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Fleetcor Technologies Inc – ‘10-K’ for 12/31/15 – ‘EX-10.38’

On:  Monday, 2/29/16, at 5:35pm ET   ·   For:  12/31/15   ·   Accession #:  1193125-16-485752   ·   File #:  1-35004

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  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 2/29/16  Fleetcor Technologies Inc         10-K       12/31/15  100:7.7M                                   Donnelley … Solutions/FA

Annual Report   —   Form 10-K   —   Sect. 13 / 15(d) – SEA’34
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

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 2: EX-10.38    Material Contract                                   HTML     60K 
 3: EX-10.39    Material Contract                                   HTML     54K 
 4: EX-21.1     Subsidiaries List                                   HTML     39K 
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 7: EX-31.2     Certification -- §302 - SOA'02                      HTML     33K 
 8: EX-32.1     Certification -- §906 - SOA'02                      HTML     28K 
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20: R5          Consolidated Statements of Comprehensive Income     HTML     46K 
21: R6          Consolidated Statements of Stockholders' Equity     HTML     54K 
22: R7          Consolidated Statements of Stockholders' Equity     HTML     32K 
                (Parenthetical)                                                  
23: R8          Consolidated Statements of Cash Flows               HTML    149K 
24: R9          Description of Business                             HTML     36K 
25: R10         Summary of Significant Accounting Policies          HTML    112K 
26: R11         Fair Value Measurements                             HTML     60K 
27: R12         Common Stock                                        HTML     38K 
28: R13         Stock Based Compensation                            HTML     89K 
29: R14         Acquisitions                                        HTML     95K 
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31: R16         Property, Plant and Equipment                       HTML     40K 
32: R17         Accrued Expenses                                    HTML     35K 
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34: R19         Income Taxes                                        HTML    100K 
35: R20         Leases                                              HTML     36K 
36: R21         Commitments and Contingencies                       HTML     33K 
37: R22         Earnings Per Share                                  HTML     40K 
38: R23         Segments                                            HTML     65K 
39: R24         Selected Quarterly Financial Data (Unaudited)       HTML     50K 
40: R25         Summary of Significant Accounting Policies          HTML    168K 
                (Policies)                                                       
41: R26         Summary of Significant Accounting Policies          HTML     61K 
                (Tables)                                                         
42: R27         Fair Value Measurements (Tables)                    HTML     47K 
43: R28         Stock Based Compensation (Tables)                   HTML     96K 
44: R29         Acquisitions (Tables)                               HTML     74K 
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46: R31         Property, Plant and Equipment (Tables)              HTML     37K 
47: R32         Accrued Expenses (Tables)                           HTML     35K 
48: R33         Debt (Tables)                                       HTML     53K 
49: R34         Income Taxes (Tables)                               HTML     99K 
50: R35         Leases (Tables)                                     HTML     35K 
51: R36         Earnings Per Share (Tables)                         HTML     37K 
52: R37         Segments (Tables)                                   HTML     63K 
53: R38         Selected Quarterly Financial Data (Unaudited)       HTML     46K 
                (Tables)                                                         
54: R39         Summary of Significant Accounting Policies -        HTML     96K 
                Additional Information (Detail)                                  
55: R40         Summary of Significant Accounting Policies -        HTML     45K 
                Company's Accounts Receivable and Securitized                    
                Accounts Receivable (Detail)                                     
56: R41         Summary of Significant Accounting Policies -        HTML     37K 
                Allowance for Doubtful Accounts Related to                       
                Accounts Receivable (Detail)                                     
57: R42         Summary of Significant Accounting Policies -        HTML     72K 
                Revision of Previously Issued Financial Statements               
                (Detail)                                                         
58: R43         Fair Value Measurements - Financial Assets and      HTML     49K 
                Liabilities Measured at Fair Value (Detail)                      
59: R44         Fair Value Measurements - Additional Information    HTML     36K 
                (Detail)                                                         
60: R45         Common Stock - Additional Information (Detail)      HTML     44K 
61: R46         Stock Based Compensation - Additional Information   HTML     55K 
                (Detail)                                                         
62: R47         Stock Based Compensation - Summary of Expense       HTML     37K 
                Related to Share-Based Payments (Detail)                         
63: R48         Stock Based Compensation - Summary of Total         HTML     38K 
