energy platforms for defense-aligned or AI-intensive data center operations; or the full lifecycle management of nuclear facilities, including licensing, regulatory compliance, infrastructure development, tenant power delivery, and decommissioning, and (z) any prospective business any member of the Company Group considered or pursued and for which Executive had direct or indirect responsibility with respect to such consideration or pursuit, or about which Executive obtained Confidential Information, during the Term.

 

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(b)

"Market Area" shall mean the State of Texas, and any other geographic area with respect to which Executive performed any services for any member of the Company Group in the last 24 months of the Term (or, during the Term if the Term is less than 24 months).

 

(c)

"Prohibited Period" shall mean the period during which Executive is employed by any member of the Company Group and continuing for a period of twenty-four (24) months following the date that Executive is no longer employed by any member of the Company Group.

 

vi.

Notwithstanding the restrictions contained herein, Executive may own, directly or indirectly, solely as an investment, securities of any company which is engaged in the Business in the Market Area that are traded on any national securities exchange, provided that Executive is not a controlling person of, or member of a group that controls such business, and provided further that Executive does not, directly or indirectly, own two percent (2%) or more of any class of securities of such business or have the power, directly or indirectly, to control or direct the management or affairs of any such business and is not involved in the management of such business. The restrictions contained in this Agreement also shall not limit or restrict Executive from investing in a private equity fund, venture capital fund, mutual fund or other investment similar to any of the foregoing, in each case, that has an interest in a company which is engaged in the Business in the Market Area, provided that such investment is passive and Executive does not participate in the management or operations of any such fund or portfolio company thereof that is engaged in the Business in the Market Area whether as a consultant or in any other capacity.

 

vii.

Notwithstanding the restrictions contained herein, nothing in this Agreement shall be interpreted or applied in a manner to prevent or restrict Executive from practicing law, as it is the intent of this ARTICLE IV.B to create certain limitations on the business activities of Executive only, and not to create limitations that would restrict Executive from practicing law. Executive acknowledges that Executive is and shall be bound by all ethical and professional obligations (including those with respect to conflicts and confidentiality) that arise from Executive's provision of legal services to, and acting as legal counsel for, the Company and the other members of the Company Group, at any time, whether before, during or after the Term.

 

C. Non-Disparagement. Subject to ARTICLE IV.A.vi above, during the Term and at all times thereafter, Executive agrees not to make any statement, either directly or indirectly, that is intended, or reasonably may be expected, to become public and which disparages, defames, casts in a false light, is injurious to the business or professional reputation of, or that could reasonably be considered to adversely affect the goodwill of, the Company, any other member of the Company Group or any of their respective Affiliates, or any of the foregoing Persons' shareholders, businesses, employees, officers or directors. For the avoidance of doubt, the foregoing sentence shall not prevent Executive from (A) disclosing information if legally required (whether by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process), (B) acting in good faith to enforce Executive's rights under this Agreement, or (C) making any statements required by applicable law or to any governmental agency, including any statements permitted pursuant to ARTICLE IV.A.vi above.

 

D. Ownership of Intellectual Property.

 

i.

Executive agrees that the Company shall own, and Executive agrees to assign to the Company, and Executive hereby assigns to the Company, all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), discoveries, developments, improvements, innovations, works of authorship, mask works, designs, know-how, ideas, formulae, processes, techniques, data and information authored, created, contributed to, made or conceived or reduced to practice, in whole or in part, by Executive during the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group, whether or not registerable under U.S. law or the laws of other jurisdictions, that either (a) relate, at the time of conception, reduction to practice, creation, derivation or development, to any member of the Company Group's businesses or actual or anticipated research or development, or (b) were developed on any amount of the Company's or any other member of the Company Group's time or with the use of any member of the Company Group's equipment, supplies, facilities or Confidential Information (all of the foregoing collectively referred to herein as "Company Intellectual Property"), and Executive shall promptly disclose all Company Intellectual Property to the Company in writing. To support Executive's disclosure obligation herein, Executive shall keep and maintain adequate and current written records of all Company Intellectual Property made by Executive (solely or jointly with others) during the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group in such form as may be specified from time to time by the Company. These records shall be available to, and remain the sole property of, the Company at all times.

 

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ii.

All of Executive's works of authorship and associated copyrights created during the period in which Executive is employed by or affiliated with the Company or any other member of the Company Group and in the scope of Executive's employment or engagement shall be deemed to be "works made for hire" within the meaning of the Copyright Act. To the extent any right, title and interest in and to Company Intellectual Property cannot be assigned by Executive to the Company, Executive agrees to grant, and does hereby grant, to the Company Group an exclusive, perpetual, royalty-free, transferable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, use, sell, offer for sale, import, export, reproduce, practice and otherwise commercialize such rights, title and interest.

 

iii.

To the extent allowed by law, the following sentence applies to all rights that may be known as or referred to as "moral rights," "artist's rights," "droit moral," or the like, including without limitation those rights set forth in 17 U.S.C. §106A (collectively, "Moral Rights"). To the extent Executive retains any Moral Rights under applicable law, Executive hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by the Company or any member of the Company Group, and Executive hereby waives and agrees not to assert any Moral Rights with respect to such Moral Rights. Executive shall confirm any such ratifications, consents, waivers, and agreements from time to time as requested by the Company.

 

iv.

All inventions (whether or not patentable), original works of authorship, designs, know-how, mask works, ideas, trademarks or names, information, developments, improvements, and trade secrets of which Executive is the sole or joint author, creator, contributor, or inventor that were made or developed by Executive prior to Executive's employment with or affiliation with the Company or any other member of the Company Group, or in which Executive asserts any intellectual property right, and which are applicable to or relate in any way to the business, products, services, or demonstrably anticipated research and development or business of any member of the Company Group ("Prior Inventions") are listed on Exhibit A, and Executive represents that Exhibit A is a complete list of all such Prior Inventions. If no such list is attached, Executive hereby represents and warrants that there are no Prior Inventions, and Executive shall make no claim of any rights to any Prior Inventions. If, in the course of Executive's employment with or affiliation with the Company or any other member of the Company Group, Executive uses in connection with or otherwise incorporates into the product, process, or device of any member of the Company Group a Prior Invention, the Company Group is hereby granted and will have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use, import, export, offer for sale, sell and otherwise commercialize such Prior Invention as part of or in connection with (i) such product, process, or device of any member of the Company Group and (ii) the conduct of the business of the Company Group.

 

v.

Executive shall perform, during and after the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group, all acts deemed necessary or desirable by the Company to permit and assist each member of the Company Group, at the Company's expense, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout the world in the Company Intellectual Property and Confidential Information assigned, to be assigned, or licensed to the Company under this Agreement. Such acts may include execution of documents and assistance or cooperation (i) in the filing, prosecution, registration, and memorialization of assignment of any applicable patents, copyrights, mask work, or other applications, (ii) in the enforcement of any applicable patents, copyrights, mask work, moral rights, trade secrets, or other proprietary rights, and (iii) in other legal proceedings related to the Company Intellectual Property or Confidential Information.

 

11

 

vi.

In the event that the Company (or, as applicable, another member of the Company Group) is unable for any reason to secure Executive's signature to any document required to file, prosecute, register, or memorialize the assignment of any patent, copyright, mask work or other applications or to enforce any patent, copyright, mask work, moral right, trade secret or other proprietary right under any Confidential Information or Company Intellectual Property (including derivative works, improvements, renewals, extensions, continuations, divisionals, continuations in part, continuing patent applications, reissues, and reexaminations of such Company Intellectual Property), Executive hereby irrevocably designates and appoints the Company and each of the Company's duly authorized officers and agents as Executive's agents and attorneys-in-fact to act for and on Executive's behalf and instead of Executive (i) to execute, file, prosecute, register and memorialize the assignment of any such application, (ii) to execute and file any documentation required for such enforcement, and (iii) to do all other lawfully permitted acts to further the filing, prosecution, registration, memorialization of assignment, issuance, and enforcement of patents, copyrights, mask works, moral rights, trade secrets or other rights under the Confidential Information or Company Intellectual Property, all with the same legal force and effect as if executed by Executive.

 

vii.

In the event that Executive enters into, on behalf of any member of the Company Group, any contracts or agreements relating to any Confidential Information or Company Intellectual Property, Executive shall assign such contracts or agreements to the Company (or the applicable member of the Company Group) promptly, and in any event, prior to Executive's termination. If the Company (or the applicable member of the Company Group) is unable for any reason to secure Executive's signature to any document required to assign said contracts or agreements, or if Executive does not assign said contracts or agreements to the Company (or the applicable member of the Company Group) prior to Executive's termination, Executive hereby irrevocably designates and appoints the Company (or the applicable member of the Company Group) and each of the Company's duly authorized officers and agents as Executive's agents and attorneys-in-fact to act for and on Executive's behalf and instead of Executive to execute said assignments and to do all other lawfully permitted acts to further the execution of said documents.

 

ARTICLE V

MISCELLANEOUS PROVISIONS

 

A.

Mediation and Arbitration.

 

i.

In the event of any dispute, controversy or claim arising out of, or in connection with or relating to this Agreement or Executive's employment, engagement, relationship or affiliation with the Company or any other member of the Company Group or any member of the Company Group's predecessors or successors (each a "Dispute" and, collectively, "Disputes"), the parties to such Dispute shall use commercially reasonable efforts to resolve such Dispute through negotiation between individuals with the authority to settle the Dispute on behalf of the parties (each, an "Authorized Decision Maker"). To this end, each such party shall cause an Authorized Decision Maker to consult and negotiate with an Authorized Decision Maker of the other party, and the parties shall attempt to reach a resolution satisfactory to both parties, recognizing that their mutual interests may not be aligned (and that each such party shall be entitled to reasonably seek to promote such party's own interests in such resolution). If the parties to a Dispute do not resolve such Dispute within thirty (30) days of the first negotiation between Authorized Decision Makers, then upon written notice by either party to the other, the Dispute shall be submitted to non-binding mediation to be administered in Dallas, Texas, by the American Arbitration Association or its successor (the "AAA") (or another mediator upon the mutual agreement of Executive and the applicable member of the Company Group). Such mediation session shall take place within sixty (60) days of the date of receipt of the written request for mediation. If the parties are not able to agree regarding the identity of the mediator within twenty (20) days from the party's delivery of the mediation demand to the other party, the AAA shall appoint a neutral mediator upon written request to the AAA by either party.

 

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ii.

In the event the applicable member of the Company Group and Executive are unable to resolve any Dispute as described above, then subject to ARTICLE V.A iii and v, any Dispute will be finally settled by arbitration in Dallas, Texas in accordance with the then-existing employment arbitration rules of the AAA (https://www.adr.org/rules-forms-and-fees/employment/). The arbitration award shall be final and binding on the parties. Any arbitration conducted under this ARTICLE V.A shall be private, and shall be heard by a single arbitrator (the "Arbitrator") selected in accordance with the then-applicable rules of the AAA. The Arbitrator shall expeditiously hear and decide all matters concerning the Dispute. Except as expressly provided to the contrary in this Agreement, the Arbitrator shall have the power to (i) gather such materials, information, testimony and evidence as the Arbitrator deems relevant to the Dispute before him or her (and each party will provide such materials, information, testimony and evidence requested by the Arbitrator), and (ii) grant injunctive relief and enforce specific performance. All Disputes shall be arbitrated on an individual basis, and each party hereto hereby foregoes and waives any right to arbitrate any Dispute as a class action or collective action or on a consolidated basis or in a representative capacity on behalf of other persons or entities who are claimed to be similarly situated, or to participate as a class member in such a proceeding. The decision of the Arbitrator shall be reasoned, rendered in writing, be final and binding upon the disputing parties and the parties agree that judgment upon the award may be entered by any court of competent jurisdiction. This ARTICLE V.A shall be governed by the Federal Arbitration Act, 9 U.S.C. §1, et seq.

 

iii.

Notwithstanding ARTICLE V.A i or ii above, either party may make a timely application for, and obtain, judicial emergency or temporary injunctive relief to enforce any of the provisions of ARTICLE IV; provided, however, that the remainder of any such Dispute (beyond the application for emergency or temporary injunctive relief) shall be subject to arbitration under this ARTICLE V.

 

iv.

By entering into this Agreement and entering into the arbitration provisions of this ARTICLE V.A, THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THEY ARE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING THEIR RIGHTS TO A JURY TRIAL WITH RESPECT TO ALL DISPUTES.

 

v.

Nothing in this ARTICLE V.A shall prohibit a party from instituting litigation to enforce any arbitration award. Further, nothing in this ARTICLE V.A precludes Executive from filing a charge or complaint with a federal, state or other governmental administrative agency.

 

B. Cooperation. During the Term and thereafter, upon request from the Company, Executive shall cooperate with the Company and its affiliates in the defense of any claims or actions that may be made by or against the Company or its affiliates that relate to Executive's actual or prior areas of responsibility.

 

C. Withholdings; Deductions. The Company may withhold and deduct from any benefits and payments made or to be made pursuant to this Agreement (a) all federal, state, local and other taxes as may be required pursuant to any law or governmental regulation or ruling and (b) any deductions consented to in writing by Executive.

 

D. Title and Headings; Construction. Titles and headings to Articles and Sections hereof are for the purpose of reference only and shall in no way limit, define or otherwise affect the provisions hereof. Any and all Exhibits or attachments referred to in this Agreement are, by such reference, incorporated herein and made a part hereof for all purposes. Unless the context requires otherwise, all references to laws, regulations, contracts, documents, agreements and instruments refer to such laws, regulations, contracts, documents, agreements and instruments as they may be amended, restated or otherwise modified from time to time, and references to particular provisions of laws or regulations include a reference to the corresponding provisions of any succeeding law or regulation. All references to "dollars" or "$" in this Agreement refer to United States dollars. The words "herein", "hereof", "hereunder" and other compounds of the word "here" shall refer to the entire Agreement, including all Exhibits attached hereto, and not to any particular provision hereof. Unless the context requires otherwise, the word "or" is not exclusive. Wherever the context so requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely. All references to "including" shall be construed as meaning "including without limitation." Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any Party hereto, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by each of the Parties hereto and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the Parties hereto.

 

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E. Severability. If an arbitrator or court of competent jurisdiction determines that any provision of this Agreement (or portion thereof) is invalid or unenforceable, then the invalidity or unenforceability of that provision (or portion thereof) shall not affect the validity or enforceability of any other provision of this Agreement, and all other provisions shall remain in full force and effect.

 

F. Entire Agreement and Amendment. This Agreement contains the entire agreement of the Parties with respect to the matters covered herein and supersedes all prior and contemporaneous agreements and understandings (including any offer letter or similar agreement), oral or written, between the Parties hereto concerning the subject matter hereof; provided, however, that in the event that Executive is subject to any other restrictive covenants with respect to any member of the Company Group (including with respect to confidentiality or non-disclosure, non-competition, non-solicitation, intellectual property, and non-disparagement), the restrictive covenants contained in this Agreement shall complement and be in addition to, and not supersede or be in lieu of, such other restrictive covenants (which shall remain in full force and effect in accordance with the terms thereof). This Agreement may be amended only by a written instrument executed by both Parties hereto.

 

G. Disclaimer of Reliance. Executive represents and warrants that Executive understands the final and binding effect of this Agreement, that the only promises made to Executive to sign this Agreement are those stated within the four corners of this document, and that in entering into this Agreement Executive relies on Executive's own judgment, and Executive has not relied on any representation or statement, written or oral, or any alleged omission by any other party with regard to the terms, conditions, and effect of this Agreement, including any facts, issues, or omissions which might be deemed material to Executive's decision to enter into this Agreement, other than the statements that appear in this Agreement.

 

H. Waiver of Breach. Any waiver of this Agreement must be executed by the Party to be bound by such waiver. No waiver by either Party hereto of a breach of any provision of this Agreement by the other Party, or of compliance with any condition or provision of this Agreement to be performed by such other Party, will operate or be construed as a waiver of any subsequent breach by such other Party or any similar or dissimilar provision or condition at the same or any subsequent time. The failure of either party hereto to take any action by reason of any breach will not deprive such Party of the right to take action at any time.

 

I. Counterparts. This Agreement may be executed in any number of counterparts, including by electronic mail or .pdf, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a copy hereof containing multiple signature pages, each signed by one party, but together signed by both Parties hereto.

 

J. Assignment. This Agreement is personal to Executive, and neither this Agreement nor any rights or obligations hereunder shall be assignable or otherwise transferred by Executive. The Company may assign this Agreement without Executive's consent, including to any other member of the Company Group and to any successor to or acquirer of (whether by merger, purchase or otherwise) all or substantially all of the equity, assets or businesses of the Company or other member of the Company Group.

 

K. Third-Party Beneficiaries. Each member of the Company Group that is not a signatory to this Agreement shall be a third-party beneficiary of Executive's obligations herein and shall be entitled to enforce such obligations as if a Party hereto.

 

14

 

L. Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Executive is a "disqualified individual" (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the "Code")), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any of its Affiliates or other payor, would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the present value of such total payments and benefits shall be one dollar ($1.00) less than three times Executive's "base amount" (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind in a similar order, and then reducing equity or equity-based benefits (reduced in the order of highest value to lowest value under Code Section 280G). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary (or whether Executive would be subject to such excise tax) shall be made at the expense of the Company by a firm of independent accountants, a law firm, or other valuation specialist selected by the Board in good faith prior to the consummation of the applicable change in control transaction, and the applicable independent accountants, law firm, or other valuation specialist shall consider the value, if any, of Executive's restrictive covenants (including the non-competition restrictions set forth herein) as part of its analysis as may be appropriate under Section 280G of the Code. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits used in determining if a "parachute payment" exists, exceeds one dollar ($1.00) less than three times Executive's base amount, then Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this ARTICLE V.L shall require the Company to provide a gross-up payment to Executive with respect to Executive's excise tax liabilities under Section 4999 of the Code. Notwithstanding the foregoing, in the event that no stock of the Company or its applicable Affiliates is readily tradable on an established securities market or otherwise (within the meaning of Section 280G) as of immediately prior to an applicable transaction that constitutes a "change in ownership or control" for purposes of Section 280G of the Code, the Company shall submit to a vote of stockholders for approval the portion of the payments and benefits payable to Executive that equal or exceeds three times the Executive's "base amount" (the "Excess Parachute Payments") in accordance with Treas. Reg. §1.280G-1; provided, that Executive has first, in Executive's sole discretion, executed a customary waiver of such Excess Parachute Payments (the Company makes no guarantee regarding the outcome of any such vote). If such stockholder approval is obtained in accordance with Section 280G of the Code, then the payments and benefits shall not be subject to reduction as described above.

 

M. Clawback. To the extent required by Company policy, applicable law, government regulation or any applicable securities exchange listing standards, amounts paid or payable under this Agreement or under the LTIP or any incentive plan of the Company Group shall be subject to the provisions of any applicable clawback policies or procedures adopted by the Company Group and applicable to executives of the Company Group generally, including pursuant to applicable law, government regulation or applicable securities exchange listing requirements, which clawback policies or procedures may provide for forfeiture and/or recoupment of amounts paid or payable under this Agreement or under the LTIP or any incentive plan of the Company Group in the event of material misstatements, financial restatements, other bad acts (or inaction), or other events or occurrences consistent with any government regulation or securities exchange listing requirement. The Company Group reserves the right, without the consent of Executive, to adopt any such clawback policies and procedures that are consistent with the immediately preceding sentence, including such policies and procedures applicable to this Agreement and under the LTIP or any incentive plan of the Company Group with retroactive effect.

 

15

 

N. Section 409A. This Agreement is intended to be interpreted and applied so that the payments and benefits set forth herein shall either be exempt from the requirements of Section 409A of the Code ("Section 409A") or shall comply with the requirements of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise which constitutes a "deferral of compensation" within the meaning of Section 409A. Notwithstanding anything in this Agreement or elsewhere to the contrary, 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 that constitute "non-qualified deferred compensation" within the meaning of Section 409A upon or following a termination of Executive's employment unless such termination is also a "separation from service" within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service" within the meaning of Section 409A. Notwithstanding any provision in this Agreement or elsewhere to the contrary, if on Executive's termination of employment, Executive is a "specified employee" within the meaning of Section 409A, any payments or benefits that are payable as the result of a termination of Executive's employment under any arrangement that constitutes a "deferral of compensation" within the meaning of Section 409A (whether under this Agreement, any other plan, program, payroll practice or any equity grant) and which do not otherwise qualify under the exemptions under Treasury Regulation section 1.409A-1 (including without limitation, the short-term deferral exemption and the permitted payments under Treasury Regulation section 1.409A-1(b)(9)(iii)(A)) and that otherwise would have been paid within six (6) months following such termination of employment, shall be delayed and paid or provided to Executive in a lump sum (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) on the earlier of (x) the date which is six (6) months and one day after Executive's separation from service for any reason other than death, and (y) the date of Executive's death (but not earlier than such payments or benefits would have been made absent this provision), and any remaining payments and benefits shall be paid or provided in accordance with the normal payment dates specified for such payment or benefit. With respect to any expense reimbursement benefit or in-kind benefit provided pursuant to this Agreement or otherwise, (1) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year shall not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (2) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made promptly, but in all events on or before the last day of the calendar year immediately following the calendar year in which the applicable expense is incurred, and (3) the right to payment or reimbursement hereunder may not be liquidated or exchanged for any other benefit. Each payment under this Agreement to Executive shall be deemed a separate payment for purposes of Section 409A.¹

 

O. Applicable Law. This Agreement shall in all respects be construed according to the laws of the State of Texas without regard to its conflict of laws principles that would result in the application of the laws of another jurisdiction.

 

P. Effect of Termination. The provisions of ARTICLE IV and ARTICLE V, and those provisions necessary to interpret and enforce them, shall survive any termination of this Agreement and any termination of the employment relationship between Executive and the Company.

 

{Remainder of Page Intentionally Left Blank. Signature Page Follows.}

 

 

 

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IN WITNESS WHEREOF, the Company and Executive have caused this Agreement to be executed on the date first set forth above, to be effective as of the Effective Date.

 

EXECUTIVE:
Name:	George Wentz

 

THE COMPANY:
FERMI INC.
By:
Name:	Anna Bofa
Title:	Co-President, Office of the CEO

 

By:
Name:	Jacobo Ortiz
Title:	Co-President, Office of the CEO

 

{Signature Page to Employment Agreement}

 

 

 

Exhibit A

 

PRIOR INVENTIONS

 

1. The following is a complete and accurate list of all Prior Inventions relevant to the subject matter of Executive's employment with the Company that have been made, conceived or first reduced to practice by Executive alone or jointly with others prior to Executive's employment with or affiliation with the Company:

 

Check appropriate space(s):

 

☐

None.

 

☐

See below:

 

 

 

☐

Due to confidentiality agreements with a prior employer, Executive cannot disclose certain Prior Inventions that would otherwise be included on the above-described list.

 

☐

Additional sheets attached.

 

2. Executive proposes to bring to Executive's employment with the Company the following devices, materials, and documents of a former employer or other person to whom Executive has an obligation of confidentiality that is not generally available to the public; provided that such materials and documents may be used by Executive in Executive's employment with the Company only in accordance with the express written authorization of Executive's former employer or such other person, as applicable (a copy of which is attached to this Agreement):

 

Check appropriate space(s):

 

☐

None.

 

☐

See below.

 

 

☐

Additional sheets attached.

 

 

 

Exhibit 10.2

 

FORM OF EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (this "Agreement") is dated as of [_], 2026, and is entered into by and between Anna Bofa ("Executive") and Fermi Inc., a Texas corporation (the "Company"). The Company and Executive shall be referred to herein as the "Parties."

 

RECITALS

 

WHEREAS, Executive is currently employed by the Company as Chief Commercial Officer;

 

WHEREAS, the Company and Executive desire to set forth in writing the terms and conditions of their agreement and understandings with respect to Executive's employment by the Company, which, as of the Effective Date (as defined below), shall supersede and replace in their entirety the terms and conditions of Executive's employment with the Company prior to the Effective Date, including that certain Employment Agreement between Executive and the Company dated May 1, 2026 (the "Prior Agreement"); and

 

WHEREAS, the Company desires to continue to employ Executive, and Executive hereby accepts employment with the Company, for the period and upon the terms and conditions contained in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

 

ARTICLE I

 SERVICES TO BE PROVIDED BY EXECUTIVE

 

A. Position and Responsibilities. During the Term (as defined below), the Company shall employ Executive as Chief Commercial Officer. Executive shall report directly to the Company's Chief Executive Officer. Executive shall also have such other duties and responsibilities that are commensurate with Executive's position as specifically delegated to her from time to time by the Chief Executive Officer, which duties and responsibilities may include providing services to other members of the Company Group (as defined below) in addition to the Company, and Executive agrees to diligently perform such duties and responsibilities.

 

B. Performance. During the Term, Executive shall devote on a full-time basis all of Executive's business time to the performance of Executive's duties hereunder in a manner that will faithfully and diligently further the business and interests of the Company and its direct and indirect subsidiaries (the "Company Group"), and Executive shall exercise Executive's best efforts to perform Executive's duties in a diligent, trustworthy, good faith and business-like manner, all for the purpose of advancing the business of the Company Group. During the Term, Executive shall act in a manner consistent with Executive's position. During the Term, without the prior written consent of the Board of Directors (the "Board"), Executive (i) shall not be employed by any other entity, and (ii) shall not serve as a member of any board of directors or similar governing body of any Person (as defined below) other than a member of the Company Group. Notwithstanding the foregoing, Executive (x) may make charitable donations and engage in such civic, religious, trade or industry group activities as Executive determines (and following notice to the Board, may hold board, trustee and similar positions in connection with the foregoing), (y) may, following notice to the Board, serve as a trustee of, or in any other similar capacity with, any present or future agency or not-for-profit organization, and (z) may manage her personal investments and affairs, provided that such activities referenced in clauses (x), (y) and (z) do not interfere with Executive's ability to fulfill Executive's duties to the Company Group (whether individually or in the aggregate), create a conflict of interest, or otherwise violate the terms of this Agreement. Executive hereby represents and warrants that as of the Effective Date (as defined below) there exist (i) no actual or potential Conflict of Interest (as defined below), and (ii) except as previously disclosed by Executive in writing to the Company, there are no current or pending lawsuits, claims, charges or arbitrations filed or threatened against or involving Executive or any trust or vehicle owned or controlled by Executive. Promptly (and in any event, within ten Business Days) upon becoming aware of (i) any actual or potential Conflict of Interest or (ii) any lawsuit, claim, charge or arbitration filed against or involving Executive or any trust or vehicle owned or controlled by Executive, in each case, Executive shall disclose such actual or potential Conflict of Interest or such lawsuit, claim, charge or arbitration to the Board. "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York or Dallas, Texas are authorized or required by law to be closed. A "Conflict of Interest" shall exist when Executive engages in, or plans to engage in, any activities, associations, or interests that conflict with, or create an appearance of a conflict with, Executive's duties, responsibilities, authorities, or obligations for and to any member of the Company Group.

 

 

 

C. Conduct and Compliance with Policies. During the Term, Executive shall act in accordance with high business and ethical standards. During the Term, Executive shall comply with the written policies, codes of conduct, codes of ethics and written manuals of the Company Group (collectively, the "Policies"), in each case, which are applicable to Executive.

 

D. Prior Employer Representations. Executive represents that, except as disclosed to the Company in writing prior to the Effective Date, Executive is not bound by the terms of any agreement with any previous employer or other party that prohibits Executive from assuming employment with the Company or performing services on any member of the Company's Group's behalf (including, for the avoidance of doubt, any non-competition, non-solicitation or non-recruitment obligations). Executive further represents that the performance of Executive's job duties for the Company and any other member of the Company Group does not and will not violate or breach any agreement with any previous employer or other party, or any legal obligation that Executive may owe to any previous employer or other party, including any non-disclosure, non-competition, non-solicitation or non-recruitment obligations. Executive shall abide by all obligations that Executive may owe to prior employers and other third parties, and shall not disclose to the Company or any other member of the Company Group or induce any member of the Company Group to use any confidential, proprietary or trade secret information belonging to any previous employer or others Executive acknowledges and agrees that Executive is strictly prohibited from using or disclosing any confidential information belonging to any prior employer in the course of performing services for any member of the Company Group, and Executive promises that Executive shall not do so. Executive shall not introduce documents or other materials containing confidential information of any prior employer to the premises or property (including computers and computer systems) of any member of the Company Group.

 

ARTICLE II

COMPENSATION

 

A. Compensation. During the Term (as defined below), the Company shall pay Executive an annualized base salary in the amount of $500,000 less applicable taxes and other withholdings ("Base Salary"), payable in accordance with the Company's payroll practices applicable to executive employees. Executive's Base Salary may be increased, but not decreased, from time to time in the Company's sole discretion, provided that Executive's Base Salary shall be reviewed for potential increase no less frequently than annually.

 

B. Annual Bonus. With respect to each complete calendar year during the Term, Executive shall be eligible to participate in the Company's short-term incentive plan (the "STIP") as in effect from time to time. Executive's target annual bonus opportunity under the STIP shall initially be equal to 100% of Executive's Base Salary, subject to adjustments by the Company in its sole discretion. The actual amount of any annual bonus (the "Annual Bonus") shall be determined by the Company based on achievement of performance goals established by the Company in its sole discretion up to a maximum of 200% of Executive's target Annual Bonus. Any earned Annual Bonus with respect to any calendar year during the Term shall be paid to Executive after the Board (or a committee thereof) certifies whether the applicable performance targets for the applicable year have been achieved, and in the time and manner provided by the Company's short-term incentive plan, provided that Executive is employed by the Company on the date such Annual Bonus is paid. The payment of any Annual Bonus shall be subject to all federal, state and withholding taxes, social security deductions and other general withholding obligations. Award of an Annual Bonus with respect to a particular calendar year does not guarantee the award of an Annual Bonus in any subsequent calendar year. The Company may elect to pay any applicable Annual Bonus in cash or in shares of common stock of the Company based on the then-fair-market-value of such stock.

