エドガーで原本を確認する
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 14, 2025
TRINITY CAPITAL INC.
(Exact name of Registrant as Specified in Its Charter)
| Maryland | 001-39958 | 35-2670395 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
|
1 N. 1st Street Suite 302 |
||
| Phoenix, Arizona | 85004 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: (480) 374-5350
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Common Stock, par value $0.001 per share | TRIN | Nasdaq Global Select Market | ||
| 7.875% Notes Due 2029 | TRINZ | Nasdaq Global Select Market | ||
| 7.875% Notes Due 2029 | TRINI | Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Amended & Restated Employment Letters
On March 14, 2025, Trinity Capital Inc. (the “Company”) entered into amended and restated employment letters with each of Kyle Brown, the Company’s Chief Executive Officer, President, and Chief Investment Officer, Steven L. Brown, the Company’s Executive Chairman, and Gerald Harder, the Company’s Chief Operating Officer (collectively, the “Amended and Restated Employment Letters”). Each Amended and Restated Employment Letter supersedes and replaces the prior employment letter by and between the Company and each of Messrs. K. Brown, S. Brown and Harder. The Company also entered into an employment letter with Michael Testa, the Company’s Chief Financial Officer (the “New Employment Letter” and together with the Amended and Restated Employment Letters, the “Employment Letters”). Messrs. K. Brown, S. Brown, Harder and Testa are collectively referred to herein as the “Executives.”
The Employment Letters provide for employment “at will” and specify an initial base salary of (i) $750,000 for Mr. K. Brown, (ii) $500,000 for Mr. S. Brown, (iii) $650,000 for Mr. Harder and (iv) $500,000 for Mr. Testa, each of which is subject to annual review and adjustment by the Compensation Committee (the “Committee”) of the Board of Directors of the Company.
In addition to their annual base salaries, under the Employment Letters, each Executive will be eligible to receive a discretionary annual (i) cash bonus and (ii) grant of restricted stock or other equity awards under the Trinity Capital Inc. 2019 Long Term Incentive Plan, as amended (the “LTIP”), each as determined and approved by the Committee. Under the Employment Letters, the Executives are also eligible to participate in the Company’s employee benefits plans (including life, health and accident insurance and disability programs), subject to the terms and conditions of the applicable plans.
Under the Employment Letters, upon a termination by the Company of an Executive’s employment without “Cause” or upon a resignation by the Executive with “Good Reason” (each as defined in the Employment Letters), in addition to certain vested rights the Executive may have under any of the Company’s employee benefit plans and payment to the Executive for any accrued but unused vacation days, the Executive will receive, (i) an amount equal to the Executive’s monthly base salary, for a period of twenty-four (24) months for each of Messrs. K. Brown and S. Brown, to be increased to a lump sum payment of three (3) times their respective annual base salaries in the event that such termination occurs within the twenty-four (24) month period following certain “Covered Transactions” (as defined in the LTIP), and twelve (12) months of continued base salary for the other Executives, to be increased to a lump sum payment of two (2) times their respective annual base salaries in the event that such termination occurs within the twenty-four (24) month period following certain Covered Transactions, (ii) any earned but unpaid annual bonus with respect to the calendar year ending on or preceding the date of termination, (iii) a pro rata portion of the Executive’s annual bonus for the then-current calendar year, based on the Company’s actual performance and payable at the same time bonuses for such year are paid to other senior executives of the Company, provided that, in the event that any such termination occurs within the twenty-four (24) month period following a Covered Transaction, such amount will be equal to one (1) times the average of the Executive’s most recent three annual bonuses (or two (2) times such amount in the case of Messrs. K. Brown and S. Brown), to be paid in a lump sum within sixty (60) days following such termination of employment, (iv) accelerated vesting of outstanding awards under the LTIP for any portion of such awards that would have become vested within two (2) years of the Executive’s termination date, provided that such acceleration would include the entire unvested portion of such awards in the case of Mr. S. Brown and in the event that such termination occurs within the twenty-four (24) month period following a Covered Transaction for the other Executives and (v) if the Executive elects COBRA coverage under the Company’s group health plan, a payment equal to the Company’s monthly portion of premiums for a period of twenty-four (24) months for each of Messrs. K. Brown and S. Brown and twelve (12) months for the other Executives, to be increased to a lump sum payment of thirty-six (36) months and twenty-four (24) months, respectively, in the event that such termination occurs within the twenty-four (24) month period following a Covered Transaction. The payment of any such severance described above is conditioned on the Executive’s execution and non-revocation of a general release of claims in favor of the Company, and the Executive’s continued compliance with certain post-employment restrictive covenants.
Under the Employment Letters, in the event that an Executive’s employment is terminated due to death or disability, in addition to certain vested rights the Executive may have under any of the Company’s employee benefit plans and payment to the Executive (or the Executive’s estate) for any accrued but unused vacation days, the Executive (or the Executive’s estate) will be paid (i) any earned but unpaid bonus with respect to the calendar year ending on or preceding the date of termination and (ii) a pro rata portion of the Executive’s annual bonus for the then-current calendar year, based on the Company’s actual performance and payable at the same time bonuses for such year are paid to other senior executives of the Company and, in the case of Mr. S. Brown, accelerated vesting of all of his then-outstanding time-based equity awards under the LTIP.
The Employment Letters also include certain confidentiality, non-competition and non-solicitation provisions and certain other restrictive covenants.
The foregoing description of the Employment Letters does not purport to be complete and is qualified in its entirety by reference to each Employment Letter, copies of which are filed hereto as Exhibits 10.1, 10.2, 10.3, 10.4 and are incorporated herein by reference.
Retention Bonus Agreement
On March 14, 2025, Mr. K. Brown entered into a retention bonus agreement with the Company (the “Retention Agreement”), pursuant to which Mr. K. Brown will be entitled to receive a retention bonus in an aggregate amount equal to $1.88 million (the “Retention Bonus”), payable 50% on March 14, 2026, with the remaining 50% becoming payable in the four (4) quarters immediately following March 14, 2026, in each case provided that Mr. K. Brown remains in the continuous employment of the Company through the applicable payment date. Notwithstanding the foregoing, if Mr. K. Brown’s employment is terminated by the Company without “cause”, due to his death or “disability” or in the event that he resigns for “good reason” (each as defined in Mr. K. Brown’s Employment Letter), Mr. K. Brown (or his estate) will be entitled to receive the then unpaid portion of the Retention Bonus within sixty (60) days following any such termination, subject to his execution and non-revocation of a general release of claims in favor of the Company.
The foregoing description of the Retention Agreement does not purport to be complete and is qualified in its entirety by reference to the Retention Agreement, which is filed hereto as Exhibit 10.5 and is incorporated herein by reference.
Option Grant Awards
On March 14, 2025 (the “Grant Date”), the Committee approved grants of non-statutory stock options to certain executive officers of the Company, including the Executives, each to purchase up to 300,000 shares of the Company’s common stock pursuant to the LTIP (the “Option Award”). Each Option Award is subject to certain time-based and market-based vesting conditions, which are set forth in the Company’s Non-Statutory Stock Option Award Agreement for Employees.
As set forth therein, within four years following the Grant Date, the volume weighted average trading price (“VWAP”) per share of the Company’s common stock on any established stock exchange or national market system for ninety (90) consecutive calendar days ending on the last trading day preceding the applicable day must be equal to or greater than $23.75. If the VWAP condition is satisfied, and the applicable recipient of the Option Award remains in the continuous employment of the Company through the applicable vesting date (subject to certain limited exceptions), the stock option will vest as follows: 25% on March 14, 2026 with the remaining 75% vesting pro rata over the twelve (12) full calendar quarters immediately following March 14, 2026.
The foregoing description does not purport to the complete and is qualified in its entirety by reference to the Form of Non-Statutory Stock Option Award for Employees, a copy of which is filed hereto as Exhibit 10.6 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
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.
| Trinity Capital Inc. | ||
| Date: March 20, 2025 | By: | /s/ Kyle Brown |
| Kyle Brown Chief Executive Officer, President and Chief Investment Officer |
||
Exhibit 10.1
Name: Kyle Brown
Date: March 14, 2025
| RE: | Amended & Restated Offer of Employment with Trinity Capital Inc. |
Dear Kyle:
This letter agreement hereby amends and restates that certain offer letter, by and between you and Trinity Capital Inc. (the “Company”), dated January 16, 2020.
Position and Responsibilities
During the Term (as defined below), you agree to serve as Chief Executive Officer (“CEO”), President and Chief Investment Officer for the Company. During the Term, you agree to devote substantially all of your business time and efforts to the performance of your duties to the Company, and you will have the duties, authorities and responsibilities as are required by your position, and such other duties, authorities and responsibilities as may reasonably be assigned to you that are not inconsistent with your position as the CEO. During the Term, you will also serve on the Company’s investment committee. You will report directly to the Board.
Salary, Bonus, Benefits, Business Expenses and Severance
| a. | Base Salary. During the Term, you will be compensated for your services at an annual rate of seven hundred and fifty thousand dollars ($750,000), which may be reviewed and increased but not decreased on an annual basis by the Board in its sole discretion, and which shall be payable in accordance with the Company’s regular payroll schedule (the “Base Salary”). |
| b. | Annual Bonus Arrangement. During the Term, you will be eligible to receive an annual bonus (the “Annual Bonus”), payable in amounts and at such times as determined in good faith by the Board, based on the achievement of Company and individual performance objectives, performance goals, and other metrics as set by the Board, and as may be changed from time to time. The Annual Bonus (if any) shall be payable no later than March 15 of the calendar year following the calendar year to which such Annual Bonus relates and may be paid periodically prior to such date. In order to be eligible to receive such Annual Bonus (or portion thereof), except as otherwise provided herein, you must remain employed by the Company and in good standing through (i) the payment date if earlier than the end of the calendar year or (ii) the end of the applicable Annual Bonus calendar year. Notwithstanding the foregoing, in the event that your employment hereunder is terminated for “cause” at any point prior to the payment of any Annual Bonus, you will not be entitled to the payment of any Annual Bonus. |
For purposes of this letter agreement, “cause” shall mean (i) your act(s) of gross negligence or willful misconduct in the course of your employment, (ii) your willful failure or refusal to perform in any material respect your duties or responsibilities, (iii) misappropriation (or attempted misappropriation) by you of any assets or business opportunities of the Company or any of its affiliates, (iv) embezzlement or fraud committed (or attempted) by you, or at your direction, (v) your conviction of, indictment for, or pleading “guilty” or “no contest” to, (1) a felony or (2) any other criminal charge that has, or could be reasonably expected to have, an adverse impact on the performance of your duties to the Company or otherwise result in material injury to the reputation or business of the Company or any of its affiliates, (vi) any material violation by you of the policies of the Company, including but not limited to those relating to sexual harassment or business conduct, and those otherwise set forth in the manuals or statements of policy of the Company, or (vii) your material breach of Exhibit A of this letter agreement. Any determination of cause will be made by a resolution approved by a majority of the members of the Board, provided that no such determination may be made until you have been given written notice detailing the specific cause event and a period of thirty (30) days following receipt of such notice to cure such event (if susceptible to cure) to the satisfaction of the Board. Notwithstanding anything to the contrary contained herein, your right to cure as set forth in the preceding sentence shall not apply if there are habitual or repeated breaches by you, and no act or omission shall be deemed “willful” or “intentional” unless taken or not taken in bad faith and without a reasonable belief that it was in the best interest of the Company, or if taken or omitted to be taken on instruction from the Board or the Company’s counsel.
| c. | Equity Awards. You will be eligible for an annual restricted stock or other equity award as determined and approved by the Compensation Committee of the Board of Directors and subject to the terms and conditions, including vesting, of the award agreement and the Trinity Capital Inc. 2019 Long Term Incentive Plan, as may be amended from time to time. |
| d. | Employee Benefits. In connection with your employment during the Term, you will be eligible to participate in the Company’s employee benefit plans (including life, health accident insurance and disability programs) provided by the Company to similarly situated employees. Such participation shall be subject to the terms of the applicable plan documents and policies generally applicable to Company employees, including, without limitation, plan terms or policies relating to employee contributions under any such plans. Additional information regarding these benefits will be provided to you under a separate cover. Notwithstanding the foregoing, the Company may modify or terminate any employee benefit plan at any time. |
| e. | Vacation and Sick Leave. During the Term, you will be entitled to paid time off and sick time in accordance with the terms and conditions of the Company’s policies, procedures, and practices applicable to Company employees, as in effect from time to time, and applicable law. |
| f. | Business Expenses. During the Term, you will be reimbursed for all reasonable expenses (including, without limitation, travel and lodging, phone and car lease) incurred by you in connection with your employment, provided that you provide documentation, expense statements, vouchers and/or such other supporting information to the Company as it may reasonably request, and provided such expenses were incurred in compliance with Company policies, procedures and practices as in effect from time to time. |
| g. | Severance: In addition to the Accrued Benefits (as defined below), you will also be eligible for severance upon certain terminations of employment as provided for in this letter agreement. During the Term, you will be eligible for severance upon your termination of employment by the Company without cause or your resignation for “good reason” as provided for in this paragraph g, subject to the terms and conditions described below and in the “Code Section 409A” provision of this letter agreement. Upon any such termination and subject to your execution and delivery to the Company of a general release of claims in a form satisfactory to the Company that is no longer subject to revocation within sixty (60) days following any such termination of employment (the “Release of Claims”), and your continued compliance with the terms of Exhibit A, you will receive the following: |
| (i) | an amount equal to your monthly Base Salary rate, paid monthly for a period of twenty-four (24) months following such termination; provided that, any such payment scheduled to occur during the first sixty (60) days following the termination of employment shall not be paid until the first regularly scheduled pay period following the sixtieth (60th) day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto; provided further that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a “Covered Transaction” (as defined in the 2019 Trinity Capital Inc. Long Term Incentive Plan, as may be amended from time to time (the “LTIP”)) that satisfies the requirements of Section 1.409A-3(i)(5)(v), (vi) or (vii) of the Code (a “409A Change in Control”), the amount that you shall be eligible to receive pursuant to this paragraph g(i) shall be an amount equal to three (3) times your annual Base Salary (the “Enhanced Severance Payment”), paid in a lump sum within sixty (60) days following such termination of employment; provided however that, if the Covered Transaction does not qualify as a 409A Change in Control, the portion of the Enhanced Severance Payment that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (as defined below) will be paid to you in substantially equal monthly payments, commencing on the first regularly scheduled pay period following the sixtieth (60th) day following such termination of employment, and the remaining portion of the Enhanced Severance Payment will be paid to you in a lump sum within sixty (60) days following such termination of employment; |
| (ii) | any Annual Bonus earned but unpaid with respect to the calendar year ending on or preceding the date of termination, paid within sixty (60) days following such termination of employment; |
| (iii) | a pro-rata portion of your Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that you are employed by the Company and the denominator of which is 365), payable at the same time bonuses for such year are paid to other senior executives of the Company; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, the amount that you shall be eligible to receive pursuant to this paragraph g(iii) shall be an amount equal to two (2) times the average of your most recent three Annual Bonuses, paid in a lump sum within sixty (60) days following such termination of employment; |
| (iv) | subject to your electing COBRA coverage under the Company’s group health plan, a monthly amount equal to the difference between the monthly COBRA premium cost and the monthly contribution paid by active employees for the same coverage, for a period of twenty-four (24) months following such termination of employment; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, the amount that you shall be eligible to receive pursuant to this paragraph g(iv) shall be an amount equal to thirty-six (36) times the difference between the monthly COBRA premium cost and the monthly contribution paid by active employees for the same coverage, paid in a lump sum within sixty (60) days following such termination of employment; and |
| (v) | accelerated vesting of the portion of any outstanding and unvested time-based equity awards that would have otherwise become vested during the two (2) year period following the date of termination; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, all of your outstanding and unvested time-based equity awards shall accelerate and become fully vested. |
For purposes of this letter agreement, your resignation shall be for “good reason” if you resign from your employment as a result of any of the following without your consent: (i) a material reduction in your position, duties, responsibilities or status (other than temporarily while physically or mentally incapacitated or as required by applicable law); (ii) a material downward change in your reporting responsibility; (iii) a material reduction your Base Salary; (iv) the permanent relocation of your principal work location to a location outside a fifty (50) mile radius of your current principal work location (excluding required business travel from time to time); (v) the failure of the Company to make any material, non-forfeited payments earned and due to you under this letter agreement; or (vi) the failure of the Company to obtain the assumption in writing of its obligations under this letter agreement by any successor to all or substantially all of the assets of the Company. In order to resign for good reason, you must notify the Company in writing within thirty (30) days of the first occurrence of such circumstances alleged to constitute good reason and the Company shall have a period of thirty (30) days to cure such event(s). If such events are not fully corrected in all material respects by the Company within such thirty (30) day period, you must actually terminate your employment within thirty (30) days following the expiration of the Company’s thirty (30)-day cure period described above, otherwise, any claim of such circumstances as “good reason” shall be deemed irrevocably waived.
In the event that your employment hereunder is terminated due to your death or disability, in addition to Accrued Benefits, subject to your or your estate’s execution of the Release of Claims that is no longer subject to revocation within sixty (60) days following such termination of employment, and subject to your continued compliance with the terms of Exhibit A, you will receive any Annual Bonus earned but unpaid with respect to the calendar year ending on or preceding the date of termination, paid within sixty (60) days following such termination of employment and a pro-rata portion of your Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that you are employed by the Company and the denominator of which is 365), payable at the same time bonuses for such year are paid to other senior executives of the Company. For purposes of this letter agreement, “disability” shall mean any physical or mental disability or infirmity of you that prevents the performance of your duties (notwithstanding the provision of any reasonable accommodation) for a period of (i) ninety (90) consecutive days or (ii) one hundred twenty (120) non-consecutive days during any twelve (12) month period, as determined by the Company.
If your employment with the Company is terminated at any time for any reason other than as described above, unless provided for separately (e.g. a separate severance plan or agreement) the Company shall have no further obligation or liability to you relating to your employment or arising out of this letter agreement, other than (i) the payment of any Base Salary earned but unpaid through the date of termination of your employment, (ii) any vested rights you may have under any of the Company’s employee benefit plans, (iii) payment for any accrued but unused vacation days, in accordance with the Company’s vacation policy and applicable laws, and (iv) any other payments required by applicable law (collectively, items (i) through (iv), “Accrued Benefits”).
Employment at Will; Restrictive Covenants
Notwithstanding anything to the contrary, your employment with the Company will be “at will”, which means that either you or the Company may terminate your employment, at any time and for any reason, either with or without cause or advance notice. In the event that you desire to terminate your employment with the Company without good reason, the Company does request that you provide two (2) weeks’ written notice to the Company as a courtesy. The period of time between the date hereof and the termination of your employment hereunder for any reason shall be referred to herein as the “Term.”
As a condition of your employment, you agree to be bound by all the terms and conditions in Exhibit A to this letter, and agree that the terms and conditions of Exhibit A form part of the terms and conditions of your employment.
