Vylor Inc 8-K, filed Oct 7, 2026
Vylor Inc. (VYLR)
About this 8-K
Vylor Inc filed this 8-K on October 7, 2026, reporting on events of October 1, 2026.
Items reported
- Item 2.01: Completed an acquisition or sale of assets
- Item 2.03: New debt or off-balance-sheet obligation
- Item 3.02: Unregistered sale of equity
- Item 4.01: Change of auditor
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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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. ☐
Introductory Note.
At 12:03 a.m., New York City time, on October 1, 2026 (the “Effective Time”), Corteva, Inc. (“Corteva”) completed its previously announced separation into two independent, publicly traded companies through the separation (“Separation”) of Corteva’s seed operating segment into an independent, publicly traded company, Vylor Inc. (the “Company”). The Separation was effected through a pro rata distribution of all of the outstanding shares of common stock, par value $0.01 per share, of the Company (“Company common stock”) to holders of common stock, par value $0.01 per share, of Corteva as of the close of business on September 24, 2026 (the “Distribution”). Additional information about the Distribution can be found in the Company’s information statement, dated September 24, 2026, which was included as Exhibit 99.1 to the Company’s Current Report on Form 8-K filed on September 25, 2026 (the “Information Statement”), on August 6, 2026, under the section entitled “The Spin-Off”, which section is incorporated by reference herein.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
The information set forth in the Introductory Note of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.
At 12:01 a.m., New York City time, on October 1, 2026, in connection with the Separation, the Company issued to EIDP, Inc., a wholly owned subsidiary of Corteva (“EIDP”), 667,302,930 shares of Company common stock (the “New Company Shares”). The New Company Shares were subsequently distributed to Corteva and thereafter distributed in the Distribution. EIDP contributed to the Company 100% of the issued and outstanding shares of capital stock of Pioneer Hi-Bred International, Inc., a wholly-owned subsidiary of the Company (“PHI”), in exchange for (i) New Company Shares, (ii) payment of a cash distribution by the Company to EIDP in an aggregate amount equal to approximately $761 million (subject to certain adjustments) and (iii) the assumption by the Company of a portion of EIDP’s $500,000,000 aggregate principal amount of 2.300% Senior Notes due July 2030, $500,000,000 aggregate principal amount of 5.125% Senior Notes due May 2032 and $600,000,000 aggregate principal amount of 4.800% Senior Notes due May 2033 (such senior notes, collectively the “EIDP Notes”) in connection with the private offers to exchange any and all of the outstanding EIDP Notes, to the extent held by eligible holders, for new notes of the corresponding series issued by the Company. The New Company Shares were issued without registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act as a transaction not involving a public offering and in reliance on similar exemptions under applicable state laws.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth in the Introductory Note of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
As previously disclosed in the Information Statement, the Company entered into (a) a five-year senior unsecured revolving credit facility in an aggregate principal amount equal to $3,000 million (the “Five-Year Revolving Credit Facility”) and (b) a 364-day senior unsecured revolving credit facility in an aggregate principal amount equal to $1,500 million (the “364-Day Revolving Credit Facility”). Information about the Five-Year Revolving Credit Facility and the 364-Day Revolving Credit Facility can be found in the Information Statement under the sections entitled “Description of Material Indebtedness—Credit Facilities—Five-Year Revolving Credit Facility” and “Description of Material Indebtedness—Credit Facilities—364-Day Revolving Credit Facility”, which sections are incorporated by reference into this Item 2.03.
As previously disclosed in the Information Statement,PHI entered into a loan facility for up to an aggregate principal amount of $3,500 million with Banco Bilbao Vizcaya Argentaria, S.A. New York Branch on August 26, 2026 (the “PHI Bilateral Facility”).
On October 1, 2026, following the Effective Time, PHI borrowed $1,578 million under the Five-Year Revolving Credit Facility and $1,500 million under the 364-Day Revolving Credit Facility. On October 1, 2026, these proceeds from the Five-Year Revolving Credit Facility and the 364-Day Revolving Credit Facility were used to repay $3,078 million of borrowings under the PHI Bilateral Facility. Following this repayment, on October 1, 2026, the PHI Bilateral Facility ceased to be effective.
| Item 3.02 | Unregistered Sales of Equity Securities. |
The information set forth in the Introductory Note and in Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02.
| Item 4.01 | Changes in Registrant’s Certifying Accountant. |
On October 1, 2026, the Audit Committee of the Board of Directors of the Company appointed PricewaterhouseCoopers LLP (“PwC”) as the Company’s independent registered public accounting firm to audit the Company’s consolidated financial statements for the fiscal year ending December 31, 2026. PwC was retained by Corteva, the Company’s former parent, to audit the combined balance sheets of the Seed Business of Corteva as of December 31, 2025 and 2024, and the related combined statements of operations, comprehensive income, equity and cash flows for each of the three years in the period ended December 31, 2025, including the related notes and schedule of valuation and qualifying accounts for each of the three years in the period ended December 31, 2025 listed in the index to the financial statements (collectively referred to as the “combined financial statements”) included in the Information Statement.
| Item 5.02 | Departure of Directors and Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. Appointment and Resignation of Directors |
Appointment and Resignation of Directors
On September 24, 2026, when the Company’s Registration Statement on Form 10, initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on June 29, 2026 (as amended on August 14, 2026, September 15, 2026 and September 21, 2026, the “Registration Statement”), was declared effective by the SEC, the Board of Directors of the Company (the “Board”) was comprised of David P. Johnson and Jennifer A. Johnson.
In connection with the Separation, Mr. Johnson and Ms. Johnson resigned from their respective positions as members of the Board effective as of the Effective Time. Effective as of the Effective Time, the Board increased its size from two members to seven members. Each of Mr. Johnson’s and Ms. Johnson’s decision to resign from the Board is in connection with the Separation and is not the result of any disagreement relating to the Company’s operations, policies or practices.
In connection with the Separation, to fill the vacancies created by the foregoing director resignations and the expansion of the size of the Board, the Board appointed each of Karen H. Grimes (Chair), Victor J. Aguilar, Rajesh Kalathur, Marcos M. Lutz, Charles V. Magro, Johannes J. Oosthuizen and Kerry J. Preete as a member of the Board, effective as of the Effective Time.
Biographical information for each member of the Board can be found in the Information Statement under the section entitled “Management—Board of Directors Following the Spin-Off and Director Independence”, which section is incorporated by reference into this Item 5.02.
Effective as of the Effective Time, the Committees of the Board were comprised of the following members:
| Committee | Members | |
| Audit Committee | Rajesh Kalathur (Chair) Karen Grimes Johannes Oosthuizen | |
| Governance and Compliance Committee | Marcos Lutz (Chair) Karen Grimes Rajesh Kalathur | |
| People and Compensation Committee | Kerry Preete (Chair) Victor Aguilar Johannes Oosthuizen | |
| Science and Innovation Committee | Victor Aguilar (Chair) Marcos Lutz Kerry Preete | |
None of the foregoing directors is a party to any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K. There are no arrangements or understandings between any of such directors and any other person or the Company pursuant to which such directors were appointed to serve in his or her respective role.
Appointment and Resignation of Officers
On September 24, 2026, when the Registration Statement was declared effective by the SEC, the principal executive officer, president, principal financial officer, principal accounting officer, principal operating officer, or any person performing similar functions were Judd M. O’Connor and David P. Johnson, who served as President and Chief Financial Officer, respectively. In connection with the Separation, Mr. O’Connor ceased serving as President of the Company, effective as of the Effective Time.
In connection with the Separation, the Board appointed each person set forth in the table below as executive officers of the Company in the positions set forth beside such person’s name, in each case, effective as of the Effective Time, except that Mr. Johnson continued to serve as Chief Financial Officer of the Company.
| Name |
Age | Office(s) | ||
| Charles V. Magro | 56 | Chief Executive Officer | ||
| David P. Johnson | 59 | Chief Financial Officer | ||
| Dr. Samuel R. Eathington | 57 | Chief Technology Officer | ||
| Judd M. O’Connor | 55 | Chief Commercial & Operations Officer | ||
| Jennifer A. Johnson | 51 | Chief Legal Officer and Corporate Secretary | ||
| Audrey Grimm | 45 | Chief People Officer |
Biographical information for each of the foregoing officers can be found in the Information Statement under the section entitled “Management—Executive Officers Following the Spin-Off”, which section is incorporated by reference into this Item 5.02.
Effective as of the Effective Time, Colleen Hopper, age 47, was named Vice President, Corporate Finance and Principal Accounting Officer of the Company. Ms. Hopper has held a series of finance and leadership positions at Corteva during the past five years, including Vice President, Crop Protection Finance; Vice President, Enterprise Strategy; Chief of Staff to the Chief Executive Officer; and Assistant Controller. Prior to Corteva, Ms. Hopper held various roles within E.I. duPont de Nemours and Company’s corporate accounting organization. Earlier in her career, she spent approximately ten years in public accounting, primarily with KPMG LLP, providing assurance services. Ms. Hopper is a Certified Public Accountant.
None of Mr. Magro, Mr. O’Connor, Mr. Johnson or Ms. Hopper has any family relationship with any director, executive officer or person nominated or chosen by the Company to become a director or executive officer of the Company. None of Mr. Magro, Mr. O’Connor, Mr. Johnson or Ms. Hopper is a party to any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K. There are no arrangements or understandings between any of Mr. Magro, Mr. O’Connor, Mr. Johnson or Ms. Hopper and any other person or the Company pursuant to which any of them were appointed to serve in his or her respective position.
Adoption of Vylor Inc. 2026 Omnibus Incentive Plan and Vylor Inc. 2026 Employee Stock Purchase Plan
In connection with the Separation, the Board adopted, and EIDP, as the Company’s then-sole stockholder, approved, the Vylor Inc. 2026 Omnibus Incentive Plan (the “Omnibus Incentive Plan”) and the Vylor Inc. 2026 Employee Stock Purchase Plan (the “ESPP”), in each case, effective as of the Effective Time. A description of the material terms of the Omnibus Incentive Plan and the ESPP can be found in the Information Statement under the section entitled “Compensation Discussion and Analysis”, which description is incorporated by reference into this Item 5.02. The description is qualified in its entirety by reference to the full text of the Omnibus Incentive Plan and the ESPP, which are attached as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K and are incorporated by reference into this Item 5.02.
Adoption of Vylor Inc. Change in Control and Executive Severance Plan
In connection with the Separation, the Board adopted the Vylor Inc. Change in Control and Executive Severance Plan (the “Severance Plan”), effective as of the Effective Time, which provides severance protections to designated employees of the Company, including the Company’s executive officers. Under the Severance Plan, upon a termination of employment by the Company without cause or by the participant for good reason (for certain tiers, good reason termination applies only during the two-year period following a change in control (the “Covered Period”)), a participant will be eligible to receive (i) a lump sum cash severance payment equal to an applicable severance multiple (as described below) times the sum of the participant’s annual base salary and target annual bonus, (ii) a lump sum cash payment equal to a pro-rated portion of target annual bonus for the year of termination, (iii) continued health, dental and vision benefits for the benefits continuation period (as described below) and (iv) outplacement services. If the qualifying termination occurs during the Covered Period, a participant’s outstanding equity awards will become fully vested and exercisable with performance conditions deemed achieved at target. Receipt of severance benefits is conditioned on the participant’s execution of a release of claims and continued compliance with restrictive covenants, including non-competition and non-solicitation covenants for one year following termination.