 

C. Equity Awards. With respect to each calendar year during the Term, Executive shall be eligible to participate in the Company's long-term equity incentive plan (the "LTIP") as in effect from time to time. Executive's target annual long-term incentive opportunity under the LTIP shall initially have an aggregate grant date value of $3,000,000. The value and other terms and conditions of any long-term equity incentive awards granted to Executive shall be determined by the Company in its sole discretion. In addition, in connection with the commencement of Executive's employment, the Company shall grant Executive a one-time sign-on equity award (the "Sign-On Award") and commercial performance-based equity awards in the form of Restricted Stock Units that shall vest in accordance with the terms set forth in Exhibit B subject to the terms and conditions of the LTIP and the applicable award agreement. All awards granted to Executive under the LTIP shall be subject to and governed by the terms and provisions of the LTIP as in effect from time to time and the individual award agreements evidencing such awards.

 

2

 

D. Business Expenses. The Company agrees that, during Executive's employment, it will reimburse Executive for out-of-pocket expenses reasonably incurred in connection with Executive's performance of Executive's services hereunder, upon the presentation by Executive of an itemized accounting of such expenditures, with supporting receipts, provided that Executive submits such expenses for reimbursement in accordance with the Company's expense reimbursement policy.

 

E. Benefits. Executive shall be eligible to participate in the same benefit plans and programs in which other similarly situated executives of the Company are eligible to participate subject to the terms and conditions of the applicable plans and programs in effect from time to time. Such plans may be modified, amended, terminated, or replaced from time to time by the Company, in its sole discretion.

 

F. Living Expenses. The Company shall pay, or reimburse Executive for, reasonable living expenses incurred by Executive in order to assume Executive's employment hereunder for up to one (1) year following the Effective Date; provided, however that such expense payment or reimbursement shall not exceed $15,000 per month and shall be subject to Executive satisfying the Company's reasonable documentation requests with respect to such expenses.

 

ARTICLE III

TERM; TERMINATION

 

A. Term of Employment. The term of Executive's employment under this Agreement shall begin on July 20,2026, (the "Effective Date") and shall continue in effect until the fifth (5) anniversary of the Effective Date (the "Initial Term"), unless earlier terminated by any Party in accordance with ARTICLE III.B. Upon the expiration of the Initial Term, so long as Executive's employment hereunder has not earlier terminated, this Agreement shall automatically renew for additional, successive one (1) year terms (each, a "Renewal Term") unless either Party delivers written notice to the other Party not less than thirty (30) days prior to the expiration of the Initial Term or any Renewal Term of such Party's intention not to renew this Agreement. For the avoidance of doubt, Executive's employment hereunder may be terminated during the Initial Term or any Renewal Term in accordance with ARTICLE III.B. The period from the Effective Date through the expiration of this Agreement or, if sooner, the termination of Executive's employment pursuant to this Agreement, regardless of the time or reason for such termination, shall be referred to herein as the "Term."

 

B. Termination of Employment. Any Party may terminate Executive's employment at any time during the Term upon sixty (60) days' written notice of termination (the "Notice Period"), except that the Company need not provide advance notice for termination of Executive's employment for Cause pursuant to ARTICLE III.B.i (except as otherwise provided therein) and neither the Company nor Executive shall be required to give more than thirty (30) days' notice of non-renewal of the then-existing Initial Term or Renewal Term as set forth in ARTICLE III.A. The date of Executive's termination (the "Termination Date") shall be (i) if Executive's employment is terminated by Executive's death, the date of Executive's death; or (ii) the date stated in the notice of termination. Upon termination of Executive's employment for any reason, the Company shall pay Executive (i) any unpaid Base Salary earned and accrued through the date of termination (payable in the normal course or such earlier time required by applicable law); (ii) any accrued but unused vacation through the date of termination (payable at the time of the payment described in clause (i)); (iii) vested benefits in accordance with the Company Group's employee benefit plans; and (iv) any unreimbursed business expenses properly incurred prior to such termination, to be reimbursed in accordance with the Company's business expense reimbursement policy (collectively, the "Accrued Obligations").

 

i.

Termination for Cause by the Company or Resignation by Executive without Good Reason. If, at any time during the Term, the Company terminates Executive's employment for Cause (as defined below) or Executive resigns from employment without Good Reason the Company may, in its sole discretion, shorten or eliminate the Notice Period and determine the date of termination without any obligation to pay Executive any additional compensation other than the Accrued Obligations, and without triggering a termination of Executive's employment without Cause.

 

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ii.

Termination Without Cause by the Company; Resignation by Executive for Good Reason; Non-Renewal by the Company. If, at any time during the Term, the Company terminates Executive's employment without Cause, or if Executive's employment hereunder terminates for Good Reason or upon the expiration of the Initial Term or any Renewal Term due to delivery of a notice of non-renewal by the Company pursuant to ARTICLE III.A, the Company Group shall have no further liability or obligation to Executive under this Agreement for compensation or employee benefits, but the Company shall pay or provide the following amounts to Executive: (a) the Accrued Obligations; and (b) subject to Executive's continued compliance with this Agreement, and execution and return to the Company during the Release Consideration Period (as defined below), and non-revocation within any time provided by the Company to do so, of a release of claims in a form acceptable to the Company (the "Release"), which Release shall be provided to Executive by the Company within seven (7) days following the Termination Date, (1) continued payment of Executive's Base Salary as of immediately prior to such Termination Date (the "Base Salary Continuation") for a period of eighteen (18) months following the Termination Date (the "Severance Period"); (2) a payment equal to the product of (x) 1.5 and (y) Executive's target Annual Bonus for the year in which the Termination Date occurs (the "Severance Bonus"); (3) the Prior Year Bonus (as defined below); (4) full vesting of the Sign-On Award to the extent unvested as of the Termination Date (the "Accelerated Vesting") and (5) subject to Executive's timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or the state equivalent ("COBRA"), and Executive's continued copayment of premiums at the same level and cost to the Executive as if Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee's ability to pay premiums with pre-tax dollars), provide continued participation in the Company's group health plan (to the extent permitted under applicable law and the terms of such plan) that covers Executive (and Executive's eligible dependents) for a period of eighteen months following the date of termination; provided that Executive is eligible and remains eligible for COBRA coverage and that any amounts paid by the Company toward such COBRA coverage shall be reported as additional taxable income to Executive; and provided, further, that such continuation of coverage by the Company shall immediately cease upon the date that Executive is eligible to receive group health benefits from a subsequent employer (such coverage being referred to as the "COBRA Payments" and, collectively with the Base Salary Continuation, Severance Bonus, the Prior Year Bonus, and the Accelerated Vesting, the "Severance Benefits"). The first installment of the Base Salary Continuation shall be provided on the Company's first payroll date after the effective date of the Release, provided that the first installment shall include (without interest) a catch-up for any payments that would have been made prior to such first installment had the Release been effective on the date of Executive's termination of employment; provided, that, if the Release Consideration Period spans two (2) calendar years, the first payment shall not be made sooner than the first day of the second year, and shall include any missed payments. In the event Executive fails to comply with the terms of ARTICLE IV or does not timely execute and return (or revokes) the Release, no amount shall be payable to Executive pursuant to this ARTICLE III.B.ii (other than the Accrued Obligations). For the avoidance of doubt, if the Release is not executed and returned to the Company during the Release Consideration Period, or Executive revokes the Release, then Executive shall not be entitled to any portion of the Severance Benefits. As used herein, the "Release Consideration Period" is the period of time starting on the date that is twenty-one (21) days following the date upon which the Company delivers the Release to Executive or, in the event that such termination of employment is "in connection with an exit incentive or other employment termination program" (as such phrase is defined in the Age Discrimination in Employment Act of 1967) and Executive is age 40 or over as of the Termination Date, the date that is forty-five (45) days following such delivery date.

 

iii.

Termination Due to Death or Disability. If, at any time during the Term, Executive's employment is terminated due to Executive's death or Disability (as defined below), the Company Group shall have no further liability or obligation to Executive for compensation or employee benefits under this Agreement, except that the Company shall pay or provide the following amounts: (a) the Accrued Obligations; (b) the Prior Year Bonus; (c) the Accelerated Vesting; and (d) a payment equal to Executive's target Annual Bonus for the year in which the Termination Date occurs, payable at the same time as bonuses are paid to other senior executives of the Company. Notwithstanding the foregoing, Executive's (or, following Executive's death, Executive's estate's) right to receive the amounts described in ARTICLE III.B.iii(b)-(d) shall be subject to Executive's (or an authorized representative of Executive's estate's) timely satisfying the same requirements with respect to the Release (including signing and returning the Release within the Release Consideration Period, and not exercising any revocation right set forth in the Release) that are a condition of Executive's receipt of the Severance Benefits following a termination described in ARTICLE III.B.ii. All amounts that become due to Executive under ARTICLE III.B.iii(b) and (d) shall be paid to Executive (or Executive's estate, if applicable) on the Company's first payroll date that is thirty (30) days after the effective date of the Release.

 

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iv.

Expiration due to Delivery of Notice of Non-Renewal by Executive. If Executive's employment hereunder is terminated upon the expiration of the Initial Term or any Renewal Term due to delivery of a notice of non-renewal by Executive pursuant to ARTICLE III.A, the Company Group shall have no further liability or obligation to Executive for compensation or employee benefits under this Agreement, except that the Company shall pay or provide the Accrued Obligations.

 

v.

Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)

"Affiliate" of any Person means any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person.

 

(b)

"Cause" means the occurrence of any of the following events: (i) an act or acts of theft, embezzlement, fraud, or dishonesty by Executive, regardless of whether it relates to the Company; (ii) a willful or material misrepresentation by Executive that relates to the Company Group and has (or would be reasonably expected to have) an adverse impact on the Company Group; (iii) any violation by Executive of any fiduciary duties owed by Executive to the Company Group; (iv) Executive's conviction of, or pleading nolo contendere or guilty to, a felony (other than a traffic infraction); (v) Executive's breach of the Company's written code of conduct and business ethics or other material written policy or procedure applicable to Executive in effect from time to time relating to personal conduct, which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged violation; (vi) Executive's willful failure to substantially perform Executive's responsibilities to the Company under this Agreement, after written demand for substantial performance has been given by the Board that specifically identifies how Executive has not substantially performed Executive's responsibilities, which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged failure or refusal; (vii) a material breach by Executive of this Agreement which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged breach; or (viii) Executive fails or refuses to comply with any applicable law or regulation, whether such failure or refusal occurred before or during Executive's employment with the Company, and such failure, in the reasonable judgment of the Company, has harmed or is reasonably likely to harm the Company, or otherwise interferes with Executive's ability to carry out Executive's job duties for the Company. Further, (1) a resignation by Executive at a time when grounds for Cause exist shall be deemed to be a termination of Executive's employment by the Company for Cause and (2) "Cause" will be deemed to have occurred immediately as of the time that Executive engages in any of the circumstances described in clauses (i) through (viii) if Executive has previously received notice of and thereafter cured such circumstances.

 

(c)

"Disability" means that the Board determines that Executive is unable to perform the essential functions of Executive's position (after accounting for reasonable accommodation, if applicable and required by applicable law), due to physical or mental impairment that continues, or can reasonably be expected to continue, for a period in excess of one hundred twenty consecutive days or one hundred eighty days, whether or not consecutive (or for any longer period as may be required by applicable law), in any twelve-month period.

 

(d)

"Good Reason" means the occurrence of any of the following events without Executive's prior consent: (i) a material diminution in Executive's authority, responsibilities, title and duties; (ii) a material reduction in Executive's Base Salary, target Annual Bonus opportunity or target annual LTIP opportunity other than a uniform reduction applied to substantially all senior officers of the Company; (iii) a breach of this Agreement by the Company; (iv) a relocation of Executive's primary office location to a distance of more than fifty (50) miles from its location as of the Effective Date (which primary office location, the parties agree, shall be in Dallas, Texas as of the Effective Date). Notwithstanding the foregoing, in order for Executive's termination to be for Good Reason, Executive must provide the Company written notice within thirty (30) days after the initial occurrence of the event or events alleged to constitute Good Reason of Executive's intent to terminate Executive's employment for Good Reason and specifying the reasons for such alleged Good Reason, and provide the Company with thirty (30) days after receipt of such notice from Executive to remedy the alleged action(s) giving rise to the Good Reason event. In the event the Company does not timely cure the violation, if Executive does not terminate Executive's employment within fifteen (15) days following the last day of the cure period, the occurrence of the violation shall not subsequently serve as Good Reason for purposes of this Agreement. Further notwithstanding the foregoing, no suspension of Executive or a reduction in Executive's authority, responsibilities, title or duties in conjunction with any leave required, or any other action taken, by the Company as part of an investigation into alleged wrongdoing by Executive shall give rise to Good Reason.

 

5

 

(e)

"Person" means a natural person or any corporation, limited liability company, partnership, limited partnership, joint venture, unincorporated organization, trust, estate, governmental entity, or other entity.

 

(f)

"Prior Year Bonus" means the Annual Bonus payable with respect to the calendar year immediately preceding the calendar year in which Executive's employment with the Company terminates, to the extent unpaid prior to such termination of employment, and to be paid at the same time as if no such termination of employment had occurred.

 

ARTICLE IV

RESTRICTIVE COVENANTS

 

A. Confidentiality. In the course of Executive's employment with the Company and the performance of Executive's duties on behalf of the Company Group hereunder, Executive will be provided with, and will have access to, Confidential Information (defined below). In consideration of Executive's receipt of and access to such Confidential Information, and as a condition of Executive's employment hereunder, Executive shall comply with this ARTICLE IV.A.

 

i.

Both during the Term and thereafter, except as expressly permitted by this Agreement or by directive of the Board, Executive shall not disclose any Confidential Information to any Person or entity and shall not use any Confidential Information except for the benefit of the Company Group. Executive shall follow all Company Group policies and protocols regarding the security of all documents and other materials containing Confidential Information (regardless of the medium on which Confidential Information is stored). Except to the extent required for the performance of Executive's duties on behalf of the Company Group, Executive shall not remove from the facilities of any member of the Company Group any equipment, drawings, notes, reports, manuals, invention records, computer software, customer information, or other data or materials that relate in any way to the Confidential Information, whether paper or electronic and whether produced by Executive or obtained by the Company Group.

 

ii.

Notwithstanding any provision of this ARTICLE IV to the contrary, Executive may make the following disclosures and uses of Confidential Information:

 

(a)

disclosures to other employees of a member of the Company Group who have a need to know Confidential Information in connection with the businesses of the Company Group;

 

(b)

disclosures and uses that are approved in writing by the Board; or

 

(c)

disclosures to a Person or entity that has been retained by a member of the Company Group to provide services to one or more members of the Company Group and agreed in writing to abide by the terms of a confidentiality agreement in a form acceptable to the Company.

 

iii.

Upon the expiration of the Term, and at any other time upon request of the Company, Executive shall promptly surrender and deliver to the Company all documents (including electronically stored information) and all copies thereof and all other materials of any nature containing or pertaining to all Confidential Information and any other Company Group property (including any Company Group-issued computer, mobile device or other equipment) in Executive's possession, custody or control and Executive shall not retain any such documents or other materials or property of the Company Group. Within five days of such expiration or any such request, Executive shall certify to the Company in writing that all such documents, materials and property have been returned to the Company.

 

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iv.

"Confidential Information" means all confidential, competitively valuable, non-public or proprietary information that is conceived, made, developed or acquired by or disclosed to Executive (whether conveyed orally or in writing), individually or in conjunction with others, during the period that Executive is or has been employed or engaged by the Company or any other member of the Company Group (whether during business hours or otherwise and whether on the Company's premises or otherwise) including: (i) technical information of any member of the Company Group, its affiliates, its customers or other third parties, including computer programs, software, databases, data, ideas, know-how, formulae, compositions, processes, discoveries, machines, inventions (whether patentable or not), designs, developmental or experimental work, techniques, improvements, work in process, research or test results, original works of authorship, training programs and procedures, diagrams, charts, business and product development plans, and similar items; (ii) information relating to any member of the Company Group's businesses or properties, products or services (including all such information relating to corporate opportunities, operations, future plans, methods of doing business, business plans, strategies for developing business and market share, research, financial and sales data, pricing terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or acquisition targets or their requirements, the identity of key contacts within customers' organizations or within the organization of acquisition prospects, or marketing and merchandising techniques, prospective names and marks); (iii) other valuable, confidential information and trade secrets of any member of the Company Group, its affiliates, its customers or other third parties; and (iv) any other information that is competitively valuable to any member of the Company Group by virtue of not being known to the general public. Moreover, all documents, videotapes, written presentations, brochures, drawings, memoranda, notes, records, files, correspondence, manuals, models, specifications, computer programs, e-mail, voice mail, electronic databases, maps, drawings, architectural renditions, models and all other writings or materials of any type including or embodying any of such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of expression are and shall be the sole and exclusive property of the Company or the other applicable member of the Company Group and be subject to the same restrictions on disclosure applicable to all Confidential Information pursuant to this Agreement. For purposes of this Agreement, Confidential Information shall not include any information that is or becomes generally available to the public other than as a result of a disclosure or wrongful act of Executive or any of Executive's agents; was available to Executive on a non-confidential basis before its disclosure by a member of the Company Group to Executive at any time; or becomes available to Executive on a non-confidential basis from a source other than a member of the Company Group; provided, however, that such source is not bound by a confidentiality agreement with, or other obligation with respect to confidentiality to, a member of the Company Group.

 

v.

Executive acknowledges and agrees that Confidential Information is a special and unique asset of the Company Group, and that any unauthorized disclosure or unauthorized use of any Confidential Information by Executive will cause irreparable harm and loss to the Company Group. Executive understands and acknowledges that Confidential Information (i) has been developed by the Company Group at significant effort and expense and is sufficiently secret to derive economic value from not being generally known to other parties, and (ii) constitutes a protectable business interest of the Company Group. Executive acknowledges and agrees that the Company Group owns the Confidential Information. Executive agrees not to dispute, contest, or deny any such ownership rights either during or after Executive's employment with any member of the Company Group. Executive agrees to preserve and protect the confidentiality of all Confidential Information. Executive agrees that during the period of Executive's employment with any member of the Company Group and after Executive's termination from employment for any reason, Executive shall not directly or indirectly, disclose to any unauthorized Person or entity or use for Executive's own account any Confidential Information without the Board's prior written consent. Throughout Executive's employment with any member of the Company Group and thereafter: (x) Executive shall hold all Confidential Information in the strictest confidence, take all reasonable precautions to prevent its inadvertent disclosure to any unauthorized person, and follow all Company Group policies protecting the Confidential Information; and (y) Executive shall not, directly or indirectly, utilize, disclose or make available to any other Person or entity, any of the Confidential Information, other than in the proper performance of Executive's duties on behalf of the Company Group. Further, Executive shall not, directly or indirectly, use the Company Group's Confidential Information to: (1) call upon, solicit business from, attempt to conduct business with, conduct business with, interfere with or divert business away from any customer, client, service provider, supplier or vendor of the Company Group with whom or which the Company Group conducted business or (2) recruit, solicit, hire or attempt to recruit, solicit, or hire, directly or by assisting others, any Persons employed or engaged by any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, or to engage in or participate within the Market Area (as defined below) in any aspect of the Business (as defined below).

 

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vi.

Notwithstanding the foregoing, nothing in this Agreement or any other agreement between Executive and any member of the Company Group shall prohibit or restrict Executive from: (i) initiating communications directly with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting in an investigation by, any governmental agency (including the Department of Justice, Securities and Exchange Commission, Department of Labor, Equal Employment Opportunity Commission, National Labor Relations Board, Congress, any Inspector General and any other governmental agency, commission, or regulatory authority) regarding a possible violation of any law; (ii) responding to any inquiry or legal process directed to Executive from any governmental agency; (iii) testifying, participating or otherwise assisting in any action or proceeding by any governmental agency relating to a possible violation of law; (iv) disclosing an act of sexual abuse or facts related to an act of sexual abuse to any other person; or (v) making any other disclosures that are protected under the whistleblower provisions of any applicable law. Nothing in this Agreement requires Executive to obtain prior authorization before engaging in any conduct described in the preceding sentence, or to notify the Company or any other member of the Company Group that Executive has engaged in any such conduct. Additionally, pursuant to the federal Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney and (2) solely for the purpose of reporting or investigating a suspected violation of law; (B) is made to the individual's attorney in relation to a lawsuit for retaliation against the individual for reporting a suspected violation of law; or (C) is made in a complaint or other document filed in a lawsuit or proceeding, if such filing is made under seal.

 

B. Non-Competition; Non-Solicitation.

 

i.

The Company shall provide Executive access to Confidential Information for use only during the Term, and Executive acknowledges and agrees that the Company will be entrusting Executive, in Executive's unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Executive hereunder, Executive has voluntarily agreed to the covenants set forth in this ARTICLE IV.B. Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, do not interfere with public interests, will not cause Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group's Confidential Information, goodwill and other legitimate business interests.

 

ii.

During the Prohibited Period (as defined below), Executive shall not, without the prior written approval of the Board, directly or indirectly (other than on behalf of the Company Group), for Executive or on behalf of or in conjunction with any other Person or entity of any nature:

 

(a)

engage in or participate within the Market Area (as defined below) in competition with the Company or any other member of the Company Group in or with respect to any aspect of the Business (as defined below), which prohibition shall prevent Executive from directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any Person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Executive's duties or responsibilities involve the Business and are the same as or similar to (or involve direct or indirect oversight over duties or responsibilities that are the same as or similar to) the duties or responsibilities that Executive had on behalf of or with respect to the Company during the Term;

 

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(b)

solicit, canvass, approach, encourage, entice or induce any actual or prospective customer, supplier, client, service provider, vendor or other business relation of any member of the Company Group for whom or which Executive had direct or indirect responsibility for any member of the Company Group or about whom or which Executive obtained Confidential Information during the Term to cease or lessen (or refrain from) such actual or prospective customer's, supplier's, client's, service provider's, vendor's or other business relation's business or relationship with any member of the Company Group; or

 

(c)

solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, or to engage in or participate within the Market Area (as defined below) in any aspect of the Business (as defined below). Notwithstanding the foregoing, nothing in this ARTICLE IV.B.ii.(c) shall prohibit Executive from engaging in general solicitations of employment not specifically directed at employees of the Company Group (including through general advertisements or other broadly disseminated recruiting efforts), provided that the Executive did not directly or indirectly target or solicit any such employee or group of employees.

 

iii.

Because of the difficulty of measuring economic losses to the Company as a result of a breach or threatened breach of the covenants set forth in this ARTICLE IV, and because of the immediate and irreparable damage that would be caused to the Company for which it would have no other adequate remedy, the Company and the other members of the Company Group shall be entitled to enforce the provisions of this ARTICLE IV in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy. If a bond is required to secure such equitable relief, the Parties agree that a bond not to exceed $1,000 shall be sufficient and adequate in all respects to protect the rights and interests of the Parties. The aforementioned equitable relief shall not be the Company's or any of its Affiliates' exclusive remedy for a breach, but instead shall be in addition to all other rights and remedies available to the Company and each of its affiliates, at law and equity, including the recovery of damages and reasonable attorneys' fees from Executive, Executive's agents, any future employer of Executive, and any Person that conspires or aids and abets Executive in a breach or threatened breach of this Agreement. In the event of a breach by Executive of ARTICLE IV, Executive immediately forfeits any unpaid Severance Benefits, as applicable, from the date of such breach, and the Company Group shall be entitled (in addition to all other remedies available, at law and equity) to (i) cease payment of any unpaid Severance Benefits, as applicable, and (ii) recover any Severance Benefits, as applicable, paid to Executive from the date of such breach. Further, if Executive violates any of the restrictions contained in this ARTICLE IV, the Prohibited Period with respect to such restriction shall be suspended and shall not run in favor of Executive from the time of the commencement of any violation until the time when Executive is no longer in violation of such provision; the period of time in which Executive is in breach shall be added to the Prohibited Period,

 

iv.

The covenants in this ARTICLE IV, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the Parties that such restrictions be severed or reformed, and then enforced to the fullest extent which court deems reasonable, and this Agreement shall thereby be reformed.

 

v.

Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)

"Business" shall mean the business and operations that are the same or similar to those performed by the Company or any other member of the Company Group for which Executive provided services during the Term, which business and operations include (x) services related to behind-the-meter ("BTM") power generation or data center co-location, (y) the operation of nuclear, natural gas, or solar generation assets; the development or management of BTM energy provisioning for hyperscale tenants; the deployment of advanced cooling technologies, including air-cooled condensers; the creation or operation of turnkey digital and energy platforms for defense-aligned or AI-intensive data center operations; or the full lifecycle management of nuclear facilities, including licensing, regulatory compliance, infrastructure development, tenant power delivery, and decommissioning, and (z) any prospective business any member of the Company Group considered or pursued and for which Executive had direct or indirect responsibility with respect to such consideration or pursuit, or about which Executive obtained Confidential Information, during the Term.

 

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(b)

"Market Area" shall mean the State of Texas, and any other geographic area with respect to which Executive performed any services for any member of the Company Group in the last 24 months of the Term (or, during the Term if the Term is less than 24 months).

 

(c)

"Prohibited Period" shall mean the period during which Executive is employed by any member of the Company Group and continuing for a period of twenty-four (24) months following the date that Executive is no longer employed by any member of the Company Group.

 

vi.

Notwithstanding the restrictions contained herein, Executive may own, directly or indirectly, solely as an investment, securities of any company which is engaged in the Business in the Market Area that are traded on any national securities exchange, provided that Executive is not a controlling person of, or member of a group that controls such business, and provided further that Executive does not, directly or indirectly, own two percent (2%) or more of any class of securities of such business or have the power, directly or indirectly, to control or direct the management or affairs of any such business and is not involved in the management of such business. The restrictions contained in this Agreement also shall not limit or restrict Executive from investing in a private equity fund, venture capital fund, mutual fund or other investment similar to any of the foregoing, in each case, that has an interest in a company which is engaged in the Business in the Market Area, provided that such investment is passive and Executive does not participate in the management or operations of any such fund or portfolio company thereof that is engaged in the Business in the Market Area whether as a consultant or in any other capacity.

 

C. Non-Disparagement. Subject to ARTICLE IV.A.vi above, during the Term and at all times thereafter, Executive agrees not to make any statement, either directly or indirectly, that is intended, or reasonably may be expected, to become public and which disparages, defames, casts in a false light, is injurious to the business or professional reputation of, or that could reasonably be considered to adversely affect the goodwill of, the Company, any other member of the Company Group or any of their respective Affiliates, or any of the foregoing Persons' shareholders, businesses, employees, officers or directors. For the avoidance of doubt, the foregoing sentence shall not prevent Executive from (A) disclosing information if legally required (whether by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process), (B) acting in good faith to enforce Executive's rights under this Agreement, or (C) making any statements required by applicable law or to any governmental agency, including any statements permitted pursuant to ARTICLE IV.A.vi above.

 

D. Ownership of Intellectual Property.

 

i.

Executive agrees that the Company shall own, and Executive agrees to assign to the Company, and Executive hereby assigns to the Company, all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), discoveries, developments, improvements, innovations, works of authorship, mask works, designs, know-how, ideas, formulae, processes, techniques, data and information authored, created, contributed to, made or conceived or reduced to practice, in whole or in part, by Executive during the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group, whether or not registerable under U.S. law or the laws of other jurisdictions, that either (a) relate, at the time of conception, reduction to practice, creation, derivation or development, to any member of the Company Group's businesses or actual or anticipated research or development, or (b) were developed on any amount of the Company's or any other member of the Company Group's time or with the use of any member of the Company Group's equipment, supplies, facilities or Confidential Information (all of the foregoing collectively referred to herein as "Company Intellectual Property"), and Executive shall promptly disclose all Company Intellectual Property to the Company in writing. To support Executive's disclosure obligation herein, Executive shall keep and maintain adequate and current written records of all Company Intellectual Property made by Executive (solely or jointly with others) during the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group in such form as may be specified from time to time by the Company. These records shall be available to, and remain the sole property of, the Company at all times.

 

10

 

ii.

All of Executive's works of authorship and associated copyrights created during the period in which Executive is employed by or affiliated with the Company or any other member of the Company Group and in the scope of Executive's employment or engagement shall be deemed to be "works made for hire" within the meaning of the Copyright Act. To the extent any right, title and interest in and to Company Intellectual Property cannot be assigned by Executive to the Company, Executive agrees to grant, and does hereby grant, to the Company Group an exclusive, perpetual, royalty-free, transferable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, use, sell, offer for sale, import, export, reproduce, practice and otherwise commercialize such rights, title and interest.

 

iii.

To the extent allowed by law, the following sentence applies to all rights that may be known as or referred to as "moral rights," "artist's rights," "droit moral," or the like, including without limitation those rights set forth in 17 U.S.C. §106A (collectively, "Moral Rights"). To the extent Executive retains any Moral Rights under applicable law, Executive hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by the Company or any member of the Company Group, and Executive hereby waives and agrees not to assert any Moral Rights with respect to such Moral Rights. Executive shall confirm any such ratifications, consents, waivers, and agreements from time to time as requested by the Company.

 

iv.

All inventions (whether or not patentable), original works of authorship, designs, know-how, mask works, ideas, trademarks or names, information, developments, improvements, and trade secrets of which Executive is the sole or joint author, creator, contributor, or inventor that were made or developed by Executive prior to Executive's employment with or affiliation with the Company or any other member of the Company Group, or in which Executive asserts any intellectual property right, and which are applicable to or relate in any way to the business, products, services, or demonstrably anticipated research and development or business of any member of the Company Group ("Prior Inventions") are listed on Exhibit A, and Executive represents that Exhibit A is a complete list of all such Prior Inventions. If no such list is attached, Executive hereby represents and warrants that there are no Prior Inventions, and Executive shall make no claim of any rights to any Prior Inventions. If, in the course of Executive's employment with or affiliation with the Company or any other member of the Company Group, Executive uses in connection with or otherwise incorporates into the product, process, or device of any member of the Company Group a Prior Invention, the Company Group is hereby granted and will have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use, import, export, offer for sale, sell and otherwise commercialize such Prior Invention as part of or in connection with (i) such product, process, or device of any member of the Company Group and (ii) the conduct of the business of the Company Group.

 

v.