Notwithstanding anything to the contrary in this letter agreement or otherwise, you understand and acknowledge that the Company has informed you that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for (i) the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or (ii) the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. Additionally, notwithstanding anything to the contrary in this letter agreement or otherwise, you understand and acknowledge that the Company has informed you that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to a court order. Nothing in this letter agreement or any other agreement between you and the Company shall be interpreted to limit or interfere with your right to report good faith suspected violations of law to applicable government agencies, including the Equal Employment Opportunity Commission, National Labor Relation Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other applicable federal, state or local governmental agency, in accordance with the provisions of any “whistleblower” or similar provisions of local, state or federal law. You may report such suspected violations of law, even if such action would require you to share the Company’s proprietary information or trade secrets with the government agency, provided that any such information is protected to the maximum extent permissible and any such information constituting trade secrets is filed only under seal in connection with any court proceeding. Lastly, nothing in this letter agreement or any other agreement between you and the Company will be interpreted to prohibit you from collecting any financial incentives in connection with making such reports or require you to notify or obtain approval by the Company prior to making such reports to a government agency.
Additional Agreements; Miscellaneous
This letter agreement, the employment relationship contemplated herein and any claim arising from such relationship, whether or not arising under this letter agreement, shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to any choice or conflict of laws provision or rule thereof. If any portion or provision of this letter agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the application of such provision in such circumstances shall be modified to permit its enforcement to the maximum extent permitted by law, and both the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable and the remainder of this letter agreement shall not be affected thereby, and each portion and provision of this letter agreement shall be valid and enforceable to the fullest extent permitted by law. This letter agreement together with all exhibits hereto sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes any and all prior agreements or understandings between you and the Company with respect to the subject matter hereof. The Company may withhold from any and all amounts payable under this letter agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
Code Section 409A
The intent of the parties is that payments and benefits under this letter agreement comply with Internal Revenue Code (the “Code”) Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this letter agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to you and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on you by Code Section 409A or damages for failing to comply with Code Section 409A.
A termination of employment shall not be deemed to have occurred for purposes of any provision of this letter agreement providing for the payment of any amounts or benefits that constitute “nonqualified deferred compensation” for purposes of Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this letter agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” Notwithstanding anything to the contrary in this letter agreement, if you are deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of your “separation from service” and (B) the date of your death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to the foregoing (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to you in a lump sum with interest at the prime rate as published in The Wall Street Journal on the first business day following the date of the “separation from service”, and any remaining payments and benefits due under this letter agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. For purposes of Code Section 409A, your right to receive any installment payments pursuant to this letter agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this letter agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
To the extent that reimbursements or other in-kind benefits under this letter agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by you, (ii) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Notwithstanding any other provision of this letter agreement to the contrary, in no event shall any payment under this letter agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
Certain Excise Taxes
In the event that any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by or other services to the Company) (collectively the “Company Payments”) will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then you will be entitled to receive either (i) the full amount of the Company Payments or (ii) a portion of the Company Payments having a value equal to $1 less than three (3) times your “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the Excise Tax, results in the receipt by you on an after-tax basis, of the greatest portion of the Company Payments. Any determination required under this paragraph shall be made in writing by the independent public accountant of the Company (the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company and you. For purposes of making any calculation required by this paragraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction of the Company Payments pursuant to this paragraph, such reduction shall occur in the following order: (A) any cash severance payable by reference to your Base Salary or Annual Bonus, (B) any other cash amount payable to you, (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of vesting of any outstanding equity award. In no event whatsoever shall you be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Company Payments by reason of the application of Section 280G or Section 4999 of the Code.
Clawback
You hereby acknowledge and agree that certain payments hereunder will be subject to recoupment in accordance with the Trinity Capital Inc. Clawback Policy, and any other clawback policy that the Company may adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law. In addition, the Board may impose such other clawback, recovery or recoupment provisions as the Board determines necessary or appropriate, including but not limited to a reacquisition right in respect of previously acquired shares of the Company’s common stock or other cash or property upon the occurrence of a termination of your employment for cause. No recovery of compensation under such a clawback policy will be an event giving rise to a right to resign for “good reason” hereunder or under any other agreement with the Company.
Sincerely,
| /s/ Steven Brown | |
| Steven Brown |
Steven Brown
Executive Chairman of the Board
Trinity Capital Inc.
Accepted by:
| Name: | /s/ Kyle Brown | Date: March 14, 2025 | |
| Kyle Brown |
Exhibit A
Restrictive Covenants
You acknowledge that, as a senior executive of Trinity Capital Inc. (the “Company”), you have specialized knowledge of the Company’s and its affiliates’ business, their customer relationships and their confidential information and that the restrictive covenants included in this Exhibit A to the letter agreement are necessary to protect the Company’s and its affiliates’ legitimate, protectable business interests. You also acknowledge that in connection with the execution of the letter agreement that you have received sufficient consideration to agree to such restrictions.
| 1. | Intellectual Property. All inventions, technology, processes, innovations, ideas, improvements, developments, methods, designs, analyses, trademarks, service marks, and other indicia of origin, writings, audiovisual works, concepts, drawings, reports and all similar, related, or derivative information or works (whether or not patentable or subject to copyright), including but not limited to all patents, copyrights, copyright registrations, trademarks, and trademark registrations in and to any of the foregoing, along with the right to practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, or create works derivative of any of the foregoing, and the right to choose not to do or permit any of the aforementioned actions, which relate to the Company’s or any of its affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by you while employed by the Company or any of its predecessors, whether or not during normal business hours (collectively, the “Work Product”) belong to the Company. All Work Product created by you while employed by the Company or any of its predecessors will be considered “work made for hire,” and as such, the Company is the sole owner of all rights, title, and interests therein. All other rights to any new Work Product and all rights to any existing Work Product, including but not limited to all of your rights to any copyrights or copyright registrations related thereto, are hereby conveyed, assigned and transferred to the Company pursuant to this Exhibit A. You will promptly disclose and deliver such Work Product to the Company and, at the Company’s expense, perform all actions reasonably requested by the Company (whether during or after your employment with the Company) to establish, confirm and protect such ownership (including, without limitation, the execution of assignments, copyright registrations, consents, licenses, powers of attorney and other instruments). To the extent allowed by applicable law, all rights to the Work Product include all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral, or the like (collectively, “Moral Rights”). To the extent you retain any such Moral Rights under applicable law, you hereby ratify and consent to any action that may be taken with respect to such Moral Rights by (or authorized by) the Company and agree not to assert any Moral Rights with respect thereto. |
| 2. | Confidential Information, Trade Secrets and Protected Rights. |
You agree that, during your employment with the Company or its affiliates and at all times following termination of your employment, except as required by applicable law, you will not, directly or through any other Person, at any time, disclose to any third person or use in any way any non-public information or Confidential Information, as described in this Section 2.
Exh. A-
| a. | For purposes of this Exhibit A, “Confidential Information” shall mean any confidential or proprietary information of the Company or any of its affiliates, including but not limited to: (a) technical, operational and financial information, data, Trade Secrets, formulae, processes, techniques, formats, specifications, manufacturing methods, treatment methods, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, marketing plans or proposals, inventions, ideas, customer and client lists, information related to business opportunities and business development, and confidential programs or procedures; (b) any intellectual property owned or licensed by the Company or its affiliates; (c) any information maintained by the Company or its affiliates as confidential or proprietary information, whether or not it is marked as confidential; and (d) information received by the Company or its affiliates from third parties under confidential conditions. |
| b. | Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the date hereof is in the public domain; (ii) information that has come within the public domain after the date hereof through no fault or action of you in breach of any confidentiality obligation (provided, however, that the fact that general information may be in or become part of the public domain, in and of itself, does not exclude any specific information not otherwise in the public domain from the obligations of this Exhibit A); (iii) that after the date hereof has been obtained lawfully from any third party which was entitled to disclose such information; and/or (iv) general knowledge, skill, and know-how that you developed based on your professional experiences. |
| c. | You agree that, during your employment with the Company or its affiliates and thereafter, you will: |
| (i) | hold the Confidential Information in strict confidence; |
| (ii) | not give, sell or disclose Confidential Information to any other third party, unless (x) to other employees of the Company as required in the good faith performance of your duties to the Company or its affiliates while employed by the Company or (y) such party is an external auditor or contractor hired by the Company and then only upon written approval of the Board of Directors of the Company; and |
| (iii) | not use Confidential Information, except as required in the good faith performance of your duties to the Company or its affiliates while employed by the Company. |
If you are required by law to disclose Confidential Information, you will (i) unless prohibited by law, immediately (and prior to such disclosure) notify the Company and cooperate with the Company in any efforts by the Company to oppose such disclosure, and (ii) disclose only that portion of the Confidential Information that is legally required to be disclosed and exercise best efforts to ensure that such Confidential Information will be afforded confidential treatment.
Exh. A-
For avoidance of doubt, nothing in the letter agreement, including this Exhibit A, shall prevent you from (i) sharing any Confidential Information or other information with regulators or appropriate governmental agencies without notice to the Company, whether in response to subpoena or otherwise, under the whistleblower provisions of federal law or regulation, and no prior authorization or notification is required prior to you making any such reports or disclosures, provided that no attorney-client privileged information shall be waived; (ii) supplying truthful information to any government authority or in response to any lawful subpoena or other legal process or (iii) disclosing or discussing conduct with respect to a sexual assault dispute or sexual harassment dispute (to the extent such disclosure or discussion cannot be prohibited under the Speak Out Act).
You acknowledge that your obligations above are separate and distinct from your promise and obligation not to disclose or use the Company’s or its affiliates’ “Trade Secrets,” as defined by the applicable federal and state laws. During and at all times after your employment with the Company or its affiliates, Trade Secrets of the Company shall be subject to the maximum protections available under applicable law and no less protection than that described above applicable to “Confidential Information.”
Nothing in the letter agreement, including this Exhibit A, prohibits you from reporting to any governmental authority information concerning possible violations of law or regulation. Consistent with 18 U.S.C. § 1833, (i) you shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (I) in confidence to a federal, state, or local government official, either directly or indirectly, or to an 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 filed in a lawsuit or other proceeding, if such filing is made under seal, and (ii) if you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose a trade secret to your attorney and use the trade secret information in the court proceeding, if you file any document containing the trade secret under seal and do not disclose the trade secret except pursuant to court order.
If a reviewing court determines that the restrictions in this Section 2 are unenforceable for lack of a reasonable duration, you and the Company agree that the restrictions in this Section 2 shall last for a period of two (2) years following the termination of your employment (unless the reviewing court deems two (2) years to be overly long, in which case the restrictions are for a period of 18 months following the termination of your employment, unless the reviewing court deems 18 months to be overly long, in which case the restrictions are for a period of one (1) year following the termination of your employment).
If a reviewing court determines that the restrictions in this Section 2 are unenforceable for lack of a reasonable geographic scope, you and the Company agree that the restrictions in this Section 2 shall apply within the United States of America or any other jurisdiction in which the Company (or any of its affiliates with which you were involved or for which you performed services during the one year preceding the termination of your employment with the Company) engages in business and in which you worked or with respect to which you performed services.
Exh. A-
| 3. | Non-Competition and Non-Interference. |
| a. | Non-Competition. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, individually or on behalf of any Person, engage in any Competitive Activities within the United States of America or any other jurisdiction in which the Company (or any of its affiliates with which you were involved or for which you performed services during the one year preceding the termination of your employment with the Company) engages in business and in which you worked or with respect to which you performed services. |
| b. | Personnel Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any employee or consultant of the Company or its affiliates, with whom you worked during your employment with the Company or any of its affiliates, to terminate or reduce such employee’s or consultant’s employment or services with the Company or its affiliates. |
| c. | Personnel Non-Hiring. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, hire any individual who is employed by or serves as a consultant to the Company or its affiliates and with whom you worked during your employment with the Company or any of its affiliates. |
Exh. A-
| d. | Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Current Client to cease doing business with or reduce the amount of business conducted with the Company or its affiliates, or in any way interfere with the relationship between any such Current Client and the Company or its affiliates. |
| e. | Prospective Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Prospective Client to refrain from entering into business with the Company or its affiliates. |
| f. | Former Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Former Client to refrain from entering into business with the Company or its affiliates. |
Exh. A-
| g. | Business Relation Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Business Relation to cease doing business with or reduce the amount of business conducted with the Company or its affiliates, or in any way interfere with the relationship between any such Business Relation and the Company or its affiliates. |
| h. | Definitions. For purposes of this Exhibit A: |
| (i) | “Business Relation” shall mean any borrower, referral source, licensee, supplier, or other business relation of the Company or its affiliates with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (ii) | “Competitive Activities” shall mean business activities (a) in which you were engaged, which you performed, or with which you were involved, in each case during your employment with the Company or any of its affiliates, and (b) which is related to venture lending or leasing, equipment leasing or any other business activity that is materially competitive with the current (or, if you were involved in such planning, actively planned at the time of your termination of employment) business activities of the Company or its affiliates. |
| (iii) | "Current Client” shall mean any current client or customer of the Company or its affiliates with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (iv) | “Former Client” shall mean any client or customer of the Company or its affiliates within the six (6) month period prior to the termination of your employment with the Company and with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (v) | “Person” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust (charitable or non-charitable), unincorporated organization, or other form of business entity. |
| (vi) | “Prospective Client” shall mean any person or entity who (a) was solicited (with your involvement) to become a client or customer of the Company or its affiliates and (b) with whom you had business contact or about whom you gained Confidential Information, in each case within the six (6) month period prior to the termination of your employment with the Company. |
Exh. A-
| 4. | Reasonableness of Restrictions. |
You acknowledge and recognize the highly competitive nature of the Company’s and its affiliates’ business, that access to Confidential Information renders you special and unique within the Company’s and its affiliates’ industry, and that you will have the opportunity to develop substantial relationships and goodwill (on behalf of the Company and its affiliates) with existing and prospective clients, accounts, customers, consultants, contractors, investors, strategic partners, and other business relations of the Company and its affiliates during the course of and as a result of your employment with the Company. In light of the foregoing, you recognize, acknowledge, and agree that the restrictions and limitations set forth in this Exhibit A are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect the value of the business and assets of the Company and its affiliates. You further acknowledge and agree that the restrictions and limitations set forth in this Exhibit A will not materially interfere with your ability to earn a living following the termination of your employment with the Company.
Each of the rights enumerated in this Exhibit A shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company and its affiliates at law or in equity. If any of the provisions of this Exhibit A or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Exhibit A, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, the court making such determination shall have the power to (and it is the intention of you and the Company that the court) reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.
You expressly acknowledge and agree that any breach or threatened breach of any of the terms and/or conditions set forth in the letter agreement, including this Exhibit A, may result in substantial, continuing, and irreparable injury to the Company and its affiliates. Therefore, you hereby agree that, in addition to any other remedy that may be available to the Company and its affiliates, the Company and its affiliates shall be entitled to seek injunctive relief, specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Exhibit A without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach. In the event it is determined that you have breached this Exhibit A, the Company and its affiliates shall be entitled to recover the costs and reasonable legal fees the Company and its affiliates incur in enforcing this Exhibit A. Notwithstanding any other provision to the contrary, you acknowledge and agree that the duration of the restrictions in this Exhibit A (to the extent not perpetual) shall be tolled during any period of violation of any of the covenants hereof, so that the Company and its affiliates are provided with the full benefit of the restrictive periods set forth herein.
Exh. A-
You further expressly acknowledge and agree that (i) any claim you may have against the Company or any of its affiliates, whether under this Exhibit A or otherwise, will not be a defense to enforcement of the restrictions set forth in this Exhibit A, and (ii) the circumstances of your termination of employment or other relationship with the Company and its affiliates will have no impact on your obligations under this Exhibit A. You further agree that each of the Company’s affiliates is a beneficiary of the restrictions set forth in this Exhibit A and may enforce this Exhibit A. You further agree that the restrictions set forth in this Exhibit A are in addition to, and not in lieu of, any protection of confidential information, inventions, non-competition, non-interference, non-disparagement, or other restrictive covenants by which you may be bound or become bound in favor of the Company or its affiliates. You represent that you have no duties or obligations to any person or entity, by agreement or otherwise, that will prevent or impair your ability to become employed by, and fully perform your duties and responsibilities for, the Company and its affiliates.
| 5. | Non-Disparagement. During your employment with the Company or its affiliates and thereafter, you will not, directly or through any other Person, in any forum or through any medium of communication, disparage the Company or any of its affiliates, including without limitation any products, services or practices, or directors, officers, agents, representatives, or stockholders of the Company or any of its affiliates. For the avoidance of doubt, nothing in this Exhibit A shall prohibit you from making truthful statements (a) in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in connection with such proceedings), or (b) to regulators or appropriate government agencies in fulfillment of their statutory or regulatory obligations. |
| 6. | Company Property. All information, materials, documents, supplies, equipment, and other property furnished to you by the Company or any of its affiliates in connection with performance of services under the letter agreement will be and remain the sole property of the Company. On the date of the termination of your employment for any reason, or at any other time at the Company’s request, you must return to the Company all tangible and intellectual property in whatever form belonging to the Company or any of its affiliates (including, but not limited to, Confidential Information, Company vehicles, laptops, computers, cell phones, wireless electronic mail devices, code, and other equipment, information, documents, and property of any type). To the extent you have retained any property of the Company or any of its affiliates, including without limitation any Confidential Information, on any electronic or computer equipment or accounts belonging to you or under your control, you agree to so advise the Company and to follow the Company’s instructions in transferring to the Company and then permanently deleting from such equipment or accounts all such property, including without limitation Confidential Information, and all copies. |
| 7. | Non-Disclosure. Except as otherwise required by law (including, without limitation, in all required filings with the Securities and Exchange Commission), you shall not disclose the financial terms of the letter agreement to any person or entity, except that the financial terms of the letter agreement may be disclosed to: (a) your attorneys, accountants, or financial or tax advisors, and (b) members of your immediate family; provided, in the case of each of (a) and (b), that such persons agree not to reveal the financial terms of the letter agreement any further. |
Exh. A-
| 8. | Applicable Law. The parties intend that the restrictive covenants set forth in this Exhibit A are to be interpreted and construed under the laws of Arizona, without regard to principles of conflicts of law. Any disputes arising under or related to this Agreement shall be heard exclusively in the state or federal courts covering Arizona. You and the Company hereby submit to the jurisdiction of the aforementioned courts and irrevocably waive any objection that you/it may now or hereafter have based on personal jurisdiction or to the laying of venue of any such action in the aforementioned courts, including without limitation any objection based on the grounds of forum non conveniens. |
| /s/ Kyle Brown | |
| Signature | |
| Print Name: Kyle Brown |
Exh. A-
Exhibit 10.2
Name: Steven L. Brown
Date: March 14, 2025
| RE: | Amended & Restated Offer of Employment with Trinity Capital Inc. |
Dear Steven:
This letter agreement hereby amends and restates that certain offer letter, by and between you and Trinity Capital Inc. (the “Company”), dated January 16, 2020.
Position and Responsibilities
During the Term (as defined below), you agree to serve as the Executive Chairman of the Board of Directors of the Company (the “Board”). During the Term, you agree to devote substantially all of your business time and efforts to the performance of your duties to the Company, and you will have the duties, authorities and responsibilities as are required by your position, and such other duties, authorities and responsibilities as may reasonably be assigned to you that are not inconsistent with your position as the Executive Chairman of the Board. During the Term, you will also serve on the Company’s investment committee. You will report directly to the Board.