                Unrecognized Compensation Cost Related to                        
                Stock-Based Compensation (Detail)                                
64: R49         Stock Based Compensation - Summary of Changes in    HTML     69K 
                Number of Shares of Common Stock Under Option                    
                (Detail)                                                         
65: R50         Stock Based Compensation - Schedule of Stock        HTML     63K 
                Options Exercise Price (Detail)                                  
66: R51         Stock Based Compensation - Schedule of              HTML     45K 
                Weighted-Average Assumptions (Detail)                            
67: R52         Stock Based Compensation - Summary of Changes in    HTML     52K 
                Number of Shares of Restricted Stock and                         
                Restricted Stock Units (Detail)                                  
68: R53         Acquisitions - Additional Information (Detail)      HTML    112K 
69: R54         Acquisitions - Summary of Purchase Price            HTML     78K 
                Allocation (Detail)                                              
70: R55         Acquisitions - Summary of Final Estimated Fair      HTML     64K 
                Value of Intangible Assets Acquired and the                      
                Related Estimated Useful Lives (Detail)                          
71: R56         Acquisitions - Purchase Price Allocations of        HTML     59K 
                Intangible Assets (Detail)                                       
72: R57         Goodwill and Other Intangible Assets - Summary of   HTML     45K 
                Changes in Goodwill by Reportable Business Segment               
                (Detail)                                                         
73: R58         Goodwill and Other Intangible Assets - Additional   HTML     36K 
                Information (Detail)                                             
74: R59         Goodwill and Other Intangible Assets - Schedule of  HTML     53K 
                Other Intangible Assets (Detail)                                 
75: R60         Goodwill and Other Intangible Assets - Schedule of  HTML     43K 
                Future Estimated Amortization of Intangibles                     
                (Detail)                                                         
76: R61         Property, Plant and Equipment - Schedule of         HTML     60K 
                Property, Plant and Equipment (Detail)                           
77: R62         Property, Plant and Equipment - Additional          HTML     36K 
                Information (Detail)                                             
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                (Detail)                                                         
79: R64         Debt - Summary of Debt Instruments (Detail)         HTML     54K 
80: R65         Debt - Summary of Debt Instruments (Parenthetical)  HTML    102K 
                (Detail)                                                         
81: R66         Debt - Summary of Contractual Maturities of Notes   HTML     45K 
                Payable and Other Obligations (Detail)                           
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                Taxes (Detail)                                                   
83: R68         Income Taxes - Components of Income Taxes (Detail)  HTML     59K 
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                Taxes and U.S. Federal Tax Rate (Detail)                         
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                Liabilities (Detail)                                             
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                in Balance Sheet (Detail)                                        
88: R73         Income Taxes - Reconciliation of Unrecognized Tax   HTML     39K 
                Benefits (Detail)                                                
89: R74         Leases - Summary Operating Lease Future Minimum     HTML     45K 
                Payments (Detail)                                                
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                Share, Basic and Diluted (Detail)                                
92: R77         Earnings Per Share - Additional Information         HTML     38K 
                (Detail)                                                         
93: R78         Segments - Additional Information (Detail)          HTML     30K 
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                Assets by Geographical Area (Detail)                             
96: R81         Selected Quarterly Financial Data (Unaudited) -     HTML     59K 
                Schedule of Selected Quarterly Financial Data                    
                (Detail)                                                         
97: R82         Selected Quarterly Financial Data (Unaudited) -     HTML     52K 
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‘EX-10.38’   —   Material Contract


This Exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



  EX-10.38  

Exhibit 10.38

 

LOGO

AGREEMENT ON CONFIDENTIALITY, WORK PRODUCT, NON-COMPETITION, AND NON-SOLICITATION

THIS AGREEMENT ON CONFIDENTIALITY, WORK PRODUCT, NON-COMPETITION, AND NON-SOLICITATION (“Agreement”) is made and entered into as of this      day of             , 20    , by and between                     , an individual resident of the State of            (“Employee”), and FLEETCOR TECHNOLOGIES OPERATING COMPANY, LLC, a Georgia limited liability company, for itself and its applicable parent and subsidiary companies (“Employer”).

