Third Amendment to Employment Agreement of Michael L. Gravelle dated May 16, 2022
Exhibit 10.4
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
THIS THIRD AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is effective as of May 16, 2022, by and between BKFS I SERVICES, LLC, a Delaware corporation (the “Company”), and MICHAEL L. GRAVELLE (the “Employee”) and amends that certain Employment Agreement dated as of March 1, 2015 (as amended on April 30, 2016 and November 1, 2019) (together with this Amendment, the “Agreement”), which the Company and Employee hereby agree is in full force and effect as of the date hereof and the terms and conditions of which are incorporated herein by reference. In consideration of the mutual covenants and agreements set forth herein, the parties agree as follows:
| 1. | Section 8(f) of the Agreement is hereby supplemented and amended by adding the following provisions as Sections 8(f)(iv) and 8(f)(v): |
“(iv) | A material diminution in Employee’s duties or responsibilities upon or within the twenty-four (24) months following a Change in Control of Black Knight, Inc. (as defined in the Black Knight, Inc. Amended and Restated 2015 Omnibus Incentive Plan); provided, however, that until the first anniversary of the Closing Date (as that term is defined in that certain Agreement and Plan of Merger, dated as of May 4, 2022, by and among Intercontinental Exchange, Inc., Sand Merger Sub Corporation and Black Knight, Inc. (the “Merger Agreement”)), a change in Employee’s duties or responsibilities as a result of the Merger (as defined in the Merger Agreement) due to Black Knight, Inc. becoming a division, subsidiary or other similar part of a larger organization and no longer being a publicly traded company, shall not constitute “Good Reason”; and provided further that from and after the first anniversary of the Closing Date, a change in Employee’s duties or responsibilities as in effect immediately prior to the Effective Time (as defined in the Merger Agreement) as a result of the Merger due to Black Knight, Inc. becoming a division, subsidiary or other similar part of a larger organization and no longer being a publicly traded company, shall constitute “Good Reason”; or |
(v) | Upon or within the twenty-four (24) months following a Change in Control of Black Knight, Inc., Employee’s receipt of notice from the Company or Black Knight, Inc. (or, in each case, any successor entity) that the term of this Agreement will not be renewed, such that the term of this Agreement would expire prior to the two (2) year anniversary of the Effective Time.” |
| 2. | The last paragraph of Section 8(f) of the Agreement beginning “Notwithstanding the foregoing…” is deleted in its entirety and replaced with the following: |
“Notwithstanding the foregoing, Employee being placed on a paid leave for up to sixty (60) days pending a determination of whether there is a basis to terminate Employee for
Cause shall not constitute Good Reason. Employee’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any act or failure to act constituting Good Reason hereunder; provided, however, that no such event described above shall constitute Good Reason unless: (1) Employee gives Notice of Termination to the Company specifying the condition or event relied upon for such termination within ninety (90) days of the initial existence of such event, (2) the Company fails to cure the condition or event constituting Good Reason within thirty (30) days following receipt of Employee’s Notice of Termination, and (3) Employee terminates employment within ninety (90) days following the expiration of such thirty (30) day period following receipt of Employee’s Notice of Termination.”
| 3. | Section 9(a) of the Agreement is hereby supplemented and amended by adding the following provision as Section 9(a)(vi): |
“(iv) | All stock options, restricted stock and other equity-based incentive awards granted by Black Knight, Inc. or any of its subsidiaries or affiliates that were outstanding but not vested as of the Date of Termination shall become immediately vested and/or payable, as the case may be, provided, however, that any such equity awards that are vested pursuant to this provision and that constitute an arrangement within the meaning of Code Section 409A shall be paid or settled on the earlier date coinciding with or following the Date of Termination that does not result in a violation of or penalties under Section 409A.” |
| 4. | Section 16 of the Agreement is deleted in its entirety and replaced with the following: |
“16.Release. Notwithstanding any provision herein to the contrary, the Company may require that, prior to payment, distribution or other benefit under Section 9 of this Agreement (other than due to Employee's death), Employee shall have executed a complete release of the Company and its affiliates and related parties in substantially the form attached as Exhibit A.”
Signature page follows.