Salary, Bonus, Benefits, Business Expenses and Severance
| a. | Base Salary. During the Term, you will be compensated for your services at an annual rate of five hundred thousand dollars ($500,000), which may be reviewed on an annual basis by the Board, in its sole discretion, and which shall be payable in accordance with the Company’s regular payroll schedule (the “Base Salary”). |
| b. | Annual Bonus Arrangement. During the Term, you will be eligible to receive an annual bonus (the “Annual Bonus”), payable in amounts and at such times as determined in good faith by the Board, based on the achievement of Company and individual performance objectives, performance goals, and other metrics as set by the Board, and as may be changed from time to time. The Annual Bonus (if any) shall be payable no later than March 15 of the calendar year following the calendar year to which such Annual Bonus relates and may be paid periodically prior to such date. In order to be eligible to receive such Annual Bonus (or portion thereof), except as otherwise provided herein, you must remain employed by the Company and in good standing through (i) the payment date if earlier than the end of the calendar year or (ii) the end of the applicable Annual Bonus calendar year. Notwithstanding the foregoing, in the event that your employment hereunder is terminated for “cause” at any point prior to the payment of any Annual Bonus, you will not be entitled to the payment of any Annual Bonus. |
For purposes of this letter agreement, “cause” shall mean (i) your act(s) of gross negligence or willful misconduct in the course of your employment, (ii) your willful failure or refusal to perform in any material respect your duties or responsibilities, (iii) misappropriation (or attempted misappropriation) by you of any assets or business opportunities of the Company or any of its affiliates, (iv) embezzlement or fraud committed (or attempted) by you, or at your direction, (v) your conviction of, indictment for, or pleading “guilty” or “no contest” to, (1) a felony or (2) any other criminal charge that has, or could be reasonably expected to have, an adverse impact on the performance of your duties to the Company or otherwise result in material injury to the reputation or business of the Company or any of its affiliates, (vi) any material violation by you of the policies of the Company, including but not limited to those relating to sexual harassment or business conduct, and those otherwise set forth in the manuals or statements of policy of the Company, or (vii) your material breach of Exhibit A of this letter agreement. Any determination of cause will be made by a resolution approved by a majority of the members of the Board, provided that no such determination may be made until you have been given written notice detailing the specific cause event and a period of thirty (30) days following receipt of such notice to cure such event (if susceptible to cure) to the satisfaction of the Board. Notwithstanding anything to the contrary contained herein, your right to cure as set forth in the preceding sentence shall not apply if there are habitual or repeated breaches by you, and no act or omission shall be deemed “willful” or “intentional” unless taken or not taken in bad faith and without a reasonable belief that it was in the best interest of the Company, or if taken or omitted to be taken on instruction from the Board or the Company’s counsel.
| c. | Equity Awards. You will be eligible for an annual restricted stock or other equity award as determined and approved by the Compensation Committee of the Board of Directors and subject to the terms and conditions, including vesting, of the award agreement and the Trinity Capital Inc. 2019 Long Term Incentive Plan, as may be amended from time to time. |
| d. | Employee Benefits. In connection with your employment during the Term, you will be eligible to participate in the Company’s employee benefit plans (including life, health accident insurance and disability programs) provided by the Company to similarly situated employees. Such participation shall be subject to the terms of the applicable plan documents and policies generally applicable to Company employees, including, without limitation, plan terms or policies relating to employee contributions under any such plans. Additional information regarding these benefits will be provided to you under a separate cover. Notwithstanding the foregoing, the Company may modify or terminate any employee benefit plan at any time. |
| e. | Vacation and Sick Leave. During the Term, you will be entitled to paid time off and sick time in accordance with the terms and conditions of the Company’s policies, procedures, and practices applicable to Company employees, as in effect from time to time, and applicable law. |
| f. | Working Remotely. During the Term, you will have the option to work remotely; provided that you understand and agree that you may be required to travel from time to time for business purposes. Additionally, you acknowledge and agree that some time spent in the Company’s offices in Arizona will be necessary and will be determined over time as needed by the Company to achieve the responsibilities for your role(s). |
| g. | Business Expenses. During the Term, you will be reimbursed for all reasonable expenses (including, without limitation, travel and lodging, phone and car lease) incurred by you in connection with your employment, provided that you provide documentation, expense statements, vouchers and/or such other supporting information to the Company as it may reasonably request, and provided such expenses were incurred in compliance with Company policies, procedures and practices as in effect from time to time. |
| h. | Severance. In addition to the Accrued Benefits (as defined below), you will also be eligible for severance upon certain terminations of employment as provided for in this letter agreement. During the Term, you will be eligible for severance upon your termination of employment by the Company without cause or your resignation for “good reason” as provided for in this paragraph h, subject to the terms and conditions described below and in the “Code Section 409A” provision of this letter agreement. Upon any such termination and subject to your execution and delivery to the Company of a general release of claims in a form satisfactory to the Company that is no longer subject to revocation within sixty (60) days following any such termination of employment (the “Release of Claims”), and your continued compliance with the terms of Exhibit A, you will receive the following: |
| (i) | an amount equal to your monthly Base Salary rate, paid monthly for a period of twenty-four (24) months following such termination; provided that, any such payment scheduled to occur during the first sixty (60) days following the termination of employment shall not be paid until the first regularly scheduled pay period following the sixtieth (60th) day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto; provided further that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a “Covered Transaction” (as defined in the 2019 Trinity Capital Inc. Long Term Incentive Plan, as may be amended from time to time (the “LTIP”)) that satisfies the requirements of Section 1.409A-3(i)(5)(v), (vi) or (vii) of the Code (a “409A Change in Control”), the amount that you shall be eligible to receive pursuant to this paragraph h(i) shall be an amount equal to three (3) times your annual Base Salary (the “Enhanced Severance Payment”), paid in a lump sum within sixty (60) days following such termination of employment; provided however that, if the Covered Transaction does not qualify as a 409A Change in Control, the portion of the Enhanced Severance Payment that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (as defined below) will be paid to you in substantially equal monthly payments, commencing on the first regularly scheduled pay period following the sixtieth (60th) day following such termination of employment, and the remaining portion of the Enhanced Severance Payment will be paid to you in a lump sum within sixty (60) days following such termination of employment; |
| (ii) | any Annual Bonus earned but unpaid with respect to the calendar year ending on or preceding the date of termination, paid within sixty (60) days following such termination of employment; |
| (iii) | a pro-rata portion of your Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that you are employed by the Company and the denominator of which is 365), payable at the same time bonuses for such year are paid to other senior executives of the Company; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, the amount that you shall be eligible to receive pursuant to this paragraph h(iii) shall be an amount equal to two (2) times the average of your most recent three Annual Bonuses, paid in a lump sum within sixty (60) days following such termination of employment; |
| (iv) | subject to your electing COBRA coverage under the Company’s group health plan, a monthly amount equal to the difference between the monthly COBRA premium cost and the monthly contribution paid by active employees for the same coverage, for a period of twenty-four (24) months following such termination of employment; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, the amount that you shall be eligible to receive pursuant to this paragraph h(iv) shall be an amount equal to thirty-six (36) times the difference between the monthly COBRA premium cost and the monthly contribution paid by active employees for the same coverage, paid in a lump sum within sixty (60) days following such termination of employment; and |
| (v) | accelerated vesting of any outstanding and unvested time-based equity awards. |
For purposes of this letter agreement, your resignation shall be for “good reason” if you resign from your employment as a result of any of the following without your consent: (i) a material reduction in your position, duties, responsibilities or status (other than temporarily while physically or mentally incapacitated or as required by applicable law); (ii) a material downward change in your reporting responsibility; (iii) a material reduction your Base Salary; (iv) the permanent relocation of your principal work location to a location outside a fifty (50) mile radius of your current principal work location (excluding required business travel from time to time and necessary time spent in the Company’s offices in Arizona), including the requirement that you physically report to the Company’s offices in Arizona on a full-time basis; (v) the failure of the Company to make any material, non-forfeited payments earned and due to you under this letter agreement; or (vi) the failure of the Company to obtain the assumption in writing of its obligations under this letter agreement by any successor to all or substantially all of the assets of the Company. In order to resign for good reason, you must notify the Company in writing within thirty (30) days of the first occurrence of such circumstances alleged to constitute good reason and the Company shall have a period of thirty (30) days to cure such event(s). If such events are not fully corrected in all material respects by the Company within such thirty (30) day period, you must actually terminate your employment within thirty (30) days following the expiration of the Company’s thirty (30)-day cure period described above, otherwise, any claim of such circumstances as “good reason” shall be deemed irrevocably waived.
In the event that your employment hereunder is terminated due to your death or disability, in addition to Accrued Benefits, subject to your or your estate’s execution of the Release of Claims that is no longer subject to revocation within sixty (60) days following such termination of employment, and subject to your continued compliance with the terms of Exhibit A, you will receive (a) any Annual Bonus earned but unpaid with respect to the calendar year ending on or preceding the date of termination, paid within sixty (60) days following such termination of employment and a pro-rata portion of your Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that you are employed by the Company and the denominator of which is 365), payable at the same time bonuses for such year are paid to other senior executives of the Company and (b) accelerated vesting of all of your outstanding and unvested time-based equity awards. For purposes of this letter agreement, “disability” shall mean any physical or mental disability or infirmity of you that prevents the performance of your duties (notwithstanding the provision of any reasonable accommodation) for a period of (i) ninety (90) consecutive days or (ii) one hundred twenty (120) non-consecutive days during any twelve (12) month period, as determined by the Company.
If your employment with the Company is terminated at any time for any reason other than as described above, unless provided for separately (e.g. a separate severance plan or agreement) the Company shall have no further obligation or liability to you relating to your employment or arising out of this letter agreement, other than (i) the payment of any Base Salary earned but unpaid through the date of termination of your employment, (ii) any vested rights you may have under any of the Company’s employee benefit plans, (iii) payment for any accrued but unused vacation days, in accordance with the Company’s vacation policy and applicable laws, and (iv) any other payments required by applicable law (collectively, items (i) through (iv), “Accrued Benefits”).
Employment at Will; Restrictive Covenants
Notwithstanding anything to the contrary, your employment with the Company will be “at will”, which means that either you or the Company may terminate your employment, at any time and for any reason, either with or without cause or advance notice. In the event that you desire to terminate your employment with the Company without good reason, the Company does request that you provide two (2) weeks’ written notice to the Company as a courtesy. The period of time between the date hereof and the termination of your employment hereunder for any reason shall be referred to herein as the “Term.”
As a condition of your employment, you agree to be bound by all the terms and conditions in Exhibit A to this letter, and agree that the terms and conditions of Exhibit A form part of the terms and conditions of your employment.
Notwithstanding anything to the contrary in this letter agreement or otherwise, you understand and acknowledge that the Company has informed you that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for (i) the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or (ii) the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. Additionally, notwithstanding anything to the contrary in this letter agreement or otherwise, you understand and acknowledge that the Company has informed you that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to a court order. Nothing in this letter agreement or any other agreement between you and the Company shall be interpreted to limit or interfere with your right to report good faith suspected violations of law to applicable government agencies, including the Equal Employment Opportunity Commission, National Labor Relation Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other applicable federal, state or local governmental agency, in accordance with the provisions of any “whistleblower” or similar provisions of local, state or federal law. You may report such suspected violations of law, even if such action would require you to share the Company’s proprietary information or trade secrets with the government agency, provided that any such information is protected to the maximum extent permissible and any such information constituting trade secrets is filed only under seal in connection with any court proceeding. Lastly, nothing in this letter agreement or any other agreement between you and the Company will be interpreted to prohibit you from collecting any financial incentives in connection with making such reports or require you to notify or obtain approval by the Company prior to making such reports to a government agency.
Additional Agreements; Miscellaneous
This letter agreement, the employment relationship contemplated herein and any claim arising from such relationship, whether or not arising under this letter agreement, shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to any choice or conflict of laws provision or rule thereof. If any portion or provision of this letter agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the application of such provision in such circumstances shall be modified to permit its enforcement to the maximum extent permitted by law, and both the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable and the remainder of this letter agreement shall not be affected thereby, and each portion and provision of this letter agreement shall be valid and enforceable to the fullest extent permitted by law. This letter agreement together with all exhibits hereto sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes any and all prior agreements or understandings between you and the Company with respect to the subject matter hereof. The Company may withhold from any and all amounts payable under this letter agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
Code Section 409A
The intent of the parties is that payments and benefits under this letter agreement comply with Internal Revenue Code (the “Code”) Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this letter agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to you and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on you by Code Section 409A or damages for failing to comply with Code Section 409A.
A termination of employment shall not be deemed to have occurred for purposes of any provision of this letter agreement providing for the payment of any amounts or benefits that constitute “nonqualified deferred compensation” for purposes of Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this letter agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” Notwithstanding anything to the contrary in this letter agreement, if you are deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of your “separation from service” and (B) the date of your death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to the foregoing (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to you in a lump sum with interest at the prime rate as published in The Wall Street Journal on the first business day following the date of the “separation from service”, and any remaining payments and benefits due under this letter agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. For purposes of Code Section 409A, your right to receive any installment payments pursuant to this letter agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this letter agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
To the extent that reimbursements or other in-kind benefits under this letter agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by you, (ii) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Notwithstanding any other provision of this letter agreement to the contrary, in no event shall any payment under this letter agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
Certain Excise Taxes
In the event that any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by or other services to the Company) (collectively the “Company Payments”) will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then you will be entitled to receive either (i) the full amount of the Company Payments or (ii) a portion of the Company Payments having a value equal to $1 less than three (3) times your “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the Excise Tax, results in the receipt by you on an after-tax basis, of the greatest portion of the Company Payments. Any determination required under this paragraph shall be made in writing by the independent public accountant of the Company (the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company and you. For purposes of making any calculation required by this paragraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction of the Company Payments pursuant to this paragraph, such reduction shall occur in the following order: (A) any cash severance payable by reference to your Base Salary or Annual Bonus, (B) any other cash amount payable to you, (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of vesting of any outstanding equity award. In no event whatsoever shall you be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Company Payments by reason of the application of Section 280G or Section 4999 of the Code.
Clawback
You hereby acknowledge and agree that certain payments hereunder will be subject to recoupment in accordance with the Trinity Capital Inc. Clawback Policy, and any other clawback policy that the Company may adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law. In addition, the Board may impose such other clawback, recovery or recoupment provisions as the Board determines necessary or appropriate, including but not limited to a reacquisition right in respect of previously acquired shares of the Company’s common stock or other cash or property upon the occurrence of a termination of your employment for cause. No recovery of compensation under such a clawback policy will be an event giving rise to a right to resign for “good reason” hereunder or under any other agreement with the Company.
| Sincerely, | |||
| /s/ Kyle Brown | |||
| Kyle Brown | |||
| CEO, Trinity Capital Inc. | |||
| Accepted by: | |||
| Name: | /s/ Steven Brown | Date: March 14, 2025 | |
| Steven Brown | |||
Exhibit A
Restrictive Covenants
You acknowledge that, as a senior executive of Trinity Capital Inc. (the “Company”), you have specialized knowledge of the Company’s and its affiliates’ business, their customer relationships and their confidential information and that the restrictive covenants included in this Exhibit A to the letter agreement are necessary to protect the Company’s and its affiliates’ legitimate, protectable business interests. You also acknowledge that in connection with the execution of the letter agreement that you have received sufficient consideration to agree to such restrictions.
| 1. | Intellectual Property. All inventions, technology, processes, innovations, ideas, improvements, developments, methods, designs, analyses, trademarks, service marks, and other indicia of origin, writings, audiovisual works, concepts, drawings, reports and all similar, related, or derivative information or works (whether or not patentable or subject to copyright), including but not limited to all patents, copyrights, copyright registrations, trademarks, and trademark registrations in and to any of the foregoing, along with the right to practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, or create works derivative of any of the foregoing, and the right to choose not to do or permit any of the aforementioned actions, which relate to the Company’s or any of its affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by you while employed by the Company or any of its predecessors, whether or not during normal business hours (collectively, the “Work Product”) belong to the Company. All Work Product created by you while employed by the Company or any of its predecessors will be considered “work made for hire,” and as such, the Company is the sole owner of all rights, title, and interests therein. All other rights to any new Work Product and all rights to any existing Work Product, including but not limited to all of your rights to any copyrights or copyright registrations related thereto, are hereby conveyed, assigned and transferred to the Company pursuant to this Exhibit A. You will promptly disclose and deliver such Work Product to the Company and, at the Company’s expense, perform all actions reasonably requested by the Company (whether during or after your employment with the Company) to establish, confirm and protect such ownership (including, without limitation, the execution of assignments, copyright registrations, consents, licenses, powers of attorney and other instruments). To the extent allowed by applicable law, all rights to the Work Product include all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral, or the like (collectively, “Moral Rights”). To the extent you retain any such Moral Rights under applicable law, you hereby ratify and consent to any action that may be taken with respect to such Moral Rights by (or authorized by) the Company and agree not to assert any Moral Rights with respect thereto. |
| 2. | Confidential Information, Trade Secrets and Protected Rights. You agree that, during your employment with the Company or its affiliates and at all times following termination of your employment, except as required by applicable law, you will not, directly or through any other Person, at any time, disclose to any third person or use in any way any non-public information or Confidential Information, as described in this Section 2. |
| a. | For purposes of this Exhibit A, “Confidential Information” shall mean any confidential or proprietary information of the Company or any of its affiliates, including but not limited to: (a) technical, operational and financial information, data, Trade Secrets, formulae, processes, techniques, formats, specifications, manufacturing methods, treatment methods, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, marketing plans or proposals, inventions, ideas, customer and client lists, information related to business opportunities and business development, and confidential programs or procedures; (b) any intellectual property owned or licensed by the Company or its affiliates; (c) any information maintained by the Company or its affiliates as confidential or proprietary information, whether or not it is marked as confidential; and (d) information received by the Company or its affiliates from third parties under confidential conditions. |
Exh. A-
| b. | Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the date hereof is in the public domain; (ii) information that has come within the public domain after the date hereof through no fault or action of you in breach of any confidentiality obligation (provided, however, that the fact that general information may be in or become part of the public domain, in and of itself, does not exclude any specific information not otherwise in the public domain from the obligations of this Exhibit A); (iii) that after the date hereof has been obtained lawfully from any third party which was entitled to disclose such information; and/or (iv) general knowledge, skill, and know-how that you developed based on your professional experiences. |
| c. | You agree that, during your employment with the Company or its affiliates and thereafter, you will: |
| (i) | hold the Confidential Information in strict confidence; |
| (ii) | not give, sell or disclose Confidential Information to any other third party, unless (x) to other employees of the Company as required in the good faith performance of your duties to the Company or its affiliates while employed by the Company or (y) such party is an external auditor or contractor hired by the Company and then only upon written approval of the Board of Directors of the Company; and |
| (iii) | not use Confidential Information, except as required in the good faith performance of your duties to the Company or its affiliates while employed by the Company. |
If you are required by law to disclose Confidential Information, you will (i) unless prohibited by law, immediately (and prior to such disclosure) notify the Company and cooperate with the Company in any efforts by the Company to oppose such disclosure, and (ii) disclose only that portion of the Confidential Information that is legally required to be disclosed and exercise best efforts to ensure that such Confidential Information will be afforded confidential treatment.