Executive shall perform, during and after the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group, all acts deemed necessary or desirable by the Company to permit and assist each member of the Company Group, at the Company's expense, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout the world in the Company Intellectual Property and Confidential Information assigned, to be assigned, or licensed to the Company under this Agreement. Such acts may include execution of documents and assistance or cooperation (i) in the filing, prosecution, registration, and memorialization of assignment of any applicable patents, copyrights, mask work, or other applications, (ii) in the enforcement of any applicable patents, copyrights, mask work, moral rights, trade secrets, or other proprietary rights, and (iii) in other legal proceedings related to the Company Intellectual Property or Confidential Information.

 

11

 

vi.

In the event that the Company (or, as applicable, another member of the Company Group) is unable for any reason to secure Executive's signature to any document required to file, prosecute, register, or memorialize the assignment of any patent, copyright, mask work or other applications or to enforce any patent, copyright, mask work, moral right, trade secret or other proprietary right under any Confidential Information or Company Intellectual Property (including derivative works, improvements, renewals, extensions, continuations, divisionals, continuations in part, continuing patent applications, reissues, and reexaminations of such Company Intellectual Property), Executive hereby irrevocably designates and appoints the Company and each of the Company's duly authorized officers and agents as Executive's agents and attorneys-in-fact to act for and on Executive's behalf and instead of Executive (i) to execute, file, prosecute, register and memorialize the assignment of any such application, (ii) to execute and file any documentation required for such enforcement, and (iii) to do all other lawfully permitted acts to further the filing, prosecution, registration, memorialization of assignment, issuance, and enforcement of patents, copyrights, mask works, moral rights, trade secrets or other rights under the Confidential Information or Company Intellectual Property, all with the same legal force and effect as if executed by Executive.

 

vii.

In the event that Executive enters into, on behalf of any member of the Company Group, any contracts or agreements relating to any Confidential Information or Company Intellectual Property, Executive shall assign such contracts or agreements to the Company (or the applicable member of the Company Group) promptly, and in any event, prior to Executive's termination. If the Company (or the applicable member of the Company Group) is unable for any reason to secure Executive's signature to any document required to assign said contracts or agreements, or if Executive does not assign said contracts or agreements to the Company (or the applicable member of the Company Group) prior to Executive's termination, Executive hereby irrevocably designates and appoints the Company (or the applicable member of the Company Group) and each of the Company's duly authorized officers and agents as Executive's agents and attorneys-in-fact to act for and on Executive's behalf and instead of Executive to execute said assignments and to do all other lawfully permitted acts to further the execution of said documents.

 

ARTICLE V

MISCELLANEOUS PROVISIONS

 

A.

Mediation and Arbitration.

 

i.

In the event of any dispute, controversy or claim arising out of, or in connection with or relating to this Agreement or Executive's employment, engagement, relationship or affiliation with the Company or any other member of the Company Group or any member of the Company Group's predecessors or successors (each a "Dispute" and, collectively, "Disputes"), the parties to such Dispute shall use commercially reasonable efforts to resolve such Dispute through negotiation between individuals with the authority to settle the Dispute on behalf of the parties (each, an "Authorized Decision Maker"). To this end, each such party shall cause an Authorized Decision Maker to consult and negotiate with an Authorized Decision Maker of the other party, and the parties shall attempt to reach a resolution satisfactory to both parties, recognizing that their mutual interests may not be aligned (and that each such party shall be entitled to reasonably seek to promote such party's own interests in such resolution). If the parties to a Dispute do not resolve such Dispute within thirty (30) days of the first negotiation between Authorized Decision Makers, then upon written notice by either party to the other, the Dispute shall be submitted to non-binding mediation to be administered in Dallas, Texas, by the American Arbitration Association or its successor (the "AAA") (or another mediator upon the mutual agreement of Executive and the applicable member of the Company Group). Such mediation session shall take place within sixty (60) days of the date of receipt of the written request for mediation. If the parties are not able to agree regarding the identity of the mediator within twenty (20) days from the party's delivery of the mediation demand to the other party, the AAA shall appoint a neutral mediator upon written request to the AAA by either party.

 

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ii.

In the event the applicable member of the Company Group and Executive are unable to resolve any Dispute as described above, then subject to ARTICLE V.A iii and v, any Dispute will be finally settled by arbitration in Dallas, Texas in accordance with the then-existing employment arbitration rules of the AAA (https://www.adr.org/rules-forms-and-fees/employment/). The arbitration award shall be final and binding on the parties. Any arbitration conducted under this ARTICLE V.A shall be private, and shall be heard by a single arbitrator (the "Arbitrator") selected in accordance with the then-applicable rules of the AAA. The Arbitrator shall expeditiously hear and decide all matters concerning the Dispute. Except as expressly provided to the contrary in this Agreement, the Arbitrator shall have the power to (i) gather such materials, information, testimony and evidence as the Arbitrator deems relevant to the Dispute before him or her (and each party will provide such materials, information, testimony and evidence requested by the Arbitrator), and (ii) grant injunctive relief and enforce specific performance. All Disputes shall be arbitrated on an individual basis, and each party hereto hereby foregoes and waives any right to arbitrate any Dispute as a class action or collective action or on a consolidated basis or in a representative capacity on behalf of other persons or entities who are claimed to be similarly situated, or to participate as a class member in such a proceeding. The decision of the Arbitrator shall be reasoned, rendered in writing, be final and binding upon the disputing parties and the parties agree that judgment upon the award may be entered by any court of competent jurisdiction. This ARTICLE V.A shall be governed by the Federal Arbitration Act, 9 U.S.C. §1, et seq.

 

iii.

Notwithstanding ARTICLE V.A i or ii above, either party may make a timely application for, and obtain, judicial emergency or temporary injunctive relief to enforce any of the provisions of ARTICLE IV; provided, however, that the remainder of any such Dispute (beyond the application for emergency or temporary injunctive relief) shall be subject to arbitration under this ARTICLE V.

 

iv.

By entering into this Agreement and entering into the arbitration provisions of this ARTICLE V.A, THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THEY ARE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING THEIR RIGHTS TO A JURY TRIAL WITH RESPECT TO ALL DISPUTES.

 

v.

Nothing in this ARTICLE V.A shall prohibit a party from instituting litigation to enforce any arbitration award. Further, nothing in this ARTICLE V.A precludes Executive from filing a charge or complaint with a federal, state or other governmental administrative agency.

 

B. Cooperation. During the Term and thereafter, upon request from the Company, Executive shall cooperate with the Company and its affiliates in the defense of any claims or actions that may be made by or against the Company or its affiliates that relate to Executive's actual or prior areas of responsibility.

 

C. Withholdings; Deductions. The Company may withhold and deduct from any benefits and payments made or to be made pursuant to this Agreement (a) all federal, state, local and other taxes as may be required pursuant to any law or governmental regulation or ruling and (b) any deductions consented to in writing by Executive.

 

D. Title and Headings; Construction. Titles and headings to Articles and Sections hereof are for the purpose of reference only and shall in no way limit, define or otherwise affect the provisions hereof. Any and all Exhibits or attachments referred to in this Agreement are, by such reference, incorporated herein and made a part hereof for all purposes. Unless the context requires otherwise, all references to laws, regulations, contracts, documents, agreements and instruments refer to such laws, regulations, contracts, documents, agreements and instruments as they may be amended, restated or otherwise modified from time to time, and references to particular provisions of laws or regulations include a reference to the corresponding provisions of any succeeding law or regulation. All references to "dollars" or "$" in this Agreement refer to United States dollars. The words "herein", "hereof", "hereunder" and other compounds of the word "here" shall refer to the entire Agreement, including all Exhibits attached hereto, and not to any particular provision hereof. Unless the context requires otherwise, the word "or" is not exclusive. Wherever the context so requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely. All references to "including" shall be construed as meaning "including without limitation." Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any Party hereto, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by each of the Parties hereto and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the Parties hereto.

 

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E. Severability. If an arbitrator or court of competent jurisdiction determines that any provision of this Agreement (or portion thereof) is invalid or unenforceable, then the invalidity or unenforceability of that provision (or portion thereof) shall not affect the validity or enforceability of any other provision of this Agreement, and all other provisions shall remain in full force and effect.

 

F. Entire Agreement and Amendment. This Agreement contains the entire agreement of the Parties with respect to the matters covered herein and supersedes all prior and contemporaneous agreements and understandings (including the Prior Agreement, any offer letter, or similar agreement), oral or written, between the Parties hereto concerning the subject matter hereof; provided, however, that in the event that Executive is subject to any other restrictive covenants with respect to any member of the Company Group (including with respect to confidentiality or non-disclosure, non-competition, non-solicitation, intellectual property, and non-disparagement), the restrictive covenants contained in this Agreement shall complement and be in addition to, and not supersede or be in lieu of, such other restrictive covenants (which shall remain in full force and effect in accordance with the terms thereof). This Agreement may be amended only by a written instrument executed by both Parties hereto.

 

G. Disclaimer of Reliance. Executive represents and warrants that Executive understands the final and binding effect of this Agreement, that the only promises made to Executive to sign this Agreement are those stated within the four corners of this document, and that in entering into this Agreement Executive relies on Executive's own judgment, and Executive has not relied on any representation or statement, written or oral, or any alleged omission by any other party with regard to the terms, conditions, and effect of this Agreement, including any facts, issues, or omissions which might be deemed material to Executive's decision to enter into this Agreement, other than the statements that appear in this Agreement.

 

H. Waiver of Breach. Any waiver of this Agreement must be executed by the Party to be bound by such waiver. No waiver by either Party hereto of a breach of any provision of this Agreement by the other Party, or of compliance with any condition or provision of this Agreement to be performed by such other Party, will operate or be construed as a waiver of any subsequent breach by such other Party or any similar or dissimilar provision or condition at the same or any subsequent time. The failure of either party hereto to take any action by reason of any breach will not deprive such Party of the right to take action at any time.

 

I. Counterparts. This Agreement may be executed in any number of counterparts, including by electronic mail or .pdf, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a copy hereof containing multiple signature pages, each signed by one party, but together signed by both Parties hereto.

 

J. Assignment. This Agreement is personal to Executive, and neither this Agreement nor any rights or obligations hereunder shall be assignable or otherwise transferred by Executive. The Company may assign this Agreement without Executive's consent, including to any other member of the Company Group and to any successor to or acquirer of (whether by merger, purchase or otherwise) all or substantially all of the equity, assets or businesses of the Company or other member of the Company Group.

 

K. Third-Party Beneficiaries. Each member of the Company Group that is not a signatory to this Agreement shall be a third-party beneficiary of Executive's obligations herein and shall be entitled to enforce such obligations as if a Party hereto.

 

14

 

L. Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Executive is a "disqualified individual" (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the "Code")), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any of its Affiliates or other payor, would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the present value of such total payments and benefits shall be one dollar ($1.00) less than three times Executive's "base amount" (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind in a similar order, and then reducing equity or equity-based benefits (reduced in the order of highest value to lowest value under Code Section 280G). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary (or whether Executive would be subject to such excise tax) shall be made at the expense of the Company by a firm of independent accountants, a law firm, or other valuation specialist selected by the Board in good faith prior to the consummation of the applicable change in control transaction, and the applicable independent accountants, law firm, or other valuation specialist shall consider the value, if any, of Executive's restrictive covenants (including the non-competition restrictions set forth herein) as part of its analysis as may be appropriate under Section 280G of the Code. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits used in determining if a "parachute payment" exists, exceeds one dollar ($1.00) less than three times Executive's base amount, then Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this ARTICLE V.L shall require the Company to provide a gross-up payment to Executive with respect to Executive's excise tax liabilities under Section 4999 of the Code. Notwithstanding the foregoing, in the event that no stock of the Company or its applicable Affiliates is readily tradable on an established securities market or otherwise (within the meaning of Section 280G) as of immediately prior to an applicable transaction that constitutes a "change in ownership or control" for purposes of Section 280G of the Code, the Company shall submit to a vote of stockholders for approval the portion of the payments and benefits payable to Executive that equal or exceeds three times the Executive's "base amount" (the "Excess Parachute Payments") in accordance with Treas. Reg. §1.280G-1; provided, that Executive has first, in Executive's sole discretion, executed a customary waiver of such Excess Parachute Payments (the Company makes no guarantee regarding the outcome of any such vote). If such stockholder approval is obtained in accordance with Section 280G of the Code, then the payments and benefits shall not be subject to reduction as described above.

 

M. Clawback. To the extent required by Company policy, applicable law, government regulation or any applicable securities exchange listing standards, amounts paid or payable under this Agreement or under the LTIP or any incentive plan of the Company Group shall be subject to the provisions of any applicable clawback policies or procedures adopted by the Company Group and applicable to executives of the Company Group generally, including pursuant to applicable law, government regulation or applicable securities exchange listing requirements, which clawback policies or procedures may provide for forfeiture and/or recoupment of amounts paid or payable under this Agreement or under the LTIP or any incentive plan of the Company Group in the event of material misstatements, financial restatements, other bad acts (or inaction), or other events or occurrences consistent with any government regulation or securities exchange listing requirement. The Company Group reserves the right, without the consent of Executive, to adopt any such clawback policies and procedures that are consistent with the immediately preceding sentence, including such policies and procedures applicable to this Agreement and under the LTIP or any incentive plan of the Company Group with retroactive effect.

 

15

 

N. Section 409A. This Agreement is intended to be interpreted and applied so that the payments and benefits set forth herein shall either be exempt from the requirements of Section 409A of the Code ("Section 409A") or shall comply with the requirements of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise which constitutes a "deferral of compensation" within the meaning of Section 409A. Notwithstanding anything in this Agreement or elsewhere to the contrary, 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 that constitute "non-qualified deferred compensation" within the meaning of Section 409A upon or following a termination of Executive's employment unless such termination is also a "separation from service" within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service" within the meaning of Section 409A. Notwithstanding any provision in this Agreement or elsewhere to the contrary, if on Executive's termination of employment, Executive is a "specified employee" within the meaning of Section 409A, any payments or benefits that are payable as the result of a termination of Executive's employment under any arrangement that constitutes a "deferral of compensation" within the meaning of Section 409A (whether under this Agreement, any other plan, program, payroll practice or any equity grant) and which do not otherwise qualify under the exemptions under Treasury Regulation section 1.409A-1 (including without limitation, the short-term deferral exemption and the permitted payments under Treasury Regulation section 1.409A-1(b)(9)(iii)(A)) and that otherwise would have been paid within six (6) months following such termination of employment, shall be delayed and paid or provided to Executive in a lump sum (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) on the earlier of (x) the date which is six (6) months and one day after Executive's separation from service for any reason other than death, and (y) the date of Executive's death (but not earlier than such payments or benefits would have been made absent this provision), and any remaining payments and benefits shall be paid or provided in accordance with the normal payment dates specified for such payment or benefit. With respect to any expense reimbursement benefit or in-kind benefit provided pursuant to this Agreement or otherwise, (1) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year shall not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (2) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made promptly, but in all events on or before the last day of the calendar year immediately following the calendar year in which the applicable expense is incurred, and (3) the right to payment or reimbursement hereunder may not be liquidated or exchanged for any other benefit. Each payment under this Agreement to Executive shall be deemed a separate payment for purposes of Section 409A.¹

 

O. Applicable Law. This Agreement shall in all respects be construed according to the laws of the State of Texas without regard to its conflict of laws principles that would result in the application of the laws of another jurisdiction.

 

P. Effect of Termination. The provisions of ARTICLE IV and ARTICLE V, and those provisions necessary to interpret and enforce them, shall survive any termination of this Agreement and any termination of the employment relationship between Executive and the Company.

 

{Remainder of Page Intentionally Left Blank. Signature Page Follows.}

 

 

 

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IN WITNESS WHEREOF, the Company and Executive have caused this Agreement to be executed on the date first set forth above, to be effective as of the Effective Date.

 

EXECUTIVE:
Name:	Anna Bofa

 

THE COMPANY:
FERMI INC.
By:
Name:	Jacobo Ortiz
Title:	Co-President, Office of the CEO

 

{Signature Page to Employment Agreement}

 

 

 

Exhibit A

 

PRIOR INVENTIONS

 

1. The following is a complete and accurate list of all Prior Inventions relevant to the subject matter of Executive's employment with the Company that have been made, conceived or first reduced to practice by Executive alone or jointly with others prior to Executive's employment with or affiliation with the Company:

 

Check appropriate space(s):

 

☐

None.

 

☐

See below:

 

 

 

☐

Due to confidentiality agreements with a prior employer, Executive cannot disclose certain Prior Inventions that would otherwise be included on the above-described list.

 

☐

Additional sheets attached.

 

2. Executive proposes to bring to Executive's employment with the Company the following devices, materials, and documents of a former employer or other person to whom Executive has an obligation of confidentiality that is not generally available to the public; provided that such materials and documents may be used by Executive in Executive's employment with the Company only in accordance with the express written authorization of Executive's former employer or such other person, as applicable (a copy of which is attached to this Agreement):

 

Check appropriate space(s):

 

☐

None.

 

☐

See below.

 

 

☐

Additional sheets attached.

 

 

 

 

Exhibit B

 

1. Additional Equity Awards. Subject to the approval of the Board of Directors of the Company (the "Board") or the Committee, the Company will grant you Restricted Stock Units (each, an "RSU", and collectively, the "RSUs") under the Fermi Inc. 2025 Long-Term Incentive Plan (as amended from time to time, the "Plan"). Each RSU shall be a notional share of common stock of the Company ("Common Stock"), with the value of each RSU being equal to the Fair Market Value of a share of Common Stock at any time, and may be converted into the number of whole shares of Common Stock equal to the number of vested RSUs (determined in accordance with the applicable vesting schedule set forth below). Each grant of RSUs shall be evidenced by a separate Restricted Stock Unit Award Agreement (each, an "RSU Award Agreement") in the form prescribed by the Company, and shall be subject in all respects to the terms and conditions of the Plan and the applicable RSU Award Agreement. Capitalized terms used in this Section 6 and not otherwise defined herein shall have the meanings assigned to them in the Plan. For purposes of this Section 6, an "Achievement Date" shall mean the date on which the Company executes a definitive customer lease having an initial term of not less than ten (10) and not more than twenty (20) years (a "Qualifying Lease") for the sale or commitment of two hundred fifty (250) megawatts ("MW") or more of capacity. The RSUs shall be granted as follows:

 

(a) Sign-On Award. Effective as of the first quarterly grant date occurring on or after the Start Date, the Company shall grant you an Award of 2,000,000 RSUs (the "Sign-On Award"). Subject to the terms and conditions of the Plan and the applicable RSU Award Agreement, the Sign-On Award shall vest and become Vested Units as follows: (i) 20,000 as of the Date of Grant, (ii) 980,000 on the first anniversary of the Date of Grant; (iii) 500,000 on the second anniversary of the Date of Grant; and (iv) 500,000 on the third anniversary of the Date of Grant, in each case provided that you are employed by the Company or a Subsidiary on such vesting date. In the event your employment with the Company is terminated by the Company without Cause or you resign for Good Reason prior to the first anniversary of the Date of Grant, 100% of any Vested Units are subject to clawback by the Company.

 

(b) Deal 1 Performance Award. Upon the first quarterly grant date occurring after the Company's execution of a Qualifying Lease (the "Deal 1 Lease"), the Company shall grant you an Award (the "Deal 1 Award") of (i) 2,000,000 RSUs, if the Achievement Date for the Deal 1 Lease occurs on or before July 31, 2026, or (ii) 1,000,000 RSUs, if the Achievement Date for the Deal 1 Lease occurs after July 31, 2026. Subject to the terms and conditions of the Plan and the applicable RSU Award Agreement, the Deal 1 Award shall vest and become Vested Units (with each installment rounded down to the nearest whole RSU) as follows: (i) fifty percent (50%) on the grant date; (ii) twenty-five percent (25%) on the first anniversary of the date of the Company's execution of the Deal 1 Lease; and (iii) the remaining on the second anniversary of the date of the Company's execution of the Deal 1 Lease, in each case provided that you are employed by the Company or a Subsidiary on such vesting date.

 

(c) Deal 2 Performance Award. Upon the first quarterly grant date occurring after the Company's execution of a second Qualifying Lease (the "Deal 2 Lease"), the Company shall grant you an Award (the "Deal 2 Award") of (i) 1,000,000 RSUs, if the Achievement Date for the Deal 2 Lease occurs on or before December 31, 2026, or (ii) 500,000 RSUs, if the Achievement Date for the Deal 2 Lease occurs after December 31, 2026. Subject to the terms and conditions of the Plan and the applicable RSU Award Agreement, the Deal 2 Award shall vest and become Vested Units (with each installment rounded down to the nearest whole RSU) as follows: (i) thirty-three percent (33%) on the grant date; (ii) thirty-three percent (33%) on the first anniversary of the date of the Company's execution of the Deal 2 Lease; and (iii) the remaining on the second anniversary of the date of the Company's execution of the Deal 2 Lease, in each case provided that you are employed by the Company or a Subsidiary on such vesting date.

 

(d) Incremental Sales Awards. In addition to the Deal 1 Award and the Deal 2 Award, with respect to each Qualifying Lease executed by the Company following the Achievement Dates for both the Deal 1 Lease and the Deal 2 Lease (each, an "Incremental Lease"), the Company shall grant you an Award of one thousand (1,000) RSUs per MW of contracted capacity under such Incremental Lease (each, an "Incremental Sales Award"). Each Incremental Sales Award shall be granted effective as of the first quarterly grant date occurring on or after the Achievement Date applicable to such Incremental Lease. Subject to the terms and conditions of the Plan and the applicable RSU Award Agreement, each Incremental Sales Award shall vest and become Vested Units (with each installment rounded down to the nearest whole RSU) as follows: (i) thirty-three percent (33%) on the grant date; (ii) thirty-three percent (33%) on the first anniversary of the date of the Company's execution of the applicable Incremental Lease; and (iii) the remaining on the second anniversary of the date of the Company's execution of the applicable Incremental Lease, in each case provided that you are employed by the Company or a Subsidiary on such vesting date.

 

 

 

Exhibit 10.3

 

FORM OF EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (this "Agreement") is dated as of [_], 2026, and is entered into by and between Jacobo Ortiz ("Executive") and Fermi Inc., a Texas corporation (the "Company"). The Company and Executive shall be referred to herein as the "Parties."

 

RECITALS

 

WHEREAS, Executive is currently employed by the Company as Chief Operating Officer;

 

WHEREAS, the Company and Executive desire to set forth in writing the terms and conditions of their agreement and understandings with respect to Executive's employment by the Company, which, as of the Effective Date (as defined below), shall supersede and replace in their entirety the terms and conditions of Executive's employment with the Company prior to the Effective Date, including that certain Employment Agreement between Executive and the Company dated September 30, 2025 (the "Prior Agreement"); and

 

WHEREAS, the Company desires to continue to employ Executive, and Executive hereby accepts employment with the Company, for the period and upon the terms and conditions contained in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

 

ARTICLE I

 SERVICES TO BE PROVIDED BY EXECUTIVE

 

A. Position and Responsibilities. During the Term (as defined below), the Company shall employ Executive as Chief Operating Officer. Executive shall report directly to the Company's Chief Executive Officer. Executive shall also have such other duties and responsibilities that are commensurate with Executive's position as specifically delegated to him from time to time by the Chief Executive Officer, which duties and responsibilities may include providing services to other members of the Company Group (as defined below) in addition to the Company, and Executive agrees to diligently perform such duties and responsibilities.

 

B. Performance. During the Term, Executive shall devote on a full-time basis all of Executive's business time to the performance of Executive's duties hereunder in a manner that will faithfully and diligently further the business and interests of the Company and its direct and indirect subsidiaries (the "Company Group"), and Executive shall exercise Executive's best efforts to perform Executive's duties in a diligent, trustworthy, good faith and business-like manner, all for the purpose of advancing the business of the Company Group. During the Term, Executive shall act in a manner consistent with Executive's position. During the Term, without the prior written consent of the Board of Directors (the "Board"), Executive (i) shall not be employed by any other entity, and (ii) shall not serve as a member of any board of directors or similar governing body of any Person (as defined below) other than a member of the Company Group. Notwithstanding the foregoing, Executive (x) may make charitable donations and engage in such civic, religious, trade or industry group activities as Executive determines (and following notice to the Board, may hold board, trustee and similar positions in connection with the foregoing), (y) may, following notice to the Board, serve as a trustee of, or in any other similar capacity with, any present or future agency or not-for-profit organization, and (z) may manage his personal investments and affairs, provided that such activities referenced in clauses (x), (y) and (z) do not interfere with Executive's ability to fulfill Executive's duties to the Company Group (whether individually or in the aggregate), create a conflict of interest, or otherwise violate the terms of this Agreement. Executive hereby represents and warrants that as of the Effective Date (as defined below) there exist (i) no actual or potential Conflict of Interest (as defined below), and (ii) except as previously disclosed by Executive in writing to the Company, there are no current or pending lawsuits, claims, charges or arbitrations filed or threatened against or involving Executive or any trust or vehicle owned or controlled by Executive. Promptly (and in any event, within ten Business Days) upon becoming aware of (i) any actual or potential Conflict of Interest or (ii) any lawsuit, claim, charge or arbitration filed against or involving Executive or any trust or vehicle owned or controlled by Executive, in each case, Executive shall disclose such actual or potential Conflict of Interest or such lawsuit, claim, charge or arbitration to the Board. "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York or Dallas, Texas are authorized or required by law to be closed. A "Conflict of Interest" shall exist when Executive engages in, or plans to engage in, any activities, associations, or interests that conflict with, or create an appearance of a conflict with, Executive's duties, responsibilities, authorities, or obligations for and to any member of the Company Group.

 

 

 

C. Conduct and Compliance with Policies. During the Term, Executive shall act in accordance with high business and ethical standards. During the Term, Executive shall comply with the written policies, codes of conduct, codes of ethics and written manuals of the Company Group (collectively, the "Policies"), in each case, which are applicable to Executive.

 

D. Prior Employer Representations. Executive represents that, except as disclosed to the Company in writing prior to the Effective Date, Executive is not bound by the terms of any agreement with any previous employer or other party that prohibits Executive from assuming employment with the Company or performing services on any member of the Company's Group's behalf (including, for the avoidance of doubt, any non-competition, non-solicitation or non-recruitment obligations). Executive further represents that the performance of Executive's job duties for the Company and any other member of the Company Group does not and will not violate or breach any agreement with any previous employer or other party, or any legal obligation that Executive may owe to any previous employer or other party, including any non-disclosure, non-competition, non-solicitation or non-recruitment obligations. Executive shall abide by all obligations that Executive may owe to prior employers and other third parties, and shall not disclose to the Company or any other member of the Company Group or induce any member of the Company Group to use any confidential, proprietary or trade secret information belonging to any previous employer or others Executive acknowledges and agrees that Executive is strictly prohibited from using or disclosing any confidential information belonging to any prior employer in the course of performing services for any member of the Company Group, and Executive promises that Executive shall not do so. Executive shall not introduce documents or other materials containing confidential information of any prior employer to the premises or property (including computers and computer systems) of any member of the Company Group.

 

ARTICLE II

COMPENSATION

 

A. Compensation. During the Term (as defined below), the Company shall pay Executive an annualized base salary in the amount of $500,000 less applicable taxes and other withholdings ("Base Salary"), payable in accordance with the Company's payroll practices applicable to executive employees. Executive's Base Salary may be increased, but not decreased, from time to time in the Company's sole discretion, provided that Executive's Base Salary shall be reviewed for potential increase no less frequently than annually.

 

B. Annual Bonus. With respect to each complete calendar year during the Term, Executive shall be eligible to participate in the Company's short-term incentive plan (the "STIP") as in effect from time to time. Executive's target annual bonus opportunity under the STIP shall initially be equal to 100% of Executive's Base Salary, subject to adjustments by the Company in its sole discretion. The actual amount of any annual bonus (the "Annual Bonus") shall be determined by the Company based on achievement of performance goals established by the Company in its sole discretion up to a maximum of 200% of Executive's target Annual Bonus. Any earned Annual Bonus with respect to any calendar year during the Term shall be paid to Executive after the Board (or a committee thereof) certifies whether the applicable performance targets for the applicable year have been achieved, and in the time and manner provided by the Company's short-term incentive plan, provided that Executive is employed by the Company on the date such Annual Bonus is paid. The payment of any Annual Bonus shall be subject to all federal, state and withholding taxes, social security deductions and other general withholding obligations. Award of an Annual Bonus with respect to a particular calendar year does not guarantee the award of an Annual Bonus in any subsequent calendar year. The Company may elect to pay any applicable Annual Bonus in cash or in shares of common stock of the Company based on the then-fair-market-value of such stock.

 

C. Equity Awards. With respect to each calendar year during the Term, Executive shall be eligible to participate in the Company's long-term equity incentive plan (the "LTIP") as in effect from time to time. Executive's target annual long-term incentive opportunity under the LTIP shall initially have an aggregate grant date value of $3,000,000. The value and other terms and conditions of any long-term equity incentive awards granted to Executive shall be determined by the Company in its sole discretion. All awards granted to Executive under the LTIP shall be subject to and governed by the terms and provisions of the LTIP as in effect from time to time and the individual award agreements evidencing such awards.

 

2

 

D. Business Expenses. The Company agrees that, during Executive's employment, it will reimburse Executive for out-of-pocket expenses reasonably incurred in connection with Executive's performance of Executive's services hereunder, upon the presentation by Executive of an itemized accounting of such expenditures, with supporting receipts, provided that Executive submits such expenses for reimbursement in accordance with the Company's expense reimbursement policy.

 

E. Benefits. Executive shall be eligible to participate in the same benefit plans and programs in which other similarly situated executives of the Company are eligible to participate subject to the terms and conditions of the applicable plans and programs in effect from time to time. Such plans may be modified, amended, terminated, or replaced from time to time by the Company, in its sole discretion.

 

ARTICLE III

TERM; TERMINATION

 

A. Term of Employment. The term of Executive's employment under this Agreement shall begin on July 20, 2026 (the "Effective Date") and shall continue in effect until the fifth (5) anniversary of the Effective Date (the "Initial Term"), unless earlier terminated by any Party in accordance with ARTICLE III.B. Upon the expiration of the Initial Term, so long as Executive's employment hereunder has not earlier terminated, this Agreement shall automatically renew for additional, successive one (1) year terms (each, a "Renewal Term") unless either Party delivers written notice to the other Party not less than thirty (30) days prior to the expiration of the Initial Term or any Renewal Term of such Party's intention not to renew this Agreement. For the avoidance of doubt, Executive's employment hereunder may be terminated during the Initial Term or any Renewal Term in accordance with ARTICLE III.B. The period from the Effective Date through the expiration of this Agreement or, if sooner, the termination of Executive's employment pursuant to this Agreement, regardless of the time or reason for such termination, shall be referred to herein as the "Term."