“Applicable severance multiple” means three times for the Chief Executive Officer if the qualifying termination occurs during the Covered Period and two times if the qualifying termination occurs outside of the Covered Period, and ranges from a minimum of one half times to a maximum of two times for other participants depending on tier, years of service, and whether the qualifying termination occurs during the Covered Period.
“Benefits continuation period” generally means, for the Chief Executive Officer, the period beginning on the date of the qualifying termination and ending three years thereafter if the qualifying termination occurs during the Covered Period, and two years thereafter if the qualifying termination occurs outside of the Covered Period. For other participants, the “benefits continuation period” ranges from a minimum of six months to a maximum of two years, depending on tier, years of service, and whether the qualifying termination occurs during the Covered Period.
The description is qualified in its entirety by reference to the full text of the Severance Plan, which is attached as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated by reference into this Item 5.02.
Adoption of Vylor Inc. Management Deferred Compensation Plan
In connection with the Separation, the Board adopted the Vylor Inc. Management Deferred Compensation Plan (the “Management Deferred Compensation Plan”), effective as of the Effective Time, which permits a select group of management or highly compensated employees of the Company, including the Company’s executive officers, to defer receipt of up to 60% of their base salary and up to 60% of their short-term incentive awards. Participants may elect to have their accounts deemed invested in one or more investment options designated by the administrator, including a common stock unit fund. Upon separation from service, change of control, or a specified date elected by the participant, amounts will be distributed in either a lump sum or annual installments for up to ten years, if permitted and as elected by the participant. Benefits under the Management Deferred Compensation Plan are unfunded and are general, unsecured obligations of the Company.
The description is qualified in its entirety by reference to the full text of the Management Deferred Compensation Plan, which is attached as Exhibit 10.4 to this Current Report on Form 8-K and is incorporated by reference into this Item 5.02.
Adoption of Vylor Inc. Deferred Compensation and Stock Accumulation Plan for Directors
In connection with the Separation, the Board adopted the Vylor Inc. Deferred Compensation and Stock Accumulation Plan for Directors (the “Director Deferred Compensation Plan”), effective as of the Effective Time, which permits non-employee directors of the Company to defer, in the form of cash or stock units, all or a specified part of fees
payable to the director for services as a director. Deferred cash bears interest at a rate corresponding to the average 30-year Treasury securities rate applicable for the quarter, compounded quarterly. Fees deferred in the form of stock units are allocated based on the closing price of the Company’s common stock, with dividend equivalents credited in the form of additional stock units. Upon separation from service or a specified calendar year elected by the director, amounts will be distributed in either a lump sum or annual installments, if permitted and as elected by the director. Benefits under the Director Deferred Compensation Plan are unfunded and are general, unsecured obligations of the Company.
The description is qualified in its entirety by reference to the full text of the Director Deferred Compensation Plan, which is attached as Exhibit 10.5 to this Current Report on Form 8-K and is incorporated by reference into this Item 5.02.
| Item 9.01 | Financial Statements and Exhibits. |
(a) Financial statements of businesses or funds acquired.
The audited combined financial statements from the Information Statement are incorporated by reference into this Item 9.01(a).
(b) Pro forma financial information.
The unaudited Pro Forma Consolidated Financial Statements for the Company as of June 30, 2026, and for the six months ended June 30, 2026 and the year ended December 31, 2025, from the Information Statement are incorporated by reference into this Item 9.01(b), and were prepared in accordance with Article 11 of Regulation S-X, to give effect to the Separation and ancillary transactions including those related to the Company’s capital structure after the Separation.
(d) Exhibits.
| * | Certain schedules or similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrant agrees to furnish supplemental copies of any of the omitted schedules or attachments upon request by the SEC. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| VYLOR INC. | ||
| By: | /s/ David P. Johnson | |
| Name: | David P. Johnson | |
| Title: | Chief Financial Officer | |
Date: October 7, 2026
Exhibit 10.2
VYLOR INC.
GLOBAL OMNIBUS EMPLOYEE STOCK PURCHASE PLAN
I. Purpose; Effective Date and Term
| (A) | Purpose. The purpose of the Vylor Inc. Global Omnibus Employee Stock Purchase Plan (the “Plan”) is to afford Eligible Employees an opportunity to obtain a proprietary interest in the continued growth and prosperity of Vylor Inc. (the “Company”) through ownership of shares of the Company’s common stock (“Common Stock”). The Company intends for the Plan to be comprised of two components: a component with offerings that are intended to qualify as an “employee stock purchase plan” under Code Section 423 (the “Code Section 423 Component”), and a component with offerings that are not intended to qualify as an “employee stock purchase plan” under Code Section 423 (the “Non-Code Section 423 Component”). The provisions of the Code Section 423 Component shall be construed so as to extend and limit participation on a uniform and nondiscriminatory basis consistent with the requirements of Code Section 423. A right to purchase shares of Common Stock under the Non-Code Section 423 Component shall be effectuated via separate offerings under one or more sub-plans of the Non-Code Section 423 Component of the Plan for Employees of Participating Non-423 Subsidiaries and affiliates in countries outside of the United States in order to achieve tax, employment, securities law or other purposes and objectives, and to conform the terms of the sub-plans with the laws and requirements of such countries. Except as otherwise provided herein or in the applicable sub-plan, the Non-Code Section 423 Component of the Plan shall be operated and administered in the same manner as the Code Section 423 Component. |
| (B) | Effective Date and Term. The Plan shall become effective on January 1, 2027 and shall continue in effect until the date on which all of the shares of Common Stock authorized for issuance under the Plan have been issued. |
II. Definitions
As used herein, unless the context otherwise requires, the following terms shall be defined as follows:
| (A) | “Board” means the Company’s Board of Directors. |
| (B) | “Change in Control” means “Change in Control” as defined in the Vylor Inc. 2026 Omnibus Incentive Plan, as amended from time to time, and any successor plan that may be adopted by the Company and approved by the Company’s shareholders. |
| (C) | “Code” means the United States Internal Revenue Code of 1986, as amended, and any applicable regulations promulgated thereunder. |
| (D) | “Code Section 423 Component” means those offerings under the Plan that are intended to meet the requirements of Code Section 423(b). |
| (E) | “Committee” means the People and Compensation Committee of the Board, or such other committee of the Board as the Board may designate. |
| (F) | “Company” means Vylor Inc., a corporation incorporated in the State of Delaware, and any present or future parent corporation of the Company (as defined in Code Section 424(e)). |
| (G) | “Common Stock” means the common stock of the Company, par value $0.01 per share. |
| (H) | “Compensation” means, with respect to any Participant and with respect to each Payroll Deduction Period, the base salary or regular hourly wages, excluding, except as determined by the Plan Administrator on a nondiscriminatory basis, any incentive cash compensation (such as bonuses) and equity compensation incentive payments. The Plan Administrator may, in its sole discretion, on a uniform and nondiscriminatory basis, establish a different definition of Compensation for any subsequent Payroll Deduction Period, consistent with the requirements of Code Section 423 for offerings under the Code Section 423 Component of the Plan. In addition, the Plan Administrator may establish a different definition of Compensation for any subsequent Payroll Deduction Period for offerings under the Non-Code Section 423 Component of the Plan, and shall have the authority to interpret which components of remuneration constitute Compensation for Participants employed outside of the United States |
| (I) | “Eligible Employee” means any person who is an Employee of the Company, a Participating 423 Subsidiary or a Participating Non-423 Subsidiary, excluding any person: |
| (1) | who, immediately after any rights under the Plan are granted, owns (directly or through attribution) shares of Common Stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock or other stock of the Company, a future parent corporation, or a Subsidiary (as determined under Code Section 423(b)(3)); or |
| (2) | who has not satisfied a service requirement of at least ninety (90) days or such other period designated by the Plan Administrator pursuant to Code Section 423(b)(4)(A) (which service requirement may not exceed two (2) years). |
For purposes of the foregoing, the rules of Code Section 424(d) with regard to the attribution of stock ownership shall apply in determining the stock ownership of a person, and shares of Common Stock, which an Employee may purchase or otherwise acquire under outstanding options or other forms of equity compensation awards granted by the Company, shall be treated as shares of Common Stock owned by the Employee. For purposes of the Plan, the employment relationship shall be treated as continuing intact while the person is on sick leave or other leave of absence approved by the Plan Administrator and meeting the requirements of Treasury Regulation Section 1.421-7(h)(2). In the case of a rehired Employee, the Plan Administrator may, in its sole discretion, recognize prior service for purposes of such Employee’s satisfaction of any service period requirement so long as the Plan Administrator’s actions are applied on a uniform and nondiscriminatory basis consistent with the requirements of Code Section 423.