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IN WITNESS WHEREOF the parties have executed this Amendment to be effective as of the date first set forth above.
| BKFS I SERVICES, LLC By: /s/ Joseph M. Nackashi Joseph M. Nackashi Its: President |
| EMPLOYEE: /s/ Michael L. Gravelle Michael L. Gravelle |
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Exhibit A
MUTUAL RELEASE AGREEMENT
THIS MUTUAL RELEASE AGREEMENT (“Agreement”) is made and entered into by and between [NAME] (“Employee”), a [STATE] resident, and BKFS I SERVICES, LLC, a Delaware corporation (“Company”). In consideration of the foregoing and the mutual covenants and agreements contained in this Agreement and the “Employment Agreement” entered into by the parties and amended as of [DATE], the adequacy of which is hereby acknowledged, the parties agree as follows:
1.Mutual Release. Employee (on Employee’s own behalf and on behalf of Employee’s agents, assigns, heirs, executors, and administrators) hereby releases and discharges the Company, its past, current and former parent corporations (including, but not limited to, Black Knight, Inc., Black Knight Financial Services, Inc., Black Knight Financial Services, LLC, Black Knight Holdings, Inc. and Intercontinental Exchange, Inc.), and each of their affiliates, subsidiaries, employees, managers, owners, officers, directors, managers, attorneys, agents, shareholders, representatives and members, and their successors, predecessors and assigns, and all persons acting by, through, under, for, or in concert with them, or any of them, in any and all of their capacities (collectively, “Company Released Parties”) from any claim, charge, complaint, liability, demand, action, or cause of action, known or unknown, which arose at any time up to the date Employee signs this Agreement, and waives all rights relating to, arising out of, or in any way connected with Employee’s employment with or service to the Company or the ending of that employment, including, without limitation, any claim, demand, action, cause of action or right based on but not limited to: federal and state wage payment laws, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act (ADEA), the Older Workers Benefit Protection Act (OWBPA), Executive Order 11246, the Rehabilitation Act of 1973, 42 U.S.C. §1981-1988, the Civil Rights Act of 1991, civil rights acts of any state, state and federal family and/or medical leave acts, the Consolidated Omnibus Budget Reconciliation Act of 1985, the Worker Adjustment and Retraining Notification Act of 1988 and any state or local counterpart, and any other federal, state or local laws or regulations of any kind, whether statutory, regulatory or decisional. The release contained in this Agreement also includes, but is not limited to, any claims arising under common law, statutory law, or regulation, for wrongful termination, fraud or fraud in the inducement, breach of contract, defamation, retaliation, misrepresentation, violation of public policy or invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent hiring, negligent retention, negligent supervision and all other claims that were raised or could have been raised as of the date Employee signs this Agreement.
Except as otherwise expressly provided herein, this release extends to all disputes of every nature and kind by Employee against the Company or any Company Released Party that arose before the date Employee signs this Agreement, whether known or unknown, suspected or unsuspected, past or present, and whether or not they arose out of or are attributable to the circumstances of Employee’s employment with the Company.
The Company (on the Company’s own behalf and on behalf of the Company’s past, current and former parents, subsidiaries and affiliates) hereby releases and discharges Employee and Employee’s agents, assigns, heirs, executors, and administrators from any claim, demand, action, or cause of action, or right based on but not limited to: any federal, state or local laws or regulations of any kind, whether statutory, regulatory or decisional. The release contained in this Agreement also includes, but is not limited to, any claims arising under common law, statutory law, or regulation, for, fraud or fraud in the inducement, breach of contract, defamation, retaliation, misrepresentation, violation of public policy or invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress,
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negligent hiring, negligent retention, negligent supervision and all other claims, that were raised or could have been raised as of the date Employee signs this Agreement.
Except as otherwise expressly provided herein, this release extends to all disputes of every nature and kind by Company against the Employee that arose before the date Employee signs this Agreement, whether known or unknown, suspected or unsuspected, past or present, and whether or not they arose out of or are attributable to the circumstances of Employee’s employment with the Company.
2.Excluded Claims. This Agreement does not release or waive any claims, and Paragraph 1 of this Agreement does not release or waive: (a) any rights to compensation or benefits provided under the Employment Agreement; (b) any benefit to which Employee is entitled under any tax qualified benefit plan of the Company or any of its affiliates, COBRA continuation coverage benefits, vested benefits under the Company’s or its affiliates’ benefit plans or any other welfare benefits required to be provided pursuant to the terms of the applicable plan; (c) any claims that Employee could make, if available, for unemployment or workers’ compensation or for health insurance or retirement benefits; (d) any rights to indemnification that Employee may have under applicable law, the bylaws or certificate of incorporation of the Company and its affiliates, any applicable director and officer liability policy or under the Employment Agreement, or as a result of having served as an officer or director of the Company or any of its affiliates; (e) any claim that Employee may have as a holder or beneficial owner of securities of the Company and its affiliates or other rights relating to securities, equity or equity-based awards in respect of the common stock of the Company or any of its affiliates; and (f) any other claim that cannot be released by private agreement or that arises after the date Employee signs this Agreement. Moreover, nothing in this Agreement shall be construed as barring or limiting Employee’s right to bring a legal action challenging the validity of Employee’s release of ADEA claims, nor does it release any claims under ADEA arising after the date Employee signs this Agreement.