 

B. Termination of Employment. Any Party may terminate Executive's employment at any time during the Term upon sixty (60) days' written notice of termination (the "Notice Period"), except that the Company need not provide advance notice for termination of Executive's employment for Cause pursuant to ARTICLE III.B.i (except as otherwise provided therein) and neither the Company nor Executive shall be required to give more than thirty (30) days' notice of non-renewal of the then-existing Initial Term or Renewal Term as set forth in ARTICLE III.A. The date of Executive's termination (the "Termination Date") shall be (i) if Executive's employment is terminated by Executive's death, the date of Executive's death; or (ii) the date stated in the notice of termination. Upon termination of Executive's employment for any reason, the Company shall pay Executive (i) any unpaid Base Salary earned and accrued through the date of termination (payable in the normal course or such earlier time required by applicable law); (ii) any accrued but unused vacation through the date of termination (payable at the time of the payment described in clause (i)); (iii) vested benefits in accordance with the Company Group's employee benefit plans; and (iv) any unreimbursed business expenses properly incurred prior to such termination, to be reimbursed in accordance with the Company's business expense reimbursement policy (collectively, the "Accrued Obligations").

 

i.

Termination for Cause by the Company or Resignation by Executive without Good Reason. If, at any time during the Term, the Company terminates Executive's employment for Cause (as defined below) or Executive resigns from employment without Good Reason the Company may, in its sole discretion, shorten or eliminate the Notice Period and determine the date of termination without any obligation to pay Executive any additional compensation other than the Accrued Obligations, and without triggering a termination of Executive's employment without Cause.

 

3

 

ii.

Termination Without Cause by the Company; Resignation by Executive for Good Reason; Non-Renewal by the Company. If, at any time during the Term, the Company terminates Executive's employment without Cause, or if Executive's employment hereunder terminates for Good Reason or upon the expiration of the Initial Term or any Renewal Term due to delivery of a notice of non-renewal by the Company pursuant to ARTICLE III.A, the Company Group shall have no further liability or obligation to Executive under this Agreement for compensation or employee benefits, but the Company shall pay or provide the following amounts to Executive: (a) the Accrued Obligations; and (b) subject to Executive's continued compliance with this Agreement, and execution and return to the Company during the Release Consideration Period (as defined below), and non-revocation within any time provided by the Company to do so, of a release of claims in a form acceptable to the Company (the "Release"), which Release shall be provided to Executive by the Company within seven (7) days following the Termination Date, (1) continued payment of Executive's Base Salary as of immediately prior to such Termination Date (the "Base Salary Continuation") for a period of eighteen (18) months following the Termination Date (the "Severance Period"); (2) a payment equal to the product of (x) 1.5 and (y) Executive's target Annual Bonus for the year in which the Termination Date occurs (the "Severance Bonus"); (3) the Prior Year Bonus (as defined below); and (4) subject to Executive's timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or the state equivalent ("COBRA"), and Executive's continued copayment of premiums at the same level and cost to the Executive as if Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee's ability to pay premiums with pre-tax dollars), provide continued participation in the Company's group health plan (to the extent permitted under applicable law and the terms of such plan) that covers Executive (and Executive's eligible dependents) for a period of eighteen months following the date of termination; provided that Executive is eligible and remains eligible for COBRA coverage and that any amounts paid by the Company toward such COBRA coverage shall be reported as additional taxable income to Executive; and provided, further, that such continuation of coverage by the Company shall immediately cease upon the date that Executive is eligible to receive group health benefits from a subsequent employer (such coverage being referred to as the "COBRA Payments" and, collectively with the Base Salary Continuation, Severance Bonus, and the Prior Year Bonus, the "Severance Benefits"). The first installment of the Base Salary Continuation shall be provided on the Company's first payroll date after the effective date of the Release, provided that the first installment shall include (without interest) a catch-up for any payments that would have been made prior to such first installment had the Release been effective on the date of Executive's termination of employment; provided, that, if the Release Consideration Period spans two (2) calendar years, the first payment shall not be made sooner than the first day of the second year, and shall include any missed payments. In the event Executive fails to comply with the terms of ARTICLE IV or does not timely execute and return (or revokes) the Release, no amount shall be payable to Executive pursuant to this ARTICLE III.B.ii (other than the Accrued Obligations). For the avoidance of doubt, if the Release is not executed and returned to the Company during the Release Consideration Period, or Executive revokes the Release, then Executive shall not be entitled to any portion of the Severance Benefits. As used herein, the "Release Consideration Period" is the period of time starting on the date that is twenty-one (21) days following the date upon which the Company delivers the Release to Executive or, in the event that such termination of employment is "in connection with an exit incentive or other employment termination program" (as such phrase is defined in the Age Discrimination in Employment Act of 1967) and Executive is age 40 or over as of the Termination Date, the date that is forty-five (45) days following such delivery date.

 

iii.

Termination Due to Death or Disability. If, at any time during the Term, Executive's employment is terminated due to Executive's death or Disability (as defined below), the Company Group shall have no further liability or obligation to Executive for compensation or employee benefits under this Agreement, except that the Company shall pay or provide the following amounts: (a) the Accrued Obligations; (b) the Prior Year Bonus; and (c) a payment equal to Executive's target Annual Bonus for the year in which the Termination Date occurs, payable at the same time as bonuses are paid to other senior executives of the Company. Notwithstanding the foregoing, Executive's (or, following Executive's death, Executive's estate's) right to receive the amounts described in ARTICLE III.B.iii(b)-(c) shall be subject to Executive's (or an authorized representative of Executive's estate's) timely satisfying the same requirements with respect to the Release (including signing and returning the Release within the Release Consideration Period, and not exercising any revocation right set forth in the Release) that are a condition of Executive's receipt of the Severance Benefits following a termination described in ARTICLE III.B.ii. All amounts that become due to Executive under ARTICLE III.B.iii(b)-(c) shall be paid to Executive (or Executive's estate, if applicable) on the Company's first payroll date that is thirty (30) days after the effective date of the Release.

 

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iv.

Expiration due to Delivery of Notice of Non-Renewal by Executive. If Executive's employment hereunder is terminated upon the expiration of the Initial Term or any Renewal Term due to delivery of a notice of non-renewal by Executive pursuant to ARTICLE III.A, the Company Group shall have no further liability or obligation to Executive for compensation or employee benefits under this Agreement, except that the Company shall pay or provide the Accrued Obligations.

 

v.

Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)

"Affiliate" of any Person means any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person.

 

(b)

"Cause" means the occurrence of any of the following events: (i) an act or acts of theft, embezzlement, fraud, or dishonesty by Executive, regardless of whether it relates to the Company; (ii) a willful or material misrepresentation by Executive that relates to the Company Group and has (or would be reasonably expected to have) an adverse impact on the Company Group; (iii) any violation by Executive of any fiduciary duties owed by Executive to the Company Group; (iv) Executive's conviction of, or pleading nolo contendere or guilty to, a felony (other than a traffic infraction); (v) Executive's breach of the Company's written code of conduct and business ethics or other material written policy or procedure applicable to Executive in effect from time to time relating to personal conduct, which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged violation; (vi) Executive's willful failure to substantially perform Executive's responsibilities to the Company under this Agreement, after written demand for substantial performance has been given by the Board that specifically identifies how Executive has not substantially performed Executive's responsibilities, which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged failure or refusal; (vii) a material breach by Executive of this Agreement which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged breach; or (viii) Executive fails or refuses to comply with any applicable law or regulation, whether such failure or refusal occurred before or during Executive's employment with the Company, and such failure, in the reasonable judgment of the Company, has harmed or is reasonably likely to harm the Company, or otherwise interferes with Executive's ability to carry out Executive's job duties for the Company. Further, (1) a resignation by Executive at a time when grounds for Cause exist shall be deemed to be a termination of Executive's employment by the Company for Cause and (2) "Cause" will be deemed to have occurred immediately as of the time that Executive engages in any of the circumstances described in clauses (i) through (viii) if Executive has previously received notice of and thereafter cured such circumstances.

 

(c)

"Disability" means that the Board determines that Executive is unable to perform the essential functions of Executive's position (after accounting for reasonable accommodation, if applicable and required by applicable law), due to physical or mental impairment that continues, or can reasonably be expected to continue, for a period in excess of one hundred twenty consecutive days or one hundred eighty days, whether or not consecutive (or for any longer period as may be required by applicable law), in any twelve-month period.

 

(d)

"Good Reason" means the occurrence of any of the following events without Executive's prior consent: (i) a material diminution in Executive's authority, responsibilities, title and duties; (ii) a material reduction in Executive's Base Salary, target Annual Bonus opportunity or target annual LTIP opportunity other than a uniform reduction applied to substantially all senior officers of the Company; (iii) a breach of this Agreement by the Company; (iv) a relocation of Executive's primary office location to a distance of more than fifty (50) miles from its location as of the Effective Date (which primary office location, the parties agree, shall be in Dallas, Texas as of the Effective Date). Notwithstanding the foregoing, in order for Executive's termination to be for Good Reason, Executive must provide the Company written notice within thirty (30) days after the initial occurrence of the event or events alleged to constitute Good Reason of Executive's intent to terminate Executive's employment for Good Reason and specifying the reasons for such alleged Good Reason, and provide the Company with thirty (30) days after receipt of such notice from Executive to remedy the alleged action(s) giving rise to the Good Reason event. In the event the Company does not timely cure the violation, if Executive does not terminate Executive's employment within fifteen (15) days following the last day of the cure period, the occurrence of the violation shall not subsequently serve as Good Reason for purposes of this Agreement. Further notwithstanding the foregoing, no suspension of Executive or a reduction in Executive's authority, responsibilities, title or duties in conjunction with any leave required, or any other action taken, by the Company as part of an investigation into alleged wrongdoing by Executive shall give rise to Good Reason.

 

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(e)

"Person" means a natural person or any corporation, limited liability company, partnership, limited partnership, joint venture, unincorporated organization, trust, estate, governmental entity, or other entity.

 

(f)

"Prior Year Bonus" means the Annual Bonus payable with respect to the calendar year immediately preceding the calendar year in which Executive's employment with the Company terminates, to the extent unpaid prior to such termination of employment, and to be paid at the same time as if no such termination of employment had occurred.

 

ARTICLE IV

RESTRICTIVE COVENANTS

 

A. Confidentiality. In the course of Executive's employment with the Company and the performance of Executive's duties on behalf of the Company Group hereunder, Executive will be provided with, and will have access to, Confidential Information (defined below). In consideration of Executive's receipt of and access to such Confidential Information, and as a condition of Executive's employment hereunder, Executive shall comply with this ARTICLE IV.A.

 

i.

Both during the Term and thereafter, except as expressly permitted by this Agreement or by directive of the Board, Executive shall not disclose any Confidential Information to any Person or entity and shall not use any Confidential Information except for the benefit of the Company Group. Executive shall follow all Company Group policies and protocols regarding the security of all documents and other materials containing Confidential Information (regardless of the medium on which Confidential Information is stored). Except to the extent required for the performance of Executive's duties on behalf of the Company Group, Executive shall not remove from the facilities of any member of the Company Group any equipment, drawings, notes, reports, manuals, invention records, computer software, customer information, or other data or materials that relate in any way to the Confidential Information, whether paper or electronic and whether produced by Executive or obtained by the Company Group.

 

ii.

Notwithstanding any provision of this ARTICLE IV to the contrary, Executive may make the following disclosures and uses of Confidential Information:

 

(a)

disclosures to other employees of a member of the Company Group who have a need to know Confidential Information in connection with the businesses of the Company Group;

 

(b)

disclosures and uses that are approved in writing by the Board; or

 

(c)

disclosures to a Person or entity that has been retained by a member of the Company Group to provide services to one or more members of the Company Group and agreed in writing to abide by the terms of a confidentiality agreement in a form acceptable to the Company.

 

iii.

Upon the expiration of the Term, and at any other time upon request of the Company, Executive shall promptly surrender and deliver to the Company all documents (including electronically stored information) and all copies thereof and all other materials of any nature containing or pertaining to all Confidential Information and any other Company Group property (including any Company Group-issued computer, mobile device or other equipment) in Executive's possession, custody or control and Executive shall not retain any such documents or other materials or property of the Company Group. Within five days of such expiration or any such request, Executive shall certify to the Company in writing that all such documents, materials and property have been returned to the Company.

 

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iv.

"Confidential Information" means all confidential, competitively valuable, non-public or proprietary information that is conceived, made, developed or acquired by or disclosed to Executive (whether conveyed orally or in writing), individually or in conjunction with others, during the period that Executive is or has been employed or engaged by the Company or any other member of the Company Group (whether during business hours or otherwise and whether on the Company's premises or otherwise) including: (i) technical information of any member of the Company Group, its affiliates, its customers or other third parties, including computer programs, software, databases, data, ideas, know-how, formulae, compositions, processes, discoveries, machines, inventions (whether patentable or not), designs, developmental or experimental work, techniques, improvements, work in process, research or test results, original works of authorship, training programs and procedures, diagrams, charts, business and product development plans, and similar items; (ii) information relating to any member of the Company Group's businesses or properties, products or services (including all such information relating to corporate opportunities, operations, future plans, methods of doing business, business plans, strategies for developing business and market share, research, financial and sales data, pricing terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or acquisition targets or their requirements, the identity of key contacts within customers' organizations or within the organization of acquisition prospects, or marketing and merchandising techniques, prospective names and marks); (iii) other valuable, confidential information and trade secrets of any member of the Company Group, its affiliates, its customers or other third parties; and (iv) any other information that is competitively valuable to any member of the Company Group by virtue of not being known to the general public. Moreover, all documents, videotapes, written presentations, brochures, drawings, memoranda, notes, records, files, correspondence, manuals, models, specifications, computer programs, e-mail, voice mail, electronic databases, maps, drawings, architectural renditions, models and all other writings or materials of any type including or embodying any of such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of expression are and shall be the sole and exclusive property of the Company or the other applicable member of the Company Group and be subject to the same restrictions on disclosure applicable to all Confidential Information pursuant to this Agreement. For purposes of this Agreement, Confidential Information shall not include any information that is or becomes generally available to the public other than as a result of a disclosure or wrongful act of Executive or any of Executive's agents; was available to Executive on a non-confidential basis before its disclosure by a member of the Company Group to Executive at any time; or becomes available to Executive on a non-confidential basis from a source other than a member of the Company Group; provided, however, that such source is not bound by a confidentiality agreement with, or other obligation with respect to confidentiality to, a member of the Company Group.

 

v.

Executive acknowledges and agrees that Confidential Information is a special and unique asset of the Company Group, and that any unauthorized disclosure or unauthorized use of any Confidential Information by Executive will cause irreparable harm and loss to the Company Group. Executive understands and acknowledges that Confidential Information (i) has been developed by the Company Group at significant effort and expense and is sufficiently secret to derive economic value from not being generally known to other parties, and (ii) constitutes a protectable business interest of the Company Group. Executive acknowledges and agrees that the Company Group owns the Confidential Information. Executive agrees not to dispute, contest, or deny any such ownership rights either during or after Executive's employment with any member of the Company Group. Executive agrees to preserve and protect the confidentiality of all Confidential Information. Executive agrees that during the period of Executive's employment with any member of the Company Group and after Executive's termination from employment for any reason, Executive shall not directly or indirectly, disclose to any unauthorized Person or entity or use for Executive's own account any Confidential Information without the Board's prior written consent. Throughout Executive's employment with any member of the Company Group and thereafter: (x) Executive shall hold all Confidential Information in the strictest confidence, take all reasonable precautions to prevent its inadvertent disclosure to any unauthorized person, and follow all Company Group policies protecting the Confidential Information; and (y) Executive shall not, directly or indirectly, utilize, disclose or make available to any other Person or entity, any of the Confidential Information, other than in the proper performance of Executive's duties on behalf of the Company Group. Further, Executive shall not, directly or indirectly, use the Company Group's Confidential Information to: (1) call upon, solicit business from, attempt to conduct business with, conduct business with, interfere with or divert business away from any customer, client, service provider, supplier or vendor of the Company Group with whom or which the Company Group conducted business or (2) recruit, solicit, hire or attempt to recruit, solicit, or hire, directly or by assisting others, any Persons employed or engaged by any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, or to engage in or participate within the Market Area (as defined below) in any aspect of the Business (as defined below).

 

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vi.

Notwithstanding the foregoing, nothing in this Agreement or any other agreement between Executive and any member of the Company Group shall prohibit or restrict Executive from: (i) initiating communications directly with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting in an investigation by, any governmental agency (including the Department of Justice, Securities and Exchange Commission, Department of Labor, Equal Employment Opportunity Commission, National Labor Relations Board, Congress, any Inspector General and any other governmental agency, commission, or regulatory authority) regarding a possible violation of any law; (ii) responding to any inquiry or legal process directed to Executive from any governmental agency; (iii) testifying, participating or otherwise assisting in any action or proceeding by any governmental agency relating to a possible violation of law; (iv) disclosing an act of sexual abuse or facts related to an act of sexual abuse to any other person; or (v) making any other disclosures that are protected under the whistleblower provisions of any applicable law. Nothing in this Agreement requires Executive to obtain prior authorization before engaging in any conduct described in the preceding sentence, or to notify the Company or any other member of the Company Group that Executive has engaged in any such conduct. Additionally, pursuant to the federal Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney and (2) solely for the purpose of reporting or investigating a suspected violation of law; (B) is made to the individual's attorney in relation to a lawsuit for retaliation against the individual for reporting a suspected violation of law; or (C) is made in a complaint or other document filed in a lawsuit or proceeding, if such filing is made under seal.

 

B. Non-Competition; Non-Solicitation.

 

i.

The Company shall provide Executive access to Confidential Information for use only during the Term, and Executive acknowledges and agrees that the Company will be entrusting Executive, in Executive's unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Executive hereunder, Executive has voluntarily agreed to the covenants set forth in this ARTICLE IV.B. Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, do not interfere with public interests, will not cause Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group's Confidential Information, goodwill and other legitimate business interests.

 

ii.

During the Prohibited Period (as defined below), Executive shall not, without the prior written approval of the Board, directly or indirectly (other than on behalf of the Company Group), for Executive or on behalf of or in conjunction with any other Person or entity of any nature:

 

(a)

engage in or participate within the Market Area (as defined below) in competition with the Company or any other member of the Company Group in or with respect to any aspect of the Business (as defined below), which prohibition shall prevent Executive from directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any Person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Executive's duties or responsibilities involve the Business and are the same as or similar to (or involve direct or indirect oversight over duties or responsibilities that are the same as or similar to) the duties or responsibilities that Executive had on behalf of or with respect to the Company during the Term;

 

8

 

(b)

solicit, canvass, approach, encourage, entice or induce any actual or prospective customer, supplier, client, service provider, vendor or other business relation of any member of the Company Group for whom or which Executive had direct or indirect responsibility for any member of the Company Group or about whom or which Executive obtained Confidential Information during the Term to cease or lessen (or refrain from) such actual or prospective customer's, supplier's, client's, service provider's, vendor's or other business relation's business or relationship with any member of the Company Group; or

 

(c)

solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, or to engage in or participate within the Market Area (as defined below) in any aspect of the Business (as defined below). Notwithstanding the foregoing, nothing in this ARTICLE IV.B.ii.(c) shall prohibit Executive from engaging in general solicitations of employment not specifically directed at employees of the Company Group (including through general advertisements or other broadly disseminated recruiting efforts), provided that the Executive did not directly or indirectly target or solicit any such employee or group of employees.

 

iii.

Because of the difficulty of measuring economic losses to the Company as a result of a breach or threatened breach of the covenants set forth in this ARTICLE IV, and because of the immediate and irreparable damage that would be caused to the Company for which it would have no other adequate remedy, the Company and the other members of the Company Group shall be entitled to enforce the provisions of this ARTICLE IV in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy. If a bond is required to secure such equitable relief, the Parties agree that a bond not to exceed $1,000 shall be sufficient and adequate in all respects to protect the rights and interests of the Parties. The aforementioned equitable relief shall not be the Company's or any of its Affiliates' exclusive remedy for a breach, but instead shall be in addition to all other rights and remedies available to the Company and each of its affiliates, at law and equity, including the recovery of damages and reasonable attorneys' fees from Executive, Executive's agents, any future employer of Executive, and any Person that conspires or aids and abets Executive in a breach or threatened breach of this Agreement. In the event of a breach by Executive of ARTICLE IV, Executive immediately forfeits any unpaid Severance Benefits, as applicable, from the date of such breach, and the Company Group shall be entitled (in addition to all other remedies available, at law and equity) to (i) cease payment of any unpaid Severance Benefits, as applicable, and (ii) recover any Severance Benefits, as applicable, paid to Executive from the date of such breach. Further, if Executive violates any of the restrictions contained in this ARTICLE IV, the Prohibited Period with respect to such restriction shall be suspended and shall not run in favor of Executive from the time of the commencement of any violation until the time when Executive is no longer in violation of such provision; the period of time in which Executive is in breach shall be added to the Prohibited Period,

 

iv.

The covenants in this ARTICLE IV, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the Parties that such restrictions be severed or reformed, and then enforced to the fullest extent which court deems reasonable, and this Agreement shall thereby be reformed.

 

v.

Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)

"Business" shall mean the business and operations that are the same or similar to those performed by the Company or any other member of the Company Group for which Executive provided services during the Term, which business and operations include (x) services related to behind-the-meter ("BTM") power generation or data center co-location, (y) the operation of nuclear, natural gas, or solar generation assets; the development or management of BTM energy provisioning for hyperscale tenants; the deployment of advanced cooling technologies, including air-cooled condensers; the creation or operation of turnkey digital and energy platforms for defense-aligned or AI-intensive data center operations; or the full lifecycle management of nuclear facilities, including licensing, regulatory compliance, infrastructure development, tenant power delivery, and decommissioning, and (z) any prospective business any member of the Company Group considered or pursued and for which Executive had direct or indirect responsibility with respect to such consideration or pursuit, or about which Executive obtained Confidential Information, during the Term.

 

9

 

(b)

"Market Area" shall mean the State of Texas, and any other geographic area with respect to which Executive performed any services for any member of the Company Group in the last 24 months of the Term (or, during the Term if the Term is less than 24 months).

 

(c)

"Prohibited Period" shall mean the period during which Executive is employed by any member of the Company Group and continuing for a period of twenty-four (24) months following the date that Executive is no longer employed by any member of the Company Group.

 

vi.

Notwithstanding the restrictions contained herein, Executive may own, directly or indirectly, solely as an investment, securities of any company which is engaged in the Business in the Market Area that are traded on any national securities exchange, provided that Executive is not a controlling person of, or member of a group that controls such business, and provided further that Executive does not, directly or indirectly, own two percent (2%) or more of any class of securities of such business or have the power, directly or indirectly, to control or direct the management or affairs of any such business and is not involved in the management of such business. The restrictions contained in this Agreement also shall not limit or restrict Executive from investing in a private equity fund, venture capital fund, mutual fund or other investment similar to any of the foregoing, in each case, that has an interest in a company which is engaged in the Business in the Market Area, provided that such investment is passive and Executive does not participate in the management or operations of any such fund or portfolio company thereof that is engaged in the Business in the Market Area whether as a consultant or in any other capacity.

 

C. Non-Disparagement. Subject to ARTICLE IV.A.vi above, during the Term and at all times thereafter, Executive agrees not to make any statement, either directly or indirectly, that is intended, or reasonably may be expected, to become public and which disparages, defames, casts in a false light, is injurious to the business or professional reputation of, or that could reasonably be considered to adversely affect the goodwill of, the Company, any other member of the Company Group or any of their respective Affiliates, or any of the foregoing Persons' shareholders, businesses, employees, officers or directors. For the avoidance of doubt, the foregoing sentence shall not prevent Executive from (A) disclosing information if legally required (whether by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process), (B) acting in good faith to enforce Executive's rights under this Agreement, or (C) making any statements required by applicable law or to any governmental agency, including any statements permitted pursuant to ARTICLE IV.A.vi above.

 

D. Ownership of Intellectual Property.

 

i.

Executive agrees that the Company shall own, and Executive agrees to assign to the Company, and Executive hereby assigns to the Company, all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), discoveries, developments, improvements, innovations, works of authorship, mask works, designs, know-how, ideas, formulae, processes, techniques, data and information authored, created, contributed to, made or conceived or reduced to practice, in whole or in part, by Executive during the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group, whether or not registerable under U.S. law or the laws of other jurisdictions, that either (a) relate, at the time of conception, reduction to practice, creation, derivation or development, to any member of the Company Group's businesses or actual or anticipated research or development, or (b) were developed on any amount of the Company's or any other member of the Company Group's time or with the use of any member of the Company Group's equipment, supplies, facilities or Confidential Information (all of the foregoing collectively referred to herein as "Company Intellectual Property"), and Executive shall promptly disclose all Company Intellectual Property to the Company in writing. To support Executive's disclosure obligation herein, Executive shall keep and maintain adequate and current written records of all Company Intellectual Property made by Executive (solely or jointly with others) during the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group in such form as may be specified from time to time by the Company. These records shall be available to, and remain the sole property of, the Company at all times.

 

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ii.

All of Executive's works of authorship and associated copyrights created during the period in which Executive is employed by or affiliated with the Company or any other member of the Company Group and in the scope of Executive's employment or engagement shall be deemed to be "works made for hire" within the meaning of the Copyright Act. To the extent any right, title and interest in and to Company Intellectual Property cannot be assigned by Executive to the Company, Executive agrees to grant, and does hereby grant, to the Company Group an exclusive, perpetual, royalty-free, transferable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, use, sell, offer for sale, import, export, reproduce, practice and otherwise commercialize such rights, title and interest.

 

iii.

To the extent allowed by law, the following sentence applies to all rights that may be known as or referred to as "moral rights," "artist's rights," "droit moral," or the like, including without limitation those rights set forth in 17 U.S.C. §106A (collectively, "Moral Rights"). To the extent Executive retains any Moral Rights under applicable law, Executive hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by the Company or any member of the Company Group, and Executive hereby waives and agrees not to assert any Moral Rights with respect to such Moral Rights. Executive shall confirm any such ratifications, consents, waivers, and agreements from time to time as requested by the Company.

 

iv.

All inventions (whether or not patentable), original works of authorship, designs, know-how, mask works, ideas, trademarks or names, information, developments, improvements, and trade secrets of which Executive is the sole or joint author, creator, contributor, or inventor that were made or developed by Executive prior to Executive's employment with or affiliation with the Company or any other member of the Company Group, or in which Executive asserts any intellectual property right, and which are applicable to or relate in any way to the business, products, services, or demonstrably anticipated research and development or business of any member of the Company Group ("Prior Inventions") are listed on Exhibit A, and Executive represents that Exhibit A is a complete list of all such Prior Inventions. If no such list is attached, Executive hereby represents and warrants that there are no Prior Inventions, and Executive shall make no claim of any rights to any Prior Inventions. If, in the course of Executive's employment with or affiliation with the Company or any other member of the Company Group, Executive uses in connection with or otherwise incorporates into the product, process, or device of any member of the Company Group a Prior Invention, the Company Group is hereby granted and will have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use, import, export, offer for sale, sell and otherwise commercialize such Prior Invention as part of or in connection with (i) such product, process, or device of any member of the Company Group and (ii) the conduct of the business of the Company Group.

 

v.

Executive shall perform, during and after the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group, all acts deemed necessary or desirable by the Company to permit and assist each member of the Company Group, at the Company's expense, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout the world in the Company Intellectual Property and Confidential Information assigned, to be assigned, or licensed to the Company under this Agreement. Such acts may include execution of documents and assistance or cooperation (i) in the filing, prosecution, registration, and memorialization of assignment of any applicable patents, copyrights, mask work, or other applications, (ii) in the enforcement of any applicable patents, copyrights, mask work, moral rights, trade secrets, or other proprietary rights, and (iii) in other legal proceedings related to the Company Intellectual Property or Confidential Information.

 

11

 

vi.

In the event that the Company (or, as applicable, another member of the Company Group) is unable for any reason to secure Executive's signature to any document required to file, prosecute, register, or memorialize the assignment of any patent, copyright, mask work or other applications or to enforce any patent, copyright, mask work, moral right, trade secret or other proprietary right under any Confidential Information or Company Intellectual Property (including derivative works, improvements, renewals, extensions, continuations, divisionals, continuations in part, continuing patent applications, reissues, and reexaminations of such Company Intellectual Property), Executive hereby irrevocably designates and appoints the Company and each of the Company's duly authorized officers and agents as Executive's agents and attorneys-in-fact to act for and on Executive's behalf and instead of Executive (i) to execute, file, prosecute, register and memorialize the assignment of any such application, (ii) to execute and file any documentation required for such enforcement, and (iii) to do all other lawfully permitted acts to further the filing, prosecution, registration, memorialization of assignment, issuance, and enforcement of patents, copyrights, mask works, moral rights, trade secrets or other rights under the Confidential Information or Company Intellectual Property, all with the same legal force and effect as if executed by Executive.

 

vii.

In the event that Executive enters into, on behalf of any member of the Company Group, any contracts or agreements relating to any Confidential Information or Company Intellectual Property, Executive shall assign such contracts or agreements to the Company (or the applicable member of the Company Group) promptly, and in any event, prior to Executive's termination. If the Company (or the applicable member of the Company Group) is unable for any reason to secure Executive's signature to any document required to assign said contracts or agreements, or if Executive does not assign said contracts or agreements to the Company (or the applicable member of the Company Group) prior to Executive's termination, Executive hereby irrevocably designates and appoints the Company (or the applicable member of the Company Group) and each of the Company's duly authorized officers and agents as Executive's agents and attorneys-in-fact to act for and on Executive's behalf and instead of Executive to execute said assignments and to do all other lawfully permitted acts to further the execution of said documents.