Exh. A-
For avoidance of doubt, nothing in the letter agreement, including this Exhibit A, shall prevent you from (i) sharing any Confidential Information or other information with regulators or appropriate governmental agencies without notice to the Company, whether in response to subpoena or otherwise, under the whistleblower provisions of federal law or regulation, and no prior authorization or notification is required prior to you making any such reports or disclosures, provided that no attorney-client privileged information shall be waived; (ii) supplying truthful information to any government authority or in response to any lawful subpoena or other legal process or (iii) disclosing or discussing conduct with respect to a sexual assault dispute or sexual harassment dispute (to the extent such disclosure or discussion cannot be prohibited under the Speak Out Act).
You acknowledge that your obligations above are separate and distinct from your promise and obligation not to disclose or use the Company’s or its affiliates’ “Trade Secrets,” as defined by the applicable federal and state laws. During and at all times after your employment with the Company or its affiliates, Trade Secrets of the Company shall be subject to the maximum protections available under applicable law and no less protection than that described above applicable to “Confidential Information.”
Nothing in the letter agreement, including this Exhibit A prohibits you from reporting to any governmental authority information concerning possible violations of law or regulation. Consistent with 18 U.S.C. § 1833, (i) you shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (I) in confidence to a federal, state, or local government official, either directly or indirectly, or to an 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 filed in a lawsuit or other proceeding, if such filing is made under seal, and (ii) if you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose a trade secret to your attorney and use the trade secret information in the court proceeding, if you file any document containing the trade secret under seal and do not disclose the trade secret except pursuant to court order.
If a reviewing court determines that the restrictions in this Section 2 are unenforceable for lack of a reasonable duration, you and the Company agree that the restrictions in this Section 2 shall last for a period of two (2) years following the termination of your employment (unless the reviewing court deems two (2) years to be overly long, in which case the restrictions are for a period of 18 months following the termination of your employment, unless the reviewing court deems 18 months to be overly long, in which case the restrictions are for a period of one (1) year following the termination of your employment).
If a reviewing court determines that the restrictions in this Section 2 are unenforceable for lack of a reasonable geographic scope, you and the Company agree that the restrictions in this Section 2 shall apply within the United States of America or any other jurisdiction in which the Company (or any of its affiliates with which you were involved or for which you performed services during the one year preceding the termination of your employment with the Company) engages in business and in which you worked or with respect to which you performed services.
Exh. A-
| 3. | Non-Competition and Non-Interference. |
| a. | Non-Competition. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, individually or on behalf of any Person, engage in any Competitive Activities within the United States of America or any other jurisdiction in which the Company (or any of its affiliates with which you were involved or for which you performed services during the one year preceding the termination of your employment with the Company) engages in business and in which you worked or with respect to which you performed services. |
| b. | Personnel Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any employee or consultant of the Company or its affiliates, with whom you worked during your employment with the Company or any of its affiliates, to terminate or reduce such employee’s or consultant’s employment or services with the Company or its affiliates. |
| c. | Personnel Non-Hiring. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, hire any individual who is employed by or serves as a consultant to the Company or its affiliates and with whom you worked during your employment with the Company or any of its affiliates. |
Exh. A-
| d. | Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Current Client to cease doing business with or reduce the amount of business conducted with the Company or its affiliates, or in any way interfere with the relationship between any such Current Client and the Company or its affiliates. |
| e. | Prospective Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Prospective Client to refrain from entering into business with the Company or its affiliates. |
| f. | Former Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Former Client to refrain from entering into business with the Company or its affiliates. |
| g. | Business Relation Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Business Relation to cease doing business with or reduce the amount of business conducted with the Company or its affiliates, or in any way interfere with the relationship between any such Business Relation and the Company or its affiliates. |
Exh. A-
| h. | Definitions. For purposes of this Exhibit A: |
| (i) | “Business Relation” shall mean any borrower, referral source, licensee, supplier, or other business relation of the Company or its affiliates with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (ii) | “Competitive Activities” shall mean business activities (a) in which you were engaged, which you performed, or with which you were involved, in each case during your employment with the Company or any of its affiliates, and (b) which is related to venture lending or leasing, equipment leasing or any other business activity that is materially competitive with the current (or, if you were involved in such planning, actively planned at the time of your termination of employment) business activities of the Company or its affiliates. |
| (iii) | "Current Client” shall mean any current client or customer of the Company or its affiliates with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (iv) | “Former Client” shall mean any client or customer of the Company or its affiliates within the six (6) month period prior to the termination of your employment with the Company and with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (v) | “Person” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust (charitable or non-charitable), unincorporated organization, or other form of business entity. |
| (vi) | “Prospective Client” shall mean any person or entity who (a) was solicited (with your involvement) to become a client or customer of the Company or its affiliates and (b) with whom you had business contact or about whom you gained Confidential Information, in each case within the six (6) month period prior to the termination of your employment with the Company. |
Exh. A-
| 4. | Reasonableness of Restrictions. |
You acknowledge and recognize the highly competitive nature of the Company’s and its affiliates’ business, that access to Confidential Information renders you special and unique within the Company’s and its affiliates’ industry, and that you will have the opportunity to develop substantial relationships and goodwill (on behalf of the Company and its affiliates) with existing and prospective clients, accounts, customers, consultants, contractors, investors, strategic partners, and other business relations of the Company and its affiliates during the course of and as a result of your employment with the Company. In light of the foregoing, you recognize, acknowledge, and agree that the restrictions and limitations set forth in this Exhibit A are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect the value of the business and assets of the Company and its affiliates. You further acknowledge and agree that the restrictions and limitations set forth in this Exhibit A will not materially interfere with your ability to earn a living following the termination of your employment with the Company.
Each of the rights enumerated in this Exhibit A shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company and its affiliates at law or in equity. If any of the provisions of this Exhibit A or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Exhibit A, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, the court making such determination shall have the power to (and it is the intention of you and the Company that the court) reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.
You expressly acknowledge and agree that any breach or threatened breach of any of the terms and/or conditions set forth in the letter agreement, including this Exhibit A, may result in substantial, continuing, and irreparable injury to the Company and its affiliates. Therefore, you hereby agree that, in addition to any other remedy that may be available to the Company and its affiliates, the Company and its affiliates shall be entitled to seek injunctive relief, specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Exhibit A without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach. In the event it is determined that you have breached this Exhibit A, the Company and its affiliates shall be entitled to recover the costs and reasonable legal fees the Company and its affiliates incur in enforcing this Exhibit A. Notwithstanding any other provision to the contrary, you acknowledge and agree that the duration of the restrictions in this Exhibit A (to the extent not perpetual) shall be tolled during any period of violation of any of the covenants hereof, so that the Company and its affiliates are provided with the full benefit of the restrictive periods set forth herein.
You further expressly acknowledge and agree that (i) any claim you may have against the Company or any of its affiliates, whether under this Exhibit A or otherwise, will not be a defense to enforcement of the restrictions set forth in this Exhibit A, and (ii) the circumstances of your termination of employment or other relationship with the Company and its affiliates will have no impact on your obligations under this Exhibit A. You further agree that each of the Company’s affiliates is a beneficiary of the restrictions set forth in this Exhibit A and may enforce this Exhibit A. You further agree that the restrictions set forth in this Exhibit A are in addition to, and not in lieu of, any protection of confidential information, inventions, non-competition, non-interference, non-disparagement, or other restrictive covenants by which you may be bound or become bound in favor of the Company or its affiliates. You represent that you have no duties or obligations to any person or entity, by agreement or otherwise, that will prevent or impair your ability to become employed by, and fully perform your duties and responsibilities for, the Company and its affiliates.
Exh. A-
| 5. | Non-Disparagement. During your employment with the Company or its affiliates and thereafter, you will not, directly or through any other Person, in any forum or through any medium of communication, disparage the Company or any of its affiliates, including without limitation any products, services or practices, or directors, officers, agents, representatives, or stockholders of the Company or any of its affiliates. For the avoidance of doubt, nothing in this Exhibit A shall prohibit you from making truthful statements (a) in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in connection with such proceedings), or (b) to regulators or appropriate government agencies in fulfillment of their statutory or regulatory obligations. |
| 6. | Company Property. All information, materials, documents, supplies, equipment, and other property furnished to you by the Company or any of its affiliates in connection with performance of services under the letter agreement will be and remain the sole property of the Company. On the date of the termination of your employment for any reason, or at any other time at the Company’s request, you must return to the Company all tangible and intellectual property in whatever form belonging to the Company or any of its affiliates (including, but not limited to, Confidential Information, Company vehicles, laptops, computers, cell phones, wireless electronic mail devices, code, and other equipment, information, documents, and property of any type). To the extent you have retained any property of the Company or any of its affiliates, including without limitation any Confidential Information, on any electronic or computer equipment or accounts belonging to you or under your control, you agree to so advise the Company and to follow the Company’s instructions in transferring to the Company and then permanently deleting from such equipment or accounts all such property, including without limitation Confidential Information, and all copies. |
| 7. | Non-Disclosure. Except as otherwise required by law (including, without limitation, in all required filings with the Securities and Exchange Commission), you shall not disclose the financial terms of the letter agreement to any person or entity, except that the financial terms of the letter agreement may be disclosed to: (a) your attorneys, accountants, or financial or tax advisors, and (b) members of your immediate family; provided, in the case of each of (a) and (b), that such persons agree not to reveal the financial terms of the letter agreement any further. |
| 8. | Applicable Law. The parties intend that the restrictive covenants set forth in this Exhibit A are to be interpreted and construed under the laws of Arizona, without regard to principles of conflicts of law. Any disputes arising under or related to this Agreement shall be heard exclusively in the state or federal courts covering Arizona. You and the Company hereby submit to the jurisdiction of the aforementioned courts and irrevocably waive any objection that you/it may now or hereafter have based on personal jurisdiction or to the laying of venue of any such action in the aforementioned courts, including without limitation any objection based on the grounds of forum non conveniens. |
| /s/ Steven Brown | |
| Signature | |
| Print Name: Steven Brown |
Exh. A-8
Exhibit 10.3
Name: Gerald Harder
Date: March 14, 2025
| RE: | Amended & Restated Offer of Employment with Trinity Capital Inc. |
Dear Gerry:
This letter agreement hereby amends and restates that certain offer letter, by and between you and Trinity Capital Inc. (the “Company”), dated January 16, 2020.
Position and Responsibilities
During the Term (as defined below), you agree to serve as Chief Operating Officer for the Company and to devote substantially all of your business time and efforts to the performance of your duties to the Company. During the Term, you will have the duties, authorities and responsibilities as are required by your position, and such other duties, authorities and responsibilities as may reasonably be assigned to you that are not inconsistent with your position as the Chief Operating Officer. During the Term, you will also serve on the Company’s investment committee. You will report directly to the CEO.
Salary, Bonus, Benefits, Business Expenses and Severance
| a. | Base Salary. During the Term, you will be compensated for your services at an annual rate of six hundred fifty thousand dollars ($650,000), which may be reviewed and adjusted on an annual basis by the Board of Directors (the “Board”) in its sole discretion, and which shall be payable in accordance with the Company’s regular payroll schedule (the “Base Salary”). |
| b. | Annual Bonus Arrangement. During the Term, you will be eligible to receive an annual bonus (the “Annual Bonus”), payable in amounts and at such times as determined in good faith by the Board, based on the achievement of Company and individual performance objectives, performance goals, and other metrics as set by the Board, and as may be changed from time to time. The Annual Bonus (if any) shall be payable no later than March 15 of the calendar year following the calendar year to which such Annual Bonus relates and may be paid prior to such date. In order to be eligible to receive such Annual Bonus (or portion thereof), except as otherwise provided herein, you must remain employed by the Company and in good standing through (i) the payment date if earlier than the end of the calendar year or (ii) the end of the applicable Annual Bonus calendar year. Notwithstanding the foregoing, in the event that your employment hereunder is terminated for “cause” at any point prior to the payment of any Annual Bonus, you will not be entitled to the payment of any Annual Bonus. |
For purposes of this letter agreement, “cause” shall mean (i) your act(s) of gross negligence or willful misconduct in the course of your employment, (ii) your willful failure or refusal to perform in any material respect your duties or responsibilities, (iii) misappropriation (or attempted misappropriation) by you of any assets or business opportunities of the Company or any of its affiliates, (iv) embezzlement or fraud committed (or attempted) by you, or at your direction, (v) your conviction of, indictment for, or pleading “guilty” or “no contest” to, (1) a felony or (2) any other criminal charge that has, or could be reasonably expected to have, an adverse impact on the performance of your duties to the Company or otherwise result in material injury to the reputation or business of the Company or any of its affiliates, (vi) any material violation by you of the policies of the Company, including but not limited to those relating to sexual harassment or business conduct, and those otherwise set forth in the manuals or statements of policy of the Company, or (vii) your material breach of Exhibit A of this letter agreement. Any determination of cause will be made by a resolution approved by a majority of the members of the Board, provided that no such determination may be made until you have been given written notice detailing the specific cause event and a period of thirty (30) days following receipt of such notice to cure such event (if susceptible to cure) to the satisfaction of the Board. Notwithstanding anything to the contrary contained herein, your right to cure as set forth in the preceding sentence shall not apply if there are habitual or repeated breaches by you, and no act or omission shall be deemed “willful” or “intentional” unless taken or not taken in bad faith and without a reasonable belief that it was in the best interest of the Company, or if taken or omitted to be taken on instruction from the Board or the Company’s counsel.
| c. | Equity Awards. You will be eligible for an annual restricted stock or other equity award as determined and approved by the Compensation Committee of the Board of Directors and subject to the terms and conditions, including vesting, of the award agreement and the Trinity Capital Inc. 2019 Long Term Incentive Plan, as may be amended from time to time. |
| d. | Employee Benefits. In connection with your employment during the Term, you will be eligible to participate in the Company’s employee benefit plans (including life, health accident insurance and disability programs) provided by the Company to similarly situated employees. Such participation shall be subject to the terms of the applicable plan documents and policies generally applicable to Company employees, including, without limitation, plan terms or policies relating to employee contributions under any such plans. Additional information regarding these benefits will be provided to you under a separate cover. Notwithstanding the foregoing, the Company may modify or terminate any employee benefit plan at any time. |
| e. | Vacation and Sick Leave. During the Term, you will be entitled to paid time off and sick time in accordance with the terms and conditions of the Company’s policies, procedures, and practices applicable to Company employees, as in effect from time to time, and applicable law. |
| f. | Business Expenses. During the Term, you will be reimbursed for all reasonable expenses (including, without limitation, travel and lodging, phone and car lease) incurred by you in connection with your employment, provided that you provide documentation, expense statements, vouchers and/or such other supporting information to the Company as it may reasonably request, and provided such expenses were incurred in compliance with Company policies, procedures and practices as in effect from time to time. |
| g. | Severance: In addition to the Accrued Benefits (as defined below), you will also be eligible for severance upon certain terminations of employment as provided for in this letter agreement. During the Term, you will be eligible for severance upon your termination of employment by the Company without cause or your resignation for “good reason” as provided for in this paragraph g, subject to the terms and conditions described below and in the “Code Section 409A” provision of this letter agreement. Upon any such termination and subject to your execution and delivery to the Company of a general release of claims in a form satisfactory to the Company that is no longer subject to revocation within sixty (60) days following any such termination of employment (the “Release of Claims”), and your continued compliance with the terms of Exhibit A, you will receive the following: |
| (i) | an amount equal to your monthly Base Salary rate, paid monthly for a period of twelve (12) months following such termination; provided that, any such payment scheduled to occur during the first sixty (60) days following the termination of employment shall not be paid until the first regularly scheduled pay period following the sixtieth (60th) day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto; provided further that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a “Covered Transaction” (as defined in the 2019 Trinity Capital Inc. Long Term Incentive Plan, as may be amended from time to time (the “LTIP”)) that satisfies the requirements of Section 1.409A-3(i)(5)(v), (vi) or (vii) of the Code (a “409A Change in Control”), the amount that you shall be eligible to receive pursuant to this paragraph g(i) shall be an amount equal to two (2) times your annual Base Salary (the “Enhanced Severance Payment”), paid in a lump sum within sixty (60) days following such termination of employment; provided however that, if the Covered Transaction does not qualify as a 409A Change in Control, the portion of the Enhanced Severance Payment that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (as defined below) will be paid to you in substantially equal monthly payments, commencing on the first regularly scheduled pay period following the sixtieth (60th) day following such termination of employment, and the remaining portion of the Enhanced Severance Payment will be paid to you in a lump sum within sixty (60) days following such termination of employment; |
| (ii) | any Annual Bonus earned but unpaid with respect to the calendar year ending on or preceding the date of termination, paid within sixty (60) days following such termination of employment; |
| (iii) | a pro-rata portion of your Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that you are employed by the Company and the denominator of which is 365), payable at the same time bonuses for such year are paid to other senior executives of the Company; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, the amount that you shall be eligible to receive pursuant to this paragraph g(iii) shall be an amount equal to one (1) times the average of your most recent three Annual Bonuses, paid in a lump sum within sixty (60) days following such termination of employment; |
| (iv) | subject to your electing COBRA coverage under the Company’s group health plan, a monthly amount equal to the difference between the monthly COBRA premium cost and the monthly contribution paid by active employees for the same coverage, for a period of twelve (12) months following such termination of employment; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, the amount that you shall be eligible to receive pursuant to this paragraph g(iv) shall be an amount equal to twenty-four (24) times the difference between the monthly COBRA premium cost and the monthly contribution paid by active employees for the same coverage, paid in a lump sum within sixty (60) days following such termination of employment; and |
| (v) | accelerated vesting of the portion of any outstanding and unvested time-based equity awards that would have otherwise become vested during the two (2) year period following the date of termination; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, all of your outstanding and unvested time-based equity awards shall accelerate and become fully vested. |
For purposes of this letter agreement, your resignation shall be for “good reason” if you resign from your employment as a result of any of the following without your consent: (i) a material reduction in your position, duties, responsibilities or status (other than temporarily while physically or mentally incapacitated or as required by applicable law); (ii) a material downward change in your reporting responsibility; (iii) a material reduction your Base Salary; (iv) the permanent relocation of your principal work location to a location outside a fifty (50) mile radius of your current principal work location (excluding required business travel from time to time); (v) the failure of the Company to make any material, non-forfeited payments earned and due to you under this letter agreement; or (vi) the failure of the Company to obtain the assumption in writing of its obligations under this letter agreement by any successor to all or substantially all of the assets of the Company. In order to resign for good reason, you must notify the Company in writing within thirty (30) days of the first occurrence of such circumstances alleged to constitute good reason and the Company shall have a period of thirty (30) days to cure such event(s). If such events are not fully corrected in all material respects by the Company within such thirty (30) day period, you must actually terminate your employment within thirty (30) days following the expiration of the Company’s thirty (30)-day cure period described above, otherwise, any claim of such circumstances as “good reason” shall be deemed irrevocably waived.
