Exhibit 10.1
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT (the “Agreement”) is made and entered into as of November 9, 2023 by and among (i) NexPoint Advisors, L.P. (the “Adviser”), (ii) NexPoint Residential Trust, Inc. (“NXRT”), (iii) NexPoint Real Estate Advisors, L.P. (the “NXRT Adviser”), (iv) NexPoint Real Estate Finance, Inc. (“NREF”), (v) NexPoint Real Estate Advisors VII, L.P. (the “NREF Adviser”), (vi) NexPoint Diversified Real Estate Trust (“NXDT”), (vii) NexPoint Real Estate Advisors X, L.P. (the “NXDT Adviser”), (viii) VineBrook Homes Trust, Inc. (“VB” and, together with NXRT, NREF and NXDT, the “REITs”), and (ix) NexPoint Real Estate Advisors V, L.P. (the “VB Adviser” and, together with the NXRT Adviser, the NREF Adviser and the NXDT Adviser, the “REIT Advisers”) and Matthew Goetz (“Executive”).
WHEREAS, Executive has served as (i) Director of the Adviser, (ii) Senior VP Investments and Asset Management of NXRT, (iii) Senior VP Investments and Asset Management of NREF and (iv) Senior VP Investments and Asset Management of NXDT;
WHEREAS, Executive shall be deemed to have resigned from such positions, effective as of November 9, 2023 (the “Separation Date”), at which time Executive’s employment with the Adviser, the REITs and the REIT Advisers (collectively, the “Employer Parties”) terminated (the “Separation”); and
WHEREAS, in connection with the Separation, the Employer Parties and Executive desire to enter into this Agreement in order to set forth the respective rights and obligations of the parties.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth in this Agreement, the sufficiency of which the parties acknowledge, it is agreed as follows:
AmericasActive:19003288.11
2
3
4
5
6
[Signatures appear on following page]
7
IN WITNESS WHEREOF, the undersigned have executed this Separation Agreement as of the date first above written.
NEXPOINT ADVISORS, L.P.
By: /s/ James Dondero ____________________
Name: James Dondero
Title: President
NEXPOINT RESIDENTIAL TRUST, INC.
By: /s/ Brian Mitts ____________________
Name: Brian Mitts
Title: Authorized Signatory
NEXPOINT REAL ESTATE ADVISORS, L.P.
By: /s/ Brian Mitts ____________________
Name: Brian Mitts
Title: Authorized Signatory
NEXPOINT REAL ESTATE FINANCE, INC.
By: /s/ Brian Mitts ____________________
Name: Brian Mitts
Title: Authorized Signatory
NEXPOINT REAL ESTATE ADVISORS VII, L.P.
By: /s/ Brian Mitts ____________________
Name: Brian Mitts
Title: Authorized Signatory
NEXPOINT DIVERSIFIED REAL ESTATE TRUST
By: /s/ Brian Mitts ____________________
Name: Brian Mitts
Title: Authorized Signatory
NEXPOINT REAL ESTATE ADVISORS X, L.P.
By: /s/ Brian Mitts ____________________
Name: Brian Mitts
Title: Authorized Signatory
VINEBROOK HOMES TRUST, INC.
By: /s/ Brian Mitts ____________________
Name: Brian Mitts
Title: Authorized Signatory
NEXPOINT REAL ESTATE ADVISORS V, L.P.
By: /s/ Brian Mitts ____________________
Name: Brian Mitts
Title: Authorized Signatory
EXECUTIVE
/s/ Matthew Goetz_________________________
Matthew Goetz
EXHIBIT A
TREATMENT OF LTIP AWARDS
Vested RSU Awards
The following restricted stock unit awards granted pursuant to the following award agreements, each as amended, shall immediately vest and become nonforfeitable on the Separation Date and each such award shall be delivered and settled in Shares (as defined under the applicable award agreement) or cash on the dates set forth below; provided that, such settlement and delivery will be conditioned on Executive complying with the terms of the Agreement through each settlement and delivery date.