| (J) | “Employee” means (1) any person who is regularly and actively employed by the Company or a Participating 423 Subsidiary for purposes of the Code Section 423 Component of the Plan and who receives from it regular compensation, other than pension, retirement allowance, retainer, or fee under contract, or (2) any person who is treated as an employee of a Participating Non-423 Subsidiary offering participation in the Non-Code Section 423 Component of the Plan as determined under local laws, rules and regulations and specified in the applicable sub-plan. For purposes of the Plan, a Participant shall cease to be an Employee either upon an actual termination of employment or upon the entity employing the employee ceasing to be a Participating 423 Subsidiary or a Participating Non-423 Subsidiary. For purposes of the Plan, a person shall not cease to be an Employee while such person is on any military leave, sick leave, statutory leave (as determined under local law) or other bona fide leave of absence approved by the Plan Administrator. The Plan Administrator shall determine in good faith and in the exercise of its discretion whether a person has become or has ceased to be an Employee and the effective date of such person’s employment or termination of employment, as the case may be. For purposes of a person’s participation in or other rights, if any, under the Plan as of the time of the Plan Administrator’s determination, all such determinations by the Plan Administrator shall be final, binding and conclusive, notwithstanding that the Plan Administrator or any governmental agency subsequently makes a contrary determination. |
| (K) | “Enrollment Agreement” means an agreement in such written or electronic form as specified by the Plan Administrator, stating an Eligible Employee’s election to participate in the Plan and authorizing payroll deductions or such other form of contribution as may be permitted under the Plan (or any sub-plan of the Plan established pursuant to Subsection IX (D) below). |
| (L) | “Enrollment Period” means the period preceding each Offering in which Eligible Employees are permitted to enroll to participate in the Plan, as specified by the Plan Administrator. |
| (M) | “Fair Market Value” means, unless otherwise required by any applicable provision of the Code or any regulations issued thereunder, as of any date and except as provided below, the arithmetic mean of the high and low trading prices for a share of Common Stock as reported for the NYSE Composite Transactions. |
| (N) | “Non-Code Section 423 Component” means those offerings under the Plan that are not intended to meet the requirements of Code Section 423(b). |
| (O) | “NYSE” means the New York Stock Exchange. |
| (P) | “Offering Date” means the first Trading Day of each Offering Period, as determined by the Plan Administrator. |
| (Q) | “Offering Period” means, except as may be otherwise determined by the Plan Administrator, each six-month period commencing on January 1 and July 1 of each calendar year. For the sake of clarity, the Plan Administrator may establish, in its discretion, one or more Purchase Periods within an Offering Period. |
| (R) | “Participant” means an Eligible Employee who elects to participate in the Plan. |
| (S) | “Participating 423 Subsidiary” means any Subsidiary designated by the Plan Administrator as a corporation that may offer participation in the Code Section 423 Component of the Plan to its Eligible Employees pursuant to Section IX. Each Participating 423 Subsidiary shall be listed in Exhibit A of the Plan. |
| (T) | “Participating Non-423 Subsidiary” means any Subsidiary designated by the Plan Administrator as a corporation that may offer participation in the Non-Code Section 423 Component of the Plan to its Eligible Employees pursuant to Section IX. Each Participating Non-423 Subsidiary shall be listed in Exhibit A of the Plan. |
| (U) | “Payroll Deduction Period” means the period within each Offering Period during which payroll deductions are withheld from a Participant’s Compensation for the purchase of shares of Common Stock under the Plan and may include any catch-up periods for payroll deductions permitted by the Plan Administrator. |
| (V) | “Plan” means the Vylor Inc. Global Omnibus Employee Stock Purchase Plan, which includes both the Code Section 423 Component and the Non-Code Section 423 Component, as amended from time to time. |
| (W) | “Plan Account” means the brokerage account established for the purpose of holding the shares of Common Stock purchased under the Plan for the Participant with the transfer agent or any third-party vendor hired by the Company to assist with the day-to-day operation and administration of the Plan. |
| (X) | “Plan Administrator” means (1) the Vylor Inc. ESPP Committee, or the successors thereto, or (2) such other officer(s) or employee(s) of the Company to whom it has delegated the authority to administer the Plan. The Plan Administrator also shall include any third-party vendor hired by it to assist with the day-to-day operation and administration of the Plan. |
| (Y) | “Purchase Date” means the last Trading Day of each Offering Period. |
| (Z) | “Purchase Period” means, except as may be otherwise determined by the Plan Administrator, the period commencing on the first Trading Day of an Offering Period and ending on the last Trading Day of an Offering Period. |
| (AA) | “Purchase Price” means, for each Offering Period, the price at which a share of Common Stock
may be purchased under the Plan, as established from time to time by the Plan Administrator. Unless otherwise established by the Plan Administrator, the “Purchase Price” means 85% of the Fair Market Value of a share of Common Stock on
the Purchase Date, as adjusted from time to time in accordance with |
| (BB) | “Purchase Right” means an option granted to a Participant pursuant to the Plan to purchase shares of Common Stock as provided in Section V, which the Participant may or may not exercise during the Offering Period. |
| (CC) | “Required Holding Period” means, with respect to each share of Common Stock acquired under the Plan and unless otherwise determined by the Plan Administrator, 12 months immediately following the applicable Purchase Date. |
| (DD) | “Subsidiary” means a present or future subsidiary entity of the Company within the meaning of Code Section 424(f). |
| (EE) | “Trading Day” means a day on which the NYSE is open for trading. |
III. Eligibility; Enrollment and Participation
| (A) | Eligibility. An Employee may elect to participate in the Plan as of the first Offering Period on which such person becomes an Eligible Employee by complying with the enrollment procedures set forth in Subsection III(B) below. |
| (B) | Enrollment and Participation. An Eligible Employee shall enroll in the Plan and become a Participant in an Offering Period by submitting a properly completed Enrollment Agreement to the Plan Administrator during the Enrollment Period. The Plan Administrator shall establish enrollment procedures for the submission of such Enrollment Agreements using written and/or electronic election forms and shall communicate such procedures to all Eligible Employees. An Eligible Employee who does not timely submit a properly completed Enrollment Agreement to the Plan Administrator during the Enrollment Period for an Offering Period shall not participate in the Plan for that Offering Period but shall be eligible to elect to participate in the Plan for any subsequent Offering Period by timely submitting a properly completed Enrollment Agreement to the Plan Administrator during the Enrollment Period for any future Offering Period. A Participant may be required to deliver to the Plan Administrator a new Enrollment Agreement for each subsequent Offering Period in accordance with the procedures established herein. |
| (C) | No Rights to Employment. Nothing in the Plan or any instrument executed pursuant hereto shall confer upon any Employee any right to continue in the employ of the Company, a Participating 423 Subsidiary or a Participating Non-423 Subsidiary, nor shall anything in the Plan affect the right of the Company, a Participating 423 Subsidiary or a Participating Non-423 Subsidiary to terminate the employment of any Employee, with or without cause. |
IV. Participant Contributions Via Payroll Deductions
| (A) | Payroll Deductions. Except as provided in Subsection IV (F) below, shares of Common Stock acquired under the Plan may be paid for only by means of payroll deductions from a Participant’s Compensation accumulated during the Offering Period for which such Purchase Right was granted. Payroll deductions shall commence on the first pay day of each Payroll Deduction Period and shall continue to be deducted each pay day through the end of the Payroll Deduction Period, unless otherwise determined herein. |
| (B) | Amount of Participant Contributions. An Eligible Employee who elects to enroll in the Plan as a Participant shall designate in the Enrollment Agreement a percentage of the Participant’s Compensation, in whole percentages from one percent (1%) to fifteen percent (15%), to be deducted each pay period during each Payroll Deduction Period and paid into the Plan for the Participant’s account. The minimum amount of a Participant’s contributions for each Payroll Deduction Period shall be twenty-five U.S. dollars ($25.00). The maximum amount of a Participant’s contributions for each Offering Period shall be $12,500 (subject to such further limitation so as to comply with the provisions of Subsections V(C) and V(D) below). Notwithstanding the foregoing, the Plan Administrator may change the minimum contribution amount and/or contribution limits for any future Offering Period. |
| (C) | No Interest on Participant Contributions. Except as may be otherwise determined by the Plan Administrator or required pursuant to applicable law, interest shall not be paid on a Participant’s contributions to the Plan for the purchase of shares of Common Stock. |
| (D) | Changes to Participant Contributions. Except as may be otherwise determined by the Plan Administrator, a Participant may elect to change the amount of payroll deductions during an Offering Period by submitting an amended Enrollment Agreement authorizing such change to the Plan Administrator in accordance with such procedures as are established by the Plan Administrator, and such change shall become effective as soon as reasonably practicable following the Plan Administrator’s receipt of such amended Enrollment Agreement. A Participant who elects to decrease the rate of the Participant’s payroll deductions to zero dollars shall remain a Participant in the Plan for the Offering Period. |
| (E) | Suspension of Participant Contributions. The Company may, in its sole discretion, suspend a Participant’s payroll deductions under the Plan as the Company deems advisable in order to comply with the various limitations provided in the Plan. If the Company suspends a Participant’s payroll deductions under this provision, the Participant may re-enroll in the Plan and participate in future Offering Periods by satisfying the requirements of Section III. |
| (F) | Prohibition on Payroll Deductions. The payroll deduction provisions hereunder shall not apply to Participants employed in countries outside of the United States where payroll deductions are prohibited under local law. Such Participants shall be permitted to make contributions to the Plan for the purchase of shares of Common Stock through such other form(s) of contribution as may be designated by the Plan Administrator and permitted under local law, and which are specified under an applicable sub-plan or separate offering of the Plan. |
| (G) | Bookkeeping Accounts for Participant Contributions. Individual bookkeeping accounts shall be maintained for each Participant to reflect the payroll deductions or other contributions to the Plan for the purchase of shares of Common Stock by such Participant. All payroll deductions or other amounts contributed to the Plan shall be deposited with the general funds of the Company or an applicable Participating 423 Subsidiary/Participating Non-423 Subsidiary, and may be used by the Company or an applicable Participating 423 Subsidiary/Participating Non-423 Subsidiary for any corporate purpose. Notwithstanding the foregoing, to the extent required under local law, the payroll deductions or other contributions to the Plan for the purchase of shares of Common Stock by Participants outside the United States shall be held in a segregated account and shall not be commingled with the general funds of the Company or an applicable Participating 423 Subsidiary/Participating Non-423 Subsidiary. Until shares of Common Stock are issued, Participants only shall have the rights of an unsecured creditor, although Participants in specified Offerings may have additional rights where required under local law, as determined by the Plan Administrator. |
V. Grant of Purchase Rights
| (A) | General. On each Offering Date, the Company shall grant to each Participant a Purchase Right under the Plan to purchase shares of Common Stock. Each Purchase Right shall be treated as an option for purposes of Code Section 423. |
| (B) | Term of Purchase Right. Each Purchase Right shall have a term equal to the length of the Offering Period to which the Purchase Right relates. |
| (C) | Number of Shares of Common Stock Subject to a Purchase Right. On the Offering Date of each Offering Period, each Participant shall be granted a Purchase Right to purchase for such Offering Period (at the applicable Purchase Price) up to a maximum number of shares of Common Stock determined by dividing such Participant’s payroll deductions or contributions accumulated for such Offering Period by the Fair Market Value of a share of Common Stock on the Offering Date; provided, however, that in no event will a Participant be permitted to purchase more than Twenty-Five Thousand U.S. Dollars ($25,000) worth of shares of Common Stock, subject to adjustment pursuant to Section X, for each calendar year during which such Purchase Right is outstanding. The purchase of shares of Common Stock pursuant to the Purchase Right shall occur as provided in Section VI, unless the Participant has withdrawn pursuant to Section VIII. Each Purchase Right shall expire on the last day of the Offering Period. In connection with each Offering Period made under the Plan, the Plan Administrator may specify a maximum aggregate number of shares of Common Stock that may be purchased by all Participants pursuant to such Offering Period. If the aggregate purchase of shares of Common Stock issuable upon exercise of Purchase Rights granted under the Offering Period would exceed any such maximum aggregate number, then, in the absence of any Committee action otherwise, a pro rata (based on each Participant’s accumulated payroll deductions for such Offering Period) allocation of the shares of Common Stock available will be made in as nearly a uniform manner as will be practicable and equitable. |
| (D) | Limitation under Code Section 423(b)(8). Notwithstanding any provision in this Plan to the contrary, no Participant shall be granted a Purchase Right under the Code Section 423 Component of the Plan to the extent that it permits his or her right to purchase shares of Common Stock under the Plan to accrue at a rate which, when aggregated with such Participant’s rights to purchase shares under all other employee stock purchase plans of a Participating 423 Subsidiary intended to meet the requirements of Code Section 423, exceeds Twenty-Five Thousand U.S. Dollars ($25,000) in Fair Market Value of Common Stock (or such other limit, if any, as may be imposed by the Code) for each calendar year in which such Purchase Right is outstanding at any time. Any payroll deductions in excess of the amount specified in the foregoing sentence shall be returned to the Participant as soon as administratively practicable following the next Offering Date. |
| (E) | No Assignment. A Purchase Right granted under the Plan shall not be transferable otherwise than by will or the laws of descent and distribution and shall be exercisable during the lifetime of the Participant only by the Participant. The Company shall not recognize and shall be under no duty to recognize any assignment or purported assignment by a Participant of a Purchase Right or any rights granted under the Plan. |