In the event that your employment hereunder is terminated due to your death or disability, in addition to Accrued Benefits, subject to your or your estate’s execution of the Release of Claims that is no longer subject to revocation within sixty (60) days following such termination of employment, and subject to your continued compliance with the terms of Exhibit A, you will receive any Annual Bonus earned but unpaid with respect to the calendar year ending on or preceding the date of termination, paid within sixty (60) days following such termination of employment and a pro-rata portion of your Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that you are employed by the Company and the denominator of which is 365), payable at the same time bonuses for such year are paid to other senior executives of the Company. For purposes of this letter agreement, “disability” shall mean any physical or mental disability or infirmity of you that prevents the performance of your duties (notwithstanding the provision of any reasonable accommodation) for a period of (i) ninety (90) consecutive days or (ii) one hundred twenty (120) non-consecutive days during any twelve (12) month period, as determined by the Company.
If your employment with the Company is terminated at any time for any reason other than as described above, unless provided for separately (e.g. a separate severance plan or agreement) the Company shall have no further obligation or liability to you relating to your employment or arising out of this letter agreement, other than (i) the payment of any Base Salary earned but unpaid through the date of termination of your employment, (ii) any vested rights you may have under any of the Company’s employee benefit plans, (iii) payment for any accrued but unused vacation days, in accordance with the Company’s vacation policy and applicable laws, and (iv) any other payments required by applicable law (collectively, items (i) through (iv), “Accrued Benefits”).
Employment at Will; Restrictive Covenants
Notwithstanding anything to the contrary, your employment with the Company will be “at will”, which means that either you or the Company may terminate your employment, at any time and for any reason, either with or without cause or advance notice. In the event that you desire to terminate your employment with the Company, the Company does request that you provide two (2) weeks’ written notice to the Company as a courtesy. The period of time between the date hereof and the termination of your employment hereunder for any reason shall be referred to herein as the “Term.”
As a condition of your employment, you agree to be bound by all the terms and conditions in Exhibit A to this letter, and agree that the terms and conditions of Exhibit A form part of the terms and conditions of your employment.
Notwithstanding anything to the contrary in this letter agreement or otherwise, you understand and acknowledge that the Company has informed you that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for (i) the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or (ii) the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. Additionally, notwithstanding anything to the contrary in this letter agreement or otherwise, you understand and acknowledge that the Company has informed you that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to a court order. Nothing in this letter agreement or any other agreement between you and the Company shall be interpreted to limit or interfere with your right to report good faith suspected violations of law to applicable government agencies, including the Equal Employment Opportunity Commission, National Labor Relation Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other applicable federal, state or local governmental agency, in accordance with the provisions of any “whistleblower” or similar provisions of local, state or federal law. You may report such suspected violations of law, even if such action would require you to share the Company’s proprietary information or trade secrets with the government agency, provided that any such information is protected to the maximum extent permissible and any such information constituting trade secrets is filed only under seal in connection with any court proceeding. Lastly, nothing in this letter agreement or any other agreement between you and the Company will be interpreted to prohibit you from collecting any financial incentives in connection with making such reports or require you to notify or obtain approval by the Company prior to making such reports to a government agency.
Additional Agreements; Miscellaneous
This letter agreement, the employment relationship contemplated herein and any claim arising from such relationship, whether or not arising under this letter agreement, shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to any choice or conflict of laws provision or rule thereof. If any portion or provision of this letter agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the application of such provision in such circumstances shall be modified to permit its enforcement to the maximum extent permitted by law, and both the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable and the remainder of this letter agreement shall not be affected thereby, and each portion and provision of this letter agreement shall be valid and enforceable to the fullest extent permitted by law. This letter agreement together with all exhibits hereto sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes any and all prior agreements or understandings between you and the Company with respect to the subject matter hereof. The Company may withhold from any and all amounts payable under this letter agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
Code Section 409A
The intent of the parties is that payments and benefits under this letter agreement comply with Internal Revenue Code (the “Code”) Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this letter agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to you and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on you by Code Section 409A or damages for failing to comply with Code Section 409A.
A termination of employment shall not be deemed to have occurred for purposes of any provision of this letter agreement providing for the payment of any amounts or benefits that constitute “nonqualified deferred compensation” for purposes of Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this letter agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” Notwithstanding anything to the contrary in this letter agreement, if you are deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of your “separation from service” and (B) the date of your death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to the foregoing (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to you in a lump sum with interest at the prime rate as published in The Wall Street Journal on the first business day following the date of the “separation from service”, and any remaining payments and benefits due under this letter agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. For purposes of Code Section 409A, your right to receive any installment payments pursuant to this letter agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this letter agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
To the extent that reimbursements or other in-kind benefits under this letter agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by you, (ii) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Notwithstanding any other provision of this letter agreement to the contrary, in no event shall any payment under this letter agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
Certain Excise Taxes
In the event that any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by or other services to the Company) (collectively the “Company Payments”) will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then you will be entitled to receive either (i) the full amount of the Company Payments or (ii) a portion of the Company Payments having a value equal to $1 less than three (3) times your “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the Excise Tax, results in the receipt by you on an after-tax basis, of the greatest portion of the Company Payments. Any determination required under this paragraph shall be made in writing by the independent public accountant of the Company (the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company and you. For purposes of making any calculation required by this paragraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction of the Company Payments pursuant to this paragraph, such reduction shall occur in the following order: (A) any cash severance payable by reference to your Base Salary or Annual Bonus, (B) any other cash amount payable to you, (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of vesting of any outstanding equity award. In no event whatsoever shall you be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Company Payments by reason of the application of Section 280G or Section 4999 of the Code.
Clawback
You hereby acknowledge and agree that certain payments hereunder will be subject to recoupment in accordance with the Trinity Capital Inc. Clawback Policy, and any other clawback policy that the Company may adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law. In addition, the Board may impose such other clawback, recovery or recoupment provisions as the Board determines necessary or appropriate, including but not limited to a reacquisition right in respect of previously acquired shares of the Company’s common stock or other cash or property upon the occurrence of a termination of your employment for cause. No recovery of compensation under such a clawback policy will be an event giving rise to a right to resign for “good reason” hereunder or under any other agreement with the Company.
| Sincerely, | |
| /s/ Kyle Brown | |
| Kyle Brown | |
| CEO, Trinity Capital Inc. |
| Accepted by: | |||
| Name: | /s/ Gerald Harder | Date: March 14, 2025 | |
| Gerald Harder | |||
Exhibit A
Restrictive Covenants
You acknowledge that, as a senior executive of Trinity Capital Inc. (the “Company”), you have specialized knowledge of the Company’s and its affiliates’ business, their customer relationships and their confidential information and that the restrictive covenants included in this Exhibit A to the letter agreement are necessary to protect the Company’s and its affiliates’ legitimate, protectable business interests. You also acknowledge that in connection with the execution of the letter agreement that you have received sufficient consideration to agree to such restrictions.
| 1. | Intellectual Property. All inventions, technology, processes, innovations, ideas, improvements, developments, methods, designs, analyses, trademarks, service marks, and other indicia of origin, writings, audiovisual works, concepts, drawings, reports and all similar, related, or derivative information or works (whether or not patentable or subject to copyright), including but not limited to all patents, copyrights, copyright registrations, trademarks, and trademark registrations in and to any of the foregoing, along with the right to practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, or create works derivative of any of the foregoing, and the right to choose not to do or permit any of the aforementioned actions, which relate to the Company’s or any of its affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by you while employed by the Company or any of its predecessors, whether or not during normal business hours (collectively, the “Work Product”) belong to the Company. All Work Product created by you while employed by the Company or any of its predecessors will be considered “work made for hire,” and as such, the Company is the sole owner of all rights, title, and interests therein. All other rights to any new Work Product and all rights to any existing Work Product, including but not limited to all of your rights to any copyrights or copyright registrations related thereto, are hereby conveyed, assigned and transferred to the Company pursuant to this Exhibit A. You will promptly disclose and deliver such Work Product to the Company and, at the Company’s expense, perform all actions reasonably requested by the Company (whether during or after your employment with the Company) to establish, confirm and protect such ownership (including, without limitation, the execution of assignments, copyright registrations, consents, licenses, powers of attorney and other instruments). To the extent allowed by applicable law, all rights to the Work Product include all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral, or the like (collectively, “Moral Rights”). To the extent you retain any such Moral Rights under applicable law, you hereby ratify and consent to any action that may be taken with respect to such Moral Rights by (or authorized by) the Company and agree not to assert any Moral Rights with respect thereto. |
Exh. A-
| 2. | Confidential Information, Trade Secrets and Protected Rights. You agree that, during your employment with the Company or its affiliates and at all times following termination of your employment, except as required by applicable law, you will not, directly or through any other Person, at any time, disclose to any third person or use in any way any non-public information or Confidential Information, as described in this Section 2. |
| a. | For purposes of this Exhibit A, “Confidential Information” shall mean any confidential or proprietary information of the Company or any of its affiliates, including but not limited to: (a) technical, operational and financial information, data, Trade Secrets, formulae, processes, techniques, formats, specifications, manufacturing methods, treatment methods, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, marketing plans or proposals, inventions, ideas, customer and client lists, information related to business opportunities and business development, and confidential programs or procedures; (b) any intellectual property owned or licensed by the Company or its affiliates; (c) any information maintained by the Company or its affiliates as confidential or proprietary information, whether or not it is marked as confidential; and (d) information received by the Company or its affiliates from third parties under confidential conditions. |
| b. | Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the date hereof is in the public domain; (ii) information that has come within the public domain after the date hereof through no fault or action of you in breach of any confidentiality obligation (provided, however, that the fact that general information may be in or become part of the public domain, in and of itself, does not exclude any specific information not otherwise in the public domain from the obligations of this Exhibit A); (iii) that after the date hereof has been obtained lawfully from any third party which was entitled to disclose such information; and/or (iv) general knowledge, skill, and know-how that you developed based on your professional experiences. |
| c. | You agree that, during your employment with the Company or its affiliates and thereafter, you will: |
| (i) | hold the Confidential Information in strict confidence; |
| (ii) | not give, sell or disclose Confidential Information to any other third party, unless (x) to other employees of the Company as required in the good faith performance of your duties to the Company or its affiliates while employed by the Company or (y) such party is an external auditor or contractor hired by the Company and then only upon written approval of the Board of Directors of the Company; and |
| (iii) | not use Confidential Information, except as required in the good faith performance of your duties to the Company or its affiliates while employed by the Company. |
If you are required by law to disclose Confidential Information, you will (i) unless prohibited by law, immediately (and prior to such disclosure) notify the Company and cooperate with the Company in any efforts by the Company to oppose such disclosure, and (ii) disclose only that portion of the Confidential Information that is legally required to be disclosed and exercise best efforts to ensure that such Confidential Information will be afforded confidential treatment.
Exh. A-
For avoidance of doubt, nothing in the letter agreement, including this Exhibit A, shall prevent you from (i) sharing any Confidential Information or other information with regulators or appropriate governmental agencies without notice to the Company, whether in response to subpoena or otherwise, under the whistleblower provisions of federal law or regulation, and no prior authorization or notification is required prior to you making any such reports or disclosures, provided that no attorney-client privileged information shall be waived; (ii) supplying truthful information to any government authority or in response to any lawful subpoena or other legal process or (iii) disclosing or discussing conduct with respect to a sexual assault dispute or sexual harassment dispute (to the extent such disclosure or discussion cannot be prohibited under the Speak Out Act).
You acknowledge that your obligations above are separate and distinct from your promise and obligation not to disclose or use the Company’s or its affiliates’ “Trade Secrets,” as defined by the applicable federal and state laws. During and at all times after your employment with the Company or its affiliates, Trade Secrets of the Company shall be subject to the maximum protections available under applicable law and no less protection than that described above applicable to “Confidential Information.”
Nothing in the letter agreement, including this Exhibit A, prohibits you from reporting to any governmental authority information concerning possible violations of law or regulation. Consistent with 18 U.S.C. § 1833, (i) you shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (I) in confidence to a federal, state, or local government official, either directly or indirectly, or to an 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 filed in a lawsuit or other proceeding, if such filing is made under seal, and (ii) if you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose a trade secret to your attorney and use the trade secret information in the court proceeding, if you file any document containing the trade secret under seal and do not disclose the trade secret except pursuant to court order.
If a reviewing court determines that the restrictions in this Section 2 are unenforceable for lack of a reasonable duration, you and the Company agree that the restrictions in this Section 2 shall last for a period of two (2) years following the termination of your employment (unless the reviewing court deems two (2) years to be overly long, in which case the restrictions are for a period of 18 months following the termination of your employment, unless the reviewing court deems 18 months to be overly long, in which case the restrictions are for a period of one (1) year following the termination of your employment).
If a reviewing court determines that the restrictions in this Section 2 are unenforceable for lack of a reasonable geographic scope, you and the Company agree that the restrictions in this Section 2 shall apply within the United States of America or any other jurisdiction in which the Company (or any of its affiliates with which you were involved or for which you performed services during the one year preceding the termination of your employment with the Company) engages in business and in which you worked or with respect to which you performed services.
Exh. A-
| 3. | Non-Competition and Non-Interference. |
| a. | Non-Competition. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, individually or on behalf of any Person, engage in any Competitive Activities within the United States of America or any other jurisdiction in which the Company (or any of its affiliates with which you were involved or for which you performed services during the one year preceding the termination of your employment with the Company) engages in business and in which you worked or with respect to which you performed services. |
| b. | Personnel Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any employee or consultant of the Company or its affiliates, with whom you worked during your employment with the Company or any of its affiliates, to terminate or reduce such employee’s or consultant’s employment or services with the Company or its affiliates. |
| c. | Personnel Non-Hiring. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, hire any individual who is employed by or serves as a consultant to the Company or its affiliates and with whom you worked during your employment with the Company or any of its affiliates. |
Exh. A-
| d. | Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Current Client to cease doing business with or reduce the amount of business conducted with the Company or its affiliates, or in any way interfere with the relationship between any such Current Client and the Company or its affiliates. |
| e. | Prospective Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Prospective Client to refrain from entering into business with the Company or its affiliates. |
| f. | Former Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Former Client to refrain from entering into business with the Company or its affiliates. |
| g. | Business Relation Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Business Relation to cease doing business with or reduce the amount of business conducted with the Company or its affiliates, or in any way interfere with the relationship between any such Business Relation and the Company or its affiliates. |
Exh. A-
| h. | Definitions. For purposes of this Exhibit A: |
| (i) | “Business Relation” shall mean any borrower, referral source, licensee, supplier, or other business relation of the Company or its affiliates with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (ii) | “Competitive Activities” shall mean business activities (a) in which you were engaged, which you performed, or with which you were involved, in each case during your employment with the Company or any of its affiliates, and (b) which is related to venture lending or leasing, equipment leasing or any other business activity that is materially competitive with the current (or, if you were involved in such planning, actively planned at the time of your termination of employment) business activities of the Company or its affiliates. |
| (iii) | "Current Client” shall mean any current client or customer of the Company or its affiliates with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (iv) | “Former Client” shall mean any client or customer of the Company or its affiliates within the six (6) month period prior to the termination of your employment with the Company and with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (v) | “Person” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust (charitable or non-charitable), unincorporated organization, or other form of business entity. |
| (vi) | “Prospective Client” shall mean any person or entity who (a) was solicited (with your involvement) to become a client or customer of the Company or its affiliates and (b) with whom you had business contact or about whom you gained Confidential Information, in each case within the six (6) month period prior to the termination of your employment with the Company. |
Exh. A-
| 4. | Reasonableness of Restrictions. |
You acknowledge and recognize the highly competitive nature of the Company’s and its affiliates’ business, that access to Confidential Information renders you special and unique within the Company’s and its affiliates’ industry, and that you will have the opportunity to develop substantial relationships and goodwill (on behalf of the Company and its affiliates) with existing and prospective clients, accounts, customers, consultants, contractors, investors, strategic partners, and other business relations of the Company and its affiliates during the course of and as a result of your employment with the Company. In light of the foregoing, you recognize, acknowledge, and agree that the restrictions and limitations set forth in this Exhibit A are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect the value of the business and assets of the Company and its affiliates. You further acknowledge and agree that the restrictions and limitations set forth in this Exhibit A will not materially interfere with your ability to earn a living following the termination of your employment with the Company.
Each of the rights enumerated in this Exhibit A shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company and its affiliates at law or in equity. If any of the provisions of this Exhibit A or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Exhibit A, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, the court making such determination shall have the power to (and it is the intention of you and the Company that the court) reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.
You expressly acknowledge and agree that any breach or threatened breach of any of the terms and/or conditions set forth in the letter agreement, including this Exhibit A, may result in substantial, continuing, and irreparable injury to the Company and its affiliates. Therefore, you hereby agree that, in addition to any other remedy that may be available to the Company and its affiliates, the Company and its affiliates shall be entitled to seek injunctive relief, specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Exhibit A without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach. In the event it is determined that you have breached this Exhibit A, the Company and its affiliates shall be entitled to recover the costs and reasonable legal fees the Company and its affiliates incur in enforcing this Exhibit A. Notwithstanding any other provision to the contrary, you acknowledge and agree that the duration of the restrictions in this Exhibit A (to the extent not perpetual) shall be tolled during any period of violation of any of the covenants hereof, so that the Company and its affiliates are provided with the full benefit of the restrictive periods set forth herein.
You further expressly acknowledge and agree that (i) any claim you may have against the Company or any of its affiliates, whether under this Exhibit A or otherwise, will not be a defense to enforcement of the restrictions set forth in this Exhibit A, and (ii) the circumstances of your termination of employment or other relationship with the Company and its affiliates will have no impact on your obligations under this Exhibit A. You further agree that each of the Company’s affiliates is a beneficiary of the restrictions set forth in this Exhibit A and may enforce this Exhibit A. You further agree that the restrictions set forth in this Exhibit A are in addition to, and not in lieu of, any protection of confidential information, inventions, non-competition, non-interference, non-disparagement, or other restrictive covenants by which you may be bound or become bound in favor of the Company or its affiliates. You represent that you have no duties or obligations to any person or entity, by agreement or otherwise, that will prevent or impair your ability to become employed by, and fully perform your duties and responsibilities for, the Company and its affiliates.
