FLO 8-K
Flowers Foods Inc (FLO)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 19, 2025 (
(Exact name of registrant as specified in its charter)
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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 (see General Instruction A.2. below):
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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:
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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.
On November 13, 2025, the Compensation and Human Capital Committee (the “Committee”) of the Board of Directors of Flowers Foods, Inc. (the “Company”) approved an amendment and restatement of the Flowers Foods, Inc. Change of Control Plan (the “Plan”), the terms of which (prior to such amendment and restatement) have been previously disclosed. Each of the Company’s named executive officers, as disclosed in the Company’s definitive proxy statement filed on April 8, 2025, currently participates in the Plan.
The Committee approved the amendment and restatement of the Plan primarily to, among other items: (1) add as an additional severance payment the right of the participants to receive a prorated bonus (at the target level) for the year of termination, (2) revise the lump sum payment intended to cover medical costs so that such amount will be equal to a participant’s full monthly COBRA amount multiplied by the greater of (x) 18 or (y) such participant’s severance multiple under the Plan multiplied by 12, (3) revise the “Change of Control” and “Good Reason” definitions to align such definitions with those used in the Company’s 2014 Omnibus Equity and Incentive Compensation Plan (as amended and restated) and related award agreements, and (4) move the restrictive covenant provisions out of the Plan and into an attached form of separation agreement that must be signed by a participant in connection with the termination of such participant’s employment as a condition to the receipt of the severance benefits payable under the Plan.
The foregoing description of the Plan does not purport to be complete and is qualified in its entirety by reference to the complete text of the Plan, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number |
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Description |
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10.1 |
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Flowers Foods, Inc. Amended and Restated Change of Control Plan. |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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.
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FLOWERS FOODS, INC. |
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By: |
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/s/ R. Steve Kinsey |
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Name: R. Steve Kinsey |
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Title: Chief Financial Officer |
Date: November 19, 2025
Exhibit 10.1
FLOWERS FOODS, INC.
AMENDED AND RESTATED CHANGE OF CONTROL PLAN
The Board of Directors of Flowers Foods, Inc. (“Flowers” or the “Company”) originally adopted the Flowers, Inc. Change of Control Plan (the “Plan”), effective as of February 23, 2012, and adopted the First Amendment thereto, effective as of August 15, 2019. The Company adopted this amendment and restatement of the Plan, effective as of November 13, 2025.
The Plan is designed to (a) provide severance protection to certain Employees of the Company who are expected to make substantial contributions to the success of the Company and thereby provide for stability and continuity of operations and (b) enable certain Employees to make career decisions without regard to the time pressure and financial uncertainty which may result from a proposed or threatened Change of Control (as defined herein) transaction, and encourage such Employees to remain employees of the Company and its Subsidiaries notwithstanding the outcome of any such proposed transaction.
“Affiliate” means, with respect to any person, any entity, directly or indirectly, controlled by, controlling or under common control with such person.
“Base Pay” of a Participant means the Participant’s annual base salary rate as in effect on the Termination Date from the Participant’s Employer; provided, however, that any reductions in Base Pay following the date of a Change of Control will not be taken into account when determining Base Pay hereunder; and further provided, any reduction in Base Pay that occurs prior to a Change of Control but which the Participant reasonably demonstrates (i) was at the request of a third party who effectuates a Change of Control or (ii) otherwise occurred in connection with or in anticipation of a Change of Control which has been threatened or proposed and which actually occurs, shall not be taken into account when determining Base Pay hereunder, it being agreed that any such reduction taken following shareholder approval of a transaction which if consummated would constitute a Change of Control, shall be deemed to be in anticipation of a Change of Control provided such transaction is actually consummated.
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Change of Control Plan – 2025
“Board” means the Board of Directors of Flowers Foods, Inc.
“Cause” means:
(a) any willful or negligent material violation of any applicable securities laws (including the Sarbanes-Oxley Act of 2002);
(b) any act of fraud, intentional misrepresentation, embezzlement, dishonesty, misappropriation or conversion of any asset or business opportunity of the Company;
(c) conviction of, or entering into a plea of nolo contendere to, a felony;
(d) an intentional, repeated or continuing violation of any of the Company’s policies or procedures that occurs or continues after the Company has given notice to the Participant that he or she has materially violated a Company policy or procedure;
(e) any breach of a written covenant or agreement with the Company, including the terms of this Plan and the Release (other than a failure to perform Participant’s duties with the Company resulting from the Participant’s incapacity due to physical or mental illness or from the assignment to the Participant of duties that would constitute Good Reason), which is material and which is not cured within thirty (30) days after written notice thereof from the Company to the Participant;
(f) abuse of alcohol or drugs; or
(g) failure to reasonably cooperate in a governmental or Board investigation.