VI. Purchase of Shares of Common Stock
| (A) | Exercise of Purchase Right. The Purchase Right for each Participant automatically shall be exercised on each Purchase Date and such Participant automatically shall acquire the number of whole and fractional shares of Common Stock determined by dividing (i) the total amount of the Participant’s payroll deductions accumulated in the Participant’s Plan Account during the Offering Period, by (ii) the Purchase Price, to the extent the issuance of Common Stock to such Participant upon such exercise is lawful. However, in no event shall the number of shares of Common Stock purchased by the Participant during an Offering Period exceed the number of shares of Common Stock subject to the Participant’s Purchase Right, as determined under Subsection V(C) above. Any cash balance remaining in a Participant’s Plan Account following any Purchase Date shall be refunded, without interest, to the Participant as soon as reasonably practicable after such Offering Period ends. Notwithstanding the foregoing, the Plan Administrator may establish alternative means for treating amounts remaining in Participant Plan Accounts following any Purchase Date to the extent consistent with applicable law. |
| (B) | Oversubscription. In the event, with respect to any Offering hereunder, that the number of whole and fractional shares of Common Stock that might be purchased by all Participants in the Plan on a Purchase Date exceeds the number of shares of Common Stock available for issuance under the Plan, the Company shall make a pro rata allocation of the remaining shares in as uniform a manner as shall be reasonably practicable and as the Company shall determine to be equitable. |
| (C) | Delivery of Common Stock. As soon as reasonably practicable after each Purchase Date, the Company shall arrange for the delivery of the full and fractional shares of Common Stock acquired by the Participant on such Purchase Date to the Participant’s Plan Account. Shares of Common Stock to be delivered to a Participant under the Plan shall be registered and/or recorded in the name of the Participant. |
| (D) | Dividends; Dividend Reinvestment. Any dividends paid on the shares of Common Stock acquired under the Plan (and credited to the Participant’s Plan Account by the Plan Administrator with an effective date on or before the applicable ex-dividend date) shall be credited to the Participant’s Plan Account. |
| (E) | Tax Withholding. At the time a Participant’s Purchase Right is exercised, in whole or in part, or at the time a Participant disposes of some or all of the shares of Common Stock he or she acquires under the Plan, the Participant shall make adequate provision for the federal, state, local and non-U.S. tax withholding obligations of the Company, a Participating 423 Subsidiary or a Participating Non-423 Subsidiary that arise upon exercise of the Purchase Right or upon such disposition of shares, if any, in accordance with such procedures and withholding methods as may be established by the Company. The Company, a Participating 423 Subsidiary or a Participating Non-423 Subsidiary may, but shall not be obligated to, withhold from any compensation or other amounts payable to the Participant the amount necessary to meet such withholding obligations. The Company will not be required to issue any Common Stock under the Plan until such obligations are satisfied. |
| (F) | Expiration of Purchase Right. Any portion of a Participant’s Purchase Right remaining unexercised at the end of the Offering Period to which the Purchase Right relates shall expire immediately upon the end of such Offering Period. |
| (G) | Reports to Participants. Each Participant who has exercised all or part of a Purchase Right shall receive, as soon as reasonably practicable after the Purchase Date, a report of such Participant’s Plan Account setting forth the total payroll deductions accumulated prior to such exercise, the number of shares of Common Stock purchased, the Purchase Price for such shares of Common Stock, the date of purchase and the cash balance, if any, remaining immediately after such purchase that is to be refunded to the Participant. The report may be provided in such form and by such means, including by electronic transmission, as the Company may determine. |
| (H) | Required Holding Period. Except as may be otherwise determined by the Plan Administrator, a Participant may not sell or otherwise dispose of any shares of Common Stock acquired under the Plan unless and until the Required Holding Period for such shares has been satisfied. Notwithstanding the foregoing, (1) upon a Participant’s death, disability, retirement or involuntary termination of employment without cause, the Required Holding Period shall lapse and shall not apply to any shares of Common Stock acquired by the Participant under the Plan, and (2) upon the approval of a Participant’s request for a hardship withdrawal, as such term “hardship” is defined under the Vylor Inc. Retirement Savings Plan, the Required Holding Period shall lapse for such number of shares of Common Stock acquired by the Participant under the Plan as may be necessary to satisfy such hardship, as determined by the Plan Administrator in its sole discretion. |
| (I) | Clawback/Recoupment Policy. Notwithstanding anything contained herein to the contrary, all shares of Common Stock acquired pursuant to the Plan shall be and remain subject to any incentive compensation clawback or recoupment policy of the Company currently in effect or as may be adopted by the Company and, in each case, as may be amended from time to time. No such policy adoption or amendment shall in any event require the prior consent of any Participant. |
VII. Common Stock Authorized for Issuance Under the Plan
| (A) | Common Stock Subject to the Plan. The maximum aggregate number of shares of Common Stock that may be issued under the Plan shall be 5,000,000, subject to adjustment in accordance with Section X. Such shares may be used to satisfy the purchase of shares of Common Stock under either the Code Section 423 Component of the Plan or the Non-Code Section 423 Component of the Plan. Shares of Common Stock issued under the Plan may consist of authorized but unissued shares, reacquired shares (treasury shares), or any combination thereof. If an outstanding Purchase Right for any reason expires or is terminated or canceled, the shares of Common Stock allocable to the unexercised portion of such Purchase Right shall again be available for issuance under the Plan. |
| (B) | Legends. The Company may at any time place legends or other identifying symbols referencing any applicable federal, state or foreign securities law restrictions or any provision convenient in the administration of the Plan on some or all of the certificates representing shares of Common Stock issued under the Plan. The Participant shall, at the request of the Company, promptly present to the Company any and all certificates representing shares acquired pursuant to a Purchase Right in the possession of the Participant in order to carry out the provisions of the Plan. |
| (C) | Compliance with Laws. The Company shall not be obligated to issue any Common Stock pursuant to any offering under the Plan at any time when the offer, issuance, or sale of shares covered by such Offering (1) has not been registered under the Securities Act of 1933, as amended, or does not comply with such other federal, state or non-U.S. securities or exchange control laws, rules or regulations, or the requirements of any stock exchange upon which the Common Stock may then be listed, as the Company or the Board deems applicable, and (2) in the opinion of legal counsel for the Company, there is no exemption from the requirements of such laws, rules, regulations, or requirements available for the offer, issuance, and sale of such shares of Common Stock. Further, all stock acquired pursuant to the Plan shall be subject to the Company’s policies concerning compliance with securities or exchange control laws and regulations, as such policies may be amended from time to time. The issuance of shares of Common Stock under the Plan shall be subject to compliance with all applicable requirements of federal, state or non-U.S. law with respect to such securities. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance and sale of any shares of Common Stock |
under the Plan shall relieve the Company of any liability in respect of the failure to issue or sell such shares of Common Stock as to which such requisite authority shall not have been obtained. As a condition to the exercise of a Purchase Right, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation, and to make any representation or warranty with respect thereto as may be requested by the Company.
VIII. Termination of Employment; Voluntary Withdrawal
| (A) | Termination of Employment. Except as may be otherwise determined by the Plan Administrator, in the event that (1) the employment of a Participant terminates for any reason during an Offering Period, including death, permanent disability, or retirement, except a transfer of employment addressed in Subsection VIII(B) below, or (2) a Participant ceases to be an Eligible Employee during an Offering Period, the Participant’s participation in the Plan and any rights thereunder shall terminate immediately and thereupon, automatically and without any further act on his or her part, such Participant’s payroll deduction authorization shall terminate. Any payroll deductions or other contributions credited to the Participant that have not yet been applied towards the purchase of shares of Common Stock shall, as soon as reasonably practicable following such termination of employment, be returned to the Participant (without interest, unless otherwise required under applicable law). |
| (B) | Employee Transfer. Except as may be otherwise determined by the Plan Administrator, if a transfer of employment occurs from a Participating 423 Subsidiary/Participating Non-423 Subsidiary to a non-Participating 423 Subsidiary/non-Participating Non-423 Subsidiary, or, as necessary, from a Participating 423 Subsidiary to a Participating Non-423 Subsidiary, or vice versa, during the Offering Period, the Participant’s payroll deductions taken as of the date of the Participant’s transfer, if any, shall be used to purchase shares of Common Stock no later than the last Trading Day of the Offering Period in which such transfer occurs, or as agreed by the Plan Administrator. Thereafter, the Participant’s participation in the Plan shall terminate. |
| (C) | Voluntary Withdrawal. A Participant may voluntarily withdraw from the Plan at any time and receive a refund of all payroll deductions credited to the Participant’s Plan Account that have not been applied toward the purchase of shares of Common Stock by submitting a withdrawal election to the Plan Administrator in accordance with such procedures as are established by the Plan Administrator. The payroll deductions of a Participant who has withdrawn from the Plan shall be refunded (without interest) to the Participant as soon as reasonably practicable after the withdrawal and may not be applied to the purchase of shares of Common Stock in any other Offering under the Plan. A Participant who withdraws from the Plan may elect to re-enroll in the Plan in accordance with Section III. |
| (D) | Administrative Costs for Plan Accounts of Terminated Participants. Responsibility for payment of administrative costs to maintain a terminated Participant’s Plan Account may be transferred from the Company to the terminated Participant, as determined by the Plan Administrator from time to time. |
IX. Plan Administration
| (A) | General. The Plan will be administered by the Plan Administrator. The Plan Administrator is vested with full authority to administer, interpret and make rules regarding the Plan. The Plan Administrator shall have the authority to interpret the Plan as it may deem advisable and to make determinations that shall be final, binding and conclusive upon all persons. Subject to the provisions of the Plan, the Plan Administrator shall determine all of the relevant terms and conditions of any rights under the Plan, including (but not limited to) the Offering Date, the Offering Period, the Payroll Deduction Period, the Purchase Date and the Purchase Price; provided, however, that all Participants under the Code Section 423 Component of the Plan shall have the same rights and privileges within the meaning of Code Section 423(b)(5) and provided further, that the Purchase Price for any Offering Period under the Code Section 423 Component of the Plan or any Offering Period under the Non-Code Section 423 Component of the Plan may not be established at a price which does not comply with the requirements of Code Section 423. The Committee may assign any of its administrative tasks set forth herein to the Plan Administrator, except that the Committee may not delegate its authority to make adjustments pursuant to Section X. No member of the Board, Committee or the Plan Administrator shall be liable for any action or determination made in good faith with respect to the Plan. All expenses incurred in connection with the operation and administration of the Plan shall be paid by the Company. |
| (B) | Delegation by Plan Administrator. The Plan Administrator may delegate to officers, employees or third-party vendors the authority to administer the Plan subject to the rules and interpretive determinations promulgated by the Plan Administrator. Such delegation shall not make such officer or employee, if otherwise an Eligible Employee, ineligible to participate in the Plan. |
| (C) | Policies and Procedures. To the extent not inconsistent with the Plan, the Plan Administrator and/or Committee may authorize and establish such rules and regulations as it may determine to be advisable to make the Plan effective or to provide for its operation and administration, and may take such other action with regard to the Plan as it shall deem advisable to effectuate its purpose, including, without limitation, the establishment of procedures that may be necessary to ensure compliance with Rule 16b-3 of the Securities Exchange Act of 1934. |
| (D) | Non-Code Section 423 Component for Participation Outside of the United States. The Plan Administrator may, in its sole discretion, establish sub-plans or separate offerings under the Non-Code Section 423 Component of the Plan which do not satisfy the requirements of Code Section 423 for purposes of effectuating the participation of Eligible Employees employed by a Participating Non-423 Subsidiary located in countries outside of the United States. For purposes of the foregoing, the Plan Administrator may establish one or more sub-plans or separate offerings to: (1) amend or vary the terms of the Non-Code Section 423 Component of the Plan in order to conform such terms with the laws, rules and regulations of each country outside of the United States where the Participating Non-423 Subsidiary is located; (2) amend or vary the terms of the Non-Code Section 423 Component of the Plan in each country where the Participating Non-423 Subsidiary is located as it considers necessary or desirable to take into account or to mitigate or reduce the burden of taxation and social insurance contributions for Participants or a Participating Non-423 Subsidiary, or (3) amend or vary the terms of the Non-Code Section 423 Component of the Plan in each country outside of the United States where a Participating Non-423 Subsidiary is located as it considers necessary or desirable to meet the goals and objectives of the Non-Code Section 423 Component of the Plan. Each sub-plan established pursuant to this Subsection IX(D) shall be reflected in a written appendix to the Non-Code Section 423 Component of the Plan for each Participating Non-423 Subsidiary in such country, and shall be treated as being separate and independent from the Code Section 423 Component of the Plan; provided, the total number of shares of Common Stock authorized to be issued under the Plan shall include any shares of Common Stock issued under the Non-Code Section 423 Component of the Plan (including each sub-plan). To the extent permitted under applicable law, the Plan Administrator may delegate its authority and responsibilities under this Section in accordance with Section IX(B). |