 

ARTICLE V

MISCELLANEOUS PROVISIONS

 

A.

Mediation and Arbitration.

 

i.

In the event of any dispute, controversy or claim arising out of, or in connection with or relating to this Agreement or Executive's employment, engagement, relationship or affiliation with the Company or any other member of the Company Group or any member of the Company Group's predecessors or successors (each a "Dispute" and, collectively, "Disputes"), the parties to such Dispute shall use commercially reasonable efforts to resolve such Dispute through negotiation between individuals with the authority to settle the Dispute on behalf of the parties (each, an "Authorized Decision Maker"). To this end, each such party shall cause an Authorized Decision Maker to consult and negotiate with an Authorized Decision Maker of the other party, and the parties shall attempt to reach a resolution satisfactory to both parties, recognizing that their mutual interests may not be aligned (and that each such party shall be entitled to reasonably seek to promote such party's own interests in such resolution). If the parties to a Dispute do not resolve such Dispute within thirty (30) days of the first negotiation between Authorized Decision Makers, then upon written notice by either party to the other, the Dispute shall be submitted to non-binding mediation to be administered in Dallas, Texas, by the American Arbitration Association or its successor (the "AAA") (or another mediator upon the mutual agreement of Executive and the applicable member of the Company Group). Such mediation session shall take place within sixty (60) days of the date of receipt of the written request for mediation. If the parties are not able to agree regarding the identity of the mediator within twenty (20) days from the party's delivery of the mediation demand to the other party, the AAA shall appoint a neutral mediator upon written request to the AAA by either party.

 

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ii.

In the event the applicable member of the Company Group and Executive are unable to resolve any Dispute as described above, then subject to ARTICLE V.A iii and v, any Dispute will be finally settled by arbitration in Dallas, Texas in accordance with the then-existing employment arbitration rules of the AAA (https://www.adr.org/rules-forms-and-fees/employment/). The arbitration award shall be final and binding on the parties. Any arbitration conducted under this ARTICLE V.A shall be private, and shall be heard by a single arbitrator (the "Arbitrator") selected in accordance with the then-applicable rules of the AAA. The Arbitrator shall expeditiously hear and decide all matters concerning the Dispute. Except as expressly provided to the contrary in this Agreement, the Arbitrator shall have the power to (i) gather such materials, information, testimony and evidence as the Arbitrator deems relevant to the Dispute before him or her (and each party will provide such materials, information, testimony and evidence requested by the Arbitrator), and (ii) grant injunctive relief and enforce specific performance. All Disputes shall be arbitrated on an individual basis, and each party hereto hereby foregoes and waives any right to arbitrate any Dispute as a class action or collective action or on a consolidated basis or in a representative capacity on behalf of other persons or entities who are claimed to be similarly situated, or to participate as a class member in such a proceeding. The decision of the Arbitrator shall be reasoned, rendered in writing, be final and binding upon the disputing parties and the parties agree that judgment upon the award may be entered by any court of competent jurisdiction. This ARTICLE V.A shall be governed by the Federal Arbitration Act, 9 U.S.C. §1, et seq.

 

iii.

Notwithstanding ARTICLE V.A i or ii above, either party may make a timely application for, and obtain, judicial emergency or temporary injunctive relief to enforce any of the provisions of ARTICLE IV; provided, however, that the remainder of any such Dispute (beyond the application for emergency or temporary injunctive relief) shall be subject to arbitration under this ARTICLE V.

 

iv.

By entering into this Agreement and entering into the arbitration provisions of this ARTICLE V.A, THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THEY ARE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING THEIR RIGHTS TO A JURY TRIAL WITH RESPECT TO ALL DISPUTES.

 

v.

Nothing in this ARTICLE V.A shall prohibit a party from instituting litigation to enforce any arbitration award. Further, nothing in this ARTICLE V.A precludes Executive from filing a charge or complaint with a federal, state or other governmental administrative agency.

 

B. Cooperation. During the Term and thereafter, upon request from the Company, Executive shall cooperate with the Company and its affiliates in the defense of any claims or actions that may be made by or against the Company or its affiliates that relate to Executive's actual or prior areas of responsibility.

 

C. Withholdings; Deductions. The Company may withhold and deduct from any benefits and payments made or to be made pursuant to this Agreement (a) all federal, state, local and other taxes as may be required pursuant to any law or governmental regulation or ruling and (b) any deductions consented to in writing by Executive.

 

D. Title and Headings; Construction. Titles and headings to Articles and Sections hereof are for the purpose of reference only and shall in no way limit, define or otherwise affect the provisions hereof. Any and all Exhibits or attachments referred to in this Agreement are, by such reference, incorporated herein and made a part hereof for all purposes. Unless the context requires otherwise, all references to laws, regulations, contracts, documents, agreements and instruments refer to such laws, regulations, contracts, documents, agreements and instruments as they may be amended, restated or otherwise modified from time to time, and references to particular provisions of laws or regulations include a reference to the corresponding provisions of any succeeding law or regulation. All references to "dollars" or "$" in this Agreement refer to United States dollars. The words "herein", "hereof", "hereunder" and other compounds of the word "here" shall refer to the entire Agreement, including all Exhibits attached hereto, and not to any particular provision hereof. Unless the context requires otherwise, the word "or" is not exclusive. Wherever the context so requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely. All references to "including" shall be construed as meaning "including without limitation." Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any Party hereto, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by each of the Parties hereto and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the Parties hereto.

 

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E. Severability. If an arbitrator or court of competent jurisdiction determines that any provision of this Agreement (or portion thereof) is invalid or unenforceable, then the invalidity or unenforceability of that provision (or portion thereof) shall not affect the validity or enforceability of any other provision of this Agreement, and all other provisions shall remain in full force and effect.

 

F. Entire Agreement and Amendment. This Agreement contains the entire agreement of the Parties with respect to the matters covered herein and supersedes all prior and contemporaneous agreements and understandings (including the Prior Agreement, any offer letter, or similar agreement), oral or written, between the Parties hereto concerning the subject matter hereof; provided, however, that in the event that Executive is subject to any other restrictive covenants with respect to any member of the Company Group (including with respect to confidentiality or non-disclosure, non-competition, non-solicitation, intellectual property, and non-disparagement), the restrictive covenants contained in this Agreement shall complement and be in addition to, and not supersede or be in lieu of, such other restrictive covenants (which shall remain in full force and effect in accordance with the terms thereof). This Agreement may be amended only by a written instrument executed by both Parties hereto.

 

G. Disclaimer of Reliance. Executive represents and warrants that Executive understands the final and binding effect of this Agreement, that the only promises made to Executive to sign this Agreement are those stated within the four corners of this document, and that in entering into this Agreement Executive relies on Executive's own judgment, and Executive has not relied on any representation or statement, written or oral, or any alleged omission by any other party with regard to the terms, conditions, and effect of this Agreement, including any facts, issues, or omissions which might be deemed material to Executive's decision to enter into this Agreement, other than the statements that appear in this Agreement.

 

H. Waiver of Breach. Any waiver of this Agreement must be executed by the Party to be bound by such waiver. No waiver by either Party hereto of a breach of any provision of this Agreement by the other Party, or of compliance with any condition or provision of this Agreement to be performed by such other Party, will operate or be construed as a waiver of any subsequent breach by such other Party or any similar or dissimilar provision or condition at the same or any subsequent time. The failure of either party hereto to take any action by reason of any breach will not deprive such Party of the right to take action at any time.

 

I. Counterparts. This Agreement may be executed in any number of counterparts, including by electronic mail or .pdf, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a copy hereof containing multiple signature pages, each signed by one party, but together signed by both Parties hereto.

 

J. Assignment. This Agreement is personal to Executive, and neither this Agreement nor any rights or obligations hereunder shall be assignable or otherwise transferred by Executive. The Company may assign this Agreement without Executive's consent, including to any other member of the Company Group and to any successor to or acquirer of (whether by merger, purchase or otherwise) all or substantially all of the equity, assets or businesses of the Company or other member of the Company Group.

 

K. Third-Party Beneficiaries. Each member of the Company Group that is not a signatory to this Agreement shall be a third-party beneficiary of Executive's obligations herein and shall be entitled to enforce such obligations as if a Party hereto.

 

14

 

L. Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Executive is a "disqualified individual" (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the "Code")), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any of its Affiliates or other payor, would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the present value of such total payments and benefits shall be one dollar ($1.00) less than three times Executive's "base amount" (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind in a similar order, and then reducing equity or equity-based benefits (reduced in the order of highest value to lowest value under Code Section 280G). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary (or whether Executive would be subject to such excise tax) shall be made at the expense of the Company by a firm of independent accountants, a law firm, or other valuation specialist selected by the Board in good faith prior to the consummation of the applicable change in control transaction, and the applicable independent accountants, law firm, or other valuation specialist shall consider the value, if any, of Executive's restrictive covenants (including the non-competition restrictions set forth herein) as part of its analysis as may be appropriate under Section 280G of the Code. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits used in determining if a "parachute payment" exists, exceeds one dollar ($1.00) less than three times Executive's base amount, then Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this ARTICLE V.L shall require the Company to provide a gross-up payment to Executive with respect to Executive's excise tax liabilities under Section 4999 of the Code. Notwithstanding the foregoing, in the event that no stock of the Company or its applicable Affiliates is readily tradable on an established securities market or otherwise (within the meaning of Section 280G) as of immediately prior to an applicable transaction that constitutes a "change in ownership or control" for purposes of Section 280G of the Code, the Company shall submit to a vote of stockholders for approval the portion of the payments and benefits payable to Executive that equal or exceeds three times the Executive's "base amount" (the "Excess Parachute Payments") in accordance with Treas. Reg. §1.280G-1; provided, that Executive has first, in Executive's sole discretion, executed a customary waiver of such Excess Parachute Payments (the Company makes no guarantee regarding the outcome of any such vote). If such stockholder approval is obtained in accordance with Section 280G of the Code, then the payments and benefits shall not be subject to reduction as described above.

 

M. Clawback. To the extent required by Company policy, applicable law, government regulation or any applicable securities exchange listing standards, amounts paid or payable under this Agreement or under the LTIP or any incentive plan of the Company Group shall be subject to the provisions of any applicable clawback policies or procedures adopted by the Company Group and applicable to executives of the Company Group generally, including pursuant to applicable law, government regulation or applicable securities exchange listing requirements, which clawback policies or procedures may provide for forfeiture and/or recoupment of amounts paid or payable under this Agreement or under the LTIP or any incentive plan of the Company Group in the event of material misstatements, financial restatements, other bad acts (or inaction), or other events or occurrences consistent with any government regulation or securities exchange listing requirement. The Company Group reserves the right, without the consent of Executive, to adopt any such clawback policies and procedures that are consistent with the immediately preceding sentence, including such policies and procedures applicable to this Agreement and under the LTIP or any incentive plan of the Company Group with retroactive effect.

 

15

 

N. Section 409A. This Agreement is intended to be interpreted and applied so that the payments and benefits set forth herein shall either be exempt from the requirements of Section 409A of the Code ("Section 409A") or shall comply with the requirements of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise which constitutes a "deferral of compensation" within the meaning of Section 409A. Notwithstanding anything in this Agreement or elsewhere to the contrary, 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 that constitute "non-qualified deferred compensation" within the meaning of Section 409A upon or following a termination of Executive's employment unless such termination is also a "separation from service" within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service" within the meaning of Section 409A. Notwithstanding any provision in this Agreement or elsewhere to the contrary, if on Executive's termination of employment, Executive is a "specified employee" within the meaning of Section 409A, any payments or benefits that are payable as the result of a termination of Executive's employment under any arrangement that constitutes a "deferral of compensation" within the meaning of Section 409A (whether under this Agreement, any other plan, program, payroll practice or any equity grant) and which do not otherwise qualify under the exemptions under Treasury Regulation section 1.409A-1 (including without limitation, the short-term deferral exemption and the permitted payments under Treasury Regulation section 1.409A-1(b)(9)(iii)(A)) and that otherwise would have been paid within six (6) months following such termination of employment, shall be delayed and paid or provided to Executive in a lump sum (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) on the earlier of (x) the date which is six (6) months and one day after Executive's separation from service for any reason other than death, and (y) the date of Executive's death (but not earlier than such payments or benefits would have been made absent this provision), and any remaining payments and benefits shall be paid or provided in accordance with the normal payment dates specified for such payment or benefit. With respect to any expense reimbursement benefit or in-kind benefit provided pursuant to this Agreement or otherwise, (1) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year shall not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (2) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made promptly, but in all events on or before the last day of the calendar year immediately following the calendar year in which the applicable expense is incurred, and (3) the right to payment or reimbursement hereunder may not be liquidated or exchanged for any other benefit. Each payment under this Agreement to Executive shall be deemed a separate payment for purposes of Section 409A.¹

 

O. Applicable Law. This Agreement shall in all respects be construed according to the laws of the State of Texas without regard to its conflict of laws principles that would result in the application of the laws of another jurisdiction.

 

P. Effect of Termination. The provisions of ARTICLE IV and ARTICLE V, and those provisions necessary to interpret and enforce them, shall survive any termination of this Agreement and any termination of the employment relationship between Executive and the Company.

 

{Remainder of Page Intentionally Left Blank. Signature Page Follows.}

 

 

  

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IN WITNESS WHEREOF, the Company and Executive have caused this Agreement to be executed on the date first set forth above, to be effective as of the Effective Date.

 

EXECUTIVE:
Name:	Jacobo Ortiz

 

THE COMPANY:
FERMI INC.
By:
Name:	Anna Bofa
Title:	Co-President, Office of the CEO

 

{Signature Page to Employment Agreement}

 

 

 

Exhibit A

 

PRIOR INVENTIONS

 

1. The following is a complete and accurate list of all Prior Inventions relevant to the subject matter of Executive's employment with the Company that have been made, conceived or first reduced to practice by Executive alone or jointly with others prior to Executive's employment with or affiliation with the Company:

 

Check appropriate space(s):

 

☐

None.

 

☐

See below:

 

 

☐

Due to confidentiality agreements with a prior employer, Executive cannot disclose certain Prior Inventions that would otherwise be included on the above-described list.

 

☐

Additional sheets attached.

 

2. Executive proposes to bring to Executive's employment with the Company the following devices, materials, and documents of a former employer or other person to whom Executive has an obligation of confidentiality that is not generally available to the public; provided that such materials and documents may be used by Executive in Executive's employment with the Company only in accordance with the express written authorization of Executive's former employer or such other person, as applicable (a copy of which is attached to this Agreement):

 

Check appropriate space(s):

 

☐

None.

 

☐

See below.

 

 

☐

Additional sheets attached.

 

 

 

Exhibit 10.4

 

FORM OF EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (this "Agreement") is dated as of [_], 2026, and is entered into by and between Rob Masson ("Executive") and Fermi Inc., a Texas corporation (the "Company"). The Company and Executive shall be referred to herein as the "Parties."

 

RECITALS

 

WHEREAS, the Company desires to employ Executive as Chief Financial Officer and Executive desires to serve the Company in such capacity;

 

WHEREAS, the Company and Executive desire to set forth in writing the terms and conditions of their agreement and understandings with respect to Executive's employment by the Company; and

 

WHEREAS, the Company hereby employs Executive, and Executive hereby accepts employment with the Company for the period and upon the terms and conditions contained in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

 

ARTICLE I

 SERVICES TO BE PROVIDED BY EXECUTIVE

 

A. Position and Responsibilities. During the Term (as defined below), the Company shall employ Executive as Chief Financial Officer. Executive shall report directly to the Company's Chief Executive Officer. Executive shall also have such other duties and responsibilities that are commensurate with Executive's position as specifically delegated to him from time to time by the Chief Executive Officer, which duties and responsibilities may include providing services to other members of the Company Group (as defined below) in addition to the Company, and Executive agrees to diligently perform such duties and responsibilities.

 

B. Performance. During the Term, Executive shall devote on a full-time basis all of Executive's business time to the performance of Executive's duties hereunder in a manner that will faithfully and diligently further the business and interests of the Company and its direct and indirect subsidiaries (the "Company Group"), and Executive shall exercise Executive's best efforts to perform Executive's duties in a diligent, trustworthy, good faith and business-like manner, all for the purpose of advancing the business of the Company Group. During the Term, Executive shall act in a manner consistent with Executive's position. During the Term, without the prior written consent of the Board of Directors (the "Board"), Executive (i) shall not be employed by any other entity, and (ii) shall not serve as a member of any board of directors or similar governing body of any Person (as defined below) other than a member of the Company Group. Notwithstanding the foregoing, Executive (x) may make charitable donations and engage in such civic, religious, trade or industry group activities as Executive determines (and following notice to the Board, may hold board, trustee and similar positions in connection with the foregoing), (y) may, following notice to the Board, serve as a trustee of, or in any other similar capacity with, any present or future agency or not-for-profit organization, and (z) may manage his personal investments and affairs, provided that such activities referenced in clauses (x), (y) and (z) do not interfere with Executive's ability to fulfill Executive's duties to the Company Group (whether individually or in the aggregate), create a conflict of interest, or otherwise violate the terms of this Agreement. In addition, during the Term, Executive may serve on the board of directors of one public company and one additional private corporation, Tech Etch, Inc., of Plymouth, Massachusetts, following notice to the Board, so long as such service does not create a conflict of interest, or otherwise violate the terms of this Agreement. Executive hereby represents and warrants that as of the Effective Date (as defined below) there exist (i) no actual or potential Conflict of Interest (as defined below), and (ii) except as previously disclosed by Executive in writing to the Company, there are no current or pending lawsuits, claims, charges or arbitrations filed or threatened against or involving Executive or any trust or vehicle owned or controlled by Executive. Promptly (and in any event, within ten Business Days) upon becoming aware of (i) any actual or potential Conflict of Interest or (ii) any lawsuit, claim, charge or arbitration filed against or involving Executive or any trust or vehicle owned or controlled by Executive, in each case, Executive shall disclose such actual or potential Conflict of Interest or such lawsuit, claim, charge or arbitration to the Board. "Business Day" means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York or Dallas, Texas are authorized or required by law to be closed. A "Conflict of Interest" shall exist when Executive engages in, or plans to engage in, any activities, associations, or interests that conflict with, or create an appearance of a conflict with, Executive's duties, responsibilities, authorities, or obligations for and to any member of the Company Group.

 

 

 

C. Conduct and Compliance with Policies. During the Term, Executive shall act in accordance with high business and ethical standards. During the Term, Executive shall comply with the written policies, codes of conduct, codes of ethics and written manuals of the Company Group (collectively, the "Policies"), in each case, which are applicable to Executive.

 

D. Prior Employer Representations. Executive represents that, except as disclosed to the Company in writing prior to the Effective Date, Executive is not bound by the terms of any agreement with any previous employer or other party that prohibits Executive from assuming employment with the Company or performing services on any member of the Company's Group's behalf (including, for the avoidance of doubt, any non-competition, non-solicitation or non-recruitment obligations). Executive further represents that the performance of Executive's job duties for the Company and any other member of the Company Group does not and will not violate or breach any agreement with any previous employer or other party, or any legal obligation that Executive may owe to any previous employer or other party, including any non-disclosure, non-competition, non-solicitation or non-recruitment obligations. Executive shall abide by all obligations that Executive may owe to prior employers and other third parties, and shall not disclose to the Company or any other member of the Company Group or induce any member of the Company Group to use any confidential, proprietary or trade secret information belonging to any previous employer or others Executive acknowledges and agrees that Executive is strictly prohibited from using or disclosing any confidential information belonging to any prior employer in the course of performing services for any member of the Company Group, and Executive promises that Executive shall not do so. Executive shall not introduce documents or other materials containing confidential information of any prior employer to the premises or property (including computers and computer systems) of any member of the Company Group.

 

ARTICLE II

COMPENSATION

 

A. Compensation. During the Term (as defined below), the Company shall pay Executive an annualized base salary in the amount of $650,000 less applicable taxes and other withholdings ("Base Salary"), payable in accordance with the Company's payroll practices applicable to executive employees. Executive's Base Salary may be increased, but not decreased, from time to time in the Company's sole discretion, provided that Executive's Base Salary shall be reviewed for potential increase no less frequently than annually.

 

B. Annual Bonus. With respect to each complete calendar year during the Term, Executive shall be eligible to participate in the Company's short-term incentive plan (the "STIP") as in effect from time to time. Executive's target annual bonus opportunity under the STIP shall initially be equal to 100% of Executive's Base Salary, subject to adjustments by the Company in its sole discretion. The actual amount of any annual bonus (the "Annual Bonus") shall be determined by the Company based on achievement of performance goals established by the Company in its sole discretion, up to a maximum of 200% of Executive's target Annual Bonus. Any earned Annual Bonus with respect to any calendar year during the Term shall be paid to Executive after the Board (or a committee thereof) certifies whether the applicable performance targets for the applicable year have been achieved, and in the time and manner provided by the Company's short-term incentive plan, provided that Executive is employed by the Company on the date such Annual Bonus is paid. The payment of any Annual Bonus shall be subject to all federal, state and withholding taxes, social security deductions and other general withholding obligations. Award of an Annual Bonus with respect to a particular calendar year does not guarantee the award of an Annual Bonus in any subsequent calendar year. The Company may elect to pay any applicable Annual Bonus in cash or in shares of common stock of the Company based on the then-fair-market-value of such stock.

 

C. Equity Awards. With respect to each calendar year during the Term, Executive shall be eligible to participate in the Company's long-term equity incentive plan (the "LTIP") as in effect from time to time. Executive's target annual long-term incentive opportunity under the LTIP shall initially have an aggregate grant date value of $3,000,000. The value and other terms and conditions of any long-term equity incentive awards granted to Executive shall be determined by the Company in its sole discretion. In addition, in connection with the commencement of Executive's employment, the Company shall grant Executive a one-time sign-on equity award of 975,000 Restricted Stock Units that shall cliff vest on the first anniversary of the grant date subject to the terms and conditions of the LTIP and the applicable award agreement (the "Sign-On Award"). All awards granted to Executive under the LTIP shall be subject to and governed by the terms and provisions of the LTIP as in effect from time to time and the individual award agreements evidencing such awards.

 

2

 

D. Business Expenses. The Company agrees that, during Executive's employment, it will reimburse Executive for out-of-pocket expenses reasonably incurred in connection with Executive's performance of Executive's services hereunder, upon the presentation by Executive of an itemized accounting of such expenditures, with supporting receipts, provided that Executive submits such expenses for reimbursement in accordance with the Company's expense reimbursement policy.

 

E. Relocation Expenses; Temporary Housing Costs. The Company shall pay, or reimburse Executive for, reasonable expenses incurred by Executive relating to Executive's relocation to Texas in order to assume Executive's employment hereunder; provided, however, such expense payment or reimbursement shall not exceed $200,000 in total and all expenses shall be subject to Executive satisfying the Company's reasonable documentation requests with respect to such relocation expenses (the "Relocation Expenses"). In addition to the Relocation Expenses, the Company shall provide Executive with an additional payment (the "Relocation Payment") equal to all applicable federal, state, and local taxes imposed on the Relocation Expenses and Relocation Payment so that the net amount received by Executive pursuant to this ARTICLE II.E. is equal to the Relocation Expenses. If Executive terminates Executive's employment without Good Reason or is terminated by the Company for Cause, in each case before the first anniversary of the Effective Date, the Executive shall be required to repay the Company the gross amount of any Relocation Expenses and Relocation Payment paid or reimbursed under this ARTICLE II.E. In addition to the Relocation Expenses and Relocation Payment, the Company will reimburse Executive for, or pay on Executive's behalf, Executive's reasonable expenses incurred in securing temporary housing in Dallas, Texas for up to six months following the Effective Date (such expenses, the "Housing Expenses").

 

F. Benefits. Executive shall be eligible to participate in the same benefit plans and programs in which other similarly situated executives of the Company are eligible to participate subject to the terms and conditions of the applicable plans and programs in effect from time to time. Such plans may be modified, amended, terminated, or replaced from time to time by the Company, in its sole discretion.

 

ARTICLE III

TERM; TERMINATION

 

A. Term of Employment. The term of Executive's employment under this Agreement shall begin on July 20, 2026 (the "Effective Date") and shall continue in effect until the fifth (5) anniversary of the Effective Date (the "Initial Term"), unless earlier terminated by any Party in accordance with ARTICLE III.B. Upon the expiration of the Initial Term, so long as Executive's employment hereunder has not earlier terminated, this Agreement shall automatically renew for additional, successive one (1) year terms (each, a "Renewal Term") unless either Party delivers written notice to the other Party not less than thirty (30) days prior to the expiration of the Initial Term or any Renewal Term of such Party's intention not to renew this Agreement. For the avoidance of doubt, Executive's employment hereunder may be terminated during the Initial Term or any Renewal Term in accordance with ARTICLE III.B. The period from the Effective Date through the expiration of this Agreement or, if sooner, the termination of Executive's employment pursuant to this Agreement, regardless of the time or reason for such termination, shall be referred to herein as the "Term."

 

B. Termination of Employment. Any Party may terminate Executive's employment at any time during the Term upon sixty (60) days' written notice of termination (the "Notice Period"), except that the Company need not provide advance notice for termination of Executive's employment for Cause pursuant to ARTICLE III.B.i (except as otherwise provided therein) and neither the Company nor Executive shall be required to give more than thirty (30) days' notice of non-renewal of the then-existing Initial Term or Renewal Term as set forth in ARTICLE III.A. The date of Executive's termination (the "Termination Date") shall be (i) if Executive's employment is terminated by Executive's death, the date of Executive's death; or (ii) the date stated in the notice of termination. Upon termination of Executive's employment for any reason, the Company shall pay Executive (i) any unpaid Base Salary earned and accrued through the date of termination (payable in the normal course or such earlier time required by applicable law); (ii) any accrued but unused vacation through the date of termination (payable at the time of the payment described in clause (i)); (iii) vested benefits in accordance with the Company Group's employee benefit plans; and (iv) any unreimbursed business expenses properly incurred prior to such termination, to be reimbursed in accordance with the Company's business expense reimbursement policy (collectively, the "Accrued Obligations").

 

 

i.

Termination for Cause by the Company or Resignation by Executive without Good Reason. If, at any time during the Term, the Company terminates Executive's employment for Cause (as defined below) or Executive resigns from employment without Good Reason the Company may, in its sole discretion, shorten or eliminate the Notice Period and determine the date of termination without any obligation to pay Executive any additional compensation other than the Accrued Obligations, and without triggering a termination of Executive's employment without Cause.

 

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ii.

Termination Without Cause by the Company; Resignation by Executive for Good Reason; Non-Renewal by the Company. If, at any time during the Term, the Company terminates Executive's employment without Cause, or if Executive's employment hereunder terminates for Good Reason or upon the expiration of the Initial Term or any Renewal Term due to delivery of a notice of non-renewal by the Company pursuant to ARTICLE III.A, the Company Group shall have no further liability or obligation to Executive under this Agreement for compensation or employee benefits, but the Company shall pay or provide the following amounts to Executive: (a) the Accrued Obligations; and (b) subject to Executive's continued compliance with this Agreement, and execution and return to the Company during the Release Consideration Period (as defined below), and non-revocation within any time provided by the Company to do so, of a release of claims in a form acceptable to the Company (the "Release"), which Release shall be provided to Executive by the Company within seven (7) days following the Termination Date, (1) continued payment of Executive's Base Salary as of immediately prior to such Termination Date (the "Base Salary Continuation") for a period of eighteen (18) months following the Termination Date (the "Severance Period"); (2) a payment equal to the product of (x) 1.5 and (y) Executive's target Annual Bonus for the year in which the Termination Date occurs (the "Severance Bonus"); (3) the Prior Year Bonus (as defined below); (4) full vesting of the Sign-On Award to the extent unvested as of the Termination Date (the "Accelerated Vesting"); and (5) subject to Executive's timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or the state equivalent ("COBRA"), and Executive's continued copayment of premiums at the same level and cost to the Executive as if Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee's ability to pay premiums with pre-tax dollars), provide continued participation in the Company's group health plan (to the extent permitted under applicable law and the terms of such plan) that covers Executive (and Executive's eligible dependents) for a period of eighteen months following the date of termination; provided that Executive is eligible and remains eligible for COBRA coverage and that any amounts paid by the Company toward such COBRA coverage shall be reported as additional taxable income to Executive; and provided, further, that such continuation of coverage by the Company shall immediately cease upon the date that Executive is eligible to receive group health benefits from a subsequent employer (such coverage being referred to as the "COBRA Payments" and, collectively with the Base Salary Continuation, Severance Bonus, the Prior Year Bonus, and the Accelerated Vesting, the "Severance Benefits"). The first installment of the Base Salary Continuation shall be provided on the Company's first payroll date after the effective date of the Release, provided that the first installment shall include (without interest) a catch-up for any payments that would have been made prior to such first installment had the Release been effective on the date of Executive's termination of employment; provided, that, if the Release Consideration Period spans two (2) calendar years, the first payment shall not be made sooner than the first day of the second year, and shall include any missed payments. In the event Executive fails to comply with the terms of ARTICLE IV or does not timely execute and return (or revokes) the Release, no amount shall be payable to Executive pursuant to this ARTICLE III.B.ii (other than the Accrued Obligations). For the avoidance of doubt, if the Release is not executed and returned to the Company during the Release Consideration Period, or Executive revokes the Release, then Executive shall not be entitled to any portion of the Severance Benefits. As used herein, the "Release Consideration Period" is the period of time starting on the date that is twenty-one (21) days following the date upon which the Company delivers the Release to Executive or, in the event that such termination of employment is "in connection with an exit incentive or other employment termination program" (as such phrase is defined in the Age Discrimination in Employment Act of 1967) and Executive is age 40 or over as of the Termination Date, the date that is forty-five (45) days following such delivery date.

 

iii.