Exh. A-
| 5. | Non-Disparagement. During your employment with the Company or its affiliates and thereafter, you will not, directly or through any other Person, in any forum or through any medium of communication, disparage the Company or any of its affiliates, including without limitation any products, services or practices, or directors, officers, agents, representatives, or stockholders of the Company or any of its affiliates. For the avoidance of doubt, nothing in this Exhibit A shall prohibit you from making truthful statements (a) in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in connection with such proceedings), or (b) to regulators or appropriate government agencies in fulfillment of their statutory or regulatory obligations. |
| 6. | Company Property. All information, materials, documents, supplies, equipment, and other property furnished to you by the Company or any of its affiliates in connection with performance of services under the letter agreement will be and remain the sole property of the Company. On the date of the termination of your employment for any reason, or at any other time at the Company’s request, you must return to the Company all tangible and intellectual property in whatever form belonging to the Company or any of its affiliates (including, but not limited to, Confidential Information, Company vehicles, laptops, computers, cell phones, wireless electronic mail devices, code, and other equipment, information, documents, and property of any type). To the extent you have retained any property of the Company or any of its affiliates, including without limitation any Confidential Information, on any electronic or computer equipment or accounts belonging to you or under your control, you agree to so advise the Company and to follow the Company’s instructions in transferring to the Company and then permanently deleting from such equipment or accounts all such property, including without limitation Confidential Information, and all copies. |
| 7. | Non-Disclosure. Except as otherwise required by law (including, without limitation, in all required filings with the Securities and Exchange Commission), you shall not disclose the financial terms of the letter agreement to any person or entity, except that the financial terms of the letter agreement may be disclosed to: (a) your attorneys, accountants, or financial or tax advisors, and (b) members of your immediate family; provided, in the case of each of (a) and (b), that such persons agree not to reveal the financial terms of the letter agreement any further. |
| 8. | Applicable Law. The parties intend that the restrictive covenants set forth in this Exhibit A are to be interpreted and construed under the laws of Arizona, without regard to principles of conflicts of law. Any disputes arising under or related to this Agreement shall be heard exclusively in the state or federal courts covering Arizona. You and the Company hereby submit to the jurisdiction of the aforementioned courts and irrevocably waive any objection that you/it may now or hereafter have based on personal jurisdiction or to the laying of venue of any such action in the aforementioned courts, including without limitation any objection based on the grounds of forum non conveniens. |
| /s/ Gerald Harder | |
| Signature | |
| Print Name: Gerald Harder |
Exh. A-
Exhibit 10.4
Name: Michael Testa
Date: March 14, 2025
| RE: | Offer of Continued Employment with Trinity Capital Inc. |
Dear Michael:
I am very pleased to provide you with this letter agreement that includes the terms of your continued employment with Trinity Capital Inc. (the “Company”).
Position and Responsibilities
During the Term (as defined below), you agree to serve as Chief Financial Officer for the Company and to devote substantially all of your business time and efforts to the performance of your duties to the Company. During the Term, you will have the duties, authorities and responsibilities as are required by your position, and such other duties, authorities and responsibilities as may reasonably be assigned to you that are not inconsistent with your position as the Chief Financial Officer. You will report directly to the CEO.
Salary, Bonus, Benefits, Business Expenses and Severance
| a. | Base Salary. During the Term, you will be compensated for your services at an annual rate of five hundred thousand dollars ($500,000), which may be reviewed and adjusted on an annual basis by the Board of Directors (the “Board”) in its sole discretion, and which shall be payable in accordance with the Company’s regular payroll schedule (the “Base Salary”). |
| b. | Annual Bonus Arrangement. During the Term, you will be eligible to receive an annual bonus (the “Annual Bonus”), payable in amounts and at such times as determined in good faith by the Board, based on the achievement of Company and individual performance objectives, performance goals, and other metrics as set by the Board, and as may be changed from time to time. The Annual Bonus (if any) shall be payable no later than March 15 of the calendar year following the calendar year to which such Annual Bonus relates and may be paid prior to such date. In order to be eligible to receive such Annual Bonus (or portion thereof), except as otherwise provided herein, you must remain employed by the Company and in good standing through (i) the payment date if earlier than the end of the calendar year or (ii) the end of the applicable Annual Bonus calendar year. Notwithstanding the foregoing, in the event that your employment hereunder is terminated for “cause” at any point prior to the payment of any Annual Bonus, you will not be entitled to the payment of any Annual Bonus. |
For purposes of this letter agreement, “cause” shall mean (i) your act(s) of gross negligence or willful misconduct in the course of your employment, (ii) your willful failure or refusal to perform in any material respect your duties or responsibilities, (iii) misappropriation (or attempted misappropriation) by you of any assets or business opportunities of the Company or any of its affiliates, (iv) embezzlement or fraud committed (or attempted) by you, or at your direction, (v) your conviction of, indictment for, or pleading “guilty” or “no contest” to, (1) a felony or (2) any other criminal charge that has, or could be reasonably expected to have, an adverse impact on the performance of your duties to the Company or otherwise result in material injury to the reputation or business of the Company or any of its affiliates, (vi) any material violation by you of the policies of the Company, including but not limited to those relating to sexual harassment or business conduct, and those otherwise set forth in the manuals or statements of policy of the Company, or (vii) your material breach of Exhibit A of this letter agreement. Any determination of cause will be made by a resolution approved by a majority of the members of the Board, provided that no such determination may be made until you have been given written notice detailing the specific cause event and a period of thirty (30) days following receipt of such notice to cure such event (if susceptible to cure) to the satisfaction of the Board. Notwithstanding anything to the contrary contained herein, your right to cure as set forth in the preceding sentence shall not apply if there are habitual or repeated breaches by you, and no act or omission shall be deemed “willful” or “intentional” unless taken or not taken in bad faith and without a reasonable belief that it was in the best interest of the Company, or if taken or omitted to be taken on instruction from the Board or the Company’s counsel.
| c. | Equity Awards. You will be eligible for an annual restricted stock or other equity award as determined and approved by the Compensation Committee of the Board of Directors and subject to the terms and conditions, including vesting, of the award agreement and the Trinity Capital Inc. 2019 Long Term Incentive Plan, as may be amended from time to time. |
| d. | Employee Benefits. In connection with your employment during the Term, you will be eligible to participate in the Company’s employee benefit plans (including life, health accident insurance and disability programs) provided by the Company to similarly situated employees. Such participation shall be subject to the terms of the applicable plan documents and policies generally applicable to Company employees, including, without limitation, plan terms or policies relating to employee contributions under any such plans. Additional information regarding these benefits will be provided to you under a separate cover. Notwithstanding the foregoing, the Company may modify or terminate any employee benefit plan at any time. |
| e. | Vacation and Sick Leave. During the Term, you will be entitled to paid time off and sick time in accordance with the terms and conditions of the Company’s policies, procedures, and practices applicable to Company employees, as in effect from time to time, and applicable law. |
| f. | Business Expenses. During the Term, you will be reimbursed for all reasonable expenses (including, without limitation, travel and lodging, phone and car lease) incurred by you in connection with your employment, provided that you provide documentation, expense statements, vouchers and/or such other supporting information to the Company as it may reasonably request, and provided such expenses were incurred in compliance with Company policies, procedures and practices as in effect from time to time. |
| g. | Severance: In addition to the Accrued Benefits (as defined below), you will also be eligible for severance upon certain terminations of employment as provided for in this letter agreement. During the Term, you will be eligible for severance upon your termination of employment by the Company without cause or your resignation for “good reason” as provided for in this paragraph g, subject to the terms and conditions described below and in the “Code Section 409A” provision of this letter agreement. Upon any such termination and subject to your execution and delivery to the Company of a general release of claims in a form satisfactory to the Company that is no longer subject to revocation within sixty (60) days following any such termination of employment (the “Release of Claims”), and your continued compliance with the terms of Exhibit A, you will receive the following: |
| (i) | an amount equal to your monthly Base Salary rate, paid monthly for a period of twelve (12) months following such termination; provided that, any such payment scheduled to occur during the first sixty (60) days following the termination of employment shall not be paid until the first regularly scheduled pay period following the sixtieth (60th) day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto; provided further that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a “Covered Transaction” (as defined in the 2019 Trinity Capital Inc. Long Term Incentive Plan, as may be amended from time to time (the “LTIP”)) that satisfies the requirements of Section 1.409A-3(i)(5)(v), (vi) or (vii) of the Code (a “409A Change in Control”), the amount that you shall be eligible to receive pursuant to this paragraph g(i) shall be an amount equal to two (2) times your annual Base Salary (the “Enhanced Severance Payment”), paid in a lump sum within sixty (60) days following such termination of employment; provided however that, if the Covered Transaction does not qualify as a 409A Change in Control, the portion of the Enhanced Severance Payment that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (as defined below) will be paid to you in substantially equal monthly payments, commencing on the first regularly scheduled pay period following the sixtieth (60th) day following such termination of employment, and the remaining portion of the Enhanced Severance Payment will be paid to you in a lump sum within sixty (60) days following such termination of employment; |
| (ii) | any Annual Bonus earned but unpaid with respect to the calendar year ending on or preceding the date of termination, paid within sixty (60) days following such termination of employment; |
| (iii) | a pro-rata portion of your Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that you are employed by the Company and the denominator of which is 365), payable at the same time bonuses for such year are paid to other senior executives of the Company; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, the amount that you shall be eligible to receive pursuant to this paragraph g(iii) shall be an amount equal to one (1) times the average of your most recent three Annual Bonuses, paid in a lump sum within sixty (60) days following such termination of employment; |
| (iv) | subject to your electing COBRA coverage under the Company’s group health plan, a monthly amount equal to the difference between the monthly COBRA premium cost and the monthly contribution paid by active employees for the same coverage, for a period of twelve (12) months following such termination of employment; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, the amount that you shall be eligible to receive pursuant to this paragraph g(iv) shall be an amount equal to twenty-four (24) times the difference between the monthly COBRA premium cost and the monthly contribution paid by active employees for the same coverage, paid in a lump sum within sixty (60) days following such termination of employment; and |
| (v) | accelerated vesting of the portion of any outstanding and unvested time-based equity awards that would have otherwise become vested during the two (2) year period following the date of termination; provided that, in the event that any such termination of employment occurs within the twenty-four (24) month period following a Covered Transaction, all of your outstanding and unvested time-based equity awards shall accelerate and become fully vested. |
For purposes of this letter agreement, your resignation shall be for “good reason” if you resign from your employment as a result of any of the following without your consent: (i) a material reduction in your position, duties, responsibilities or status (other than temporarily while physically or mentally incapacitated or as required by applicable law); (ii) a material downward change in your reporting responsibility; (iii) a material reduction your Base Salary; (iv) the permanent relocation of your principal work location to a location outside a fifty (50) mile radius of your current principal work location (excluding required business travel from time to time); (v) the failure of the Company to make any material, non-forfeited payments earned and due to you under this letter agreement; or (vi) the failure of the Company to obtain the assumption in writing of its obligations under this letter agreement by any successor to all or substantially all of the assets of the Company. In order to resign for good reason, you must notify the Company in writing within thirty (30) days of the first occurrence of such circumstances alleged to constitute good reason and the Company shall have a period of thirty (30) days to cure such event(s). If such events are not fully corrected in all material respects by the Company within such thirty (30) day period, you must actually terminate your employment within thirty (30) days following the expiration of the Company’s thirty (30)-day cure period described above, otherwise, any claim of such circumstances as “good reason” shall be deemed irrevocably waived.
In the event that your employment hereunder is terminated due to your death or disability, in addition to Accrued Benefits, subject to your or your estate’s execution of the Release of Claims that is no longer subject to revocation within sixty (60) days following such termination of employment, and subject to your continued compliance with the terms of Exhibit A, you will receive any Annual Bonus earned but unpaid with respect to the calendar year ending on or preceding the date of termination, paid within sixty (60) days following such termination of employment and a pro-rata portion of your Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that you are employed by the Company and the denominator of which is 365), payable at the same time bonuses for such year are paid to other senior executives of the Company. For purposes of this letter agreement, “disability” shall mean any physical or mental disability or infirmity of you that prevents the performance of your duties (notwithstanding the provision of any reasonable accommodation) for a period of (i) ninety (90) consecutive days or (ii) one hundred twenty (120) non-consecutive days during any twelve (12) month period, as determined by the Company.
If your employment with the Company is terminated at any time for any reason other than as described above, unless provided for separately (e.g. a separate severance plan or agreement) the Company shall have no further obligation or liability to you relating to your employment or arising out of this letter agreement, other than (i) the payment of any Base Salary earned but unpaid through the date of termination of your employment, (ii) any vested rights you may have under any of the Company’s employee benefit plans, (iii) payment for any accrued but unused vacation days, in accordance with the Company’s vacation policy and applicable laws, and (iv) any other payments required by applicable law (collectively, items (i) through (iv), “Accrued Benefits”).
Employment at Will; Restrictive Covenants
Notwithstanding anything to the contrary, your employment with the Company will be “at will”, which means that either you or the Company may terminate your employment, at any time and for any reason, either with or without cause or advance notice. In the event that you desire to terminate your employment with the Company, the Company does request that you provide two (2) weeks’ written notice to the Company as a courtesy. The period of time between the date hereof and the termination of your employment hereunder for any reason shall be referred to herein as the “Term.”
As a condition of your employment, you agree to be bound by all the terms and conditions in Exhibit A to this letter, and agree that the terms and conditions of Exhibit A form part of the terms and conditions of your employment.
Notwithstanding anything to the contrary in this letter agreement or otherwise, you understand and acknowledge that the Company has informed you that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for (i) the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or (ii) the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. Additionally, notwithstanding anything to the contrary in this letter agreement or otherwise, you understand and acknowledge that the Company has informed you that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to a court order. Nothing in this letter agreement or any other agreement between you and the Company shall be interpreted to limit or interfere with your right to report good faith suspected violations of law to applicable government agencies, including the Equal Employment Opportunity Commission, National Labor Relation Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other applicable federal, state or local governmental agency, in accordance with the provisions of any “whistleblower” or similar provisions of local, state or federal law. You may report such suspected violations of law, even if such action would require you to share the Company’s proprietary information or trade secrets with the government agency, provided that any such information is protected to the maximum extent permissible and any such information constituting trade secrets is filed only under seal in connection with any court proceeding. Lastly, nothing in this letter agreement or any other agreement between you and the Company will be interpreted to prohibit you from collecting any financial incentives in connection with making such reports or require you to notify or obtain approval by the Company prior to making such reports to a government agency.
Additional Agreements; Miscellaneous
This letter agreement, the employment relationship contemplated herein and any claim arising from such relationship, whether or not arising under this letter agreement, shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to any choice or conflict of laws provision or rule thereof. If any portion or provision of this letter agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the application of such provision in such circumstances shall be modified to permit its enforcement to the maximum extent permitted by law, and both the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable and the remainder of this letter agreement shall not be affected thereby, and each portion and provision of this letter agreement shall be valid and enforceable to the fullest extent permitted by law. This letter agreement together with all exhibits hereto sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes any and all prior agreements or understandings between you and the Company with respect to the subject matter hereof. The Company may withhold from any and all amounts payable under this letter agreement or otherwise such federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
Code Section 409A
The intent of the parties is that payments and benefits under this letter agreement comply with Internal Revenue Code (the “Code”) Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this letter agreement shall be interpreted to be in compliance therewith. To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to you and the Company of the applicable provision without violating the provisions of Code Section 409A. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on you by Code Section 409A or damages for failing to comply with Code Section 409A.
A termination of employment shall not be deemed to have occurred for purposes of any provision of this letter agreement providing for the payment of any amounts or benefits that constitute “nonqualified deferred compensation” for purposes of Code Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this letter agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.” Notwithstanding anything to the contrary in this letter agreement, if you are deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (i) the expiration of the six (6)-month period measured from the date of your “separation from service” and (B) the date of your death, to the extent required under Code Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to the foregoing (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to you in a lump sum with interest at the prime rate as published in The Wall Street Journal on the first business day following the date of the “separation from service”, and any remaining payments and benefits due under this letter agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. For purposes of Code Section 409A, your right to receive any installment payments pursuant to this letter agreement shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this letter agreement specifies a payment period with reference to a number of days, the actual date of payment within the specified period shall be within the sole discretion of the Company.
To the extent that reimbursements or other in-kind benefits under this letter agreement constitute “nonqualified deferred compensation” for purposes of Code Section 409A, (i) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by you, (ii) any right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year. Notwithstanding any other provision of this letter agreement to the contrary, in no event shall any payment under this letter agreement that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
Certain Excise Taxes
In the event that any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by or other services to the Company) (collectively the “Company Payments”) will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then you will be entitled to receive either (i) the full amount of the Company Payments or (ii) a portion of the Company Payments having a value equal to $1 less than three (3) times your “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income taxes and the Excise Tax, results in the receipt by you on an after-tax basis, of the greatest portion of the Company Payments. Any determination required under this paragraph shall be made in writing by the independent public accountant of the Company (the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company and you. For purposes of making any calculation required by this paragraph, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction of the Company Payments pursuant to this paragraph, such reduction shall occur in the following order: (A) any cash severance payable by reference to your Base Salary or Annual Bonus, (B) any other cash amount payable to you, (C) any employee benefit valued as a “parachute payment,” and (D) acceleration of vesting of any outstanding equity award. In no event whatsoever shall you be entitled to a tax gross-up or other payment in respect of any excise tax, interest or penalties that may be imposed on the Company Payments by reason of the application of Section 280G or Section 4999 of the Code.
Clawback
You hereby acknowledge and agree that certain payments hereunder will be subject to recoupment in accordance with the Trinity Capital Inc. Clawback Policy, and any other clawback policy that the Company may adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other applicable law. In addition, the Board may impose such other clawback, recovery or recoupment provisions as the Board determines necessary or appropriate, including but not limited to a reacquisition right in respect of previously acquired shares of the Company’s common stock or other cash or property upon the occurrence of a termination of your employment for cause. No recovery of compensation under such a clawback policy will be an event giving rise to a right to resign for “good reason” hereunder or under any other agreement with the Company.