W I T N E S S E T H:

WHEREAS, Employee and Employer are parties to that certain offer letter (the “Offer Letter”), dated as of                     , which relates to the terms and conditions of Employee’s employment and contemplates Employee entering into this Agreement;

WHEREAS, during Employee’s employment with Employer, Employee will have access to certain information of central importance to the business of Employer, and disclosure of such information to, or its use by, others could cause substantial harm to Employer; and

WHEREAS, Employee’s services are of a special character which have a unique value to Employer, the loss of which cannot be adequately compensated by damages in an action at law and if used in competition with Employer could cause serious harm to Employer;

NOW, THEREFORE, in consideration of the premises and the mutual promises and agreements contained herein, the parties hereto, intending to be legally bound, hereby agree as follows:

 

  Section 1 Confidentiality, Work Product, Non-Competition, and Non-Solicitation Provisions.

 

  1.1 Definitions. For the purposes of this Agreement, the following definitions shall apply:

 

  (a) “Competitor” means the following businesses and their successor companies:

 

  (i) Fuel Card Companies (including but not limited to): Wright Express, US Bank/Voyager, Visa Fleet, MasterCard Fleet, Citibank – PC Petroleum Business, GE – Petroleum Business, JPMorgan Chase Fleet Card, UK Fuels, Radius Payment Solutions, CSI, MultiService, DKV, UTA, e100, EdenRed, Sodexo, Cheque Dejeneur, Embratec;

 

  (ii) Oil Companies (including but not limited to): Shell, BP, Chevron, ExxonMobil, Valero, Sunoco, Speedway, Total, Statoil, Rosneft, Gazprom, Lukoil, Petrobras, Ipiranga, Pemex, Repsol, OMV, Q8;

 

  (iii) Telematics Companies (including but not limited to): FleetMatics, Sascar, Econtrack, Contrex, Tom Tom, Verizon (Networkfleet), Teletrac, Geotab, GPS Insight, Telogis, Azuga, Nauman Wireless, GP Strakit, GPS Heros, Linxup;

 

  (iv) Corporate Payments Companies (including but not limited to): Card Groups, such as, virtual cards, purchasing cards, T&E cards, payroll cards within US Treasury Banks, such as, US Bank, PNC, Sun Trust) and American Express.


  (b) “Confidential Information” means any confidential, proprietary business information or data belonging to or pertaining to Employer that does not constitute a “Trade Secret” (as hereinafter defined) and that is not generally known by or available through legal means to the public, including, but not limited to, information regarding Employer’s customers or actively sought prospective customers, suppliers, manufacturers and distributors gained by Employee as a result of Employee’s employment with Employer.

 

  (c) “Customer” means actual customers (including licensees, participants of Employer’s networks and private label / co-brand card program sponsor customers) or actively sought prospective customers (including licensees, participants of Employer’s networks and private label / co-brand card program sponsor prospective customers).

 

  (d) “Non-compete Period” means the period beginning on the date of this Agreement and ending on the first anniversary of the termination of Employee’s employment with Employer for any reason.

 

  (e) “Non-solicitation Period” means the two year period after Employee’s employment with Employer terminates for any reason.

 

  (f) “Restricted Activities” means working in any executive, leadership, management or consulting capacity.

 

  (g) “Restricted Business” means a business of the type conducted by Employer during Employee’s employment, including:

 

  (i) Fuel Card Companies and oil companies in the fuel card issuing and processing business; and

 

  (ii) Specialty Card Companies, includes any business type conducted by Employer, such as Telematics, Corporate Payments, Lodging Cards, Food Cards, Toll Cards, Maintenance Cards, if Employee was dedicated to such business during Employee’s employment; and

 

  (iii) Any business conducted by the Employer during Employee’s employment, where the business equates to 15% or more of the Employer’s Global Revenue, during the Employee’s employment.