X. Recapitalization, Reorganization and Change in Control.
| (A) | Adjustments for Changes in Common Stock. In the event of any stock dividend, extraordinary cash dividend, stock split, reverse stock split, recapitalization, combination, reclassification, or similar change in the capital structure of the Company, or in the event of any merger (including a merger effected for the purpose of changing the Company’s domicile), sale of assets, spin-off or other reorganization in which the Company is a party, appropriate adjustments shall be made in the number and class of shares of stock subject to the Plan and each Purchase Right, and in the Purchase Price. If a majority of the shares of Common Stock which are of the same class as the shares of stock that are subject to outstanding Purchase Rights are exchanged for, converted into, or otherwise become (whether or not pursuant to a Change in Control as described in Subsection X(B) below) shares of another corporation, the Committee may unilaterally amend the outstanding Purchase Rights to provide that such Purchase Rights are exercisable for new shares of stock. In the event of any such amendment, the number and kind of shares of stock subject to, and the Purchase Price of, the outstanding Purchase Rights shall be adjusted in a fair and equitable manner, as determined by the Plan Administrator, in its sole discretion. In no event may the Purchase Price be decreased to an amount less than the par value, if any, of the stock subject to the Purchase Right. The adjustments determined by the Plan Administrator pursuant to this Subsection X(A) shall be final, binding and conclusive. Notwithstanding the foregoing, upon the occurrence of any event covered under this Subsection X(A), the Plan Administrator may, in its sole discretion, terminate the existing Offering Period and refund all accumulated and unused Participant contributions to Participants. |
| (B) | Change in Control. In the event of a Change in Control, the surviving, continuing, successor, or purchasing corporation or parent corporation thereof, as the case may be (the “Acquiring Company”), may assume the Company’s rights and obligations under the Plan. If the Acquiring Company elects not to assume the Company’s rights and obligations under outstanding Purchase Rights, the Purchase Date of the then current Offering Period shall be accelerated to a date before the date of the Change in Control specified by the Plan Administrator, but the number of shares of Common Stock subject to outstanding Purchase Rights shall not be adjusted. All Purchase Rights that are neither assumed by the Acquiring Company in connection with the Change in Control nor exercised as of the date of the Change in Control shall terminate and cease to be outstanding effective as of the date of the Change in Control. |
XI. Termination and Amendment of the Plan
| (A) | The Board, or by delegation to the Committee or the Plan Administrator, may at any time terminate, suspend or amend the Plan; provided that, such termination, suspension or amendment will not affect elections already accepted by the Company; and provided further that, any termination, suspension or amendment of the Plan shall be subject to the approval of the shareholders of the Company to the extent required under applicable law. |
| (B) | The Plan and all rights of Employees hereunder, if not terminated earlier, shall terminate: |
| (1) | at the close of any Offering Period, if theretofore declared terminated by the Board or Committee; or |
| (2) | upon the issuance of all shares of Common Stock authorized for issuance under the Plan. |
XII. Code Section 409A and Tax Qualification
| (A) | Code Section 409A. The Plan and any offering to purchase shares of Common Stock under the Plan are intended to be exempt from the application of Code Section 409A. In furtherance of the foregoing and notwithstanding any provision in the Plan to the contrary, if the Plan Administrator determines that any rights to purchase shares of Common Stock granted under the Plan may be subject to Code Section 409A or that any provision in the Plan would cause such right under the Plan to be subject to Code Section 409A, the Plan Administrator may amend the terms of the Plan and/or of an outstanding right to purchase shares of Common Stock granted under the Plan, or take such other action as the Plan Administrator determines is necessary or appropriate, in each case, without the Participant’s consent, to exempt any outstanding offerings that may be granted under the Plan from or to allow any such offerings to comply with Code Section 409A, but only to the extent any such amendments or action by the Plan Administrator would not violate Code Section 409A. Notwithstanding the foregoing, the Company will have no liability to a Participant or any other party if the offering under the Plan that is intended to be exempt from or compliant with Code Section 409A is not so exempt or compliant or for any action taken by the Plan Administrator with respect thereto. The Company makes no representation that the right to purchase shares of Common Stock under the Plan is compliant with Code Section 409A. |
| (B) | Tax Qualification. Although the Company may endeavor to (1) qualify an offering under the Plan for favorable tax treatment under the laws of the United States or jurisdictions outside of the United States or (2) avoid adverse tax treatment (e.g., under Code Section 409A), the Company makes no representation to that effect and expressly disavows any covenant to maintain favorable or avoid unfavorable tax treatment, notwithstanding anything to the contrary in the Plan. The Company shall be unconstrained in its corporate activities without regard to the potential negative tax impact on Participants under the Plan. |
XIII. Indemnification
| (A) | In addition to such other rights of indemnification as they may have as members of the Committee, Plan Administrator, or officers, employees of a Participating 423 Subsidiary or a Participating Non-423 Subsidiary, members of the Committee, Plan Administrator, and any officers or employees of a Participating 423 Subsidiary or a Participating Non-423 Subsidiary to whom authority to act for the Committee, Plan Administrator or the Company is delegated shall be indemnified by the Company against all reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, or any right granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such person is liable for gross negligence, bad faith or intentional misconduct in the performance of duties; provided, however, that within sixty (60) days after the institution of such action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at its own expense to handle and defend the same. |
XIV. Miscellaneous
| (A) | Transferability. Payroll deductions, contributions credited to a Participant’s account and any rights with regard to the purchase of shares of Common Stock pursuant to a Purchase Right or to receive shares of Common Stock under the Plan may not be assigned, alienated, pledged, attached, sold or otherwise disposed of in any way (other than by will, the laws of descent and distribution or as otherwise determined in the Plan) by the Participant. Any such attempt at assignment, transfer, pledge or other disposition shall be without effect, except that the Company may, in its discretion, treat such act as an election to withdraw from the Plan in accordance with Section VIII. |
| (B) | Severability. If any particular provision of the Plan is found to be invalid or otherwise unenforceable, such determination shall not affect the other provisions of the Plan, but the Plan shall be construed in all respects as if such invalid provision were omitted. |
| (C) | Governing Law and Jurisdiction. The validity, interpretation and administration of the Plan and of any rules, regulations, determinations or decisions made thereunder, and the rights of any and all persons having or claiming to have any interest therein or thereunder, shall be determined exclusively in accordance with the laws of the State of Delaware (regardless of the laws that might be applicable under principles of conflicts of laws). Without limiting the generality of the foregoing, the period within which any action in connection with the Plan must be commenced shall be governed by the laws of the State of Delaware (regardless of the laws that might be applicable under principles of conflicts of laws), without regard to the place where the act or omission complained of took place, the residence of any party to such action or the place where the action may be brought. |
| (D) | Headings. Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan. |
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Exhibit A
PARTICIPATING 423 SUBSIDIARIES
| Name of Participating 423 Subsidiary |
State of Incorporation | |
PARTICIPATING NON-423 SUBSIDIARIES
| Name of Participating Non-423 Subsidiary |
Country of Incorporation | |
Exhibit 10.3
Vylor Inc.
Change in Control and Executive Severance Plan
ARTICLE I
PURPOSE
This Change in Control and Executive Severance Plan has been established by the Company on October 1, 2026 (the “Effective Date”) to provide certain employees of the Company with the opportunity to receive certain severance protections. The Plan, as set forth herein, is primarily intended to help retain qualified employees, maintain a stable work environment and provide economic security to eligible employees in the event of certain qualifying terminations of employment. Capitalized terms used but not otherwise defined herein have the meanings set forth in Article II.
The Plan is not intended to be included in the definitions of “employee pension benefit plan” or “pension plan” set forth under Section 3(2) of ERISA. The Plan is intended to meet the descriptive requirements of a plan constituting a “severance pay plan” within the meaning of regulations published by the Secretary of Labor at Title 29, Code of Federal Regulations, Section 2510.3-2(b). Notwithstanding the foregoing, if and to the extent that the Plan is deemed to be an “employee pension benefit plan” or “pension plan” as set forth under Section 3(2) of ERISA, then the Plan is intended, for all purposes under ERISA, to constitute a plan that is unfunded and maintained by the Company primarily for the purposes of providing deferred compensation for a select group of management or highly compensated employees.
ARTICLE II
DEFINITIONS
“Accrued Compensation” means in respect of any Participant: (i) Base Salary accrued by the Participant through, but not paid to the Participant as of, the Qualifying Termination Date, (ii) any cash incentive bonus earned by the Participant in respect of the most recent completed fiscal year preceding the Qualifying Termination but not paid to the Participant as of the Qualifying Termination Date and (iii) any vested employee benefits to which the Participant is entitled as of the Qualifying Termination Date under any employee benefit plan of the Company.
“Administrator” means the Compensation Committee or its delegate.
“Affiliate” means any entity that, directly or through one or more intermediaries, is controlled by Vylor.