RSU Award Agreements
3,136 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of February 21, 2019
1,528 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of February 20, 2020
1,061 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of May 11, 2020
1,864 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of February 18, 2021
1,394 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of February 17, 2022
2,469 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of March 28, 2023
11,300 RSU Awards granted pursuant to the NexPoint Diversified Real Estate Trust, Form of Restricted Shares Units Agreement, dated as of April 4, 2023
11,922 RSU Awards granted pursuant to the NexPoint Real Estate Finance, Inc. Restricted Stock Units Agreement, dated as of June 24, 2020
16,340 RSU Awards granted pursuant to the NexPoint Real Estate Finance, Inc. Restricted Stock Units Agreement, dated as of February 22, 2021
19,876 RSU Awards granted pursuant to the NexPoint Real Estate Finance, Inc. Restricted Stock Units Agreement, dated as of February 21, 2022
24,536 RSU Awards granted pursuant to the NexPoint Real Estate Finance, Inc. Restricted Stock Units Agreement, dated as of April 4, 2023
899 RSU Awards granted pursuant to the VineBrook Homes Trust, Inc. Restricted Stock Units Agreement, dated as of May 11, 2020
1,566 RSU Awards granted pursuant to the VineBrook Homes Trust, Inc. Restricted Stock Units Agreement, dated as of February 15, 2021
1,048 RSU Awards granted pursuant to the VineBrook Homes Trust, Inc. Restricted Stock Units Agreement, dated as of February 17, 2022
765 RSU Awards granted pursuant to the VineBrook Homes Trust, Inc. Restricted Stock Units Agreement, dated as of April 11, 2023
Vested RSU Award – Settlement Schedule
NexPoint Residential Trust, Inc. Awards:
Initial Grant Date | Total Awards Vesting on the Separation Date | First Settlement Date | Amount Settling | Second Settlement Date | Amount Settling |
2/21/19 | 3,136 | 2/21/24 | 3,136 |
|
|
2/20/20 | 1,528 | 2/20/24 | 841 | 2/20/25 | 687 |
5/11/20 | 1,061 | 5/11/24 | 584 | 5/11/25 | 477 |
2/18/21 | 1,864 | 2/18/24 | 1,026 | 2/18/25 | 838 |
2/17/22 | 1,394 | 2/17/24 | 767 | 2/17/25 | 627 |
3/28/23 | 2,469 | 3/28/24 | 1,359 | 3/28/25 | 1,110 |
NexPoint Diversified Real Estate Trust Awards:
Initial Grant Date | Total Awards Vesting on the Separation Date | First Settlement Date | Amount Settling | Second Settlement Date | Amount Settling |
4/4/23 | 11,300 | 4/4/24 | 6,219 | 4/4/25 | 5,081 |
NexPoint Real Estate Finance, Inc. Awards:
Initial Grant Date | Total Awards Vesting on the Separation Date | First Settlement Date | Amount Settling | Second Settlement Date | Amount Settling |
6/24/20 | 11,922 | 5/8/24 | 11,922 |
|
|
2/22/21 | 16,340 | 2/22/24 | 8,993 | 2/22/25 | 7,347 |
2/21/22 | 19,876 | 2/21/24 | 10,939 | 2/21/25 | 8,937 |
4/4/23 | 24,536 | 4/4/24 | 13,504 | 4/4/25 | 11,033 |
VineBrook Homes Trust, Inc. Awards:
Initial Grant Date | Total Awards Vesting on the Separation Date | First Settlement Date | Amount Settling | Second Settlement Date | Amount Settling |
5/11/20 | 899 | 2/20/24 | 899 |
|
|
2/15/21 | 1,566 | 2/18/24 | 862 | 2/18/25 | 704 |
2/17/22 | 1,048 | 2/17/24 | 577 | 2/17/25 | 471 |
4/11/23 | 765 | 4/11/24 | 421 | 4/11/25 | 344 |
Forfeited RSU Awards
The following restricted stock unit awards granted pursuant to the following award agreements, each as amended, shall immediately be forfeited and cancelled on the Separation Date.