For purposes of this Plan, the Participant shall not be deemed to have been terminated for Cause under clauses (a) through (g) hereunder unless there is an affirmative vote of a super majority (75% or more) of the independent directors of the Board to terminate the Participant for Cause and the Participant receives a Notice of Termination setting forth the grounds for the termination at least fifteen (15) calendar days prior to the specified Termination Date. The Board shall meet at least once with the Participant (and his/her legal counsel if the Participant desires) prior to termination to attempt to resolve in its sole discretion the grounds for termination for Cause.
“Change of Control” means:
(a) any “Person” (as such term is defined in Sections 13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”; hereafter, a “Person”) becomes the beneficial owner, directly or indirectly, of securities of Flowers representing 35% or more of the Voting Power; provided, however, that for purposes of this subsection (a), the following acquisitions shall not constitute a Change of Control:
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Change of Control Plan – 2025
(b) Flowers consummates a merger or consolidation in which shareholders of Flowers immediately prior to entering into such agreement will beneficially own immediately after the effective time of the merger or consolidation securities of Flowers or any surviving or new corporation, as the case may be, having less than 60% of the Voting Power of Flowers or any surviving or new corporation, as the case may be, including Voting Power exercisable on a contingent or deferred basis as well as immediately exercisable Voting Power, excluding any merger or combination of a wholly owned Subsidiary into Flowers, or of Flowers into a wholly owned Subsidiary; or
(c) Flowers consummates a sale, lease, exchange or other transfer or disposition of all or substantially all of its assets to any Person other than to a wholly owned Subsidiary, but not
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Change of Control Plan – 2025
including (i) a mortgage or pledge of assets granted in connection with a financing or (ii) a spin-off or sale of assets if Flowers continues in existence and its common shares are listed on a national securities exchange, quoted on the automated quotation system of a national securities association or traded in the over-the-counter market; or
(d) the Original Directors and/or their Successors as defined above in subsection (a)(i) of this definition do not constitute a majority of the whole Board as the case may be; or
(e) approval by the shareholders of Flowers of a complete liquidation or dissolution of Flowers as the case may be.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” or “Flowers” means Flowers Foods, Inc., a Georgia corporation, or any successor thereto as provided in Article VII hereof.
“Compensation Committee” means the Compensation and Human Capital Committee of the Board.
“Disability” means a Participant’s inability to perform the duties required of the Participant in his or her position with the Company on a full-time basis for a period of six (6) consecutive months because of physical or mental illness or other physical or mental disability or incapacity.
“Effective Date” means February 23, 2012.
“Employee” means a full-time salaried employee of an Employer.
“ERISA” means Employee Retirement Income Security Act of 1974, as amended from time to time.
“Employer” means the Company, any Subsidiary or any Affiliate of the Company which employs a Participant.
“Excise Tax” means the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax.
“Good Reason” means, during the Protection Period, the occurrence of any of the following without the Participant’s consent:
(a) a material diminution in the Participant’s duties, responsibilities or authority (For the avoidance of doubt, a change in title or reporting alone does not constitute “Good Reason” under this Section (a));
(b) a material reduction by the Company of a Participant’s base salary;
(c) a material reduction by the Company of a Participant’s target bonus opportunity;
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Change of Control Plan – 2025
(d) a material reduction in long-term incentives from the year prior to the Change of Control, as measured by grant date economic values determined by a third-party compensation firm chosen by the Company and using generally accepted methodologies, which may include annualizing prior year long-term incentive grants over more than one year and ignoring prior special retention or sign-on grants;
(e) a material failure of the successor entity to cover the Participant under the savings and retirement plans provided to similarly situated executives;
(f) the relocation of the Company’s principal executive offices more than fifty (50) miles from their current location, if at the time of a Change of Control the Participant is based at the Company’s principal executive offices, or the requirement of the Participant to be based at a location more than fifty (50) miles from the Participant’s location as of the Change of Control;
(g) any purported termination by the Employer of the Participant’s employment upon the occurrence of a Change of Control except for Cause; or
(h) any failure by Flowers to comply with and satisfy Sections 8.1 and/or 9.1 of the Plan.