“Award” has the meaning set forth in the Omnibus Incentive Plan.
“Base Salary” means the Participant’s annual base salary as in effect immediately prior to the Qualifying Termination Date or, if higher, as in effect immediately prior to the occurrence of an event or circumstance constituting Good Reason.
“Beneficial Owner” (or any variant thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.
“Benefit Continuation” has the meaning set forth in Section 3.02(d).
“Benefit Continuation Coverage” means:
| (i) | in the case of the CEO, three (3) years if a Qualifying Termination occurs during the Covered Period and two (2) years if a Qualifying Termination occurs outside of the Covered Period, |
| (ii) | in the case of a Tier 2 Participant, two (2) years if a Qualifying Termination occurs during the Covered Period and one and one half (11⁄2) years if a Qualifying Termination occurs outside of the Covered Period, |
| (iii) | in the case of a Tier 3 Participant, one and one half (11⁄2) years if a Qualifying Termination occurs during the Covered Period and one (1) year if a Qualifying Termination occurs outside of the Covered Period, |
| (iv) | in the case of a Tier 4 Participant, (A) one (1) year if a Qualifying Termination occurs during the Covered Period and (B) one (1) month for every two (2) completed years of service (with a minimum of six (6) months and a maximum of twelve (12) months) if a Qualifying Termination occurs outside of the Covered Period and |
| (v) | in the case of a Tier 5 Participant, one (1) month for every two (2) completed years of service (with a minimum of six (6) months and a maximum of twelve (12) months). |
“Benefit Continuation Period” means the period commencing on the Qualifying Termination Date and ending upon the earlier to occur of (i) completion of the number of years under the applicable Benefit Continuation Coverage and (ii) the date on which the Participant becomes eligible to receive coverage on substantially similar terms from another employer or, in the case of Outplacement Services, the date on which the Participant accepts an offer of full-time employment from a subsequent employer.
“Board” means the Board of Directors of Vylor.
“Cause” has the meaning set forth in the Omnibus Incentive Plan (determined without regard to the provisions of any ‘Award Agreement’ within the meaning of the Omnibus Incentive Plan).
“CEO” means the Chief Executive Officer of Vylor from time to time.
“Change in Control” means the first occurrence of an event set forth in any one of the following paragraphs following the Effective Date:
(i) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of Vylor (not including in the securities Beneficially Owned by such Person which were acquired directly from Vylor or any Affiliate thereof) representing more than thirty percent (30%) of the combined voting power of Vylor’s then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (A) of paragraph (iii) below; or
(ii) the date on which individuals who constitute the Board as of the Effective Date and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including, but not limited to, a consent solicitation, relating to the election of directors of Vylor) whose appointment or election by the Board or nomination for election by Vylor’s stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on the Effective Date or whose appointment, election or nomination for election was previously so approved or recommended cease for any reason to constitute a majority of the number of directors serving on the Board; or
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(iii) there is consummated a merger or consolidation of Vylor or any direct or indirect Subsidiary (as defined in the Omnibus Incentive Plan) with any other corporation or other entity, other than (A) a merger or consolidation (I) which results in the voting securities of Vylor outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of Vylor or any Subsidiary, more than fifty percent (50%) of the combined voting power of the securities of Vylor or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and (II) following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of Vylor the entity surviving such merger or consolidation or, if Vylor or the entity surviving such merger or consolidation is then a Subsidiary, the ultimate parent thereof, or (B) a merger or consolidation effected to implement a recapitalization of Vylor (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of Vylor (not including in the securities Beneficially Owned by such Person any securities acquired directly from Vylor or its Affiliates) representing more than fifty percent (50%) of the combined voting power of Vylor’s then outstanding securities; or
(iv) the stockholders of Vylor approve a plan of complete liquidation or dissolution of Vylor or there is consummated an agreement for the sale or disposition by Vylor of all or substantially all of Vylor’s assets, other than (A) a sale or disposition by Vylor of all or substantially all of Vylor’s assets to an entity, more than fifty percent (50%) of the combined voting power of the voting securities of which are owned by stockholders of Vylor following the completion of such transaction in substantially the same proportions as their ownership of Vylor immediately prior to such sale or (B) a sale or disposition of all or substantially all of Coretva’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary, the ultimate parent thereof.
Notwithstanding the foregoing, (i) a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the holders of Common Stock immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of Vylor immediately following such transaction or series of transactions and (ii) to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to any payment or benefit that constitutes deferred compensation under Section 409A of the Code only if a change in the ownership or effective control of Vylor or a change in ownership of a substantial portion of the assets of Vylor shall also be deemed to have occurred under Section 409A of the Code. For purposes of this definition of Change in Control, the term “Person” shall not include (w) Vylor or any Subsidiary thereof, (x) a trustee or other fiduciary holding securities under an employee benefit plan of Vylor or any Subsidiary thereof, (y) an underwriter temporarily holding securities pursuant to an offering of such securities, or (z) a corporation owned, directly or indirectly, by the stockholders of Vylor in substantially the same proportions as their ownership of shares of Vylor.
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“Code” means the Internal Revenue Code of 1986, as amended. Any reference to a section of the Code shall be deemed to include a reference to any regulations promulgated thereunder.
“Company” means Vylor and, except as the context otherwise requires, its Affiliates and wholly-owned subsidiaries and any successor by merger, acquisition, consolidation or otherwise.
“Compensation Committee” means the People and Compensation Committee of the Board.
“Covered Period” means the period of time beginning on the first occurrence of a Change in Control and lasting through the two-year anniversary of the occurrence of the Change in Control. “Vylor” means Vylor Inc., a Delaware corporation.
“Effective Date” has the meaning set forth in Article I.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended. Any reference to a section of ERISA shall be deemed to include a reference to any regulations promulgated thereunder.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Excise Tax” means any excise tax imposed on the Participant under Section 4999 of the Code.
“Good Reason” has the meaning set forth in the Omnibus Incentive Plan (determined without regard to the provisions of any ‘Award Agreement’ within the meaning of the Omnibus Incentive Plan).
“Omnibus Incentive Plan” means the Vylor Inc. 2026 Omnibus Incentive Plan, as may be amended from time to time.
“Participant” means each of the CEO, Tier 2 Participants, Tier 3 Participants, Tier 4 Participants and Tier 5 Participants.
“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof.
“Plan” means this Vylor Inc. Change in Control and Executive Severance Plan, as may be amended from time to time.
“Qualifying Termination” means the termination of a Participant’s employment either by the Participant for Good Reason (in the case of Tier 3 Participants, Tier 4 Participants and Tier 5 Participants, during the Covered Period only) or by the Company without Cause.
“Qualifying Termination Date” means the date on which a Participant incurs a Qualifying Termination.
“Restricted Period” means the one (1) year period following a Qualifying Termination.
“Severance Multiple” means:
| (i) | in the case of the CEO, three (3) in respect of a Qualifying Termination during the Covered Period and two (2) in respect of a Qualifying Termination outside the Covered Period, |
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| (ii) | in the case of a Tier 2 Participant. two (2) in respect of a Qualifying Termination during the Covered Period and one and one half (11⁄2) in respect of a Qualifying Termination outside the Covered Period, |
| (iii) | in the case of a Tier 3 Participant, one and one half (11⁄2) in respect of a Qualifying Termination during the Covered Period and one (1) in respect of a Qualifying Termination outside the Covered Period, |
| (iv) | in the case of a Tier 4 Participant, (A) one (1) in respect of a Qualifying Termination during the Covered Period and (B) one twelfth (1/12) for every two (2) completed years of service (with a minimum of one half (1⁄2) and a maximum of one (1)) in respect of a Qualifying Termination outside the Covered Period and |
| (v) | in the case of a Tier 5 Participant, one twelfth (1/12) for every two (2) completed years of service (with a minimum of one half (1⁄2) and a maximum of one (1)). |
“Target Annual Bonus” means a Participant’s target annual cash incentive bonus pursuant to any annual bonus or incentive plan maintained by the Company in respect of the fiscal year in which the Qualifying Termination Date occurs, provided that if the Participant is not eligible to receive a specified target annual cash incentive bonus following a Change in Control, then Target Annual Bonus shall mean such target annual cash incentive bonus in effect as of immediately prior to the date of the Change in Control.
“Tier 2 Participant” means any employee designated by the Committee or its authorized delegate as eligible to participate in the Plan at the Tier 2 level from time to time. An employee who is designated as a Tier 2 Participant immediately prior to a Change in Control shall be entitled to the benefits applicable to Tier 2 Participants under this plan.
“Tier 3 Participant” means any employee designated by the Committee or its authorized delegate as eligible to participate in the Plan at the Tier 3 level from time to time. An employee who is designated as a Tier 3 Participant immediately prior to a Change in Control shall be entitled to the benefits applicable to Tier 3 Participants under this plan.
“Tier 4 Participant” means any employee designated by the Committee or its authorized delegate as eligible to participate in the Plan at the Tier 4 level from time to time. An employee who is designated as a Tier 4 Participant immediately prior to a Change in Control shall be entitled to the benefits applicable to Tier 4 Participants under this plan.
“Tier 5 Participant” means any employee designated by the Committee or its authorized delegate as eligible to participate in the Plan at the Tier 5 level from time to time. An employee who is designated as a Tier 5 Participant immediately prior to a Change in Control shall be entitled to the benefits applicable to Tier 5 Participants under this plan.
“Total Payments” has the meaning set forth in Section 4.01.
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ARTICLE III
SEVERANCE
Section 3.01 Accrued Compensation. If a Participant terminates employment with the Company for any reason, the Company shall provide (or cause to be provided to) the Participant the Participant’s Accrued Compensation.
Section 3.02 Qualifying Termination.
(a) Amount Outside Covered Period. In the event a Participant incurs a Qualifying Termination outside of the Covered Period, subject to the execution and nonrevocation of a general release of claims in a form and manner reasonably acceptable to the Company and compliance with the provisions of Article V, the Company shall provide (or cause to be provided) to the Participant:
(i) a lump sum cash payment equal to the product of (A) the applicable Severance Multiple and (B) the sum of Base Salary and Target Annual Bonus;
(ii) a lump sum cash payment equal to the product of (A) the Target Annual Bonus and (B) a fraction, the numerator of which is the number of days elapsed in the calendar year in which occurs the Qualifying Termination, through and including the Qualifying Termination Date, and the denominator of which is 365 (the “Pro-Rated Annual Bonus”);
(iii) Benefit Continuation during the Benefit Continuation Period; and
(iv) the provision of outplacement services suitable to the Participant’s position during the Benefit Continuation Period pursuant to Company policy from time to time (“Outplacement Services”).
