EXECUTION VERSION
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) dated as of April 17, 2023 (the “Effective Date”), by and among Jay Birnbaum (“Executive”), APW OpCo LLC, a Delaware limited liability company (“OpCo”), and Radius Global Infrastructure, Inc. (“Radius”) (OpCo and Radius being referred to together as the “Company”).
WHEREAS, Executive and the Company previously entered into an amended and restated employment agreement, dated as of February 10, 2020 (such agreement, together with all attachments thereto, the “Prior Agreement”); and
WHEREAS, Executive and the Company desire to amend and restate the Prior Agreement, effective as of the date hereof, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto hereby agree as follows:
Services
(b) During the Executive Term, Executive shall (i) continue to serve as the Senior Vice President, General Counsel and Secretary of the Company, reporting to the Chief Executive Officer of Radius (the “CEO”), (ii) perform those duties and have those authorities commensurate with the position of senior vice president and general counsel of a company of the size and scope of the Company and (iii) at the request of the Board of Directors of Radius (the “Board”), and subject to such reasonable conditions as Executive may reasonably establish, serve as an officer, director or other appointee with respect to any Subsidiary of Radius but without any additional compensation or benefits from the Company or any of its Subsidiaries with respect to such service in such other officer, director or other appointee position.
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Compensation
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Benefits and Other Matters
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Termination
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If, following Executive’s termination of employment, Executive breaches any of his obligations pursuant to the restrictive covenants set forth in Section 5.02 or Section 5.03, and
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such breach results in significant reputational or monetary harm to the Company, then Executive shall forfeit his right to receive any unpaid amounts pursuant to Sections 4.05(b), (c), (d) and (f), and Executive shall promptly repay to the Company any such amount previously paid to Executive pursuant to Sections 4.05(b), (c), (d) and (f), provided, however, that the Company shall provide written notice to Executive of an alleged breach of any such restrictive covenants within thirty (30) days of such alleged breach (or such later date as the Board could reasonably have been expected to know of such a breach), and Executive shall have thirty (30) days to cure such alleged breach, if curable.
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Executive Covenants
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For purposes of this Agreement, Work Product may include, but is not limited to, Company information, including plans, publications, research, strategies, techniques, agreements, documents, contracts, terms of agreements, negotiations, know-how, computer programs, computer applications, software design, web design, work in process, databases, manuals, results, developments, reports, graphics, drawings, sketches, market studies, formulae, notes, communications, algorithms, product plans, product designs, styles, models, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, client information, customer lists, client lists, manufacturing information, marketing information, advertising information, and sales information.
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Miscellaneous
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If to Radius or OpCo: Radius Global Infrastructure, Inc.
Attention: Chief Executive Officer
with copies to: Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: Thomas E. Dunn, Esq.
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
E-mail: tdunn@cravath.com
If to Executive: Jay Birnbaum
At the address on the books and records of the
Company at the time of such notice.
with copy to: Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
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Attention: Jennifer Conway, Esq.
Telephone: (212) 450-3055
Facsimile: (212) 701-6055
Email:jennifer.conway@davispolk.com
Each of the parties may change the address to which notices under this Agreement shall be sent by providing written notice to the other in the manner specified above.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first written above.
APW OPCO LLC, | |
By | |
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| Name: Scott Bruce Title: President |
RADIUS GLOBAL INFRASTRUCTURE, INC., | |
By | |
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| Name: Scott Bruce Title: President |
By | |
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| Name: Jay Birnbaum |
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EXHIBIT A
Form of First Release
RELEASE
This Release is made by Jay Birnbaum (“Executive”) for the benefit of APW OpCo LLC, a Delaware limited liability company (“OpCo”), and Radius Global Infrastructure, Inc. (“Radius”), (OpCo, Radius and their respective affiliates are referred to collectively as the “Company”), and by the Company for the benefit of Executive, as of the date set forth below in connection with the Amended and Restated Employment Agreement, dated April 17, 2023, among Executive, OpCo and Radius (the “Employment Agreement”), and in association with Executive’s termination of employment with the Company. All capitalized terms used herein, to the extent not defined, shall have the meaning set forth in the Employment Agreement.