3.Mutual Covenant Not to Sue. Except as otherwise expressly provided in Paragraph 1 of this Agreement, Employee agrees that Employee will not institute any claim for damages or other relief, nor authorize any other party, governmental or otherwise, to institute any claim for damages or other individual relief on Employee’s behalf, via legal or administrative proceedings, against the Company or any Company Released Party for any claims or claims released in Paragraph 1 of this Agreement. Employee further agrees to withdraw any charge, lawsuit or claim for damages or other relief that has or may have been filed before any local, state or federal agency or court relating in any way to the Company or a Company Released Party, except with respect to any rights or claims that are not waived pursuant to Paragraph 2.
Except as otherwise expressly provided in Paragraph 1 of this Agreement, the Company agrees that the Company and its affiliates will not institute any claim for damages or other relief, nor authorize any other party, governmental or otherwise, to institute any claim for damages or other individual relief on the Company’s behalf, via legal or administrative proceedings, against Employee or any of Employee’s agents, assigns, heirs, executors, and administrators for any claims or claims released in Paragraph 1 of this Agreement. The Company further agrees to withdraw any charge, lawsuit or claim for damages or other relief that has or may have been filed before any local, state or federal agency or court relating in any way to Employee or Employee’s agents, assigns, heirs, executors, and administrators.
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Nothing contained in this Agreement shall be construed to prevent Employee from filing a charge or complaint with, including a challenge to the validity of this Agreement, or participating or cooperating with any investigation conducted by, the National Labor Relations Board, the Equal Employment Opportunity Commission or any state or local antidiscrimination agency. However, other than as prohibited by applicable law (including with respect to any legally protected whistleblower rights), Employee expressly waives the right to monetary damages or other individual legal or equitable relief in relation to any such claim against the Company or its affiliates that is validly released by this Agreement, other than as prohibited by applicable law. Nothing in this Agreement shall be construed to prevent, limit or restrict Employee from exercising any legally protected whistleblower rights, including pursuant to Rule 21F under the Securities Exchange Act of 1934.
4.OWBPA / ADEA Waiver. Employee acknowledges that: (a) the Company has advised him in writing that he should consult his attorney of his choice before entering into this Agreement, and Employee has been given the opportunity to consult with an attorney of his choice before signing this Agreement; (b) this Agreement has been written in a manner calculated to be understood by Employee, and Employee should consult with his attorney if he does not understand any provisions contained in this Agreement; (c) the release and waiver in this Agreement specifically covers any claims of age discrimination; (d) this Agreement does not waive rights or claims that may arise after Employee executes it; (e) Employee has twenty-one (21) days to consider this Agreement and whether he will enter into it, although Employee may sign it sooner than that if he so desires; and (f) Employee may revoke this Agreement at any time within seven (7) days after executing it by timely delivering written notice to Melissa Circelli, the Company’s Chief Human Resources Officer (or her successor) via email to ***@*** or via courier to 601 Riverside Ave., Jacksonville, FL, 32204.
5.Effective Date. This Agreement shall not become effective or enforceable until after the seven (7)-day revocation period has expired. The “Effective Date” of this Agreement shall be the eighth day after Employee has executed and returned this Agreement to the Company, provided Employee does not timely revoke this Agreement pursuant to Paragraph 4.
6.Governing Law. This Agreement shall be interpreted, construed, and governed by the laws of the State of Florida, regardless of its place of execution or performance and without regard to principles of conflict of laws. The parties agree that the sole and exclusive venue for any legal action arising under this Agreement shall be a state or federal court located in Duval County, Florida. The parties to this Agreement hereby voluntarily consent to personal jurisdiction in the state and federal courts located in Duval County, Florida in any legal action or lawsuit arising under this Agreement.
7.Continuing Obligations. Employee acknowledges and agrees that the post-termination restrictive covenants in relation to confidentiality, non-competition and non-solicitation as stated in Section 12 of the Employment Agreement remain valid, enforceable and in effect.
8.Amendments. This Agreement may not be amended, modified or changed in any way except by written document executed by each of the parties to this Agreement.
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PLEASE READ THIS AGREEMENT CAREFULLY, IT INCLUDES A RELEASE OF KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF the parties have executed this Agreement to be effective as of the Effective Date:
| BKFS I SERVICES, LLC By: __________________________ Its: Date: |
| |
| EMPLOYEE ______________________________ Date: |
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