(b) Amount During Covered Period. In the event a Participant incurs a Qualifying Termination during the Covered Period, subject to the execution and nonrevocation of a general release of claims in a form and manner reasonably acceptable to the Company and compliance with the provisions of Article V, the Company shall provide (or cause to be provided to) the Participant:
(i) a lump sum cash payment equal to the product of (A) the applicable Severance Multiple and (B) the sum of Base Salary and Target Annual Bonus;
(ii) the Pro-Rated Annual Bonus;
(iii) Benefit Continuation during the Benefit Continuation Period;
(iv) Outplacement Services;
(v) any unvested or unexercisable portion of an outstanding Award carrying a right to exercise shall become fully vested and exercisable, and the restrictions, deferral limitations, payment conditions and forfeiture conditions applicable to such Award granted under the Omnibus Incentive Plan shall lapse and be treated as satisfied, in each case with any performance conditions imposed in respect of such Award deemed achieved at target performance levels; and
(vi) continued financial and tax counseling services during the Benefit Continuation Period pursuant to Company policy from time to time, as made available immediately before the Qualifying Termination (or as made available immediately before the Change in Control if more favorable).
(c) Timing and Form of Cash Payment. Subject to Section 8.13, the payments described in Sections 3.02(a)(i)-(ii) and 3.02(b)(i)-(ii) shall be made no sooner than the date on which the general release of claims becomes irrevocable but subject to Sections 3.02(a)(ii) and 3.02(b)(ii) not later than sixty (60) days following the Qualifying Termination Date.
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(d) Benefit Continuation. For purposes of this Plan, “Benefit Continuation” means that the Company shall provide (or cause to be provided) continued participation by a Participant and his or her eligible dependents in the health, dental and vision benefit plans in which the Participant participated immediately prior to the Qualifying Termination (or, if more favorable, immediately before an event giving rise to Good Reason termination rights) on the same basis as similarly situated active employees, if possible under the terms of such benefit plans. If continued participation in such plans is not possible, the Company shall provide the Participant and his or her eligible dependents with substantially equivalent coverage. Benefit Continuation shall be provided concurrently with any health care benefit required under COBRA.
Section 3.03 Notice of Termination. Any purported termination of a Participant’s employment (other than by reason of death) shall be communicated by written Notice of Termination from one party hereto to the other party hereto. Notices and all other communications provided for hereunder shall be in writing and shall be deemed to have been duly given when delivered personally or by United States registered mail, return receipt requested, postage prepaid, addressed, if to the Participant, to the most recent address shown in the personnel records of the Company and, if to the Company, to the address set forth in Section 6.01, or to such other address as either party may have furnished to the other in writing in accordance herewith. For purposes of this Plan, a “Notice of Termination” shall mean a notice which shall (i) indicate the specific termination provision in this Plan relied upon and (ii) set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Participant’s employment under the provision so indicated.
Section 3.04 Coordination of Benefits. Notwithstanding anything set forth herein to the contrary, to the extent that any severance payable under a plan or agreement covering a Participant as of the date such Participant becomes eligible to participate in this Plan constitutes deferred compensation under Section 409A of the Code, then to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the portion of the benefits payable hereunder equal to such other amount shall instead be provided in the form set forth in such other plan or agreement.
Section 3.05 Effect on Existing Plans. Benefits provided under this Plan by reason of a Qualifying Termination on or before September 30, 2026 shall be, if waived by a Participant before such a Qualifying Termination, in lieu of those to which the Participant would be entitled under the Corteva CIC and Executive Severance Plan or any successor thereto, and absent such a waiver no benefits shall be provided under this Plan by reason of such a Qualifying Termination. Benefits provided under this Plan otherwise shall be in lieu of benefits provided under any other severance plan of the Company for which a Participant may be eligible by reason of a Qualifying Termination if the aggregate value of the benefits provided under this Plan exceeds the aggregate value of the benefits that otherwise would be provided under such other severance plan.
ARTICLE IV
SECTION 280G
Section 4.01 Treatment of Payments. Notwithstanding any other provision of the Plan to the contrary, in the event that any payment or benefit received or to be received by the Participant (including any payment or benefit received in connection with a Change in Control or the termination of the Participant’s employment, whether pursuant to the terms of the Plan or any other plan, arrangement or agreement) (all such payments and benefits, including the severance benefits payable hereunder, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the Excise Tax, then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the severance benefits payable hereunder shall be
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reduced to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Participant would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
Section 4.02 Ordering of Reduction. In the case of a reduction in the Total Payments pursuant to Section 4.01, the Total Payments shall be reduced in the following order: (i) payments that are payable in cash the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a) shall be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity the full amount of which are treated as parachute payments under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall next be reduced; (iii) payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first, shall next be reduced; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), shall next be reduced; and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) shall be next reduced pro-rata.
Section 4.03 Additional Payments. If the Participant receives reduced payments and benefits by reason of this Article IV and it is established pursuant to a determination of a court of competent jurisdiction, which determination is not subject to review or as to which the time to appeal such determination has expired, or pursuant to an Internal Revenue Service proceeding, that the Participant could have received a greater amount without resulting in any Excise Tax, then the Company shall thereafter pay the Participant the aggregate additional amount which could have been paid without resulting in any Excise Tax as soon as reasonably practicable.
ARTICLE V
RESTRICTIVE COVENANTS
Section 5.01 Confidential Information. At all times following a Qualifying Termination of a Participant’s employment with the Company, the Participant may not use or disclose, except on behalf of the Company and pursuant to the Company’s directions, any Company “Confidential Information” (i.e., information concerning the Company and its business that is not generally known outside the Company or any of its past parents, subsidiaries or affiliates, and includes, but is not limited to, (a) trade secrets; (b) intellectual property; (c) information regarding the Company’s present and/or future products, developments, processes and systems, including invention disclosures and patent applications; (d) information on customers or potential customers, including customers’ names, sales records, prices, and other terms of sales and Company cost information; (e) Company business plans, marketing plans, financial data and projections; and (f) information received in confidence by the Company from third parties). For purposes of this Section 5.01, information regarding products, services or technological innovations in development, in test marketing or being marketed or promoted in a discrete geographic region, which information the Company is considering for broader use, shall be deemed not generally known until such broader use is actually commercially implemented.
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Section 5.02 Non-Solicitation of Employees. During the Restricted Period, a Participant may not, directly or indirectly, on behalf of the Participant or any other individual, company or entity: (a) recruit, solicit or induce, or cause, allow, permit or aid others to recruit, solicit or induce, any employee or independent contractor of the Company to terminate his or her employment or engagement with the Company and/or to seek employment with the Participant’s new or prospective employer, as applicable, or (b) offer employment to or hire, or cause or aid others to offer employment to or hire, any employee or independent contractor of the Company.
Section 5.03 Non-Solicitation of Customers. During the Restricted Period, a Participant may not, directly or indirectly, on behalf of the Participant or any other individual, company or entity, solicit or participate in soliciting, products or services competitive with or similar to products or services offered by, manufactured by, designed by or distributed by the Company to any individual, company or entity which was a customer or potential customer for such products or services and with which the Participant had direct or indirect contact regarding those products or services or about which the Participant learned Confidential Information at any time during the two (2) years immediately preceding the Qualifying Termination Date that the Participant was employed or engaged by the Company or Corteva, Inc. or any of its direct or indirect subsidiaries.
Section 5.04 Non-Competition Regarding Products or Services. During the Restricted Period, a Participant may not, directly or indirectly, on behalf of the Participant or any other individual, company or entity, in any capacity, provide products or services competitive with or similar to products or services offered by the Company to any individual, company or entity which was a customer for such products or services and with which customer the Participant had direct or indirect contact regarding those products or services or about which customer the Participant learned Confidential Information at any time during the two (2) years immediately preceding the Qualifying Termination Date that the Participant was employed or engaged by the Company or Corteva, Inc. or any of its direct or indirect subsidiaries.
Section 5.05 Non-Competition Regarding Activities. During the Restricted Period, a Participant may not, directly or indirectly, on behalf of the Participant or any other individual, company or entity, in any capacity, engage in activities which are (a) entirely or in part the same as or similar to activities in which the Participant engaged, for or on behalf of the Company or Corteva, Inc. or any of its direct or indirect subsidiaries, at any time during the two (2) years immediately preceding the Qualifying Termination Date, and (b) in connection with products, services or technological developments (existing or planned) that are entirely or in part the same as, similar to, or competitive with, any products, services or technological developments (existing or planned) on which the Participant worked, for or on behalf of the Company or Corteva, Inc. or any of its direct or indirect subsidiaries, at any time during the two (2) years immediately preceding the Qualifying Termination Date. This Section 5.05 applies in countries in which the Participant has physically been present performing work for the Company or Corteva, Inc. or any of its direct or indirect subsidiaries at any time during the two (2) years immediately preceding the Qualifying Termination Date.
Section 5.06 Non-Disparagement. At all times following a Qualifying Termination, subject to Section 5.07 below, the Participant may not, except to the extent required by law or legal process, make, or cause to be made, any statement or communicate any information (whether oral or written) that disparages or reflects negatively on the Company or any of its officers, directors, partners, shareholders, attorneys, employees and agents.
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Section 5.07 Permitted Disclosures. Notwithstanding anything to the contrary in this Plan, pursuant to 18 U.S.C. § 1833(b), each Participant understands that the Participant will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret of the Company that (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or the Participant’s attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. Notwithstanding anything to the contrary in this Plan, each Participant understands that if the Participant files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Participant may disclose the trade secret to the Participant’s attorney and use the trade secret information in the court proceeding if the Participant (x) files any document containing the trade secret under seal, and (y) does not disclose the trade secret, except pursuant to court order. Nothing in this Plan or any agreement that the Participant has with the Company is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section. Further, nothing in this Plan or any agreement that a Participant has with the Company shall prohibit or restrict the Participant from making any voluntary disclosure of information or documents concerning possible violations of law to any governmental agency or legislative body, or any self-regulatory organization, in each case, without advance notice to the Company.
Section 5.08 Reasonableness. In consideration of receiving payments and benefits hereunder upon a Qualifying Termination, each Participant hereby acknowledges that (a) the Participant’s obligations under this Article V are reasonable in the context of the nature and scope of the Company’s business and the competitive injuries likely to be sustained by the Company if the Participant were to violate such obligations and (b) the payments and benefits provided under this Plan are made in consideration of, and are adequately supported by, the agreement of the Company to perform its obligations under this Plan and by other consideration, which the Participant acknowledges constitutes good, valuable and sufficient consideration.
ARTICLE VI
CLAIMS PROCEDURES
Section 6.01 Initial Claims. A Participant who believes he or she is entitled to a payment under the Plan that has not been received may submit a written claim for benefits to the Plan within one hundred and twenty (120) days after the Participant’s Qualifying Termination Date. Claims should be addressed and sent to:
Vylor Inc.
1000 N West Street
Wilmington, DE 19805
Attention: Corporate Secretary
If the Participant’s claim is denied, in whole or in part, the Participant shall be furnished with written notice of the denial within ninety (90) days after the Administrator’s receipt of the Participant’s written claim, unless special circumstances require an extension of time for processing the claim, in which case a period not to exceed one hundred and eighty (180) days shall apply. If such an extension of time is required, written notice of the extension shall be furnished to the Participant before the termination of the initial ninety (90)-day period and shall describe the special circumstances requiring the extension, and the date on which a decision is expected to be rendered. If written notice of denial of the claim for benefits is not furnished within the specified time, the claim shall be deemed to be denied. The Participant shall then be permitted to appeal the denial in accordance with Section 6.02 below. Written notice of the denial of the Participant’s claim shall contain the following information:
(a) the specific reason or reasons for the denial of the Participant’s claim;
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(b) references to the specific Plan provisions on which the denial of the Participant’s claim was based;
(c) a description of any additional information or material required by the Administrator to reconsider the Participant’s claim (to the extent applicable) and an explanation of why such material or information is necessary; and
(d) a description of the Plan’s review procedures and time limits applicable to such procedures, including a statement of the Participant’s right to bring a civil action under Section 502(a) of ERISA following a benefit claim denial on review.