Notwithstanding the foregoing, no termination of employment by a Participant will constitute a termination for Good Reason unless (i) the Participant gives the Company a Notice of Termination describing the existence of an event described in any of clauses (a) through (h) above, within ninety (90) calendar days following the occurrence of such event, (ii) the Company does not remedy such event within thirty (30) calendar days after receiving such Notice of Termination, and (iii) the Participant terminates employment within one hundred eighty (180) days after the occurrence of the event that constitutes Good Reason.
“Notice of Termination” means (i) a written notice of termination by the Company to the Participant provided to the Participant no less than fifteen (15) calendar days prior to the specified Termination Date or (ii) a written notice of termination for Good Reason by the Participant to the Company provided to the Company in accordance with the terms set forth in this Article III in the definition with “Good Reason”, in either case, setting forth in reasonable detail the specific reason for termination and the facts and circumstances claimed to provide a basis for termination of employment under the provision indicated and the specified Termination Date.
“Participant” means an Employee who meets the eligibility requirements of Article IV hereof and is set forth by title or grade level on Schedule A, other than an Employee who, after becoming a Participant, has entered into an employment, severance or other similar agreement with the Company that provides for severance protection upon a change of control (other than a stock option, restricted stock, supplemental retirement, deferred compensation or similar plan or agreement or other form of participation document entered into pursuant to an Employer-sponsored plan which may contain provisions operative on a termination of the Participant’s employment or may incidentally refer to accelerated vesting or accelerated payment upon a change of control (as defined in such separate plan or document)).
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Change of Control Plan – 2025
“Plan” means this Flowers Foods, Inc. Amended and Restated Change of Control Plan, as may be amended from time to time.
“Plan Administrator” means the Compensation Committee.
“Protection Period” means for all Participants, the period of time commencing on the date of the first occurrence of a Change of Control and continuing until the second anniversary of the first occurrence of the Change of Control and the six (6) month period prior to such Change of Control date if a Participant is terminated without Cause or terminates for Good Reason and in either case such Change of Control is actually consummated and such termination (i) was requested by the third party that effectuates the Change of Control, or (ii) occurs in connection with or in anticipation of a Change of Control, it being agreed that any such action taken following shareholder approval of a transaction which if consummated would constitute a Change of Control shall be deemed to be in anticipation of a Change of Control provided such transaction is actually consummated.
“Separation from Service” has the meaning ascribed to such phrase in the 409A Guidance.
“Severance Payment” or “Severance Payments” means the payment or payments of severance compensation described in Article V hereof.
“Subsidiary” means a corporation, partnership, joint venture, unincorporated association or other entity in which the Company has a direct or indirect majority ownership or other equity interest, or such other ownership interest amount determined by this Plan or the Plan Administrator.
“Termination Date” means the date of the Participant’s Separation from Service.
“Voting Power” means at any time, the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors in the case of Flowers, or members of the board of directors or similar body in the case of another entity.
“409A Guidance” means Section 409A of the Code, including regulations or any other formal guidance issued by the Secretary of the Treasury and the Internal Revenue Service with respect thereto.
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Change of Control Plan – 2025
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Change of Control Plan – 2025
If any payments to be made or benefits to be provided to a Participant are subject to reduction pursuant to the preceding paragraph, then such payments or benefits shall be reduced, to the extent required pursuant to the terms of the Plan, in the following order: (i) the payments that are payable in cash that are valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a) shall be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii)
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Change of Control Plan – 2025
payments and benefits due in respect of any equity valued at full value under Treasury Regulation Section 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G, Q&A 24); (iii) the payments that are payable in cash that are valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with amounts that are payable last reduced first; (iv) payments and benefits due in respect of any equity valued at less than full value under Treasury Regulation Section 1.280G-1, Q&A 24, with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24)); and (v) all other non-cash benefits not otherwise described in clauses (ii) or (iv) shall be next reduced pro-rata.