 

  (h) “Territory” means any geographic area in which Employer provided services to its Customers and the businesses with which it transacted business within the one (1) year prior to Employee’s termination, for any reason, from the Employer’s employment.

 

2


  (i) “Trade Secrets” means information or data of or about Employer, including but not limited to technical or non-technical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, products plans, or lists of actual or potential customers, clients, distributees or licensees, information concerning Employer’s finances, services, staff, contemplated acquisitions, marketing investigations and surveys, that (i) derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use; and (ii) are the subject of efforts that are reasonable under the circumstances to maintain their secrecy.

 

  (j) “Work Product” means any and all work product, property, data documentation or information of any kind, prepared, conceived, discovered, developed or created by Employee for Employer or its subsidiaries, or any of Employer’s or its subsidiary’s clients or customers.

 

  1.2 Trade Secrets, Confidential Information, and Work Product.

 

  (a) Employee hereby agrees that (i) with regard to each item constituting all or any portion of the Trade Secrets and/or Confidential Information, at all times during the term of employment and all times during which such item continues to constitute a Trade Secret and/or Confidential Information under applicable law:

 

  (i) Employee shall hold in confidence all Trade Secrets and all Confidential Information and will not, either directly or indirectly, use, publish or disclose any Trade Secrets or Confidential Information, without the prior written consent of Employer;

 

  (ii) Further, Employee shall hold in the strictest of confidence all Confidential Information related to private label / co-brand card sponsors, resellers, product providers, and participants. Employee shall take proper precautions to safeguard Confidential Information related to private label card program sponsors and their customers. During the term of employment, Employee will only utilize Confidential Information within the context of servicing the private label card program sponsor, shall take all necessary precautions to ensure Confidential Information related to private label card sponsor is protected from unauthorized use by employees in other departments and shall take all precautions to ensure private label program sponsor Confidential Information is segregated from all other Employer data; and

 

  (iii) Employee shall immediately notify Employer of any unauthorized disclosure or use of any Trade Secrets or Confidential Information of which Employee becomes aware, and Employee shall assist Employer, to the extent necessary, in the procurement or any protection of Employer’s rights to or in any of the Trade Secrets or Confidential Information.

 

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  (b) Employee hereby acknowledges and agrees that the prohibitions against disclosure of Confidential Information and Trade Secrets recited herein are in addition to, and not in lieu of, any rights or remedies that Employer may have available pursuant to the laws of any jurisdiction, to prevent the disclosure of trade secrets or privileged or proprietary information, and the enforcement by Employer of its rights and remedies pursuant to this Agreement shall not be construed as a waiver of any other rights or remedies that it may possess in law or equity.

 

  (c) Upon the request of Employer and, in any event, upon the termination of Employee’s employment with Employer, Employee shall deliver to Employer all memoranda, notes, records, manuals and other documents, including all copies of such materials and all documentation prepared or produced in connection therewith, pertaining to the performance of Employee’s services hereunder or Employer’s business or containing Trade Secrets or Confidential Information, whether made or compiled by Employee or furnished to Employee from another source by virtue of Employee’s employment with Employer.

 

  (d) To the greatest extent possible, all Work Product shall be deemed to be “work made for hire” (as defined in the Copyright Act, 17 U.S.C.A. §§ 101 et seq., as amended) and owned exclusively by Employer. Employee hereby unconditionally and irrevocably transfers and assigns to Employer all rights, title and interest Employee may have in or to any and all Work Product, including, without limitation, all patents, copyrights, trademarks, service marks and other intellectual property rights. Employee agrees to execute and deliver to Employer any transfers, assignments, documents or other instruments which Employer may deem necessary or appropriate to vest complete title and ownership of any and all Work Product, and all rights therein, exclusively in Employer.

 

  1.3 Non-competition for a Period of One (1) Year.

 

  (a) Employee agrees that Employee will not, within the Territory and during the Non-compete Period, either directly or indirectly, either alone or with any individual partnership, corporation, association, or other entity, compete with the Employer performing Restricted Activities in the Restricted Business;

 

  (b) Employee agrees that Employee will not, during the Non-compete Period, accept employment with or act as an independent contractor for a Competitor performing, within the Territory, Restricted Activities in the Restricted Business; and

 

  (c) Employee agrees that Employee will not, during the Non-compete Period, acquire or control or attempt to acquire or control any Competitor with respect to which Employee had performed any services (including, without limitation, financial analysis or negotiations) on behalf of the Employer.