Termination Due to Death or Disability. If, at any time during the Term, Executive's employment is terminated due to Executive's death or Disability (as defined below), the Company Group shall have no further liability or obligation to Executive for compensation or employee benefits under this Agreement, except that the Company shall pay or provide the following amounts: (a) the Accrued Obligations; (b) the Prior Year Bonus; (c) the Accelerated Vesting; and (d) a payment equal to Executive's target Annual Bonus for the year in which the Termination Date occurs, payable at the same time as bonuses are paid to other senior executives of the Company. Notwithstanding the foregoing, Executive's (or, following Executive's death, Executive's estate's) right to receive the amounts described in ARTICLE III.B.iii(b)-(d) shall be subject to Executive's (or an authorized representative of Executive's estate's) timely satisfying the same requirements with respect to the Release (including signing and returning the Release within the Release Consideration Period, and not exercising any revocation right set forth in the Release) that are a condition of Executive's receipt of the Severance Benefits following a termination described in ARTICLE III.B.ii. All amounts that become due to Executive under ARTICLE III.B.iii(b) and (d) shall be paid to Executive (or Executive's estate, if applicable) on the Company's first payroll date that is thirty (30) days after the effective date of the Release.

 

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iv.

Expiration due to Delivery of Notice of Non-Renewal by Executive. If Executive's employment hereunder is terminated upon the expiration of the Initial Term or any Renewal Term due to delivery of a notice of non-renewal by Executive pursuant to ARTICLE III.A, the Company Group shall have no further liability or obligation to Executive for compensation or employee benefits under this Agreement, except that the Company shall pay or provide the Accrued Obligations.

 

v.

Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)

"Affiliate" of any Person means any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person.

 

(b)

"Cause" means the occurrence of any of the following events: (i) an act or acts of theft, embezzlement, fraud, or dishonesty by Executive, regardless of whether it relates to the Company; (ii) a willful or material misrepresentation by Executive that relates to the Company Group and has (or would be reasonably expected to have) an adverse impact on the Company Group; (iii) any violation by Executive of any fiduciary duties owed by Executive to the Company Group; (iv) Executive's conviction of, or pleading nolo contendere or guilty to, a felony (other than a traffic infraction); (v) Executive's breach of the Company's written code of conduct and business ethics or other material written policy or procedure applicable to Executive in effect from time to time relating to personal conduct, which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged violation; (vi) Executive's willful failure to substantially perform Executive's responsibilities to the Company under this Agreement, after written demand for substantial performance has been given by the Board that specifically identifies how Executive has not substantially performed Executive's responsibilities, which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged failure or refusal; (vii) a material breach by Executive of this Agreement which Executive failed to cure (if the Board determines that the breach is capable of cure) within ten (10) calendar days after receiving written notice from the Board specifying the alleged breach; or (viii) Executive fails or refuses to comply with any applicable law or regulation, whether such failure or refusal occurred before or during Executive's employment with the Company, and such failure, in the reasonable judgment of the Company, has harmed or is reasonably likely to harm the Company, or otherwise interferes with Executive's ability to carry out Executive's job duties for the Company. Further, (1) a resignation by Executive at a time when grounds for Cause exist shall be deemed to be a termination of Executive's employment by the Company for Cause and (2) "Cause" will be deemed to have occurred immediately as of the time that Executive engages in any of the circumstances described in clauses (i) through (viii) if Executive has previously received notice of and thereafter cured such circumstances.

 

(c)

"Disability" means that the Board determines that Executive is unable to perform the essential functions of Executive's position (after accounting for reasonable accommodation, if applicable and required by applicable law), due to physical or mental impairment that continues, or can reasonably be expected to continue, for a period in excess of one hundred twenty consecutive days or one hundred eighty days, whether or not consecutive (or for any longer period as may be required by applicable law), in any twelve-month period.

 

(d)

"Good Reason" means the occurrence of any of the following events without Executive's prior consent: (i) a material diminution in Executive's authority, responsibilities, title and duties; (ii) a material reduction in Executive's Base Salary, target Annual Bonus opportunity or target annual LTIP opportunity other than a uniform reduction applied to substantially all senior officers of the Company; (iii) a breach of this Agreement by the Company; (iv) a relocation of Executive's primary office location to a distance of more than fifty (50) miles from its location as of the Effective Date (which primary office location, the parties agree, shall be in Dallas, Texas as of the Effective Date). Notwithstanding the foregoing, in order for Executive's termination to be for Good Reason, Executive must provide the Company written notice within thirty (30) days after the initial occurrence of the event or events alleged to constitute Good Reason of Executive's intent to terminate Executive's employment for Good Reason and specifying the reasons for such alleged Good Reason, and provide the Company with thirty (30) days after receipt of such notice from Executive to remedy the alleged action(s) giving rise to the Good Reason event. In the event the Company does not timely cure the violation, if Executive does not terminate Executive's employment within fifteen (15) days following the last day of the cure period, the occurrence of the violation shall not subsequently serve as Good Reason for purposes of this Agreement. Further notwithstanding the foregoing, no suspension of Executive or a reduction in Executive's authority, responsibilities, title or duties in conjunction with any leave required, or any other action taken, by the Company as part of an investigation into alleged wrongdoing by Executive shall give rise to Good Reason.

 

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(e)

"Person" means a natural person or any corporation, limited liability company, partnership, limited partnership, joint venture, unincorporated organization, trust, estate, governmental entity, or other entity.

 

(f)

"Prior Year Bonus" means the Annual Bonus payable with respect to the calendar year immediately preceding the calendar year in which Executive's employment with the Company terminates, to the extent unpaid prior to such termination of employment, and to be paid at the same time as if no such termination of employment had occurred.

 

ARTICLE IV

RESTRICTIVE COVENANTS

 

A. Confidentiality. In the course of Executive's employment with the Company and the performance of Executive's duties on behalf of the Company Group hereunder, Executive will be provided with, and will have access to, Confidential Information (defined below). In consideration of Executive's receipt of and access to such Confidential Information, and as a condition of Executive's employment hereunder, Executive shall comply with this ARTICLE IV.A.

 

i.

Both during the Term and thereafter, except as expressly permitted by this Agreement or by directive of the Board, Executive shall not disclose any Confidential Information to any Person or entity and shall not use any Confidential Information except for the benefit of the Company Group. Executive shall follow all Company Group policies and protocols regarding the security of all documents and other materials containing Confidential Information (regardless of the medium on which Confidential Information is stored). Except to the extent required for the performance of Executive's duties on behalf of the Company Group, Executive shall not remove from the facilities of any member of the Company Group any equipment, drawings, notes, reports, manuals, invention records, computer software, customer information, or other data or materials that relate in any way to the Confidential Information, whether paper or electronic and whether produced by Executive or obtained by the Company Group.

 

ii.

Notwithstanding any provision of this ARTICLE IV to the contrary, Executive may make the following disclosures and uses of Confidential Information:

 

(a)

disclosures to other employees of a member of the Company Group who have a need to know Confidential Information in connection with the businesses of the Company Group;

 

(b)

disclosures and uses that are approved in writing by the Board; or

 

(c)

disclosures to a Person or entity that has been retained by a member of the Company Group to provide services to one or more members of the Company Group and agreed in writing to abide by the terms of a confidentiality agreement in a form acceptable to the Company.

 

iii.

Upon the expiration of the Term, and at any other time upon request of the Company, Executive shall promptly surrender and deliver to the Company all documents (including electronically stored information) and all copies thereof and all other materials of any nature containing or pertaining to all Confidential Information and any other Company Group property (including any Company Group-issued computer, mobile device or other equipment) in Executive's possession, custody or control and Executive shall not retain any such documents or other materials or property of the Company Group. Within five days of such expiration or any such request, Executive shall certify to the Company in writing that all such documents, materials and property have been returned to the Company.

 

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iv.

"Confidential Information" means all confidential, competitively valuable, non-public or proprietary information that is conceived, made, developed or acquired by or disclosed to Executive (whether conveyed orally or in writing), individually or in conjunction with others, during the period that Executive is or has been employed or engaged by the Company or any other member of the Company Group (whether during business hours or otherwise and whether on the Company's premises or otherwise) including: (i) technical information of any member of the Company Group, its affiliates, its customers or other third parties, including computer programs, software, databases, data, ideas, know-how, formulae, compositions, processes, discoveries, machines, inventions (whether patentable or not), designs, developmental or experimental work, techniques, improvements, work in process, research or test results, original works of authorship, training programs and procedures, diagrams, charts, business and product development plans, and similar items; (ii) information relating to any member of the Company Group's businesses or properties, products or services (including all such information relating to corporate opportunities, operations, future plans, methods of doing business, business plans, strategies for developing business and market share, research, financial and sales data, pricing terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or acquisition targets or their requirements, the identity of key contacts within customers' organizations or within the organization of acquisition prospects, or marketing and merchandising techniques, prospective names and marks); (iii) other valuable, confidential information and trade secrets of any member of the Company Group, its affiliates, its customers or other third parties; and (iv) any other information that is competitively valuable to any member of the Company Group by virtue of not being known to the general public. Moreover, all documents, videotapes, written presentations, brochures, drawings, memoranda, notes, records, files, correspondence, manuals, models, specifications, computer programs, e-mail, voice mail, electronic databases, maps, drawings, architectural renditions, models and all other writings or materials of any type including or embodying any of such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of expression are and shall be the sole and exclusive property of the Company or the other applicable member of the Company Group and be subject to the same restrictions on disclosure applicable to all Confidential Information pursuant to this Agreement. For purposes of this Agreement, Confidential Information shall not include any information that is or becomes generally available to the public other than as a result of a disclosure or wrongful act of Executive or any of Executive's agents; was available to Executive on a non-confidential basis before its disclosure by a member of the Company Group to Executive at any time; or becomes available to Executive on a non-confidential basis from a source other than a member of the Company Group; provided, however, that such source is not bound by a confidentiality agreement with, or other obligation with respect to confidentiality to, a member of the Company Group.

 

v.

Executive acknowledges and agrees that Confidential Information is a special and unique asset of the Company Group, and that any unauthorized disclosure or unauthorized use of any Confidential Information by Executive will cause irreparable harm and loss to the Company Group. Executive understands and acknowledges that Confidential Information (i) has been developed by the Company Group at significant effort and expense and is sufficiently secret to derive economic value from not being generally known to other parties, and (ii) constitutes a protectable business interest of the Company Group. Executive acknowledges and agrees that the Company Group owns the Confidential Information. Executive agrees not to dispute, contest, or deny any such ownership rights either during or after Executive's employment with any member of the Company Group. Executive agrees to preserve and protect the confidentiality of all Confidential Information. Executive agrees that during the period of Executive's employment with any member of the Company Group and after Executive's termination from employment for any reason, Executive shall not directly or indirectly, disclose to any unauthorized Person or entity or use for Executive's own account any Confidential Information without the Board's prior written consent. Throughout Executive's employment with any member of the Company Group and thereafter: (x) Executive shall hold all Confidential Information in the strictest confidence, take all reasonable precautions to prevent its inadvertent disclosure to any unauthorized person, and follow all Company Group policies protecting the Confidential Information; and (y) Executive shall not, directly or indirectly, utilize, disclose or make available to any other Person or entity, any of the Confidential Information, other than in the proper performance of Executive's duties on behalf of the Company Group. Further, Executive shall not, directly or indirectly, use the Company Group's Confidential Information to: (1) call upon, solicit business from, attempt to conduct business with, conduct business with, interfere with or divert business away from any customer, client, service provider, supplier or vendor of the Company Group with whom or which the Company Group conducted business or (2) recruit, solicit, hire or attempt to recruit, solicit, or hire, directly or by assisting others, any Persons employed or engaged by any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, or to engage in or participate within the Market Area (as defined below) in any aspect of the Business (as defined below).

 

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vi.

Notwithstanding the foregoing, nothing in this Agreement or any other agreement between Executive and any member of the Company Group shall prohibit or restrict Executive from: (i) initiating communications directly with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting in an investigation by, any governmental agency (including the Department of Justice, Securities and Exchange Commission, Department of Labor, Equal Employment Opportunity Commission, National Labor Relations Board, Congress, any Inspector General and any other governmental agency, commission, or regulatory authority) regarding a possible violation of any law; (ii) responding to any inquiry or legal process directed to Executive from any governmental agency; (iii) testifying, participating or otherwise assisting in any action or proceeding by any governmental agency relating to a possible violation of law; (iv) disclosing an act of sexual abuse or facts related to an act of sexual abuse to any other person; or (v) making any other disclosures that are protected under the whistleblower provisions of any applicable law. Nothing in this Agreement requires Executive to obtain prior authorization before engaging in any conduct described in the preceding sentence, or to notify the Company or any other member of the Company Group that Executive has engaged in any such conduct. Additionally, pursuant to the federal Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney and (2) solely for the purpose of reporting or investigating a suspected violation of law; (B) is made to the individual's attorney in relation to a lawsuit for retaliation against the individual for reporting a suspected violation of law; or (C) is made in a complaint or other document filed in a lawsuit or proceeding, if such filing is made under seal.

 

B. Non-Competition; Non-Solicitation.

 

i.

The Company shall provide Executive access to Confidential Information for use only during the Term, and Executive acknowledges and agrees that the Company will be entrusting Executive, in Executive's unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Executive hereunder, Executive has voluntarily agreed to the covenants set forth in this ARTICLE IV.B. Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, do not interfere with public interests, will not cause Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group's Confidential Information, goodwill and other legitimate business interests.

 

ii.

During the Prohibited Period (as defined below), Executive shall not, without the prior written approval of the Board, directly or indirectly (other than on behalf of the Company Group), for Executive or on behalf of or in conjunction with any other Person or entity of any nature:

 

(a)

engage in or participate within the Market Area (as defined below) in competition with the Company or any other member of the Company Group in or with respect to any aspect of the Business (as defined below), which prohibition shall prevent Executive from directly or indirectly: (A) owning, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any Person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (B)) in which Executive's duties or responsibilities involve the Business and are the same as or similar to (or involve direct or indirect oversight over duties or responsibilities that are the same as or similar to) the duties or responsibilities that Executive had on behalf of or with respect to the Company during the Term;

 

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(b)

solicit, canvass, approach, encourage, entice or induce any actual or prospective customer, supplier, client, service provider, vendor or other business relation of any member of the Company Group for whom or which Executive had direct or indirect responsibility for any member of the Company Group or about whom or which Executive obtained Confidential Information during the Term to cease or lessen (or refrain from) such actual or prospective customer's, supplier's, client's, service provider's, vendor's or other business relation's business or relationship with any member of the Company Group; or

 

(c)

solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group, or to engage in or participate within the Market Area (as defined below) in any aspect of the Business (as defined below). Notwithstanding the foregoing, nothing in this ARTICLE IV.B.ii.(c) shall prohibit Executive from engaging in general solicitations of employment not specifically directed at employees of the Company Group (including through general advertisements or other broadly disseminated recruiting efforts), provided that the Executive did not directly or indirectly target or solicit any such employee or group of employees.

 

iii.

Because of the difficulty of measuring economic losses to the Company as a result of a breach or threatened breach of the covenants set forth in this ARTICLE IV, and because of the immediate and irreparable damage that would be caused to the Company for which it would have no other adequate remedy, the Company and the other members of the Company Group shall be entitled to enforce the provisions of this ARTICLE IV in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy. If a bond is required to secure such equitable relief, the Parties agree that a bond not to exceed $1,000 shall be sufficient and adequate in all respects to protect the rights and interests of the Parties. The aforementioned equitable relief shall not be the Company's or any of its Affiliates' exclusive remedy for a breach, but instead shall be in addition to all other rights and remedies available to the Company and each of its affiliates, at law and equity, including the recovery of damages and reasonable attorneys' fees from Executive, Executive's agents, any future employer of Executive, and any Person that conspires or aids and abets Executive in a breach or threatened breach of this Agreement. In the event of a breach by Executive of ARTICLE IV, Executive immediately forfeits any unpaid Severance Benefits, as applicable, from the date of such breach, and the Company Group shall be entitled (in addition to all other remedies available, at law and equity) to (i) cease payment of any unpaid Severance Benefits, as applicable, and (ii) recover any Severance Benefits, as applicable, paid to Executive from the date of such breach. Further, if Executive violates any of the restrictions contained in this ARTICLE IV, the Prohibited Period with respect to such restriction shall be suspended and shall not run in favor of Executive from the time of the commencement of any violation until the time when Executive is no longer in violation of such provision; the period of time in which Executive is in breach shall be added to the Prohibited Period,

 

iv.

The covenants in this ARTICLE IV, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the Parties that such restrictions be severed or reformed, and then enforced to the fullest extent which court deems reasonable, and this Agreement shall thereby be reformed.

 

v.

Definitions. For purposes of this Agreement, the following terms shall have the following meanings:

 

(a)

"Business" shall mean the business and operations that are the same or similar to those performed by the Company or any other member of the Company Group for which Executive provided services during the Term, which business and operations include (x) services related to behind-the-meter ("BTM") power generation or data center co-location, (y) the operation of nuclear, natural gas, or solar generation assets; the development or management of BTM energy provisioning for hyperscale tenants; the deployment of advanced cooling technologies, including air-cooled condensers; the creation or operation of turnkey digital and energy platforms for defense-aligned or AI-intensive data center operations; or the full lifecycle management of nuclear facilities, including licensing, regulatory compliance, infrastructure development, tenant power delivery, and decommissioning, and (z) any prospective business any member of the Company Group considered or pursued and for which Executive had direct or indirect responsibility with respect to such consideration or pursuit, or about which Executive obtained Confidential Information, during the Term.

 

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(b)

"Market Area" shall mean the State of Texas, and any other geographic area with respect to which Executive performed any services for any member of the Company Group in the last 24 months of the Term (or, during the Term if the Term is less than 24 months).

 

(c)

"Prohibited Period" shall mean the period during which Executive is employed by any member of the Company Group and continuing for a period of twenty-four (24) months following the date that Executive is no longer employed by any member of the Company Group.

 

vi.

Notwithstanding the restrictions contained herein, Executive may own, directly or indirectly, solely as an investment, securities of any company which is engaged in the Business in the Market Area that are traded on any national securities exchange, provided that Executive is not a controlling person of, or member of a group that controls such business, and provided further that Executive does not, directly or indirectly, own two percent (2%) or more of any class of securities of such business or have the power, directly or indirectly, to control or direct the management or affairs of any such business and is not involved in the management of such business. The restrictions contained in this Agreement also shall not limit or restrict Executive from investing in a private equity fund, venture capital fund, mutual fund or other investment similar to any of the foregoing, in each case, that has an interest in a company which is engaged in the Business in the Market Area, provided that such investment is passive and Executive does not participate in the management or operations of any such fund or portfolio company thereof that is engaged in the Business in the Market Area whether as a consultant or in any other capacity.

 

C. Non-Disparagement. Subject to ARTICLE IV.A.vi above, during the Term and at all times thereafter, Executive agrees not to make any statement, either directly or indirectly, that is intended, or reasonably may be expected, to become public and which disparages, defames, casts in a false light, is injurious to the business or professional reputation of, or that could reasonably be considered to adversely affect the goodwill of, the Company, any other member of the Company Group or any of their respective Affiliates, or any of the foregoing Persons' shareholders, businesses, employees, officers or directors. For the avoidance of doubt, the foregoing sentence shall not prevent Executive from (A) disclosing information if legally required (whether by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process), (B) acting in good faith to enforce Executive's rights under this Agreement, or (C) making any statements required by applicable law or to any governmental agency, including any statements permitted pursuant to ARTICLE IV.A.vi above.

 

D. Ownership of Intellectual Property.

 

i.

Executive agrees that the Company shall own, and Executive agrees to assign to the Company, and Executive hereby assigns to the Company, all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, and all other intellectual and industrial property rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), discoveries, developments, improvements, innovations, works of authorship, mask works, designs, know-how, ideas, formulae, processes, techniques, data and information authored, created, contributed to, made or conceived or reduced to practice, in whole or in part, by Executive during the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group, whether or not registerable under U.S. law or the laws of other jurisdictions, that either (a) relate, at the time of conception, reduction to practice, creation, derivation or development, to any member of the Company Group's businesses or actual or anticipated research or development, or (b) were developed on any amount of the Company's or any other member of the Company Group's time or with the use of any member of the Company Group's equipment, supplies, facilities or Confidential Information (all of the foregoing collectively referred to herein as "Company Intellectual Property"), and Executive shall promptly disclose all Company Intellectual Property to the Company in writing. To support Executive's disclosure obligation herein, Executive shall keep and maintain adequate and current written records of all Company Intellectual Property made by Executive (solely or jointly with others) during the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group in such form as may be specified from time to time by the Company. These records shall be available to, and remain the sole property of, the Company at all times.

 

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ii.

All of Executive's works of authorship and associated copyrights created during the period in which Executive is employed by or affiliated with the Company or any other member of the Company Group and in the scope of Executive's employment or engagement shall be deemed to be "works made for hire" within the meaning of the Copyright Act. To the extent any right, title and interest in and to Company Intellectual Property cannot be assigned by Executive to the Company, Executive agrees to grant, and does hereby grant, to the Company Group an exclusive, perpetual, royalty-free, transferable, irrevocable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to make, have made, use, sell, offer for sale, import, export, reproduce, practice and otherwise commercialize such rights, title and interest.

 

iii.

To the extent allowed by law, the following sentence applies to all rights that may be known as or referred to as "moral rights," "artist's rights," "droit moral," or the like, including without limitation those rights set forth in 17 U.S.C. §106A (collectively, "Moral Rights"). To the extent Executive retains any Moral Rights under applicable law, Executive hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by the Company or any member of the Company Group, and Executive hereby waives and agrees not to assert any Moral Rights with respect to such Moral Rights. Executive shall confirm any such ratifications, consents, waivers, and agreements from time to time as requested by the Company.

 

iv.

All inventions (whether or not patentable), original works of authorship, designs, know-how, mask works, ideas, trademarks or names, information, developments, improvements, and trade secrets of which Executive is the sole or joint author, creator, contributor, or inventor that were made or developed by Executive prior to Executive's employment with or affiliation with the Company or any other member of the Company Group, or in which Executive asserts any intellectual property right, and which are applicable to or relate in any way to the business, products, services, or demonstrably anticipated research and development or business of any member of the Company Group ("Prior Inventions") are listed on Exhibit A, and Executive represents that Exhibit A is a complete list of all such Prior Inventions. If no such list is attached, Executive hereby represents and warrants that there are no Prior Inventions, and Executive shall make no claim of any rights to any Prior Inventions. If, in the course of Executive's employment with or affiliation with the Company or any other member of the Company Group, Executive uses in connection with or otherwise incorporates into the product, process, or device of any member of the Company Group a Prior Invention, the Company Group is hereby granted and will have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use, import, export, offer for sale, sell and otherwise commercialize such Prior Invention as part of or in connection with (i) such product, process, or device of any member of the Company Group and (ii) the conduct of the business of the Company Group.

 

v.

Executive shall perform, during and after the period in which Executive is or has been employed by or affiliated with the Company or any other member of the Company Group, all acts deemed necessary or desirable by the Company to permit and assist each member of the Company Group, at the Company's expense, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout the world in the Company Intellectual Property and Confidential Information assigned, to be assigned, or licensed to the Company under this Agreement. Such acts may include execution of documents and assistance or cooperation (i) in the filing, prosecution, registration, and memorialization of assignment of any applicable patents, copyrights, mask work, or other applications, (ii) in the enforcement of any applicable patents, copyrights, mask work, moral rights, trade secrets, or other proprietary rights, and (iii) in other legal proceedings related to the Company Intellectual Property or Confidential Information.

 

11

 

vi.

In the event that the Company (or, as applicable, another member of the Company Group) is unable for any reason to secure Executive's signature to any document required to file, prosecute, register, or memorialize the assignment of any patent, copyright, mask work or other applications or to enforce any patent, copyright, mask work, moral right, trade secret or other proprietary right under any Confidential Information or Company Intellectual Property (including derivative works, improvements, renewals, extensions, continuations, divisionals, continuations in part, continuing patent applications, reissues, and reexaminations of such Company Intellectual Property), Executive hereby irrevocably designates and appoints the Company and each of the Company's duly authorized officers and agents as Executive's agents and attorneys-in-fact to act for and on Executive's behalf and instead of Executive (i) to execute, file, prosecute, register and memorialize the assignment of any such application, (ii) to execute and file any documentation required for such enforcement, and (iii) to do all other lawfully permitted acts to further the filing, prosecution, registration, memorialization of assignment, issuance, and enforcement of patents, copyrights, mask works, moral rights, trade secrets or other rights under the Confidential Information or Company Intellectual Property, all with the same legal force and effect as if executed by Executive.

 

vii.

In the event that Executive enters into, on behalf of any member of the Company Group, any contracts or agreements relating to any Confidential Information or Company Intellectual Property, Executive shall assign such contracts or agreements to the Company (or the applicable member of the Company Group) promptly, and in any event, prior to Executive's termination. If the Company (or the applicable member of the Company Group) is unable for any reason to secure Executive's signature to any document required to assign said contracts or agreements, or if Executive does not assign said contracts or agreements to the Company (or the applicable member of the Company Group) prior to Executive's termination, Executive hereby irrevocably designates and appoints the Company (or the applicable member of the Company Group) and each of the Company's duly authorized officers and agents as Executive's agents and attorneys-in-fact to act for and on Executive's behalf and instead of Executive to execute said assignments and to do all other lawfully permitted acts to further the execution of said documents.

 

ARTICLE V

MISCELLANEOUS PROVISIONS

 

A.

Mediation and Arbitration.

 

i.

In the event of any dispute, controversy or claim arising out of, or in connection with or relating to this Agreement or Executive's employment, engagement, relationship or affiliation with the Company or any other member of the Company Group or any member of the Company Group's predecessors or successors (each a "Dispute" and, collectively, "Disputes"), the parties to such Dispute shall use commercially reasonable efforts to resolve such Dispute through negotiation between individuals with the authority to settle the Dispute on behalf of the parties (each, an "Authorized Decision Maker"). To this end, each such party shall cause an Authorized Decision Maker to consult and negotiate with an Authorized Decision Maker of the other party, and the parties shall attempt to reach a resolution satisfactory to both parties, recognizing that their mutual interests may not be aligned (and that each such party shall be entitled to reasonably seek to promote such party's own interests in such resolution). If the parties to a Dispute do not resolve such Dispute within thirty (30) days of the first negotiation between Authorized Decision Makers, then upon written notice by either party to the other, the Dispute shall be submitted to non-binding mediation to be administered in Dallas, Texas, by the American Arbitration Association or its successor (the "AAA") (or another mediator upon the mutual agreement of Executive and the applicable member of the Company Group). Such mediation session shall take place within sixty (60) days of the date of receipt of the written request for mediation. If the parties are not able to agree regarding the identity of the mediator within twenty (20) days from the party's delivery of the mediation demand to the other party, the AAA shall appoint a neutral mediator upon written request to the AAA by either party.

 

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ii.

In the event the applicable member of the Company Group and Executive are unable to resolve any Dispute as described above, then subject to ARTICLE V.A iii and v, any Dispute will be finally settled by arbitration in Dallas, Texas in accordance with the then-existing employment arbitration rules of the AAA (https://www.adr.org/rules-forms-and-fees/employment/). The arbitration award shall be final and binding on the parties. Any arbitration conducted under this ARTICLE V.A shall be private, and shall be heard by a single arbitrator (the "Arbitrator") selected in accordance with the then-applicable rules of the AAA. The Arbitrator shall expeditiously hear and decide all matters concerning the Dispute. Except as expressly provided to the contrary in this Agreement, the Arbitrator shall have the power to (i) gather such materials, information, testimony and evidence as the Arbitrator deems relevant to the Dispute before him or her (and each party will provide such materials, information, testimony and evidence requested by the Arbitrator), and (ii) grant injunctive relief and enforce specific performance. All Disputes shall be arbitrated on an individual basis, and each party hereto hereby foregoes and waives any right to arbitrate any Dispute as a class action or collective action or on a consolidated basis or in a representative capacity on behalf of other persons or entities who are claimed to be similarly situated, or to participate as a class member in such a proceeding. The decision of the Arbitrator shall be reasoned, rendered in writing, be final and binding upon the disputing parties and the parties agree that judgment upon the award may be entered by any court of competent jurisdiction. This ARTICLE V.A shall be governed by the Federal Arbitration Act, 9 U.S.C. §1, et seq.

 

iii.

Notwithstanding ARTICLE V.A i or ii above, either party may make a timely application for, and obtain, judicial emergency or temporary injunctive relief to enforce any of the provisions of ARTICLE IV; provided, however, that the remainder of any such Dispute (beyond the application for emergency or temporary injunctive relief) shall be subject to arbitration under this ARTICLE V.

 

iv.

By entering into this Agreement and entering into the arbitration provisions of this ARTICLE V.A, THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THEY ARE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVING THEIR RIGHTS TO A JURY TRIAL WITH RESPECT TO ALL DISPUTES.

 

v.

Nothing in this ARTICLE V.A shall prohibit a party from instituting litigation to enforce any arbitration award. Further, nothing in this ARTICLE V.A precludes Executive from filing a charge or complaint with a federal, state or other governmental administrative agency.

 

B. Cooperation. During the Term and thereafter, upon request from the Company, Executive shall cooperate with the Company and its affiliates in the defense of any claims or actions that may be made by or against the Company or its affiliates that relate to Executive's actual or prior areas of responsibility.

 

C. Withholdings; Deductions. The Company may withhold and deduct from any benefits and payments made or to be made pursuant to this Agreement (a) all federal, state, local and other taxes as may be required pursuant to any law or governmental regulation or ruling and (b) any deductions consented to in writing by Executive.

 

D. Title and Headings; Construction. Titles and headings to Articles and Sections hereof are for the purpose of reference only and shall in no way limit, define or otherwise affect the provisions hereof. Any and all Exhibits or attachments referred to in this Agreement are, by such reference, incorporated herein and made a part hereof for all purposes. Unless the context requires otherwise, all references to laws, regulations, contracts, documents, agreements and instruments refer to such laws, regulations, contracts, documents, agreements and instruments as they may be amended, restated or otherwise modified from time to time, and references to particular provisions of laws or regulations include a reference to the corresponding provisions of any succeeding law or regulation. All references to "dollars" or "$" in this Agreement refer to United States dollars. The words "herein", "hereof", "hereunder" and other compounds of the word "here" shall refer to the entire Agreement, including all Exhibits attached hereto, and not to any particular provision hereof. Unless the context requires otherwise, the word "or" is not exclusive. Wherever the context so requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural and conversely. All references to "including" shall be construed as meaning "including without limitation." Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any Party hereto, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by each of the Parties hereto and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the Parties hereto.