154 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of February 20, 2020
107 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of May 11, 2020
1,214 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of February 18, 2021
1,675 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of February 17, 2022
4,326 RSU Awards granted pursuant to the NexPoint Residential Trust, Inc. Restricted Stock Units Agreement, dated as of March 28, 2023
13,576 RSU Awards granted pursuant to the NexPoint Diversified Real Estate Trust, Form of Restricted Shares Units Agreement, dated as of April 4, 2023
1,646 RSU Awards granted pursuant to the NexPoint Real Estate Finance, Inc. Restricted Stock Units Agreement, dated as of February 22, 2021
12,941 RSU Awards granted pursuant to the NexPoint Real Estate Finance, Inc. Restricted Stock Units Agreement, dated as of February 21, 2022
29,479 RSU Awards granted pursuant to the NexPoint Real Estate Finance, Inc. Restricted Stock Units Agreement, dated as of April 4, 2023
3,597 RSU Awards granted pursuant to the VineBrook Homes Trust, Inc. Restricted Stock Units Agreement, dated as of May 11, 2020
3,604 RSU Awards granted pursuant to the VineBrook Homes Trust, Inc. Restricted Stock Units Agreement, dated as of February 15, 2021
2,993 RSU Awards granted pursuant to the VineBrook Homes Trust, Inc. Restricted Stock Units Agreement, dated as of February 17, 2022
2,606 RSU Awards granted pursuant to the VineBrook Homes Trust, Inc. Restricted Stock Units Agreement, dated as of April 11, 2023
Execution Copy
VESTING AGREEMENT
This VESTING AGREEMENT (the “Vesting Agreement”) is made and entered into as of November 9, 2023 (the “Effective Date”) by and among (i) NexPoint Residential Trust, Inc. (“NXRT”), (ii) NexPoint Real Estate Finance, Inc. (“NREF”), (iii) NexPoint Diversified Real Estate Trust (“NXDT”), and (iv) VineBrook Homes Trust, Inc. (together with NXRT, NREF and NXDT, the “REITs”), and Matthew Goetz (“Grantee”).
WHEREAS, NXRT, NREF, NXDT and VB maintain the following equity plans, respectively: (i) NXRT’s 2016 Long Term Incentive Plan, (ii) NREF’s 2020 Long Term Incentive Plan, (iii) NXDT’s 2023 Long Term Incentive Plan and (iv) VB’s 2018 Long Term Incentive Plan (together, the “Plans”);
WHEREAS, Sections 17 and 18, 17 and 18, 18 and 19 and 18 and 19 of the NXRT Plan, NREF Plan, NXDT Plan and VB Plan, respectively, authorize the Compensation Committee (the “Committee”) of each REIT’s Board of Directors to amend awards granted under the plans, including to restate the awards’ vesting schedules and to comply with the deferred compensation rules of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”);
WHEREAS, Grantee has entered into a separation agreement, dated as of the Effective Date, in connection with Grantee’s separation from service as an employee of NexPoint Advisors, L.P. (the “Adviser”), the REITs and any respective affiliates (the “Separation”) on the Effective Date (the “Separation Agreement”); and
WHEREAS, each REIT’s Committee has determined that it would be advisable and in the best interest of the REIT and its stockholders to amend the terms of Grantee’s outstanding restricted stock units or restricted share units (both, “RSUs”) awarded under the Plans and the award agreements, each as set forth on Exhibit A to the Separation Agreement, in connection with the Grantee’s Separation.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:
Impact of Vesting Agreement
Notwithstanding anything in this Agreement to the contrary, as of the effective date of that certain vesting agreement made and entered into as of November 9, 2023 (the “Separation Effective Date”) by and among (i) NexPoint Residential Trust, Inc. (“NXRT”), (ii) NexPoint Real Estate Finance, Inc. (“NREF”), (iii) NexPoint Diversified Real Estate Trust (“NXDT”), and (iv) VineBrook Homes Trust, Inc. (together with NXRT, NREF and
NXDT, the “REITs”), and [Grantee / Participant] (the “Vesting Agreement”), any outstanding RSUs under this Agreement shall vest and become nonforfeitable, or will be forfeited and cancelled, as set forth on Exhibit A to the Separation Agreement (as defined in the Vesting Agreement) and generally within the Separation Agreement, and all other vesting and settlement schedules with respect to the RSUs under this Agreement shall be null and void.