Nothing contained in this Section 1 shall prohibit Employee from acquiring not more than five percent (5%) of any company whose common stock is publicly traded on a national securities exchange or in the over-the-counter market.

 

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  1.4 Non-solicitation During Employment Term. Employee hereby agrees that Employee will not, during the term of Employee’s employment, either directly or indirectly, alone or in conjunction with any other party:

 

  (a) solicit, divert or appropriate or attempt to solicit, divert or appropriate, any Customer for the purpose of providing the Customer with services or products competitive with those offered by Employer during such term; or

 

  (b) solicit or attempt to solicit any employee, consultant, contractor or other personnel of Employer or any of its subsidiaries to terminate, alter or lessen that party’s affiliation with Employer or such subsidiary or to violate the terms of any agreement or understanding between such employee, consultant, contractor or other person and Employer.

 

  1.5 Non-solicitation During Non-solicitation Period. Employee hereby agrees that Employee will not, during the Non-solicitation Period, either directly or indirectly, alone or in conjunction with any other party:

 

  (a) solicit, divert or appropriate or attempt to solicit, divert or appropriate, any business related to the Restricted Business from any of Employer’s Customers; provided, however, that the covenant in this clause shall limit Employee’s conduct only with respect to those Customers with whom Employee had material business contact (through direct or supervisory interaction with the Customer or the Customer’s account) during a period of time up to but no greater than two (2) year prior to the last day of Employee’s employment; or

 

  (b) solicit or attempt to solicit any “key” employee, consultant, contractor or other personnel of Employer or any of its subsidiaries to terminate, alter or lessen that party’s affiliation with Employer or such subsidiary; provided, however, that the covenant in this clause shall limit Employee’s conduct only with respect to those “key” employees, consultants, contractors, or other personnel with whom Employee had material business contact in connection with Employee’s duties for Employer during a period of time up to but not greater than two (2) year prior to the last day of Employee’s employment. For purposes of this clause (b), “key” employees, consultants, contractors, or other personnel are those with knowledge of or access to Trade Secrets and Confidential Information.

 

  1.6 Severability. If a judicial or arbitral determination is made that any of the provisions of this Section 1 constitutes an unreasonable or otherwise unenforceable restriction against Employee the provisions of this Section 1 shall be rendered void only to the extent that such judicial or arbitral determination finds such provisions to be unreasonable or otherwise unenforceable with respect to Employee. In this regard, Employee hereby agrees that any judicial or arbitral authority construing this Agreement shall be empowered to sever or modify any prohibited business activity or any time period from the coverage of this Agreement, and to apply the provisions of this Agreement to the remaining business activities, and the remaining time period not so severed or modified by such judicial or arbitral authority.

 

5


  1.7 Reasonable and Necessary Restrictions.

 

  (a) Employee acknowledges that during the course of Employee’s employment with Employer that Employee has received or will receive and has had or will have access to Confidential Information and Trade Secrets of Employer, including, but not limited to confidential and secret business and marketing plans, strategies, and studies, detailed client / customer lists and information relating to the operations and business requirements of those clients / customers and, accordingly, Employee is willing to enter into the covenants contained in this Agreement in order to provide Employer with what he considers to be reasonable protection for its interests.

 

  (b) Employee acknowledges that the restrictions, prohibitions and other provisions in this Agreement are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the legitimate business interests of Employer, and are a material inducement to Employer to provide the consideration set forth in this Agreement.

 

  Section 2 Miscellaneous.

 

  2.1 Independent Obligations. The covenants in this Agreement shall be construed as covenants independent of one another and as obligations distinct from any other contract between Employee and Employer. Any claim that Employee may have against Employer shall not constitute a defense to enforcement by Employer of this Agreement.