 

13

 

E. Severability. If an arbitrator or court of competent jurisdiction determines that any provision of this Agreement (or portion thereof) is invalid or unenforceable, then the invalidity or unenforceability of that provision (or portion thereof) shall not affect the validity or enforceability of any other provision of this Agreement, and all other provisions shall remain in full force and effect.

 

F. Entire Agreement and Amendment. This Agreement contains the entire agreement of the Parties with respect to the matters covered herein and supersedes all prior and contemporaneous agreements and understandings (including any offer letter or similar agreement), oral or written, between the Parties hereto concerning the subject matter hereof; provided, however, that in the event that Executive is subject to any other restrictive covenants with respect to any member of the Company Group (including with respect to confidentiality or non-disclosure, non-competition, non-solicitation, intellectual property, and non-disparagement), the restrictive covenants contained in this Agreement shall complement and be in addition to, and not supersede or be in lieu of, such other restrictive covenants (which shall remain in full force and effect in accordance with the terms thereof). This Agreement may be amended only by a written instrument executed by both Parties hereto.

 

G. Disclaimer of Reliance. Executive represents and warrants that Executive understands the final and binding effect of this Agreement, that the only promises made to Executive to sign this Agreement are those stated within the four corners of this document, and that in entering into this Agreement Executive relies on Executive's own judgment, and Executive has not relied on any representation or statement, written or oral, or any alleged omission by any other party with regard to the terms, conditions, and effect of this Agreement, including any facts, issues, or omissions which might be deemed material to Executive's decision to enter into this Agreement, other than the statements that appear in this Agreement.

 

H. Waiver of Breach. Any waiver of this Agreement must be executed by the Party to be bound by such waiver. No waiver by either Party hereto of a breach of any provision of this Agreement by the other Party, or of compliance with any condition or provision of this Agreement to be performed by such other Party, will operate or be construed as a waiver of any subsequent breach by such other Party or any similar or dissimilar provision or condition at the same or any subsequent time. The failure of either party hereto to take any action by reason of any breach will not deprive such Party of the right to take action at any time.

 

I. Counterparts. This Agreement may be executed in any number of counterparts, including by electronic mail or .pdf, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of a copy hereof containing multiple signature pages, each signed by one party, but together signed by both Parties hereto.

 

J. Assignment. This Agreement is personal to Executive, and neither this Agreement nor any rights or obligations hereunder shall be assignable or otherwise transferred by Executive. The Company may assign this Agreement without Executive's consent, including to any other member of the Company Group and to any successor to or acquirer of (whether by merger, purchase or otherwise) all or substantially all of the equity, assets or businesses of the Company or other member of the Company Group.

 

K. Third-Party Beneficiaries. Each member of the Company Group that is not a signatory to this Agreement shall be a third-party beneficiary of Executive's obligations herein and shall be entitled to enforce such obligations as if a Party hereto.

 

14

 

L. Certain Excise Taxes. Notwithstanding anything to the contrary in this Agreement, if Executive is a "disqualified individual" (as defined in Section 280G(c) of the Internal Revenue Code of 1986, as amended (the "Code")), and the payments and benefits provided for in this Agreement, together with any other payments and benefits which Executive has the right to receive from the Company or any of its Affiliates or other payor, would constitute a "parachute payment" (as defined in Section 280G(b)(2) of the Code), then such payments and benefits shall be either (a) reduced (but not below zero) so that the present value of such total payments and benefits shall be one dollar ($1.00) less than three times Executive's "base amount" (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the Code or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in-kind in a similar order, and then reducing equity or equity-based benefits (reduced in the order of highest value to lowest value under Code Section 280G). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary (or whether Executive would be subject to such excise tax) shall be made at the expense of the Company by a firm of independent accountants, a law firm, or other valuation specialist selected by the Board in good faith prior to the consummation of the applicable change in control transaction, and the applicable independent accountants, law firm, or other valuation specialist shall consider the value, if any, of Executive's restrictive covenants (including the non-competition restrictions set forth herein) as part of its analysis as may be appropriate under Section 280G of the Code. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits used in determining if a "parachute payment" exists, exceeds one dollar ($1.00) less than three times Executive's base amount, then Executive shall immediately repay such excess to the Company upon notification that an overpayment has been made. Nothing in this ARTICLE V.L shall require the Company to provide a gross-up payment to Executive with respect to Executive's excise tax liabilities under Section 4999 of the Code. Notwithstanding the foregoing, in the event that no stock of the Company or its applicable Affiliates is readily tradable on an established securities market or otherwise (within the meaning of Section 280G) as of immediately prior to an applicable transaction that constitutes a "change in ownership or control" for purposes of Section 280G of the Code, the Company shall submit to a vote of stockholders for approval the portion of the payments and benefits payable to Executive that equal or exceeds three times the Executive's "base amount" (the "Excess Parachute Payments") in accordance with Treas. Reg. §1.280G-1; provided, that Executive has first, in Executive's sole discretion, executed a customary waiver of such Excess Parachute Payments (the Company makes no guarantee regarding the outcome of any such vote). If such stockholder approval is obtained in accordance with Section 280G of the Code, then the payments and benefits shall not be subject to reduction as described above.

 

M. Clawback. To the extent required by Company policy, applicable law, government regulation or any applicable securities exchange listing standards, amounts paid or payable under this Agreement or under the LTIP or any incentive plan of the Company Group shall be subject to the provisions of any applicable clawback policies or procedures adopted by the Company Group and applicable to executives of the Company Group generally, including pursuant to applicable law, government regulation or applicable securities exchange listing requirements, which clawback policies or procedures may provide for forfeiture and/or recoupment of amounts paid or payable under this Agreement or under the LTIP or any incentive plan of the Company Group in the event of material misstatements, financial restatements, other bad acts (or inaction), or other events or occurrences consistent with any government regulation or securities exchange listing requirement. The Company Group reserves the right, without the consent of Executive, to adopt any such clawback policies and procedures that are consistent with the immediately preceding sentence, including such policies and procedures applicable to this Agreement and under the LTIP or any incentive plan of the Company Group with retroactive effect.

 

15

 

N. Section 409A. This Agreement is intended to be interpreted and applied so that the payments and benefits set forth herein shall either be exempt from the requirements of Section 409A of the Code ("Section 409A") or shall comply with the requirements of Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement or otherwise which constitutes a "deferral of compensation" within the meaning of Section 409A. Notwithstanding anything in this Agreement or elsewhere to the contrary, 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 that constitute "non-qualified deferred compensation" within the meaning of Section 409A upon or following a termination of Executive's employment unless such termination is also a "separation from service" within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service" within the meaning of Section 409A. Notwithstanding any provision in this Agreement or elsewhere to the contrary, if on Executive's termination of employment, Executive is a "specified employee" within the meaning of Section 409A, any payments or benefits that are payable as the result of a termination of Executive's employment under any arrangement that constitutes a "deferral of compensation" within the meaning of Section 409A (whether under this Agreement, any other plan, program, payroll practice or any equity grant) and which do not otherwise qualify under the exemptions under Treasury Regulation section 1.409A-1 (including without limitation, the short-term deferral exemption and the permitted payments under Treasury Regulation section 1.409A-1(b)(9)(iii)(A)) and that otherwise would have been paid within six (6) months following such termination of employment, shall be delayed and paid or provided to Executive in a lump sum (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) on the earlier of (x) the date which is six (6) months and one day after Executive's separation from service for any reason other than death, and (y) the date of Executive's death (but not earlier than such payments or benefits would have been made absent this provision), and any remaining payments and benefits shall be paid or provided in accordance with the normal payment dates specified for such payment or benefit. With respect to any expense reimbursement benefit or in-kind benefit provided pursuant to this Agreement or otherwise, (1) the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive during any calendar year shall not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any other calendar year, (2) the reimbursements for expenses for which Executive is entitled to be reimbursed shall be made promptly, but in all events on or before the last day of the calendar year immediately following the calendar year in which the applicable expense is incurred, and (3) the right to payment or reimbursement hereunder may not be liquidated or exchanged for any other benefit. Each payment under this Agreement to Executive shall be deemed a separate payment for purposes of Section 409A.¹

 

O. Applicable Law. This Agreement shall in all respects be construed according to the laws of the State of Texas without regard to its conflict of laws principles that would result in the application of the laws of another jurisdiction.

 

P. Effect of Termination. The provisions of ARTICLE IV and ARTICLE V, and those provisions necessary to interpret and enforce them, shall survive any termination of this Agreement and any termination of the employment relationship between Executive and the Company.

 

{Remainder of Page Intentionally Left Blank. Signature Page Follows.}

 

 

 

16

 

IN WITNESS WHEREOF, the Company and Executive have caused this Agreement to be executed on the date first set forth above, to be effective as of the Effective Date.

 

EXECUTIVE:
Name:	Rob Masson

 

THE COMPANY:
FERMI INC.
By:
Name:	Anna Bofa
Title:	Co-President, Office of the CEO

 

By:
Name:	Jacobo Ortiz
Title:	Co-President, Office of the CEO

 

{Signature Page to Employment Agreement}

 

 

 

Exhibit A

 

PRIOR INVENTIONS

 

1. The following is a complete and accurate list of all Prior Inventions relevant to the subject matter of Executive's employment with the Company that have been made, conceived or first reduced to practice by Executive alone or jointly with others prior to Executive's employment with or affiliation with the Company:

 

Check appropriate space(s):

 

☐

None.

 

☐

See below:

 

 

 

☐

Due to confidentiality agreements with a prior employer, Executive cannot disclose certain Prior Inventions that would otherwise be included on the above-described list.

 

☐

Additional sheets attached.

 

2. Executive proposes to bring to Executive's employment with the Company the following devices, materials, and documents of a former employer or other person to whom Executive has an obligation of confidentiality that is not generally available to the public; provided that such materials and documents may be used by Executive in Executive's employment with the Company only in accordance with the express written authorization of Executive's former employer or such other person, as applicable (a copy of which is attached to this Agreement):

 

Check appropriate space(s):

 

☐

None.

 

☐

See below.

 

 

☐

Additional sheets attached.

 

 

 

 Exhibit 10.5

 

2026 RSU Award Agreement

 

RESTRICTED STOCK UNIT AWARD AGREEMENT

UNDER THE

FERMI INC.

2025 LONG-TERM INCENTIVE PLAN

 

1. Award of Awarded Units. Pursuant to the Fermi Inc. 2025 Long-Term Incentive Plan (the "Plan") for Employees, Contractors, and Outside Directors of Fermi Inc., a Texas corporation (the "Company") and its Subsidiaries, the Company hereby grants to

 

[_]

(the "Participant")

 

an Award under the Plan for [_] Awarded Units (the "Awarded Units"), which may be converted into the number of whole shares of Common Stock of the Company equal to the number of vested Awarded Units (determined in accordance with Section 3 below), subject to the terms and conditions of the Plan and this Restricted Stock Unit Award Agreement (this "Agreement"). The "Date of Grant" of this Award is [_________ __, 2026]. Each Awarded Unit shall be a notional share of Common Stock, with the value of each Awarded Unit being equal to the Fair Market Value of a share of Common Stock at any time.

 

2. Subject to Plan. This Agreement is subject to the terms and conditions of the Plan, and the terms of the Plan shall control to the extent inconsistent with the provisions of this Agreement. The capitalized terms used herein that are defined in the Plan shall have the same meanings assigned to them in the Plan, except as otherwise expressly provided herein. This Agreement is subject to any rules promulgated pursuant to the Plan by the Board or the Committee and communicated to the Participant in writing.

 

3. Vesting; Forfeiture. Awarded Units which have become vested pursuant to the terms of this Section 3 are collectively referred to herein as "Vested Units." All other Awarded Units are collectively referred to herein as "Unvested Units."

 

a. Except as specifically provided in this Agreement and subject to certain restrictions and conditions set forth in the Plan, the Awarded Units shall vest and become Vested Units as follows:

 

i. One-third of the total Awarded Units (rounded down for any fractional units) shall vest and become Vested Units on the first anniversary of the Date of Grant, provided the Participant is employed by (or, if the Participant is a Contractor or an Outside Director, is providing services to) the Company or a Subsidiary on such date;

 

ii. An additional one-third of the total Awarded Units (rounded down for any fractional units) shall vest and become Vested Units on the second anniversary of the Date of Grant, provided the Participant is employed by (or, if the Participant is a Contractor or an Outside Director, is providing services to) the Company or a Subsidiary on such date; and

 

iii. The remaining Awarded Units shall vest and become Vested Units on the third anniversary of the Date of Grant, provided the Participant is employed by (or, if the Participant is a Contractor or an Outside Director, is providing services to) the Company or a Subsidiary on such date.

  

b. Except as otherwise provided by Sections 3.c., 3.d., 3.e., and 3.f. hereof, immediately upon the Participant's Termination of Service for any reason, including retirement, the Participant shall be deemed to have forfeited all of the Participant's Unvested Units.

 

 

 

 

c. Notwithstanding the foregoing, in the event that a Change in Control occurs and the successor or acquirer does not assume, substitute, or otherwise continue this Award, then 100% of the Unvested Units shall immediately become Vested Units upon such Change in Control, provided that the Participant is employed by or providing services to the Company or a Subsidiary on such date.

 

d. Notwithstanding the foregoing, in the event that Participant incurs a Termination of Service by the Company without "Cause," by the Participant with "Good Reason," or by reason of the expiration of the "Initial Term" or any "Renewal Term" (such quoted terms as defined below) due to delivery of a notice of non-renewal by the Company under the Participant's employment agreement with the Company, in each case within twelve months following a Change in Control, then 100% of the Unvested Units shall immediately become Vested Units upon such termination.

 

e. Notwithstanding the foregoing, if Participant incurs a Termination of Service by the Company without "Cause," by the Participant with "Good Reason," or by reason of the expiration of the "Initial Term" or any "Renewal Term" (such quoted terms as defined below) due to delivery of a notice of non-renewal by the Company under the Participant's employment agreement with the Company, in each case not covered by Section 3(d), a pro-rata portion of the Unvested Units shall vest upon such termination, determined by multiplying the total number of Unvested Units as of the termination date by a fraction, the numerator or which is the number of days elapsed from the Date of Grant through the date of termination and the denominator of which is the total number of days in such vesting period, subject to the Participant's execution and non-revocation of a release in a form acceptable to the Company.

 

f. Notwithstanding the foregoing, if the Participant's employment with or services to the Company or any of its Subsidiaries terminates by reason of the Participant's death or Total and Permanent Disability, then 100% of the Unvested Units shall immediately become Vested Units upon such termination, subject to the Participant's execution and non-revocation of a release in a form acceptable to the Company.

 

g. For purposes of this Agreement, "Cause," "Good Reason," "Initial Term," and "Renewal Term" shall have the meanings ascribed to such terms in the Participant's employment agreement with the Company.

 

4. Delivery of Common Stock. Subject to the provisions of the Plan and this Agreement, the Company shall convert the Vested Units into the number of whole shares of Common Stock equal to the number of Vested Units and shall deliver to the Participant or the Participant's personal representative a number of shares of Common Stock equal to the number of Vested Units credited to the Participant as soon as administratively practicable, and in no event later than 60 days following the date on which the Awarded Units became Vested Units.

 

5. Who May Receive Common Stock with Respect to Vested Units. During the lifetime of the Participant, the Common Stock received upon conversion of the Vested Units may only be received by the Participant or his or her legal representative. If the Participant dies prior to the date his or her Awarded Units are converted into shares of Common Stock as described in Section 4 above, the Common Stock relating to such converted Awarded Units may be received by any individual who is entitled to receive the property of the Participant pursuant to the applicable laws of descent and distribution.

 

2

 

 

6. Rights as Shareholder. The Participant will have no rights as a shareholder with respect to the Awarded Units until the issuance of a certificate or certificates to the Participant or the registration of such shares of Common Stock in the Participant's name. The Awarded Units shall be subject to the terms and conditions of this Agreement. If any dividends or other distributions are paid with respect to the shares of Common Stock underlying the Awarded Units while the Awarded Units are outstanding, (i) the dollar amount or Fair Market Value of such dividends or distributions with respect to the number of shares of Common Stock then underlying the Awarded Units shall be credited to a bookkeeping account and held (without interest) by the Company for the account of the Participant until the date the Awarded Units become Vested Units and are converted and paid; and (ii) such dividend equivalents withheld pursuant to clause (i) attributable to any Awarded Units shall be distributed to such Participant in cash or, at the sole discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividend equivalents, if applicable, upon the date such Awarded Units become Vested Units and are converted and paid. Such dividend equivalents shall be subject to the same vesting and forfeiture provisions as the Awarded Units to which they relate. Any accrued amounts with respect to Unvested Units shall be forfeited upon any forfeiture of the related Unvested Units.

 

7. No Fractional Shares. Awarded Units may be converted only with respect to full shares, and no fractional share of Common Stock shall be issued.

 

8. Non-Assignability. The Awarded Units are not assignable or transferable by the Participant except by will or by the laws of descent and distribution.

 

9. The Participant's Acknowledgments. The Participant acknowledges that a copy of the Plan has been made available for the Participant's review by the Company and represents that the Participant is familiar with the terms and provisions thereof, and hereby accepts the Awarded Units subject to all the terms and provisions thereof.

 

10. Adjustment of Number of Awarded Units and Related Matters. The number of shares of Common Stock covered by the Awarded Units shall be subject to adjustment in accordance with Articles 11-13 of the Plan.

 

11. Specific Performance. The parties acknowledge that remedies at law will be inadequate remedies for breach of this Agreement and consequently agree that this Agreement shall be enforceable by specific performance. The remedy of specific performance shall be cumulative of all of the rights and remedies at law or in equity of the parties under this Agreement.

 

12. The Participant's Representations. Notwithstanding any of the provisions hereof, the Participant hereby agrees that the Company will not be obligated to register any shares of Common Stock in the Participant's name or issue any shares of Common Stock to the Participant hereunder, if the issuance of such shares shall constitute a violation by the Participant or the Company of any provision of any law or regulation of any governmental authority. Any determination by the Company under this Section 12 shall be final, binding, and conclusive. The obligations of the Company and the obligations of the Participant are subject to all Applicable Laws, rules, and regulations.

 

13. Investment Representation. Unless the Awarded Units are issued in a transaction registered under applicable federal and state securities laws, by the Participant's execution hereof, the Participant represents and warrants to the Company that all Common Stock which may be acquired hereunder will be acquired by the Participant for investment purposes for the Participant's own account and not with any intent for resale or distribution in violation of federal or state securities laws, all certificates issued with respect to the Common Stock shall bear an appropriate restrictive investment legend and shall be held indefinitely, unless they are subsequently registered under the applicable federal and state securities laws or the Participant obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required.

 

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14. Law Governing. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Texas (excluding any conflict of laws rule or principle of Texas law that might refer the governance, construction, or interpretation of this Agreement to the laws of another state).

 

15. Claims. The Participant's sole remedy for any Claim shall be against the Company, and no Participant shall have any claim or right of any nature against any Subsidiary of the Company or any shareholder or existing or former director, officer or Employee of the Company or any Subsidiary of the Company.

 

16. No Right to Continue Service or Employment. Nothing herein shall be construed to confer upon the Participant the right to continue in the employ or to provide services to the Company or any Subsidiary, whether as an Employee, Contractor, or Outside Director, or to interfere with or restrict in any way the right of the Company or any Subsidiary to discharge the Participant as an Employee, Contractor, or Outside Director at any time.

 

17. Legal Construction. In the event that any one or more of the terms, provisions, or agreements that are contained in this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect for any reason, the invalid, illegal, or unenforceable term, provision, or agreement shall not affect any other term, provision, or agreement that is contained in this Agreement and this Agreement shall be construed in all respects as if the invalid, illegal, or unenforceable term, provision, or agreement had never been contained herein.

 

18. Covenants and Agreements as Independent Agreements. Each of the covenants and agreements that are set forth in this Agreement shall be construed as a covenant and agreement independent of any other provision of this Agreement. The existence of any claim or cause of action of the Participant against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants and agreements that are set forth in this Agreement.

 

19. Entire Agreement. This Agreement, together with the Plan, supersede any and all other prior understandings and agreements, either oral or in writing, between the parties with respect to the subject matter in this Agreement and constitute the only agreements between the parties with respect to the subject matter in this Agreement. All prior negotiations and agreements between the parties with respect to the subject matter in this Agreement are merged into this Agreement. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party or by anyone acting on behalf of any party regarding the subject matter of this Agreement, which are not embodied in this Agreement or the Plan and that any agreement, statement or promise regarding the subject matter of this Agreement that is not contained in this Agreement or the Plan shall not be valid or binding or of any force or effect. Except for the specific representations expressly made by the Company in this Agreement, the Participant specifically disclaims that the Participant is relying upon or has relied upon any communications, promises, statements, inducements, or representation(s) that may have been made, oral or written, regarding the subject matter of this Agreement. The parties represent that they are relying solely and only on their own judgment in entering into this Agreement.

 

20. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

21. Parties Bound. The terms, provisions, and agreements that are contained in this Agreement shall apply to, be binding upon, and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, and permitted successors and assigns, subject to the limitation on assignment expressly set forth herein.

 

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22. Modification. No change or modification of this Agreement shall be valid or binding upon the parties unless the change or modification is in writing and signed by the parties (electronically or otherwise); provided, however, that the Company may change or modify this Agreement without the Participant's consent or signature if the Company determines, in its sole discretion, that such change or modification is necessary for purposes of compliance with or exemption from the requirements of Section 409A of the Code or any regulations or other guidance issued thereunder. Notwithstanding the preceding sentence, the Company may amend the Plan to the extent permitted by the Plan.

 

23. Headings. The headings that are used in this Agreement are used for reference and convenience purposes only and do not constitute substantive matters to be considered in construing the terms and provisions of this Agreement.

 

24. Gender and Number. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise.

 

25. Notice. Any notice required or permitted to be delivered hereunder shall be deemed to be delivered only when actually received by the Company or by the Participant, as the case may be, at the addresses set forth below, or at such other addresses as they have theretofore specified by written notice delivered in accordance herewith:

 

a. Notice to the Company shall be addressed and delivered as follows:

 

Fermi Inc.

600 S. Tyler St., Suite 1501

Amarillo, TX 79101

Attn: [____________]

 

b. Notice to the Participant shall be addressed and delivered to the most recent address in the Company's records.

 

26. Clawback. The Participant acknowledges, understands and agrees, with respect to any shares of Common Stock delivered to the Participant (or registered in the Participant's name) pursuant to this Agreement, that such shares of Common Stock shall be subject to recovery by the Company, and the Participant shall be required to repay such shares of Common Stock, in accordance with the Company's clawback policy, as in effect from time to time. The Participant further acknowledges, understands, and agrees that the Board retains the right to modify the Company's clawback policy at any time.

 

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27. Tax Requirements. The Participant is hereby advised to consult immediately with the Participant's own tax advisor regarding the tax consequences of this Agreement, including, without limitation, any possible tax consequences of this Agreement in connection with Section 409A of the Code. The Company and its Subsidiaries (for purposes of this Section 27, the term "Company" shall be deemed to include any applicable Subsidiary of the Company) shall, prior to the date of conversion, require the Participant receiving shares of Common Stock upon conversion of Awarded Units to pay the Company the amount of any taxes that the Company is required to withhold in connection with the Participant's income arising with respect to this Award. Such payments shall be required to be made prior to the delivery of any certificate or the registration of such shares of Common Stock in the Participant's name for such shares of Common Stock. Such payment may be made by (i) the delivery of cash to the Company in an amount that equals or exceeds (to avoid the issuance of fractional shares of Common Stock) the required tax withholding obligations of the Company; (ii) with the consent of the Board, in its sole discretion, the actual delivery by the Participant to the Company of shares of Common Stock, which shares of Common Stock so delivered have an aggregate Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares of Common Stock) the required tax withholding payment; (iii) with the consent of the Board, in its sole discretion, the Company's withholding of a number of shares of Common Stock to be delivered upon the settlement of the Award, which shares of Common Stock so withheld have an aggregate Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares of Common Stock) the required tax withholding payment; (iv) with the consent of the Board, in its sole discretion, through a broker-assisted sale, whereby a broker sells a portion of the shares of Common Stock issued upon settlement of the Award and remits a portion of such sale proceeds to the Company in an amount sufficient to satisfy such tax withholding obligation; (v) any combination of (i), (ii), (iii), or (iv). If the Participant does not make appropriate arrangements for the satisfaction of such tax withholding obligations, the Company may, in its sole discretion, withhold any such taxes from any other cash remuneration otherwise paid by the Company to the Participant or withhold the number of shares of Common Stock to be delivered upon the conversion of the Awarded Units with an aggregate Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares of Common Stock) the required tax withholding obligations of the Company; provided, however, if the Participant is a "specified employee" as defined in Treasury Regulation Section 1.409A-1(i) and the settlement of the Awarded Units is subject to the six month delay provided for in Section 25 below, the Company shall withhold the number of shares of Common Stock attributable to the employment taxes on the date of the Participant's termination of service as a Service Provider and withhold the number of shares of Common Stock attributable to the income taxes on the date the Awarded Units are settled.

 

28. Section 409A.

 

a. To the extent (i) any shares of Common Stock to which the Participant becomes entitled under this Agreement in connection with the Participant's termination of employment with the Company constitutes deferred compensation subject to Section 409A of the Code; (ii) the Participant is at the time of his separation from service a "specified employee" under Section 409A of the Code; and (iii) at the time of the Participant's separation from service the Company is publicly traded (as defined in Section 409A of the Code), then such shares of Common Stock (other than any delivery of Common Stock permitted by Section 409A of the Code to be paid or delivered within six months of the Participant's separation from service) shall not be made until the earlier of (x) the first day of the seventh month following the Participant's separation from service or (y) the date of the Participant's death following such separation from service. Upon the expiration of the applicable deferral period, any shares of Common Stock which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this Section 28 (together with, as applicable, accrued interest thereon) shall be delivered to the Participant or the Participant's beneficiary in one lump sum.

 

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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 that are deferred compensation subject to (and not exempt from) Section 409A of the Code upon or following a termination of employment unless such termination is also a "separation from service" (within the meaning of Section 409A of the Code).

 

c. It is intended that this Agreement be exempt from (or if not exempt, comply with) the provisions of Section 409A of the Code so as to not subject the Participant to the payment of additional interest and taxes under Section 409A of the Code, and in furtherance of this intent, this Agreement shall be interpreted, operated and administered in a manner consistent with these intentions.

 

29. Consent to Electronic Delivery; Electronic Signature. In lieu of receiving documents in paper format, the Participant agrees, to the fullest extent permitted by law, to accept electronic delivery of any documents that the Company may be required to deliver (including, without limitation, prospectuses, prospectus supplements, grant or award notifications and agreements, account statements, annual and quarterly reports and all other forms of communications) in connection with this and any other award made or offered by the Company. Electronic delivery may be via the Company' electronic mail system or by reference to a location on the Company's intranet or third-party website to which the Participant has access. The Participant hereby consents to any and all procedures the Company has established or may establish for an electronic signature system for delivery and acceptance of any such documents that the Company may be required to deliver, and agrees that the Participant's electronic signature is the same as, and shall have the same force and effect as, the Participant's manual signature.

 

* * * * * * * * * *

 

[Remainder of Page Intentionally Left Blank.

Signature Page Follows]

 

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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and the Participant, to evidence the Participant's consent and approval of all the terms hereof, has duly executed this Agreement, as of the date specified in Section 1 hereof.

 

	COMPANY:
	FERMI INC.

 

	By:
	Name:
	Title:

 

PARTICIPANT:

 

	Signature

 

	Name:
	Address:

 

Signature Page to the
Restricted Stock Unit Award Agreement 

 

 

Exhibit 10.6 

 

2026 PSU Award Agreement

 

PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT

UNDER THE

FERMI INC.

2025 LONG-TERM INCENTIVE PLAN

 

1. Award of Awarded Units. Pursuant to the Fermi Inc. 2025 Long-Term Incentive Plan (the "Plan") for Employees, Contractors, and Outside Directors of Fermi Inc., a Texas corporation (the "Company") and its Subsidiaries, the Company hereby grants to

 

[_]

(the "Participant")

 

 

an Award under the Plan for [_] Awarded Units (the "Awarded Units"), which may be converted into the number of whole shares of Common Stock (as determined under Section 4 below) equal to the number of vested Awarded Units (determined in accordance with Section 3 below), subject to the terms and conditions of the Plan and this Performance Restricted Stock Unit Award Agreement (this "Agreement"). The Date of Grant of this Award is _____________, 2026. The target number of shares of Common Stock that could be issued with respect to the Awarded Units if the target performance level is achieved, as set forth in Exhibit A hereto, is [#] (the "Target Units"). Each Awarded Unit shall be a notional share of Common Stock, with the value of each Awarded Unit being equal to the Fair Market Value of a share of Common Stock at any time.

 

2. Subject to Plan. This Agreement is subject to the terms and conditions of the Plan, and the terms of the Plan shall control to the extent inconsistent with the provisions of this Agreement. The capitalized terms used herein that are defined in the Plan shall have the same meanings assigned to them in the Plan. This Agreement is subject to any rules promulgated pursuant to the Plan by the Board or the Committee and communicated to the Participant in writing.

 

3. Vesting; Forfeiture. Awarded Units which have become vested pursuant to the terms of this Section 3 are collectively referred to herein as "Vested Units." All other Awarded Units are collectively referred to herein as "Unvested Units." The Participant shall be eligible to receive shares of Common Stock with respect to the Vested Units in accordance with Section 4 below.

 

a. Except as otherwise provided in this Section 3, the Awarded Units will vest on the date the Committee determines whether the vesting conditions set forth on Exhibit A hereto have been achieved (which date shall be after the end of the Performance Period (as defined in Exhibit A) and no later than March 15, 2030)², provided that the Participant is employed by or providing services to the Company or a Subsidiary on such date.

 

b. Except as otherwise provided by Section 3.c., 3.d., 3.e., and 3.f. hereof, immediately upon the Participant's Termination of Service for any reason whatsoever, including retirement, the Participant shall be deemed to have forfeited all of the Participant's Unvested Units.