Sincerely,
| /s/ Kyle Brown | |
| Kyle Brown | |
| CEO, Trinity Capital Inc. |
Accepted by:
| Name: | /s/ Michael Testa | Date: March 14, 2025 | |
| Michael Testa |
Exhibit A
Restrictive Covenants
You acknowledge that, as a senior executive of Trinity Capital Inc. (the “Company”), you have specialized knowledge of the Company’s and its affiliates’ business, their customer relationships and their confidential information and that the restrictive covenants included in this Exhibit A to the letter agreement are necessary to protect the Company’s and its affiliates’ legitimate, protectable business interests. You also acknowledge that in connection with the execution of the letter agreement that you have received sufficient consideration to agree to such restrictions.
| 1. | Intellectual Property. All inventions, technology, processes, innovations, ideas, improvements, developments, methods, designs, analyses, trademarks, service marks, and other indicia of origin, writings, audiovisual works, concepts, drawings, reports and all similar, related, or derivative information or works (whether or not patentable or subject to copyright), including but not limited to all patents, copyrights, copyright registrations, trademarks, and trademark registrations in and to any of the foregoing, along with the right to practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, or create works derivative of any of the foregoing, and the right to choose not to do or permit any of the aforementioned actions, which relate to the Company’s or any of its affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by you while employed by the Company or any of its predecessors, whether or not during normal business hours (collectively, the “Work Product”) belong to the Company. All Work Product created by you while employed by the Company or any of its predecessors will be considered “work made for hire,” and as such, the Company is the sole owner of all rights, title, and interests therein. All other rights to any new Work Product and all rights to any existing Work Product, including but not limited to all of your rights to any copyrights or copyright registrations related thereto, are hereby conveyed, assigned and transferred to the Company pursuant to this Exhibit A. You will promptly disclose and deliver such Work Product to the Company and, at the Company’s expense, perform all actions reasonably requested by the Company (whether during or after your employment with the Company) to establish, confirm and protect such ownership (including, without limitation, the execution of assignments, copyright registrations, consents, licenses, powers of attorney and other instruments). To the extent allowed by applicable law, all rights to the Work Product include all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral, or the like (collectively, “Moral Rights”). To the extent you retain any such Moral Rights under applicable law, you hereby ratify and consent to any action that may be taken with respect to such Moral Rights by (or authorized by) the Company and agree not to assert any Moral Rights with respect thereto. |
| 2. | Confidential Information, Trade Secrets and Protected Rights. You agree that, during your employment with the Company or its affiliates and at all times following termination of your employment, except as required by applicable law, you will not, directly or through any other Person, at any time, disclose to any third person or use in any way any non-public information or Confidential Information, as described in this Section 2. |
Exh. A-
| a. | For purposes of this Exhibit A, “Confidential Information” shall mean any confidential or proprietary information of the Company or any of its affiliates, including but not limited to: (a) technical, operational and financial information, data, Trade Secrets, formulae, processes, techniques, formats, specifications, manufacturing methods, treatment methods, designs, sketches, photographs, plans, drawings, specifications, samples, reports, pricing information, studies, findings, marketing plans or proposals, inventions, ideas, customer and client lists, information related to business opportunities and business development, and confidential programs or procedures; (b) any intellectual property owned or licensed by the Company or its affiliates; (c) any information maintained by the Company or its affiliates as confidential or proprietary information, whether or not it is marked as confidential; and (d) information received by the Company or its affiliates from third parties under confidential conditions. |
| b. | Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the date hereof is in the public domain; (ii) information that has come within the public domain after the date hereof through no fault or action of you in breach of any confidentiality obligation (provided, however, that the fact that general information may be in or become part of the public domain, in and of itself, does not exclude any specific information not otherwise in the public domain from the obligations of this Exhibit A); (iii) that after the date hereof has been obtained lawfully from any third party which was entitled to disclose such information; and/or (iv) general knowledge, skill, and know-how that you developed based on your professional experiences. |
| c. | You agree that, during your employment with the Company or its affiliates and thereafter, you will: |
| (i) | hold the Confidential Information in strict confidence; |
| (ii) | not give, sell or disclose Confidential Information to any other third party, unless (x) to other employees of the Company as required in the good faith performance of your duties to the Company or its affiliates while employed by the Company or (y) such party is an external auditor or contractor hired by the Company and then only upon written approval of the Board of Directors of the Company; and |
| (iii) | not use Confidential Information, except as required in the good faith performance of your duties to the Company or its affiliates while employed by the Company. |
If you are required by law to disclose Confidential Information, you will (i) unless prohibited by law, immediately (and prior to such disclosure) notify the Company and cooperate with the Company in any efforts by the Company to oppose such disclosure, and (ii) disclose only that portion of the Confidential Information that is legally required to be disclosed and exercise best efforts to ensure that such Confidential Information will be afforded confidential treatment.
Exh. A-
For avoidance of doubt, nothing in the letter agreement, including this Exhibit A, shall prevent you from (i) sharing any Confidential Information or other information with regulators or appropriate governmental agencies without notice to the Company, whether in response to subpoena or otherwise, under the whistleblower provisions of federal law or regulation, and no prior authorization or notification is required prior to you making any such reports or disclosures, provided that no attorney-client privileged information shall be waived; (ii) supplying truthful information to any government authority or in response to any lawful subpoena or other legal process or (iii) disclosing or discussing conduct with respect to a sexual assault dispute or sexual harassment dispute (to the extent such disclosure or discussion cannot be prohibited under the Speak Out Act).
You acknowledge that your obligations above are separate and distinct from your promise and obligation not to disclose or use the Company’s or its affiliates’ “Trade Secrets,” as defined by the applicable federal and state laws. During and at all times after your employment with the Company or its affiliates, Trade Secrets of the Company shall be subject to the maximum protections available under applicable law and no less protection than that described above applicable to “Confidential Information.”
Nothing in the letter agreement, including this Exhibit A, prohibits you from reporting to any governmental authority information concerning possible violations of law or regulation. Consistent with 18 U.S.C. § 1833, (i) you shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (I) in confidence to a federal, state, or local government official, either directly or indirectly, or to an 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 filed in a lawsuit or other proceeding, if such filing is made under seal, and (ii) if you file a lawsuit for retaliation by the Company for reporting a suspected violation of law, you may disclose a trade secret to your attorney and use the trade secret information in the court proceeding, if you file any document containing the trade secret under seal and do not disclose the trade secret except pursuant to court order.
If a reviewing court determines that the restrictions in this Section 2 are unenforceable for lack of a reasonable duration, you and the Company agree that the restrictions in this Section 2 shall last for a period of two (2) years following the termination of your employment (unless the reviewing court deems two (2) years to be overly long, in which case the restrictions are for a period of 18 months following the termination of your employment, unless the reviewing court deems 18 months to be overly long, in which case the restrictions are for a period of one (1) year following the termination of your employment).
If a reviewing court determines that the restrictions in this Section 2 are unenforceable for lack of a reasonable geographic scope, you and the Company agree that the restrictions in this Section 2 shall apply within the United States of America or any other jurisdiction in which the Company (or any of its affiliates with which you were involved or for which you performed services during the one year preceding the termination of your employment with the Company) engages in business and in which you worked or with respect to which you performed services.
Exh. A-
| 3. | Non-Competition and Non-Interference. |
| a. | Non-Competition. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, individually or on behalf of any Person, engage in any Competitive Activities within the United States of America or any other jurisdiction in which the Company (or any of its affiliates with which you were involved or for which you performed services during the one year preceding the termination of your employment with the Company) engages in business and in which you worked or with respect to which you performed services. |
| b. | Personnel Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any employee or consultant of the Company or its affiliates, with whom you worked during your employment with the Company or any of its affiliates, to terminate or reduce such employee’s or consultant’s employment or services with the Company or its affiliates. |
| c. | Personnel Non-Hiring. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, hire any individual who is employed by or serves as a consultant to the Company or its affiliates and with whom you worked during your employment with the Company or any of its affiliates. |
Exh. A-
| d. | Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Current Client to cease doing business with or reduce the amount of business conducted with the Company or its affiliates, or in any way interfere with the relationship between any such Current Client and the Company or its affiliates. |
| e. | Prospective Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Prospective Client to refrain from entering into business with the Company or its affiliates. |
| f. | Former Client Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Former Client to refrain from entering into business with the Company or its affiliates. |
| g. | Business Relation Non-Interference. During the period of your employment with the Company and the period commencing on the date of the termination of your employment for any reason and ending on the 12-month anniversary of such date of termination (unless a reviewing court deems 12 months to be overly long, in which case the restriction is for a period of nine (9) months following the termination of your employment, unless a reviewing court deems nine (9) months to be overly long, in which case the restriction is for a period of six (6) months following the termination of your employment), you agree that you will not, directly or through any other Person, for your own account or for the account of any other individual or entity, encourage, solicit, or induce, or in any manner attempt to encourage, solicit, or induce, any Business Relation to cease doing business with or reduce the amount of business conducted with the Company or its affiliates, or in any way interfere with the relationship between any such Business Relation and the Company or its affiliates. |
Exh. A-
| h. | Definitions. For purposes of this Exhibit A: |
| (i) | “Business Relation” shall mean any borrower, referral source, licensee, supplier, or other business relation of the Company or its affiliates with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (ii) | “Competitive Activities” shall mean business activities (a) in which you were engaged, which you performed, or with which you were involved, in each case during your employment with the Company or any of its affiliates, and (b) which is related to venture lending or leasing, equipment leasing or any other business activity that is materially competitive with the current (or, if you were involved in such planning, actively planned at the time of your termination of employment) business activities of the Company or its affiliates. |
| (iii) | "Current Client” shall mean any current client or customer of the Company or its affiliates with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (iv) | “Former Client” shall mean any client or customer of the Company or its affiliates within the six (6) month period prior to the termination of your employment with the Company and with whom you had business contact, or about whom you gained Confidential Information, during your employment with the Company or any of its affiliates. |
| (v) | “Person” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust (charitable or non-charitable), unincorporated organization, or other form of business entity. |
| (vi) | “Prospective Client” shall mean any person or entity who (a) was solicited (with your involvement) to become a client or customer of the Company or its affiliates and (b) with whom you had business contact or about whom you gained Confidential Information, in each case within the six (6) month period prior to the termination of your employment with the Company. |
Exh. A-
| 4. | Reasonableness of Restrictions. |
You acknowledge and recognize the highly competitive nature of the Company’s and its affiliates’ business, that access to Confidential Information renders you special and unique within the Company’s and its affiliates’ industry, and that you will have the opportunity to develop substantial relationships and goodwill (on behalf of the Company and its affiliates) with existing and prospective clients, accounts, customers, consultants, contractors, investors, strategic partners, and other business relations of the Company and its affiliates during the course of and as a result of your employment with the Company. In light of the foregoing, you recognize, acknowledge, and agree that the restrictions and limitations set forth in this Exhibit A are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect the value of the business and assets of the Company and its affiliates. You further acknowledge and agree that the restrictions and limitations set forth in this Exhibit A will not materially interfere with your ability to earn a living following the termination of your employment with the Company.
Each of the rights enumerated in this Exhibit A shall be independent of the others and shall be in addition to and not in lieu of any other rights and remedies available to the Company and its affiliates at law or in equity. If any of the provisions of this Exhibit A or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Exhibit A, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, the court making such determination shall have the power to (and it is the intention of you and the Company that the court) reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.
You expressly acknowledge and agree that any breach or threatened breach of any of the terms and/or conditions set forth in the letter agreement, including this Exhibit A, may result in substantial, continuing, and irreparable injury to the Company and its affiliates. Therefore, you hereby agree that, in addition to any other remedy that may be available to the Company and its affiliates, the Company and its affiliates shall be entitled to seek injunctive relief, specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Exhibit A without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach. In the event it is determined that you have breached this Exhibit A, the Company and its affiliates shall be entitled to recover the costs and reasonable legal fees the Company and its affiliates incur in enforcing this Exhibit A. Notwithstanding any other provision to the contrary, you acknowledge and agree that the duration of the restrictions in this Exhibit A (to the extent not perpetual) shall be tolled during any period of violation of any of the covenants hereof, so that the Company and its affiliates are provided with the full benefit of the restrictive periods set forth herein.
Exh. A-
You further expressly acknowledge and agree that (i) any claim you may have against the Company or any of its affiliates, whether under this Exhibit A or otherwise, will not be a defense to enforcement of the restrictions set forth in this Exhibit A, and (ii) the circumstances of your termination of employment or other relationship with the Company and its affiliates will have no impact on your obligations under this Exhibit A. You further agree that each of the Company’s affiliates is a beneficiary of the restrictions set forth in this Exhibit A and may enforce this Exhibit A. You further agree that the restrictions set forth in this Exhibit A are in addition to, and not in lieu of, any protection of confidential information, inventions, non-competition, non-interference, non-disparagement, or other restrictive covenants by which you may be bound or become bound in favor of the Company or its affiliates. You represent that you have no duties or obligations to any person or entity, by agreement or otherwise, that will prevent or impair your ability to become employed by, and fully perform your duties and responsibilities for, the Company and its affiliates.
| 5. | Non-Disparagement. During your employment with the Company or its affiliates and thereafter, you will not, directly or through any other Person, in any forum or through any medium of communication, disparage the Company or any of its affiliates, including without limitation any products, services or practices, or directors, officers, agents, representatives, or stockholders of the Company or any of its affiliates. For the avoidance of doubt, nothing in this Exhibit A shall prohibit you from making truthful statements (a) in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in connection with such proceedings), or (b) to regulators or appropriate government agencies in fulfillment of their statutory or regulatory obligations. |
| 6. | Company Property. All information, materials, documents, supplies, equipment, and other property furnished to you by the Company or any of its affiliates in connection with performance of services under the letter agreement will be and remain the sole property of the Company. On the date of the termination of your employment for any reason, or at any other time at the Company’s request, you must return to the Company all tangible and intellectual property in whatever form belonging to the Company or any of its affiliates (including, but not limited to, Confidential Information, Company vehicles, laptops, computers, cell phones, wireless electronic mail devices, code, and other equipment, information, documents, and property of any type). To the extent you have retained any property of the Company or any of its affiliates, including without limitation any Confidential Information, on any electronic or computer equipment or accounts belonging to you or under your control, you agree to so advise the Company and to follow the Company’s instructions in transferring to the Company and then permanently deleting from such equipment or accounts all such property, including without limitation Confidential Information, and all copies. |
| 7. | Non-Disclosure. Except as otherwise required by law (including, without limitation, in all required filings with the Securities and Exchange Commission), you shall not disclose the financial terms of the letter agreement to any person or entity, except that the financial terms of the letter agreement may be disclosed to: (a) your attorneys, accountants, or financial or tax advisors, and (b) members of your immediate family; provided, in the case of each of (a) and (b), that such persons agree not to reveal the financial terms of the letter agreement any further. |
Exh. A-
| 8. | Applicable Law. The parties intend that the restrictive covenants set forth in this Exhibit A are to be interpreted and construed under the laws of Arizona, without regard to principles of conflicts of law. Any disputes arising under or related to this Agreement shall be heard exclusively in the state or federal courts covering Arizona. You and the Company hereby submit to the jurisdiction of the aforementioned courts and irrevocably waive any objection that you/it may now or hereafter have based on personal jurisdiction or to the laying of venue of any such action in the aforementioned courts, including without limitation any objection based on the grounds of forum non conveniens. |
| /s/ Michael Testa | |
| Signature | |
| Print Name: Michael Testa |
Exh. A-
Exhibit 10.5
TRINITY CAPITAL INC.
RETENTION BONUS AGREEMENT
This Retention Bonus Agreement (this “Agreement”), dated as of March 14, 2025 (the “Grant Date”), is entered into by and between Trinity Capital Inc. (the “Company”), and Kyle Brown (the “Executive”).
WHEREAS, as of the date hereof, the Executive is employed by and providing services to the Company; and
WHEREAS, in an effort to retain the Executive’s continued service, the Company wishes to enter into this Agreement and provide for the compensation specified herein, subject to all of the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the respective covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree to the following:
1. Retention Bonus.
a. Retention Bonus. Subject to the conditions set forth in this Agreement, the Executive shall receive lump-sum cash payments equal to $1,880,000 in the aggregate (the “Retention Bonus”). The Retention Bonus will become vested and payable as follows:
| i. | Fifty percent (50%) of the Retention Bonus shall vest upon the one (1) year anniversary of the Grant Date, subject to the Executive’s continued employment with the Company or its affiliates through such date. Except as otherwise provided in Section 1(a)(iii), in the event of the Executive’s termination of employment for any reason prior to the one (1) year anniversary of the Grant Date, the Executive shall forfeit the Executive’s right to receive the Retention Bonus. |
| ii. | The remaining fifty percent (50%) of the Retention Bonus shall vest in four (4) equal quarterly installments of twelve and one-half percent (12.5%) following the one (1) year anniversary of the Grant Date until fully vested, subject to the Executive’s continued employment with the Company or its affiliates through such dates. Except as otherwise provided in Section 1(a)(iii), in the event of the Executive’s termination of employment for any reason following the one (1) year anniversary of the Grant Date but prior to the four (4) year anniversary of the Grant Date, the Executive shall forfeit the Executive’s right to receive the remaining then-unvested portion of the Retention Bonus. |
| iii. | Notwithstanding anything to the contrary herein, in the event of the Executive’s Qualifying Termination on or after the Grant Date, the Executive shall be entitled to receive the then-unpaid portion of the Retention Bonus, paid in accordance with the schedule set forth in Section 1(b), subject to the Executive’s delivery of an executed (and no longer subject to revocation) general release of claims in favor of the Company and its affiliates within sixty (60) days after the date of the Executive’s termination of employment, on a form reasonably satisfactory to the Company. In the event of the Executive’s termination of employment for any reason other than a Qualifying Termination on or after the Grant Date, the Executive shall forfeit the Executive’s right to receive any then-unvested portion of the Retention Bonus, determined as of the date of such termination of employment. |
b. Timing of Payment. The Retention Bonus (or any portion thereof), to the extent earned, shall be paid to the Executive within thirty (30) days following the applicable vesting date; provided that, in the event of a Qualifying Termination on or after the Grant Date, any then-unpaid portion of the Retention Bonus shall be paid to the Executive within sixty (60) days following the date of such Qualifying Termination, subject to the terms and conditions of Section 1(a)(iii) above.
c. Qualifying Termination. For purposes of this Agreement, “Qualifying Termination” means the Executive’s termination of employment on or after the Grant Date: (i) by the Company without “cause”, (ii) by the Executive for “good reason” or (iii) as a result of the Executive’s death or “disability”. “Cause”, “good reason” and “disability” shall each have the meaning set forth in that certain Amended & Restated Offer of Employment Letter, by and between the Company and the Executive, dated as of March 14, 2025.
d. Tax Withholding. Payment of the Retention Bonus hereunder shall be subject to all applicable income and employment taxes and any other amounts that the Company (or its successor) or its affiliates is required by any applicable law to deduct and withhold therefrom.
2. General.
a. No Right to Continued Employment. Nothing in this Agreement shall confer upon the Executive any right to continued employment with the Company or its affiliates or to interfere in any way with the right of the Company (or its respective successors) or its affiliates to terminate the Executive’s employment at any time.
b. Other Benefits. The Retention Bonus is a special incentive payment to the Executive and shall not be taken into account in computing the amount of salary or compensation for purposes of determining any bonus, incentive, pension, retirement, death or other benefit under any other bonus, incentive pension, retirement, insurance or other employee benefit plan of the Company, unless such plan or agreement expressly provides otherwise.
c. Code Section 409A Compliance. Although the Company does not guarantee the tax treatment of any payment hereunder, the intent of the parties is that payments under this Agreement are either exempt from or comply with Section 409A of the Code and the regulations and guidance promulgated thereunder (collectively, “Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted in a manner consistent therewith. In no event whatsoever shall the Company be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A or damages for failing to comply with Section 409A. Notwithstanding anything to the contrary in this Agreement, if the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B), then with regard to any payment or the provision of any benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service,” such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Executive, and (B) the date of the Executive’s death, to the extent required under Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits delayed pursuant to this Section 2(c) (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. In no event shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Section 409A be subject to offset by any other amount unless otherwise permitted by Section 409A. For purposes of Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.
d. Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement or the relationship of the parties shall be governed by and construed in accordance with the laws of the State of Maryland, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Maryland or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Maryland.
e. Severability. The provisions of this Agreement shall be deemed severable. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by applicable law.
f. Non-Assignment; Successors. This Agreement is personal to each of the parties hereto. Except as provided in this Section 2(f), no party may assign or delegate any rights or obligations hereunder without first obtaining the advanced written consent of the other party hereto. Any purported assignment or delegation by the Executive in violation of the foregoing shall be null and void ab initio and of no force and effect. The Company may assign this Agreement to a person or entity that is an affiliate of the Company or to any successor to all or substantially all of the business and/or assets of the Company, which assumes in writing, or by operation of law, the obligations of the Company hereunder.
g. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
h. Entire Agreement; Amendment. This Agreement constitutes the entire agreement by the Executive and the Company with respect to the subject matter hereof, and supersedes any and all prior agreements or understandings between the Executive and the Company with respect to the subject matter hereof, whether written or oral. This Agreement may be amended or modified only by a written instrument executed by the Executive and the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
| EXECUTIVE | |
| /s/ Kyle Brown | |
| Kyle Brown |
[Retention Bonus Agreement Signature Page]
| TRINITY CAPITAL INC. | ||
| By: | /s/ Michael Testa | |
| Name: | Michael Testa | |
| Title: | Chief Financial Officer | |
[Retention Bonus Agreement Signature Page]
Exhibit 10.6
TRINITY CAPITAL INC. 2019 LONG TERM INCENTIVE PLAN FORM OF TRINITY CAPITAL INC. OPTION AWARD FOR EMPLOYEES
TRINITY CAPITAL INC. STRONGLY ENCOURAGES YOU TO SEEK THE ADVICE OF YOUR OWN LEGAL AND FINANCIAL ADVISORS WITH RESPECT TO YOUR AWARD AND ITS TAX CONSEQUENCES. THANK YOU.