 

  2.2 Survival of Obligations. The covenants in Section 1 shall survive termination of Employee’s employment, regardless of who causes the termination and under what circumstances.

 

  2.3 Notices. Any notice or other document to be given hereunder by any party hereto to any other party hereto shall be in writing and delivered in person or by courier, or sent by any express mail service, postage or fees prepaid at the following addresses:

Employer

FleetCor Technologies Operating Company, LLC

5445 Triangle Parkway, Suite 400

Norcross, Georgia 30092

Attention: Crystal F. Williams

Employee: at the address specified below Employee’s signature or at such other address or number for a party as shall be specified by like notice. Any notice which is delivered in the manner provided herein shall be deemed to have been duly given to the party to whom it is directed upon actual receipt by such party or its agent.

 

  2.4

Assignment; Binding Effect. This Agreement is for the personal services of Employee, and the rights and obligations of Employee under this Agreement are not assignable or delegable in whole or in part by Employee without the prior written consent of Employer. This Agreement is assignable in whole or in part by Employer and Employee hereby consents to, and agrees to be bound by, any

 

6


  such assignment. This Agreement inures to the benefit of, shall be enforceable by and is binding upon, Employer and its successors and assigns, and Employee, together with Employee’s executor, administrator, personal representative, heirs, and legatees.

 

  2.5 Entire Agreement. This Agreement, together with the Offer Letter, is intended by the parties hereto to be the final expression of their agreement with respect to the subject matter hereof and is the complete and exclusive statement of the terms thereof, notwithstanding any representations, statements or agreements to the contrary heretofore made. Except as provided for in Paragraph 1.6, this Agreement may be modified only by a written instrument signed by all of the parties hereto.

 

  2.6 Governing Law and Choice of Forum. This Agreement shall be deemed to be made in, and in all respects shall be interpreted, construed, and governed by and in accordance with, the laws of the State of Georgia, not including the choice-of-law rules thereof. Employee and Employer agree that any dispute arising under or related to this Agreement shall be brought exclusively in the state or federal courts of Georgia.

 

  2.7 Construction. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority or by any board of arbitrators by reason of such party or its counsel having or being deemed to have structured or drafted such provision.

 

  2.8 Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Unless otherwise specified to the contrary, all references to sections and paragraph headings are references to sections and paragraph headings of this Agreement.

 

  2.9 Specific Performance. Each party hereto hereby agrees that any remedy at law for any breach of the provisions contained in this Agreement shall be inadequate and that the other parties hereto shall be entitled to specific performance and any other appropriate injunctive relief in addition to any other remedy such party might have under this Agreement or at law or in equity.

 

  2.10 Nature of Employment. Nothing in this Agreement is intended to or shall be interpreted as creating employment for a specified period of time. Employee understands and agrees that Employee’s employment with Employer shall be employment-at-will which can be terminated at any time, without prior notice or cause, by either Employee or Employer. No act, statement or conduct, of any nature whatsoever, of any representative of Employer shall alter the nature of Employee’s employment unless it is in writing.

 

  2.11 Counterparts. This Agreement may be executed in two 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.

 

7


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

 

FLEETCOR TECHNOLOGIES OPERATING
COMPANY, LLC

 

Signature

 

Print Name

 

Title
EMPLOYEE

 

Signature

 

Print Name
Address:  

 

 

 

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5 Subsequent Filings that Reference this Filing

  As Of               Filer                 Filing    For·On·As Docs:Size             Issuer                      Filing Agent

 2/29/24  FLEETCOR Technologies, Inc.       10-K       12/31/23  123:17M                                    Workiva Inc Wde… FA01/FA
 2/28/23  FLEETCOR Technologies, Inc.       10-K       12/31/22  120:15M                                    Workiva Inc Wde… FA01/FA
 5/02/22  FLEETCOR Technologies, Inc.       10-K/A     12/31/21   13:376K                                   Workiva Inc Wde… FA01/FA
 3/01/22  FLEETCOR Technologies, Inc.       10-K       12/31/21  121:19M                                    Workiva Inc Wde… FA01/FA
 2/26/21  FLEETCOR Technologies, Inc.       10-K       12/31/20  119:16M
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