Section 6.02 Appeal of Denied Claims. If the Participant’s claim is denied (or deemed denied) and he or she wishes to submit a request for a review of the denied claim, the Participant or his or her authorized representative must follow the procedures described below:
(a) Upon receipt of the denied claim, the Participant (or his or her authorized representative) may file a request for review of the claim in writing with the Administrator. This request for review must be filed no later than sixty (60) days after the Participant has received written notification of the denial (or no later than sixty (60) days after the claim is deemed denied).
(b) The Participant has the right to submit in writing to the Administrator any comments, documents, records or other information relating to his or her claim for benefits.
(c) The Participant has the right to be provided with, upon request and free of charge, reasonable access to and copies of all pertinent documents, records and other information that is relevant to his or her claim for benefits.
(d) A request for review must set forth all of the grounds on which it is based, all facts in support of the request and any other matters that the Participant feels are pertinent.
(e) The review of the denied claim shall take into account all comments, documents, records and other information that the Participant submitted relating to his or her claim, without regard to whether such information was submitted or considered in the initial denial of his or her claim.
(f) The Administrator may require the Participant to submit additional facts, documents or other material as he or she may find necessary or appropriate in making his or her review.
Section 6.03 Administrator’s Response to Appeal. The Administrator shall provide the Participant with written notice of its decision within sixty (60) days after the Administrator’s receipt of the Participant’s written claim for review. There may be special circumstances which require an extension of this sixty (60)-day period. In any such case, the Administrator shall notify the Participant in writing within the sixty (60)-day period and the final decision shall be made no later than one hundred and twenty (120) days after the Administrator’s receipt of the Participant’s written claim for review. This notice of extension shall describe the special circumstances necessitating the additional time and the date by which the Administrator is to render his or her decision on review. The Administrator’s decision on the Participant’s claim for review shall take into account all comments, documents, records and other information submitted by the applicant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination, shall be communicated to the Participant in writing and shall clearly state:
(a) the specific reason or reasons for the denial of the Participant’s claim;
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(b) reference to the specific Plan provisions on which the denial of the Participant’s claim is based;
(c) a statement that the Participant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, the Plan and all documents, records and other information relevant to his or her claim for benefits; and
(d) a statement describing the Participant’s right to bring an action under Section 502(a) of ERISA.
Section 6.04 Exhaustion of Administrative Remedies. The exhaustion of these claims procedures is mandatory for resolving every claim and dispute arising under the Plan. As to such claims and disputes:
(a) no claimant shall be permitted to commence any legal action to recover benefits or to enforce or clarify rights under the Plan under Section 502 or Section 510 of ERISA or under any other provision of law, whether or not statutory, until these claims procedures have been exhausted in their entirety; and
(b) in any such legal action, all explicit and implicit determinations by the Administrator (including, but not limited to, determinations as to whether the claim, or a request for a review of a denied claim, was timely filed) shall be afforded the maximum deference permitted by law.
ARTICLE VII
ADMINISTRATION, AMENDMENT AND TERMINATION
Section 7.01 Administration. The Administrator has the exclusive right, power and authority, in its sole and absolute discretion, to administer and interpret the Plan. The Administrator has all powers reasonably necessary to carry out its responsibilities under the Plan including (but not limited to) the sole and absolute discretionary authority to:
(a) administer the Plan according to its terms and to interpret Plan policies and procedures;
(b) resolve and clarify inconsistencies, ambiguities and omissions in the Plan and among and between the Plan and other related documents;
(c) take all actions and make all decisions regarding questions of eligibility and entitlement to benefits, and benefit amounts;
(d) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of the Plan;
(e) process and approve or deny all claims for benefits; and
(f) decide or resolve any and all questions, including benefit entitlement determinations and interpretations of the Plan, as may arise in connection with the Plan.
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The decision of the Administrator on any disputes arising under the Plan, including (but not limited to) questions of construction, interpretation and administration shall be final, conclusive and binding on all persons having an interest in or under the Plan. The Administrator may delegate any of its duties hereunder to such person or persons from time to time as it may designate. Any such delegation shall be in writing.
Section 7.02 Amendment and Termination. The Plan may be amended or terminated by the Compensation Committee or the Board at any time, provided that, without the consent of an affected Participant, the Plan may not be amended or terminated in respect of the Participant during the twenty-four (24) months immediately following a Change in Control or following such Participant’s Qualifying Termination. The CEO may amend Exhibits A-1 through A-4 from time to time before a Change in Control to designate as Participants individuals who are employees of the Company but who are not executive officers under the Exchange Act at such time.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01 At-Will Employment. The Plan does not alter the status of each Participant as an at-will employee of the Company. Nothing contained herein shall be deemed to give any Participant the right to remain employed by the Company or to interfere with the rights of the Company to terminate the employment of any Participant at any time, with or without Cause.
Section 8.02 Effect on Other Plans, Agreements and Benefits.
(a) Each Participant who incurs a Qualifying Termination shall remain entitled to any benefits to which he or she would otherwise be entitled under the terms and conditions of the Company’s tax-qualified retirement plans and non-qualified deferred compensation plans and nothing contained in the Plan is intended to waive or relinquish the Participant’s vested rights in such benefits.
(b) Any severance benefits payable to a Participant under the Plan shall not be counted as compensation for purposes of determining benefits under any other benefit policies or plans of the Company, except to the extent expressly provided therein.
(c) Subject to Section 3.02(b)(v), the treatment of any equity incentive compensation awards made to a Participant shall be governed by the terms of the applicable equity plan and equity award agreement.
(d) The payments and benefits under the Plan shall be reduced, but not below zero, by the amount of any statutory severance payments to which a Participant is entitled in connection with his or her Qualifying Separation by reason of statutory requirements applicable outside the United States and nothing contained in the Plan is intended to waive or relinquish the Participant’s rights in such statutory benefits.
Section 8.03 Mitigation. Except as provided in Section 3.02(d) or by reason of the definition of Benefit Continuation Period, the amount of any payment or benefit provided for in this Plan shall not be reduced by any compensation earned by the Participant as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Participant to the Company, or otherwise.
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Section 8.04 Severability. The invalidity or unenforceability of any provision of the Plan shall not affect the validity or enforceability of any other provision of the Plan. If any provision of the Plan is held by a court of competent jurisdiction to be illegal, invalid, void or unenforceable, such provision shall be deemed modified, amended and narrowed to the extent necessary to render such provision legal, valid and enforceable, and the other remaining provisions of the Plan shall not be affected but shall remain in full force and effect.
Section 8.05 Headings and Subheadings; Gender. Headings and subheadings contained in the Plan are intended solely for convenience and no provision of the Plan is to be construed by reference to the heading or subheading of any section or paragraph. References in this Plan to any gender include references to all genders, and references to the singular include references to the plural and vice versa.
Section 8.06 Unfunded Obligations. The amounts to be paid to Participants under the Plan are unfunded obligations of the Company. The Company is not required to segregate any monies or other assets from its general funds with respect to these obligations. Participants shall not have any preference or security interest in any assets of the Company other than as a general unsecured creditor.
Section 8.07 Successors. The Plan shall be binding upon any successor to the Company, its assets, its businesses or its interest (whether as a result of the occurrence of a Change in Control or otherwise), in the same manner and to the same extent that the Company would be obligated under the Plan if no succession had taken place. In the case of any transaction in which a successor would not by the foregoing provision or by operation of law be bound by the Plan, the Company shall require any successor to the Company to expressly assume the Plan in writing and honor the obligations of the Company hereunder, in the same manner and to the same extent that the Company would be required to perform if no succession had taken place. All payments and benefits that become due to a Participant under the Plan shall inure to the benefit of his or her heirs, assigns, designees or legal representatives.
Section 8.08 Transfer and Assignment. Neither a Participant nor any other person shall have any right to sell, assign, transfer, pledge, anticipate or otherwise encumber, transfer, hypothecate or convey any amounts payable under the Plan prior to the date that such amounts are paid, except that, in the case of a Participant’s death, such amounts shall be paid to the Participant’s beneficiaries.
Section 8.09 Waiver. Any party’s failure to enforce any provision or provisions of the Plan shall not in any way be construed as a waiver of any such provision or provisions, nor prevent any party from thereafter enforcing each and every other provision of the Plan.
Section 8.10 Governing Law. To the extent not pre-empted by federal law, the Plan shall be construed in accordance with and governed by the laws of the State of Delaware without regard to conflicts of law principles. Any action or proceeding to enforce the provisions of the Plan shall be brought only in a state or federal court located in the State of Delaware in New Castle County and the Company and each Participant shall be deemed to have consented to the venue and jurisdiction of such court.
Section 8.11 Clawback. Any amounts payable under the Plan are subject to any policy (whether in existence as of the Effective Date or later adopted) established by the Company providing for clawback or recovery of amounts that were paid to the Participant. The Company shall make any determination for clawback or recovery in its sole discretion and in accordance with any applicable law or regulation.
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Section 8.12 Withholding. The Company shall have the right to withhold from any amount payable hereunder any Federal, state and local taxes in order for the Company to satisfy any withholding tax obligation it may have under any applicable law or regulation.
Section 8.13 Section 409A. The intent of the Company and the Participants is that payments and benefits under this Plan be exempt from, or comply with, Section 409A of the Code, and accordingly, to the maximum extent permitted, this Plan shall be interpreted and administered to be in accordance therewith. Notwithstanding anything contained herein to the contrary, a Participant shall not be considered to have terminated employment with the Company for purposes of any payments under this Plan which are subject to Section 409A of the Code until the Participant would be considered to have incurred a “separation from service” within the meaning of Section 409A of the Code. Each amount to be paid or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the Code, and any payments described in this Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated as deferred compensation unless applicable law requires otherwise. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Plan during the six (6)-month period immediately following a Participant’s separation from service shall instead be paid on the first business day after the date that is six (6) months following the Participant’s separation from service (or, if earlier, death). To the extent required to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts reimbursable to the Participant under this Plan shall be paid to the Participant on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided) during any one year may not effect amounts reimbursable or provided in any subsequent year. The Company makes no representation that any or all of the payments described in this Plan shall be exempt from or comply with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A of the Code. Notwithstanding anything in this Plan to the contrary, in the event any payments hereunder could occur in one of two calendar years as a result of being dependent upon the general release of claims becoming nonrevocable, then, to the extent required to avoid penalties under Section 409A of the Code, such payments shall commence or be made on the first regularly scheduled payroll date of the Company, following the date the general release of claims becomes nonrevocable, that occurs in the second of such two calendar years.
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