Application of Section 409A of the Code.
(a) Exemption or Compliance. The Agreement and RSUs vesting and settling in connection with it are intended to be exempt from or otherwise comply with Section 409A of the Code, including the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind distributions, and shall be administered, construed and interpreted in accordance with such intent. Any RSUs that fail to qualify for the exemptions under Section 409A of the Code shall be paid or provided in accordance with the requirements of Section 409A of the Code. Notwithstanding the foregoing, the Company cannot guarantee that the RSUs provided under the Agreement will satisfy all applicable provisions of Section 409A of the Code and the [Grantee / Participant] shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or for the account of the Participant in connection with this Agreement (including any taxes and penalties under Section 409A of the Code), and neither the Company nor any of its subsidiaries or affiliates shall have any obligation to indemnify or otherwise hold the [Grantee / Participant] (or any beneficiary) harmless from any or all of such taxes or penalties.
(b) Payments and Reimbursements. Each payment with respect to the RSUs settling under this Agreement is intended to be treated as one of a series of separate payments for purposes of Section 409A of the Code. To the extent any reimbursements or in-kind benefit payments under the Agreement are subject to Section 409A of the Code, such reimbursements and in-kind benefit payments will be made in accordance with Treasury Regulation Section 1.409A-3(i)(1)(iv) (or any similar or successor provisions).
(c) Specified Employees. Notwithstanding anything in the Agreement to the contrary, to the extent the [Grantee / Participant] is considered a “specified employee” (as defined in Section 409A of the Code) and would be entitled to a payment during the six-month period beginning on the [Grantee’s / Participant’s] separation from service (as defined in Section 409A of the Code) that is not otherwise excluded under Section 409A of the Code under the exception for short-term deferrals, separation pay arrangements, reimbursements, in-kind distributions, or any otherwise applicable exemption, the payment will not be made to the [Grantee / Participant] until the earlier of the six-month anniversary of the [Grantee / Participant’s] separation from service or the [Grantee / Participant’s] death and will be accumulated and paid on the first day of the seventh month following the separation from service.
(d) Amendment. The Company may amend the Agreement to the minimum extent necessary to satisfy the applicable provisions of Section 409A of the Code.
3
[Signature Page Follows]
4
IN WITNESS WHEREOF, the parties have executed this Vesting Agreement as of the day and year first above written.
Nexpoint residential Trust, Inc.
By: /s/ Brian Mitts
Name: Brian Mitts
Title: Authorized Signatory
NEXPOINT REAL ESTATE FINANCE, INC.
By: /s/ Brian Mitts
Name: Brian Mitts
Title: Authorized Signatory
NEXPOINT DIVERSIFIED REAL ESTATE TRUST
By: /s/ Brian Mitts
Name: Brian Mitts
Title: Authorized Signatory
VINEBROOK HOMES TRUST, INC.
By: /s/ Brian Mitts
Name: Brian Mitts
Title: Authorized Signatory
GRANTEE
By: /s/ Matthew Goetz
Name: Matthew Goetz
[Signature Page of Vesting Agreement]