In exchange for the payments and benefits provided under the Employment Agreement, Executive, for himself, his family, his attorneys, agents, heirs and personal representatives, hereby releases and discharges the Company, as well as all of its past, present and future shareholders, parents, agents, directors, officers, employees, representatives, principals, attorneys, insurers, predecessors, successors and all persons acting by, through, under or in concert with the Company (collectively referred to as the “Released Parties”), from any and all non-statutory claims, obligations, debts, liabilities, demands, actions, causes of action, suits, accounts, covenants, contracts, agreements and damages whatsoever of every name and nature, known and unknown, which Executive ever had, or now has, against the Released Parties (collectively, “Claims”) to the date of this Release, both in law and equity, arising out of or in any way related to Executive’s employment with the Company or the termination of that employment, including any Claims that Executive is entitled to any compensation or benefits from any Released Party, other than as set forth in Article IV of the Employment Agreement or as otherwise set forth herein. The Claims Executive releases include, but are not limited to, Claims that the Released Parties:
(A) discriminated against Executive on the basis of race, color, sex (including Claims of sexual harassment), national origin, ancestry, disability, religion, sexual orientation, marital status, parental status, veteran status, source of income, entitlement to benefits, union activities, age or any other claim or right Executive may have under the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act or any other status protected by local, state or Federal laws, constitutions, regulations, ordinances or executive orders;
(B) failed to give proper notice of this employment termination under the Worker Adjustment and Retraining Notification Act, or any similar state or local statute or ordinance;
(C) violated any other Federal, state or local employment statute, such as the Employee Retirement Income Security Act of 1974, as amended, which, among other things, protects employee benefits; the Fair Labor Standards Act, which regulates wage and hour matters; the Family and Medical Leave Act, which requires employers to provide leaves of absence under certain circumstances; Title VII of the Civil Rights Act of 1964; the Americans
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With Disabilities Act; the Rehabilitation Act; the Occupational Safety and Health Act; and any other Federal, state or local laws relating to employment;
(D) violated the Released Parties’ personnel policies, handbooks, any covenant of good faith and fair dealing, or any contract of employment between Executive and any of the Released Parties;
(E) violated public policy or common law, including Claims for personal injury, invasion of privacy, retaliatory discharge, negligent hiring, retention or supervision, defamation, intentional or negligent infliction of emotional distress and/or mental anguish, intentional interference with contract, negligence, detrimental reliance, loss of consortium to Executive or any member of Executive’s family and/or promissory estoppel; or
(F) are in any way obligated for any reason to pay damages, expenses, litigation costs (including attorneys’ fees), bonuses, commissions, disability benefits, compensatory damages, punitive damages and/or interest.
Notwithstanding the foregoing, Executive is not prohibited from asserting any (and the Claims shall not include) (a) rights to indemnification and advancement of legal fees and expenses provided by law or the Employment Agreement; (b) rights to contribution in the event of the entry of judgment against Executive as a result of any act or failure to act for which both Executive and the Company are jointly responsible; (c) rights Executive may have as a shareholder of Radius, a Member of OpCo or otherwise as an interest holder of the Company; (d) as required by law, rights under state workers’ compensation or unemployment laws; or (e) rights which by law cannot be waived, including Executive’s rights to file a charge with an administrative agency or to participate in an agency investigation, including but not limited to the right to file a charge with, or participate in an investigation or proceeding conducted by, the Equal Employment Opportunity Commission. In addition, this Release does not constitute a waiver or release of (and the Claims shall not include) any of Executive’s rights to payments or benefits pursuant to the Employment Agreement, including the Accrued Benefits and the payments and benefits under Section 4.05 and/or Section 4.06 of the Employment Agreement.
For the purpose of giving a full and complete release, Executive understands and agrees that this Release includes all Claims covered by this Release that Executive may now have but does not know or suspect to exist in Executive’s favor against the Released Parties, and that this Release extinguishes those Claims. Notwithstanding the foregoing, the waiver and release provisions set forth in this Release are not an attempt to cause Executive to waive or release rights or Claims that may arise after the date this Release is executed.
Executive affirms that Executive has fully reviewed the terms of this Agreement, affirms that Executive understands its terms, and states that Executive is entering into this Agreement knowingly, voluntarily and in full settlement of all Claims which existed in the past or which currently exist, that arise out of Executive’s employment with the Company or Executive’s severance from employment with the Company.