 

c. Notwithstanding the foregoing, if the Participant incurs a Termination of Service by the Company without "Cause," by the Participant with "Good Reason," or by reason of the expiration of the "Initial Term" or any "Renewal Term" (such quoted terms as defined below) due to delivery of a notice of non-renewal by the Company under Participant's employment agreement with the Company, subject to the Participant's execution and non-revocation of a release in a form acceptable to the Company, a pro rata portion of the Awarded Units shall vest following the end of the performance period determined by multiplying (x) the number of Awarded Units that would have vested based on the actual level of performance achieved as determined by the Committee following the end of the applicable performance period as set forth in Section 3(a) of this Agreement by (y) a fraction, the numerator of which is the number of days elapsed from the Date of Grant through the date of termination and the denominator of which is the total number of days in the Performance Period, rounded down to the nearest whole share.

 

 

 

 

d. Notwithstanding the foregoing, if the Participant's employment with the Company or any of its Subsidiaries terminates by reason of the Participant's death or Total and Permanent Disability, subject to the Participant's (or the Participant's estate's or legal representative's) execution and non-revocation of a release in a form acceptable to the Company, 100% of the Awarded Units shall immediately become Vested Units upon such termination based on the greater of (x) the target (100%) performance level and (y) the actual level of performance achieved as of the date of such termination (if measurable as determined by the Committee). Such Vested Units shall be settled within 60 days of such termination.

 

e. Notwithstanding the foregoing and regardless of whether the performance criteria set forth in Exhibit A have been achieved, in the event that a Change in Control occurs and the successor or acquirer does not assume, substitute, or otherwise continue this Award, then 100% of the Awarded Units shall immediately become Vested Units upon such Change in Control based on the greater of (x) the Target Units (100% performance level) and (y) the actual level of performance achieved as of the date of the Change in Control (if measurable as determined by the Committee), provided that the Participant is employed by or providing services to the Company or a Subsidiary on such date. For purposes of determining the level of performance achieved as of the date of the Change in Control, the Performance Score and Stock Price Modifier shall be determined by reference to actual performance through the date of the Change in Control and, with respect to any stock-price-based metric, by reference to the per share consideration payable to holders of Common Stock in connection with such Change in Control (the "Acquisition Price"), or if no such per share consideration is determinable, the Fair Market Value of a share of Common Stock as of the date of the Change in Control. Such Vested Units shall be settled within 60 days of such Change in Control.

 

f. Notwithstanding the foregoing and regardless of whether the performance criteria set forth in Exhibit A have been achieved, in the event that the Participant incurs a Termination of Service by the Company without "Cause," by the Participant with "Good Reason," or by reason of the expiration of the "Initial Term" or any "Renewal Term" (such quoted terms as defined below) due to delivery of a notice of non-renewal by the Company under the Participant's employment agreement with the Company, in each case within twelve months following a Change in Control, then 100% of the Awarded Units shall immediately become Vested Units upon such termination based on the greater of (x) the Target Units (100% performance level) and (y) the actual level of performance achieved as of the date of such termination (if measurable as determined by the Committee), using the Acquisition Price (as defined in Section 3.e.) to determine stock-price-based metrics where applicable. Such Vested Units shall be settled within 60 days of such termination.

 

g. For purposes of this Agreement, "Cause," "Good Reason," "Initial Term," and "Renewal Term" shall have the meaning ascribed to such terms in the Participant's employment agreement with the Company

 

4. Delivery of Common Stock. Subject to the provisions of the Plan and this Agreement, the Company shall convert the Vested Units into the number of whole shares of Common Stock equal to the number of Vested Units and shall deliver to the Participant or the Participant's personal representative a number of shares of Common Stock equal to the number of Vested Units credited to the Participant as soon as administratively practicable, and in no event later than 60 days following the date on which the Awarded Units became Vested Units.

 

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5. Who May Receive Common Stock with Respect to Vested Units. During the lifetime of the Participant, the Common Stock received upon conversion of the Vested Units may only be received by the Participant or his or her legal representative. If the Participant dies prior to the date his or her Awarded Units are converted into shares of Common Stock as described in Section 4 above, the Common Stock relating to such converted Awarded Units may be received by any individual who is entitled to receive the property of the Participant pursuant to the applicable laws of descent and distribution.

 

6. Rights as Shareholder. The Participant will have no rights as a shareholder with respect to the Awarded Units until the issuance of a certificate or certificates to the Participant or the registration of such shares of Common Stock in the Participant's name. The Awarded Units shall be subject to the terms and conditions of this Agreement. If any dividends or other distributions are paid with respect to the shares of Common Stock underlying the Awarded Units while the Awarded Units are outstanding, (i) the dollar amount or Fair Market Value of such dividends or distributions with respect to the number of shares of Common Stock then underlying the Awarded Units shall be credited to a bookkeeping account and held (without interest) by the Company for the account of the Participant until the date the Awarded Units become Vested Units and are converted and paid; and (ii) such dividend equivalents withheld pursuant to clause (i) attributable to any Awarded Units shall be distributed to such Participant in cash or, at the sole discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such dividend equivalents, if applicable, upon the date such Awarded Units become Vested Units and are converted and paid. Such dividend equivalents shall be subject to the same vesting and forfeiture provisions as the Awarded Units to which they relate. Any accrued amounts with respect to Unvested Units shall be forfeited upon any forfeiture of the related Unvested Units.

 

7. No Fractional Shares. Awarded Units may be converted only with respect to full shares, and no fractional share of Common Stock shall be issued.

 

8. Non-Assignability. The Awarded Units are not assignable or transferable by the Participant except by will or by the laws of descent and distribution.

 

9. The Participant's Acknowledgments. The Participant acknowledges that a copy of the Plan has been made available for the Participant's review by the Company and represents that the Participant is familiar with the terms and provisions thereof, and hereby accepts the Awarded Units subject to all the terms and provisions thereof.

 

10. Adjustment of Number of Awarded Units and Related Matters. The number of shares of Common Stock covered by the Awarded Units shall be subject to adjustment in accordance with Articles 11-13 of the Plan.

 

11. Specific Performance. The parties acknowledge that remedies at law will be inadequate remedies for breach of this Agreement and consequently agree that this Agreement shall be enforceable by specific performance. The remedy of specific performance shall be cumulative of all of the rights and remedies at law or in equity of the parties under this Agreement.

 

12. The Participant's Representations. Notwithstanding any of the provisions hereof, the Participant hereby agrees that the Company will not be obligated to register any shares of Common Stock in the Participant's name or issue any shares of Common Stock to the Participant hereunder, if the issuance of such shares shall constitute a violation by the Participant or the Company of any provision of any law or regulation of any governmental authority. Any determination by the Company under this Section 12 shall be final, binding, and conclusive. The obligations of the Company and the obligations of the Participant are subject to all Applicable Laws, rules, and regulations.

 

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13. Investment Representation. Unless the Awarded Units are issued in a transaction registered under applicable federal and state securities laws, by the Participant's execution hereof, the Participant represents and warrants to the Company that all Common Stock which may be acquired hereunder will be acquired by the Participant for investment purposes for the Participant's own account and not with any intent for resale or distribution in violation of federal or state securities laws, all certificates issued with respect to the Common Stock shall bear an appropriate restrictive investment legend and shall be held indefinitely, unless they are subsequently registered under the applicable federal and state securities laws or the Participant obtains an opinion of counsel, in form and substance satisfactory to the Company and its counsel, that such registration is not required.

 

14. Law Governing. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Texas (excluding any conflict of laws rule or principle of Texas law that might refer the governance, construction, or interpretation of this Agreement to the laws of another state).

 

15. Claims. The Participant's sole remedy for any Claim shall be against the Company, and no Participant shall have any claim or right of any nature against any Subsidiary of the Company or any shareholder or existing or former director, officer or Employee of the Company or any Subsidiary of the Company.

 

16. No Right to Continue Service or Employment. Nothing herein shall be construed to confer upon the Participant the right to continue in the employ or to provide services to the Company or any Subsidiary, whether as an Employee, Contractor, or Outside Director, or to interfere with or restrict in any way the right of the Company or any Subsidiary to discharge the Participant as an Employee, Contractor, or Outside Director at any time.

 

17. Legal Construction. In the event that any one or more of the terms, provisions, or agreements that are contained in this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect for any reason, the invalid, illegal, or unenforceable term, provision, or agreement shall not affect any other term, provision, or agreement that is contained in this Agreement and this Agreement shall be construed in all respects as if the invalid, illegal, or unenforceable term, provision, or agreement had never been contained herein.

 

18. Covenants and Agreements as Independent Agreements. Each of the covenants and agreements that are set forth in this Agreement shall be construed as a covenant and agreement independent of any other provision of this Agreement. The existence of any claim or cause of action of the Participant against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Company of the covenants and agreements that are set forth in this Agreement.

 

19. Entire Agreement. This Agreement, together with the Plan, supersede any and all other prior understandings and agreements, either oral or in writing, between the parties with respect to the subject matter in this Agreement and constitute the only agreements between the parties with respect to the subject matter in this Agreement. All prior negotiations and agreements between the parties with respect to the subject matter in this Agreement are merged into this Agreement. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party or by anyone acting on behalf of any party regarding the subject matter of this Agreement, which are not embodied in this Agreement or the Plan and that any agreement, statement or promise regarding the subject matter of this Agreement that is not contained in this Agreement or the Plan shall not be valid or binding or of any force or effect. Except for the specific representations expressly made by the Company in this Agreement, the Participant specifically disclaims that the Participant is relying upon or has relied upon any communications, promises, statements, inducements, or representation(s) that may have been made, oral or written, regarding the subject matter of this Agreement. The parties represent that they are relying solely and only on their own judgment in entering into this Agreement.

 

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20. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

21. Parties Bound. The terms, provisions, and agreements that are contained in this Agreement shall apply to, be binding upon, and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, and permitted successors and assigns, subject to the limitation on assignment expressly set forth herein.

 

22. Modification. No change or modification of this Agreement shall be valid or binding upon the parties unless the change or modification is in writing and signed by the parties (electronically or otherwise); provided, however, that the Company may change or modify this Agreement without the Participant's consent or signature if the Company determines, in its sole discretion, that such change or modification is necessary for purposes of compliance with or exemption from the requirements of Section 409A of the Code or any regulations or other guidance issued thereunder. Notwithstanding the preceding sentence, the Company may amend the Plan to the extent permitted by the Plan.

 

23. Headings. The headings that are used in this Agreement are used for reference and convenience purposes only and do not constitute substantive matters to be considered in construing the terms and provisions of this Agreement.

 

24. Gender and Number. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise.

 

25. Notice. Any notice required or permitted to be delivered hereunder shall be deemed to be delivered only when actually received by the Company or by the Participant, as the case may be, at the addresses set forth below, or at such other addresses as they have theretofore specified by written notice delivered in accordance herewith:

 

a. Notice to the Company shall be addressed and delivered as follows:

 

Fermi Inc.

600 S. Tyler St., Suite 1501

Amarillo, TX 79101

Attn: [____________]

 

b. Notice to the Participant shall be addressed and delivered to the most recent address in the Company's records.

 

26. Clawback. The Participant acknowledges, understands and agrees, with respect to any shares of Common Stock delivered to the Participant (or registered in the Participant's name) pursuant to this Agreement, that such shares of Common Stock shall be subject to recovery by the Company, and the Participant shall be required to repay such shares of Common Stock, in accordance with the Company's clawback policy, as in effect from time to time. The Participant further acknowledges, understands, and agrees that the Board retains the right to modify the Company's clawback policy at any time.

 

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27. Tax Requirements. The Participant is hereby advised to consult immediately with the Participant's own tax advisor regarding the tax consequences of this Agreement, including, without limitation, any possible tax consequences of this Agreement in connection with Section 409A of the Code. The Company and its Subsidiaries (for purposes of this Section 27, the term "Company" shall be deemed to include any applicable Subsidiary of the Company) shall, prior to the date of conversion, require the Participant receiving shares of Common Stock upon conversion of Awarded Units to pay the Company the amount of any taxes that the Company is required to withhold in connection with the Participant's income arising with respect to this Award. Such payments shall be required to be made prior to the delivery of any certificate or the registration of such shares of Common Stock in the Participant's name for such shares of Common Stock. Such payment may be made by (i) the delivery of cash to the Company in an amount that equals or exceeds (to avoid the issuance of fractional shares of Common Stock) the required tax withholding obligations of the Company; (ii) with the consent of the Board, in its sole discretion, the actual delivery by the Participant to the Company of shares of Common Stock, which shares of Common Stock so delivered have an aggregate Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares of Common Stock) the required tax withholding payment; (iii) with the consent of the Board, in its sole discretion, the Company's withholding of a number of shares of Common Stock to be delivered upon the settlement of the Award, which shares of Common Stock so withheld have an aggregate Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares of Common Stock) the required tax withholding payment; (iv) with the consent of the Board, in its sole discretion, through a broker-assisted sale, whereby a broker sells a portion of the shares of Common Stock issued upon settlement of the Award and remits a portion of such sale proceeds to the Company in an amount sufficient to satisfy such tax withholding obligation; (v) any combination of (i), (ii), (iii), or (iv)). If the Participant does not make appropriate arrangements for the satisfaction of such tax withholding obligations, the Company may, in its sole discretion, withhold any such taxes from any other cash remuneration otherwise paid by the Company to the Participant or withhold the number of shares of Common Stock to be delivered upon the conversion of the Awarded Units with an aggregate Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares of Common Stock) the required tax withholding obligations of the Company; provided, however, if the Participant is a "specified employee" as defined in Treasury Regulation Section 1.409A-1(i) and the settlement of the Awarded Units is subject to the six month delay provided for in Section 25 below, the Company shall withhold the number of shares of Common Stock attributable to the employment taxes on the date of the Participant's termination of service as a Service Provider and withhold the number of shares of Common Stock attributable to the income taxes on the date the Awarded Units are settled.

 

28. Section 409A.

 

a. To the extent (i) any shares of Common Stock to which the Participant becomes entitled under this Agreement in connection with the Participant's termination of employment with the Company constitutes deferred compensation subject to Section 409A of the Code; (ii) the Participant is at the time of his separation from service a "specified employee" under Section 409A of the Code; and (iii) at the time of the Participant's separation from service the Company is publicly traded (as defined in Section 409A of the Code), then such shares of Common Stock (other than any delivery of Common Stock permitted by Section 409A of the Code to be paid or delivered within six months of the Participant's separation from service) shall not be made until the earlier of (x) the first day of the seventh month following the Participant's separation from service or (y) the date of the Participant's death following such separation from service. Upon the expiration of the applicable deferral period, any shares of Common Stock which would have otherwise been made during that period (whether in a single sum or in installments) in the absence of this Section 28 (together with, as applicable, accrued interest thereon) shall be delivered to the Participant or the Participant's beneficiary in one lump sum.

 

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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 that are deferred compensation subject to (and not exempt from) Section 409A of the Code upon or following a termination of employment unless such termination is also a "separation from service" (within the meaning of Section 409A of the Code).

 

c. It is intended that this Agreement be exempt from (or if not exempt, comply with) the provisions of Section 409A of the Code so as to not subject the Participant to the payment of additional interest and taxes under Section 409A of the Code, and in furtherance of this intent, this Agreement shall be interpreted, operated and administered in a manner consistent with these intentions.

 

29. Consent to Electronic Delivery; Electronic Signature. In lieu of receiving documents in paper format, the Participant agrees, to the fullest extent permitted by law, to accept electronic delivery of any documents that the Company may be required to deliver (including, without limitation, prospectuses, prospectus supplements, grant or award notifications and agreements, account statements, annual and quarterly reports and all other forms of communications) in connection with this and any other award made or offered by the Company. Electronic delivery may be via the Company' electronic mail system or by reference to a location on the Company's intranet or third-party website to which the Participant has access. The Participant hereby consents to any and all procedures the Company has established or may establish for an electronic signature system for delivery and acceptance of any such documents that the Company may be required to deliver, and agrees that the Participant's electronic signature is the same as, and shall have the same force and effect as, the Participant's manual signature.

 

* * * * * * * * * *

 

[Remainder of Page Intentionally Left Blank.

Signature Page Follows]

 

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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and the Participant, to evidence the Participant's consent and approval of all the terms hereof, has duly executed this Agreement, as of the date specified in Section 1 hereof. 

 

	COMPANY:
	FERMI INC.
	By:
	Name:
	Title:
	PARTICIPANT:
	Signature
	Name:
	Address:

 

Signature Page to the

Performance Restricted Stock Unit Award Agreement 

 

 

 

Exhibit A

 

Performance Conditions

 

Subject to the Agreement and the Plan, the Awarded Units shall become vested in the manner set forth below so long as you remain continuously employed by the Company from the Date of Grant through the date the Awarded Units are settled.

 

Performance Period: The performance period starts on January 1, 2026 and ends on December 31, 2028 (the "Performance Period").

 

The number of Awarded Units, if any, that become earned for the Performance Period will be determined based on performance relative to pre-established metrics and goals in respect of 2026, and may be subject to a modifier based on the Company's stock price (the "Earned PSUs"). The Performance Metrics, weightings, performance goals, and corresponding payout levels (at threshold, target, and maximum levels) are set forth in the following table:

 

Commercial

 

Performance Metric	Weighting	Threshold Goal (50% Payout)	Target Goal (100% Payout)	Maximum Goal (200% Payout)
Tenant Contracts	70%	1 tenant	2 tenants	3 tenants

 

Power

 

Performance Metrics	Weighting	Threshold (50% Payout)	Target (100% Payout)	Maximum (200% Payout)
Construction Progress:	20%
GE 6BS		45%	90%	100%
SGT 800s		35%	65%	85%
F-Class		10%	20%	40%
Procure all necessary long lead power equipment to bring online F-Class units in simple cycle by 12/31/2026		50%	100%	N/A

 

Safety

 

Performance Metric	Weighting	25% Payout	50% Payout	75% Payout	100% Payout
TRIR*	10%	<= 1.00	<=0.75	<=0.50	<=0.25

 

*	If there are any fatalities, the payout percentage will be 0%.

 

Following the completion of 2026, the Compensation Committee will review and certify the actual performance results for each performance metric relative to the goals defined above. Each performance metric can earn a result from 0% to 200% of target. For performance between threshold and target or target and maximum, the metric result is determined by linear interpolation. If actual performance relative to any of the performance metrics is below the Threshold Goal level, the weighted performance score for such performance metric will be zero. The actual performance metric result is multiplied by the metric weighting to determine the metric payout. The sum of the weighted performance metric results determine a weighted performance score (the "Performance Score").

 

Exhibit A to the

Performance Restricted Stock Unit Award Agreement

 

 

 

 

Stock Price Modifier

 

If the volume weighted average price of the Company's Common Stock over a twenty (20 day) period ending on December 31, 2026 (the "VWAP") is (i) greater than or equal to $21 per share of Common Stock, then the Performance Score shall be multiplied by 1.25 or (ii) less than or equal to $10 per share of Common Stock, then the Performance Score shall be multiplied by 0.75.

 

Earned PSUs = Target PSUs x Performance Score x Stock Price Modifier (if applicable).

 

Service Requirement

 

Notwithstanding any provision herein and except as otherwise provided in Section 3 of the Agreement, Earned PSUs shall become vested and settle following the conclusion of the Performance Period subject to your continuous employment by the Company or one of its Affiliates from the Date of Grant through the date the Awarded Units are settled.

 

Applicable Definitions

 

As used herein, the following terms have the meanings set forth below:

 

"Construction Progress" means the percentage completion of construction of each specified power generation unit (GE 6Bs, SGT 800s, and F-Class) as of December 31, 2026, as determined by the Committee in its reasonable discretion based on objective engineering milestones and project reports. The metric for procurement of long lead power equipment necessary to bring F-Class units online in simple cycle shall be assessed on a binary (0% or 100%) basis as of December 31, 2026.

 

"OSHA" means the Occupational Safety and Health Administration of the United States Department of Labor.

 

"Tenant Contract" means a fully executed, binding agreement between the Company and a third-party tenant for co-location or use of power or data center capacity at a Company facility, as determined by the Committee in its sole discretion.

 

"TRIR" means Total Recordable Incident Rate, calculated using the OSHA standard formula, which is a quotient, the numerator of which is the product of (x) the number of OSHA recordable incidents and (y) 200,000), and the denominator of which is total hours worked. The calculation of TIRR will include hours worked by both Fermi employees and independent contractors.

 

Exhibit A to the

Performance Restricted Stock Unit Award Agreement

 

 

 

 

Exhibit 10.7

 

FORM OF INDEMNIFICATION AGREEMENT

 

THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made and entered into as of _________, 2026 between Fermi Inc., a Texas corporation (the "Company"), and the counterparty identified on the signature page hereto ("Indemnitee").

 

WHEREAS, highly competent persons have become more reluctant to serve corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;

 

WHEREAS, the Board of Directors of the Company (the "Board") has determined that, in order to attract and retain qualified individuals, the Company will attempt to obtain and maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and any subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The Bylaws of the Company, as may hereafter by amended and/or restated (the "Bylaws"), and Certificate of Formation of the Company, as may hereafter be amended and/or restated (the "Charter"), require indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to the Texas Business Organizations Code, as amended (the "TBOC"). The Bylaws and the TBOC expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the Board, officers and other persons with respect to indemnification;

 

WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;

 

WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company's shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;

 

WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;

 

WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws and Charter and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and

 

WHEREAS, Indemnitee does not regard the protection available under the Bylaws and Charter and insurance as adequate in the present circumstances, and may not be willing to serve or continue to serve as an officer or director without adequate protection, and the Company desires Indemnitee to serve and continue to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he or she be so indemnified.

 

 

 

NOW, THEREFORE, in consideration of Indemnitee's agreement to serve or continue to serve as a director or officer from and after the date hereof, the parties hereto agree as follows:

 

1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by law, as such may be amended from time to time. In furtherance of the foregoing indemnification, and without limiting the generality thereof:

 

(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 1 if, by reason of his or her Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1, Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her, or on his or her behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee's conduct was unlawful.

 

(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 1(b) if, by reason of his or her Corporate Status, the Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the right of the Company. Pursuant to this Section 1(b), Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee, or on the Indemnitee's behalf, in connection with such Proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company; provided, however, if applicable law so provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company unless and to the extent that the Business Court in the First Business Court Division of the State of Texas (the "Business Court") (or, if the Business Court determines that it lacks jurisdiction, the federal district court for the Northern District of Texas, Dallas Division) shall determine that such indemnification may be made.

 

(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a party to (or participant in) and is successful, on the merits or otherwise, in any Proceeding, he or she shall be indemnified to the maximum extent permitted by law, as such may be amended from time to time, against all Expenses actually and reasonably incurred by him or her, or on his or her behalf, in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one (1) or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her, or on his or her behalf, in connection with each successfully resolved claim, issue or matter. For purposes of this Section 1 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

 

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(d) Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

 

2. Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her, or on his or her behalf, if, by reason of his or her Corporate Status, he or she is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company), including, without limitation, all liability arising out of the negligence or active or passive wrongdoing of Indemnitee. Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Section 6 and Section 7 hereof) to be unlawful.

 

3. Contribution.

 

(a) Whether or not the indemnification provided in Section 1 and Section 2 hereof is available, in respect of any threatened, pending or completed action, suit or Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or Proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.

 

(b) Without diminishing or impairing the obligations of the Company set forth in Section 3(a), if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction or events from which such action, suit or Proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the transaction or events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which applicable law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or Proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.

 

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(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors, or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.

 

4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness, or is made (or asked) to respond to discovery requests, in any Proceeding to which Indemnitee is not a party, he or she shall be indemnified against all Expenses actually and reasonably incurred by him or her, or on his or her behalf, in connection therewith.

 

5. Advancement of Expenses. Notwithstanding any other provision of this Agreement, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee's Corporate Status within 20 days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free. This Section 5 shall not apply to any claim made by Indemnitee for which indemnity is excluded pursuant to Section 9.

 

6. Procedures and Presumptions for Determination of Entitlement to Indemnification. It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as favorable as may be permitted under the TBOC and public policy of the State of Texas. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:

 

(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that Indemnitee has requested indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent that, such failure actually and materially prejudices the interests of the Company. The Company will be entitled to participate in the Proceeding at its own Expense.

 

(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect to Indemnitee's entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board: (i) by a majority vote of the Disinterested Directors, even though less than a quorum, (ii) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum, (iii) if there are no Disinterested Directors or if the Disinterested Directors so direct, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee, or (iv) if so directed by the Board, by the shareholders of the Company.

 

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(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board. Indemnitee may, within ten (10) days after such written notice of selection shall have been given, deliver to the Company a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Business Court or other court of competent jurisdiction for resolution of any objection which shall have been made by the Indemnitee to the Company's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incurred by the Company and the Indemnitee incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.

 

(d) Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. The provisions of this Section 6(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(d) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence unless a majority of the Disinterested Directors determine, after reasonable investigation, that the Indemnitee did not act in good faith.

 

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(e) If the person, persons or entity empowered or selected under Section 6 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such sixty (60) day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided further, that the foregoing provisions of this Section 6(e) shall not apply if the determination of entitlement to indemnification is to be made by the shareholders pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board or the Disinterested Directors, if appropriate, resolve to submit such determination to the shareholders for their consideration at an annual meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of shareholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat.

 

(f) Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or shareholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee's entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee's entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.

 

(g) In the event that any action, suit or Proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, suit or Proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or Proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

 

(h) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.

 

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7. Remedies of Indemnitee.

 

(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within ninety (90) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Sections 1(c), 1(d), 4 or the last sentence of Section 6(f) of this Agreement within ten (10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made pursuant to Sections 1(a), 1(b) and 2 of this Agreement within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the State of Texas, or in any other court of competent jurisdiction, of Indemnitee's entitlement to such indemnification. Indemnitee shall commence such Proceeding seeking an adjudication within one hundred eighty (180) days following the date on which Indemnitee first has the right to commence such Proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee's right to seek any such adjudication.

 

(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial Proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).

 

(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial Proceeding commenced pursuant to this Section 7, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's misstatement not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification under applicable law.

 

(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his or her rights under, or to recover damages for breach of, this Agreement, or to recover under any directors' and officers' liability insurance policies maintained by the Company, the Company shall pay on his or her behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 13 of this Agreement) actually and reasonably incurred by him or her in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.

 

(e) The Company shall be precluded from asserting in any judicial Proceeding commenced pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefore) advance, to the extent not prohibited by law, such expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors' and officers' liability insurance policies maintained by the Company, if, in the case of indemnification, Indemnitee is wholly successful on the underlying claims; if Indemnitee is not wholly successful on the underlying claims, then such indemnification shall be only to the extent Indemnitee is successful on such underlying claims or otherwise as permitted by law, whichever is greater.

 

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(f) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.

 

8. Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.

 

(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter, the Bylaws, any agreement, a vote of shareholders, a resolution of directors of the Company, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the TBOC, whether by statute or judicial decision, permits greater indemnification than would be afforded currently under the Charter, Bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

 

(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has directors' and officers' liability insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.

 

(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including the execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.

 

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(e) The Company's obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.

 

9. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:

 

(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or

 

(b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or similar provisions of state statutory law or common law, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley Act"), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or

 

(c) except as provided in Section 7(e) of this Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding) or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.

 

10. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is an officer or director of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue thereafter so long as Indemnitee shall be subject to any Proceeding (or any Proceeding commenced under Section 7 hereof) by reason of his or her Corporate Status, whether or not he or she is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.

 

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11. Security. To the extent requested by Indemnitee and approved by a majority of the independent and Disinterested Directors, the Company may at any time and from time to time provide security to Indemnitee for the Company's obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.

 

12. Enforcement.

 

(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer or director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer or director of the Company.

 

(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.

 

13. Definitions. For purposes of this Agreement:

 

(a) "Corporate Status" describes the status of a person who is or was a director, officer, employee, agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person is or was serving at the express written request of the Company.

 

(b) "Disinterested Director" means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

 

(c) "Enterprise" shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express written request of the Company as a director, officer, employee, agent or fiduciary.

 

(d) "Expenses" shall include all reasonable attorneys' fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including, without limitation, the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent (ii) Expenses incurred in connection with recovery under any directors' and officers' liability insurance policies maintained by the Company, regardless of whether Indemnitee is ultimately determined to be entitled to such indemnification, advancement or Expenses or insurance recovery, as the case may be, and (iii) for purposes of Section 7(e) only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee's rights under this Agreement, the Charter, the Bylaws or under any directors' and officers' liability insurance policies maintained by the Company, by litigation or otherwise. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

 

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(e) "Independent Counsel" means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither at present is, nor in the past five (5) years has been, retained to represent (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee's rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

 

(f) "Proceeding" includes any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of his or her Corporate Status, by reason of any action taken by him or her, or of any inaction on his or her part, while acting in his or her Corporate Status; in each case whether or not he or she is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification, reimbursement or advancement of expenses can be provided under this Agreement; including one pending on or before the date of this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his or her rights under this Agreement.

 

14. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable laws. In the event any provision hereof conflicts with any applicable law, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.

 

15. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

 

16. Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.

 

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17. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent:

 

(a) To Indemnitee at the address set forth below Indemnitee signature hereto.

 

(b) To the Company at:

 

Fermi Inc.

Attn: Chief Financial Officer

600 S. Tyler St.

Suite 1501

Amarillo, TX 79101

 

or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.

 

18. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

19. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.

 

20. Governing Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Texas, without regard to its conflict of laws rules. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or Proceeding arising out of or in connection with this Agreement shall be brought only in the Business Court (or, if the Business Court determines that it lacks jurisdiction, the federal district court for the Northern District of Texas, Dallas Division), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Business Court for purposes of any action or Proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or Proceeding in the Business Court, and (iv) waive, and agree not to plead or to make, any claim that any such action or Proceeding brought in the Business Court has been brought in an improper or inconvenient forum.

 

[This space intentionally blank. Signature Page follows.]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement on and as of the day and year first above written.

 

	COMPANY
	FERMI INC.

 

	By:
	Name:
	Title:

 

INDEMNITEE

 

	Name:
	Address:

 

 

Signature Page to Indemnification Agreement