This Option Agreement (this “Agreement”), by and between Trinity Capital Inc., a Maryland corporation (the “Company”), and _________ (the “Grantee”), regarding an award (“Award”) of an “Option” to purchase that number of shares of “Stock”, each as defined in the Trinity Capital Inc. 2019 Long Term Incentive Plan, as amended (the “Plan”), as described in Section 1 below, shall be subject to adjustment as provided in the Plan and subject to the terms and conditions set forth in this Agreement. The Grantee’s rights under this Award are subject to the restrictions described in this Agreement and the Plan (which is incorporated herein by reference with the same effect as if set forth herein in full including, without limitation, any amendments thereto adopted at any time and from time to time unless such amendments are expressly intended not to apply to the Award provided hereunder) in addition to such other restrictions, if any, as may be imposed by law. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan.
1. Award of Option.
Date of Grant: ______, 2025
Exercise Price per share of Stock: $_______
Total Number of shares of Stock subject to the Option: _______
Total Exercise Price: $______
Type of Option: Non-statutory Stock Option
Expiration Date: _____, 2035
Vesting/Exercise Schedule: Subject to the terms of the Plan and this Agreement, the “Vested Option Shares” (as defined below) may be exercised, in whole or in part, at any time after the Option has vested in accordance with the vesting conditions set forth in Section 2 of this Agreement and prior to the Expiration Date set forth above. The actual number of shares of Stock subject to this Option that vest and become Vested Option Shares, if any, may be lower than the Total Number of shares of Stock set forth above depending on the extent to which such shares become Vested Option Shares pursuant to the vesting and other conditions set forth herein.
No part of the Option granted hereby is intended to qualify as an “incentive stock option” under Section 422 of the Code.
2. Vesting of the Option.
(a) General. The Option will vest subject to the satisfaction of the performance-based condition described in Section 2(b) below (the “Performance Condition”) and the service-based condition described in Section 2(c) below (the “Service Condition”). Shares of Stock subject to the Option will vest and become exercisable on the first date upon which both the Service Condition and the Performance Condition are satisfied with respect to such shares of Stock (the “Vested Option Shares”).
(b) Performance Condition. Subject to earlier termination in accordance with the Plan or this Agreement, the Performance Condition with respect to the Option shall be satisfied if, following the Date of Grant and prior to the fourth (4th) anniversary of the Date of Grant, the VWAP of the Stock has been equal to or greater than one hundred and fifty percent (150%) of the Exercise Price per share of Stock described in Section 1 above. Subject to Section 2(d) below, in the event that the Performance Condition is not satisfied on or prior to the fourth (4th) anniversary of the Date of Grant, the Option shall terminate and expire immediately without any further action of the Company; provided that, in the event of a Covered Transaction prior to the fourth (4th) anniversary of the Date of Grant and prior to the satisfaction of the Performance Condition, the Performance Condition shall be deemed satisfied upon such Covered Transaction if holders of shares of Stock receive in connection with such Covered Transaction, aggregate per share consideration with fair market value equal to or in excess of one hundred and fifty percent (150%) of the Exercise Price per share of Stock described in Section 1 above; provided further that, in the event of a Covered Transaction prior to the fourth (4th) anniversary of the Date of Grant and prior to the satisfaction of the Performance Condition where holders of shares of Stock receive in connection with such Covered Transaction, aggregate per share consideration with fair market value of less than one hundred and fifty percent (150%) of the Exercise Price per share of Stock described in Section 1 above, the Option shall terminate and expire immediately without any further action of the Company. For purposes of this Agreement, “VWAP” means the volume weighted average trading price per share for the Stock on any established stock exchange or a national market system, including, without limitation, the New York Stock Exchange or the Nasdaq Stock Market, for the ninety (90) consecutive calendar days ending on the last trading day preceding the applicable day.
(c) Service Condition. Subject to earlier termination in accordance with the Plan or this Agreement, the Service Condition will be met with respect to twenty-five percent (25%) of the shares of Stock subject to the Option on the first (1st) anniversary of the Date of Grant, and six and one-quarter percent (6.25%) of the remaining shares of Stock subject to the Option vesting quarterly thereafter until fully vested (each, a “Vesting Date”) provided that no termination of the Grantee’s Continuous Service has occurred prior to each such Vesting Date, unless otherwise provided under this Agreement or the Plan; provided, further, for the avoidance of doubt, there shall be no proportionate or partial vesting in the periods prior to or between each Vesting Date unless otherwise provided under this Agreement, and fractional shares of Stock shall be rounded to the nearest whole share but, if applicable, shall be rounded up or down on the last applicable Vesting Date so that the Grantee is eligible to satisfy the Service Condition in the total number of shares of Stock subject to the Option (but in no event more than the total number of shares of Stock subject to the Option). Except as otherwise provided in this Agreement, no additional shares of Stock subject to the Option shall satisfy the Service Condition following the termination of the Grantee’s Continuous Service.
(d) Board Discretion. Notwithstanding the foregoing, pursuant to the terms of the Plan, the Board or its Committee may, in its sole discretion, accelerate the time at which this Option shall vest.
3. Termination.
(a) General. Except as otherwise provided in this Agreement, in the event of the termination of the Grantee’s Continuous Service for any reason: (i) any shares of Stock subject to the Option that have not become Vested Option Shares shall terminate and expire without any further action of the Company and (ii) Vested Option Shares shall remain exercisable until the earlier of (x) ninety (90) days following the date of such termination of the Grantee’s Continuous Service and (y) the Expiration Date, and thereafter, shall terminate and expire without any further action of the Company.
(b) Retirement. Upon the Grantee’s Retirement: (i) the Service Condition shall be deemed to continue to be satisfied, notwithstanding the Grantee’s Retirement, with respect to the shares of Stock subject to the Option that have not satisfied the Service Condition at the time of such Retirement, in accordance with the remaining schedule described in Section 2(c) above and (ii) the shares of Stock subject to the Option shall remain eligible to satisfy the Performance Condition. Subject to earlier termination in accordance with the Plan or this Agreement, provided that the Performance Condition is satisfied on, prior to, or following the Grantee’s Retirement in accordance with Section 2(b) above, the shares of Stock that have become Vested Option Shares at such time shall remain exercisable through the earlier of (x) the third (3rd) anniversary of the Grantee’s Retirement and (y) the Expiration Date. For purposes of this Agreement, “Retirement” shall mean the termination of the Grantee’s Continuous Service if such termination: (A) occurs on or after the completion by the Grantee of at least five (5) years of Continuous Service, (B) occurs at a time when the Grantee’s age equals or exceeds sixty (60) and (C) occurs on or after the first (1st) anniversary of the Date of Grant. Notwithstanding anything to the contrary, the treatment of the Option as contemplated in this Section 3(b) upon the Grantee’s Retirement shall not be available to the Grantee to the extent that the Grantee receives any severance payments or benefits in connection with the Grantee’s Retirement, other than any unpaid base salary through the date of Retirement, or any other accrued and vested payments or benefits to which the Grantee is entitled under the terms of any applicable compensation arrangement or benefit plan at such time.
(c) Death or Disability. In the event of the termination of Grantee’s Continuous Service due to the Grantee’s death or Disability, provided that the Performance Condition has been satisfied on or before such termination of the Grantee’s Continuous Service, the Service Condition shall be deemed satisfied with respect to all of the shares of Stock subject to the Option and such Vested Option Shares shall remain exercisable through the earlier of (x) one (1) year following such termination of the Grantee’s Continuous Service and (y) the Expiration Date. In the event of the termination of Grantee’s Continuous Service due to the Grantee’s death or Disability at a time when the Performance Condition has not been satisfied, the Option shall terminate and expire without any further action of the Company. For purposes of this Agreement, “Disability” means the inability of the Grantee to have performed the Grantee’s material duties to the Company or any of its Affiliates due to a physical or mental injury, infirmity or incapacity for one hundred eighty (180) days (including weekends and holidays) in any three hundred and sixty-five (365)-day period, as determined by the Board or the Committee in its discretion.
(d) Cause. In the event of the termination of the Grantee’s Continuous Service for Cause, or in the event of the Grantee’s voluntary termination within six (6) months after the occurrence of an event that would be grounds for a termination of the Grantee’s Continuous Service for Cause, the entire Option and any Vested Option Shares shall terminate and immediately expire without further action of the Company. For purposes of this Agreement, “Cause” (i) shall have the meaning ascribed to such term in any employment agreement, consulting agreement, change in control agreement or similar agreement in effect between the Company or an Affiliate and the Grantee that defines “cause” (or words of like import) or (ii) in the case where there is no employment agreement, consulting agreement, change in control agreement or similar agreement in effect between the Company or an Affiliate and the Grantee (or where there is such an agreement but it does not define “cause” (or words of like import)), Cause shall mean the termination of the Grantee’s Continuous Service due to: (A) theft, moral turpitude, fraud, embezzlement, misappropriation of property, information or other assets by the Grantee in connection with the Grantee’s employment with the Company and its Affiliates; (B) the Grantee’s commission, conviction, guilty plea, no contest plea, or similar plea for any crime involving fraud or moral turpitude or for any felony; (C) the Grantee’s use of illegal drugs, abuse of prescription drugs or violation of the Company’s or its Affiliates’ policies concerning the use of illegal drugs or the abuse of prescription drugs (whether or not at the workplace); (D) material violation by the Grantee of the Company’s or its Affiliates’ lawful policies, rules or regulations applicable to the Grantee; (E) the Grantee’s willful misconduct related to the Company, its Affiliates, or their business that harms the Company or its Affiliates; (F) the Grantee’s gross negligence related to the Company, its Affiliates, or their business; (G) the Grantee’s material breach of any applicable restrictive covenant obligations or (H) the Grantee’s intentional misrepresentation of any material facts to the Company or the Board that fall within the scope of the Grantee’s employment.
(e) Termination without Cause or Resignation with Good Reason Following a Covered Transaction. In the event of the termination of Grantee’s Continuous Service by the Company or its Affiliates without Cause, or in the event of the Grantee’s resignation of the Grantee’s Continuous Service with Good Reason, in either case, within the twenty-four (24) month period following a Covered Transaction, to the extent the Option is outstanding at such time, the Service Condition shall be deemed satisfied and the Vested Option Shares shall remain exercisable through the earlier of (x) ninety (90) days following such termination of the Grantee’s Continuous Service and (y) the Expiration Date. For purposes of this Agreement, “Good Reason” (i) shall have the meaning ascribed to such term in any employment agreement, consulting agreement, change in control agreement or similar agreement in effect between the Company or an Affiliate and the Grantee that defines “good reason” (or words of like import) or (ii) in the case where there is no employment agreement, consulting agreement, change in control agreement or similar agreement in effect between the Company or an Affiliate and the Grantee (or where there is such an agreement but it does not define “good reason” (or words of like import)), Good Reason shall mean: (A) a material diminution in the scope of the Grantee’s duties or authority that is inconsistent with the Grantee’s position; (B) a material reduction in the Grantee’s annual base salary (which, for the avoidance of doubt, shall not include any “across the board” reductions affecting executive level employees of Company or any of its Affiliates); provided that, for purposes of the foregoing a twenty percent (20%) change or greater shall be deemed “material;” or (C) the required relocation of the Grantee’s principal place of employment more than fifty (50) miles from the Grantee’s then-applicable location; provided that, the Grantee shall not be deemed to have Good Reason unless (I) the Grantee has provided the Company with thirty (30) days advance written notice of the Grantee’s intention to terminate the Grantee’s Continuous Service for Good Reason, and the Company has failed to cure the event or condition in such thirty (30) day period and (II) the Grantee resigns the Grantee’s Continuous Service no later than sixty (60) days following the occurrence of the condition or event.
4. Treatment of Option in a Covered Transaction. In the event of a Covered Transaction, to the extent that the Performance Condition as described in Section 2(b) above has been satisfied, the Option shall be treated in accordance with one or more of the following methods, as determined by the Board or Committee, in its sole discretion: (a) the Option, whether or not all or any portion of the Service Condition has been satisfied, may be continued, assumed, or have new rights substituted therefor, as determined by the Board or Committee in a manner consistent with the requirements of Section 409A of the Code or (b) in the event that the Option is not continued, assumed, or have new rights substituted therefor as contemplated in Section 4(a) above, all shares of Stock subject to the Option, whether or not all or any portion of the Service Condition has been satisfied at such time, shall be cancelled in exchange for an amount of cash equal to the excess (if any) of the highest price per share of Stock paid for the shares of Stock in connection with the Covered Transaction multiplied by the Total Number of shares of Stock subject to the Option, over the Total Exercise Price as described in Section 1 above; provided that, in the event that the Exercise Price per share of Stock is equal to or greater than the per share consideration offered in connection with any such Covered Transaction, the Option will be cancelled and immediately terminated, without any payment to the Grantee and without the need for the Grantee’s consent.
5. Method of Exercise and Payment. Subject to Section 8 below, to the extent that the Option has become vested and the Vested Option Shares are exercisable as provided herein, subject to the terms of the Plan and this Agreement, the Option may thereafter be exercised by the Grantee, in whole or in part, at any time or from time to time prior to the Expiration Date and in accordance with Section 7(A) of the Plan, including, without limitation, by the filing of any written form of exercise notice as may be required by the Board or Committee and payment in full of the Exercise Price per share of Stock specified above multiplied by the number of Vested Option Shares underlying the portion of the Option exercised.
6. Dividends and Voting Rights. Unless and until exercised in accordance with this Agreement, the Option subject to this Agreement shall not be eligible for any Dividend Equivalent Rights, and shall not be entitled to any voting rights.
7. Non-Transferability. The Option, and any rights and interests with respect thereto, issued under this Agreement and the Plan shall not be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Grantee (or any beneficiary of the Grantee), other than by testamentary disposition by the Grantee or the laws of descent and distribution. Notwithstanding the foregoing, the Board or the Committee may, in its sole discretion, permit the Option to be transferred to a Family Member for no value, provided that such transfer shall only be valid upon execution of a written instrument in form and substance acceptable to the Board or the Committee in its sole discretion evidencing such transfer and the transferee’s acceptance thereof signed by the Grantee and the transferee, and provided, further, that the Option may not be subsequently transferred other than by will or by the laws of descent and distribution or to another Family Member (as permitted by the Board or the Committee in its sole discretion) in accordance with the terms of the Plan and this Agreement, and shall remain subject to the terms of the Plan and this Agreement. Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way the Option, or the levy of any execution, attachment or similar legal process upon the Option, contrary to the terms and provisions of this Agreement and/or the Plan shall be null and void and without legal force or effect. For purposes of this Agreement, “Family Member” means “family member” as defined in Section A.1.(a)(5) of the general instructions of Form S-8.
8. Withholding Taxes. The Company’s obligation to deliver shares of Stock upon the conditions of this Award having been satisfied shall be subject to the Grantee’s satisfaction of all applicable federal, state and local income and employment tax withholding obligations. The Grantee may satisfy such obligation(s), in whole or in part, by: (a) delivering to the Company a check for the amount required to be withheld or (b) if permitted under the 1940 Act and as the Board or the Committee in its sole discretion approves in any specific or general case, having the Company withhold shares of Stock or delivering to the Company already-owned shares of Stock, in either case having a fair market value equal to the amount required to be withheld, as determined by the Board or the Committee.
9. Notices. All notices or demands given to the Company pursuant to this Award and the Plan shall be in writing and shall be deemed to have been sufficiently given if delivered by hand or sent by certified or registered mail, postage prepaid, addressed to Trinity Capital Inc., Attn: General Counsel, at the principal office of the Company.
10. No Employment Commitment; Tax Treatment; Status as Stockholder. Nothing herein contained shall be deemed to be or constitute an agreement or commitment by the Company, its parent, or any Affiliate to continue the Grantee in its employ. The Company makes no representation about the tax treatment to the Grantee with respect to receipt or vesting of the Option or acquiring, holding or disposing of the shares of Stock. The Grantee shall have no rights as a stockholder with respect to the shares of Stock subject to the Award until the exercise of the Option with respect to the Vested Option Shares.
11. Grantee Bound by Plan. The Grantee hereby acknowledges that a copy of the Plan as in effect on the date hereof has been made available to the Grantee and agrees to be bound by all the terms and provisions thereof (as such Plan may be amended from time to time in accordance with the terms thereof).
12. Binding Effect. Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon and inure to the benefit of the Grantee and his or her legatees, distributees, and personal representatives and to the successors of the Company.
13. General. For purposes of this Agreement and any determinations to be made by the Board or the Committee, as the case may be, hereunder, the determinations by the Board or the Committee, as the case may be, shall be binding upon the Grantee and any transferee. All decisions under, and interpretations of, such provisions of this Agreement and the Plan by the Board or the Committee shall be final, binding and conclusive upon the Grantee and his or her heirs. On and after the commencement of the Committee’s duties under the Plan, all references to the Board in this Agreement shall mean and relate to such Committee. The Company is not obligated to deliver any shares of Stock pursuant to the Plan until: (a) the Company is satisfied that all legal matters in connection with the issuance and delivery of such shares of Stock have been addressed and resolved; (b) if the outstanding shares of Stock are, at the time of delivery, listed on any stock exchange or national market system, the shares of Stock to be delivered have been listed or authorized to be listed on such exchange or system upon official notice of issuance and (c) all conditions of the Award have been satisfied or waived. This Agreement, together with the Plan, contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Board or the Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan. This Agreement may also be modified or amended by a writing signed by both the Company and the Grantee. This Agreement shall be governed by the laws of the state of Maryland, without regard to the choice of law principles of any jurisdiction.
14. Company Recoupment of Awards. The Grantee’s rights with respect to this Award shall in all events be subject to: (a) any right that the Company may have under any Company recoupment policy or other agreement or arrangement with the Grantee, including, without limitation, the Trinity Capital Inc. Clawback Policy, as may be amended from time to time, or (b) any right or obligation that the Company may have as is otherwise required by applicable law. In addition, the Board or the Committee may impose such other clawback, recovery or recoupment provisions as the Board or the Committee determines necessary or appropriate, including but not limited to a reacquisition right in respect of previously acquired shares of Stock or other cash or property upon the occurrence of Cause. No recovery of compensation under such a clawback policy will be an event giving rise to a right to resign for “Good Reason” or “constructive termination” (or similar term) under any agreement with the Company.
* * * * *
IN WITNESS WHEREOF, the Company and the Grantee have executed this Agreement as of the date written above.
| TRINITY CAPITAL INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| Acknowledged and Agreed: | |
| Grantee Name |
7