Executive acknowledges that Executive has had at least twenty-one (21) days to consider this Agreement thoroughly, and that the Company has specifically advised Executive to consult
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with an attorney, if Executive wishes, before Executive signs below. If Executive signs and returns this Agreement before the end of the twenty-one (21)-day period, Executive certifies that Executive’s acceptance of a shortened time period is knowing and voluntary, and the Company did not improperly encourage Executive to sign through fraud, misrepresentation, a threat to withdraw or alter the offer before the twenty-one (21)-day period expires, or by providing different terms to other employees who sign the release before such time period expires. Executive understands that Executive may revoke this Agreement within seven (7) days after Executive signs it. Executive’s revocation must be in writing and submitted within the seven-day period. If Executive does not revoke this Agreement within the seven-day period, it becomes effective and irrevocable.
Executive acknowledges that the waiver and release provisions set forth in this Release are in exchange for good and valuable consideration that is in addition to anything of value to which Executive was already entitled.
In exchange for Executive’s release of claims and other commitments set forth above, the Company hereby releases and discharges Executive from any and all claims, obligations, debts, liabilities, demands, actions, causes of action, suits, accounts, covenants, contracts, agreements and damages whatsoever of every name and nature, known and unknown, which the Company ever had, or now has, against Executive (collectively, “Company Claims”) to the date of this Release, both in law and equity, arising out of or in any way related to Executive’s employment with the Company or the termination of that employment. The Company Claims include, but are not limited to, claims that Executive:
(A) violated the Company’s policies, handbooks, any covenant of good faith and fair dealing, or any contract of employment between Executive and the Company;
(B) violated public policy or common law; or
(C) is in any way obligated for any reason to pay damages, expenses, litigation costs (including attorneys’ fees), punitive damages and/or interest.
Notwithstanding the foregoing, the Company is not prohibited from asserting any rights to contribution in the event of the entry of judgment against the Company as a result of any act or failure to act for which both Executive and the Company are jointly responsible or rights which by law cannot be waived (subject, however, to Executive’s rights to indemnification). In addition, this Release does not constitute a waiver or release of any of the Company’s rights under the Employment Agreement following the Executive’s termination of employment.
For the purpose of giving a full and complete release, the Company understands and agrees that this Release includes all Company Claims covered by this Release that the Company may now have but does not know or suspect to exist in the Company’s favor against Executive, and that this Release extinguishes those Company Claims. Notwithstanding the foregoing, the waiver and release provisions set forth in this Release
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are not an attempt to cause the Company to waive or release rights or Company Claims that may arise after the date this Release is executed.
The Company acknowledges that the waiver and release provisions set forth in this Release are in exchange for good and valuable consideration that is in addition to anything of value to which the Company was already entitled.
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Jay Birnbaum |
APW OPCO LLC, |
[●] |
RADIUS GLOBAL INFRASTRUCTURE, INC., |
[●] |
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EXHIBIT B
Form of Second Release
Reference is made to that certain Release, dated [●], 20[●], among Jay Birnbaum (“Executive”), APW OpCo LLC, a Delaware limited liability company (“OpCo”), and Radius Global Infrastructure, Inc. (“Radius”) (OpCo, Radius and their respective affiliates are referred to collectively as the “Company”) (the “First Release”) and the Amended and Restated Employment Agreement, dated April 17, 2023, among Executive and the Company (the “Employment Agreement”).
Each of Executive and the Company hereby agrees to waive and release the claims set forth in the First Release for the additional period from the execution of the First Release through the signing date of this Release (this “Second Release”), which signing shall not occur before a termination of Executive’s employment during the Special Advisor Period (as defined in the Employment Agreement). Executive and the Company acknowledge and agree that this Second Release does not constitute a waiver or release of any of Executive’s rights to payments or benefits under the Employment Agreement.
Executive affirms that Executive has fully reviewed the terms of the First Release and this Second Release (together, the “Releases”), affirms that Executive understands its terms, and states that Executive is entering into this Second Release knowingly, voluntarily and in full settlement of all Executive Claims (as defined in the First Release) which existed in the past or which currently exist, that arise out of Executive’s employment with the Company or Executive’s termination of employment with the Company.
Each of Executive and the Company acknowledge that the waiver and release provisions set forth in this Second Release are in exchange for good and valuable consideration that is in addition to anything of value to which Executive or the Company, as applicable, was already entitled.
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Jay Birnbaum |
APW OPCO LLC, |
[●] |
RADIUS GLOBAL INFRASTRUCTURE, INC., |
[●] |
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