ARTICLE VII - SUCCESSORS
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Change of Control Plan – 2025
ARTICLE VIII - AMENDMENT AND TERMINATION
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Change of Control Plan – 2025
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Change of Control Plan – 2025
Within sixty (60) days after receipt of a denial of a claim, the claimant must file with the Plan Administrator, a written request for review of such claim. If a request for review is not filed within such 60-day period, the claimant shall be deemed to have acquiesced in the original decision of the Plan Administrator on his or her claim. If a request for review is filed, the Plan Administrator shall conduct a full and fair review of the claim. The claimant will be provided, upon request and free of charge, reasonable access to and copies of all documents and information relevant to the claim for benefits. The claimant may submit issues and comments in writing, and the review must take into account all information submitted by the claimant regardless of whether it was reviewed as part of the initial determination. The decision by the Plan Administrator with respect to the review must be given within sixty (60) days after receipt of the request for review, unless circumstances warrant an extension of time not to exceed an additional sixty (60) days. If this occurs, written notice of the extension will be furnished to the claimant before the end of the initial 60-day period, indicating the special circumstances requiring the extension and the date by which the Plan Administrator expects to make the final decision. The decision shall be written in a manner calculated to be understood by the claimant, and it shall include:
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Change of Control Plan – 2025
The Plan Administrator’s decision on review shall be, to the extent permitted by applicable law, final and binding on all interested persons. In no event may a claimant bring suit in court for benefits under the Plan until the claimant has exhausted the claims procedures set forth in this Section 9.4 in their entirety.
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Change of Control Plan – 2025
November 13, 2025 Date |
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COMPANY: FLOWERS FOODS, INC.
By: /s/ R. Steve Kinsey
Title: Chief Financial Officer
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Change of Control Plan – 2025
Exhibit A
SETTLEMENT, GENERAL RELEASE AND SEVERANCE AGREEMENT
This Settlement, General Release and Severance Agreement (this “Agreement”) must be returned to [NAME AND ADDRESS], within 21 calendar days after it is provided to [__________] (“Executive”), otherwise this offer is withdrawn. Depositing the signed Agreement in the mail within this 21-day calendar day period is sufficient to meet this requirement. This Agreement may be revoked by Executive within seven calendar days after it was signed by filing a written revocation notice with the Chief Human Resources Officer at the above address.
No changes may be made to this Agreement.
This Agreement is entered into by and between Executive for Executive, Executive’s spouse (if any), beneficiaries, heirs, administrators, executors, successors, assigns, agents and representatives, and [EMPLOYER] (the “Company”).
WHEREAS, Executive’s employment with the Company is being terminated on [__________] (the “Separation Date”);
WHEREAS, Executive is a Participant in the Flowers Foods, Inc. Amended and Restated Change of Control Plan (the “COC Plan”);
WHEREAS, the Company and Executive desire to resolve all issues surrounding the separation of Executive’s employment in a comprehensive manner; and
WHEREAS, the COC Plan provides that execution of this Agreement is a condition to Executive’s receipt of the severance benefits provided for in the COC Plan.
NOW, THEREFORE, for and in consideration of the above and the additional covenants and agreements set forth herein, Executive and the Company (the “parties”) agree as follows:
4. Release of Age Discrimination in Employment Claims. Executive understands and acknowledges that the General Release in Paragraph 3 of this Agreement includes a release of any claims Executive may have under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., against the Company or any of the Released Parties that may have existed on or prior to the date upon which Executive executes this Agreement. Executive understands that the ADEA is a federal statute that prohibits discrimination on the basis of age. Executive wishes to waive any and all claims under the ADEA that Executive may have against the Company or any of the Released Parties as of the date upon which Executive executes this Agreement, and hereby waives such claims. Executive understands that any claims under the ADEA that may arise after the date Executive executes this Agreement are not waived. Executive acknowledges that Executive is receiving consideration for the waiver of any and all claims under the ADEA to which Executive is not already entitled.
Executive, pursuant to and in compliance with the rights afforded Executive under the Older Worker Benefit Protection Act: (a) is advised to consult with an attorney before executing this Agreement; (b) has, at Executive’s option, 21 days to consider this Agreement; (c) may revoke this Agreement at any time within the seven day period following Executive’s execution of this Agreement (the “Revocation Period”), as described in Paragraph 28; (d) is advised that this Agreement shall not become effective or enforceable until the Revocation Period has expired; and (e) is advised that Executive is not waiving claims that may arise after the date on which Executive executes this Agreement. The parties acknowledge and agree that any changes to this Agreement that may be negotiated, whether material or immaterial, will not restart the 21 day consideration period. If Executive should choose to sign the Agreement before the expiration of the 21 day consideration period, Executive does so freely, voluntarily and without coercion.
5. Unknown Claims. Executive covenants and agrees that the General Release in Paragraph 3 of this Agreement includes unknown and unsuspected claims, demands and causes of action, if any, and acknowledges that Executive may hereafter discover claims or facts in addition to, or different from, those which Executive now knows or believes to exist, which if known or suspected at the time of executing this Agreement may have materially affected this Agreement. Nevertheless, Executive waives any right, claim or cause of action that might arise as a result of such additional or different claims or facts.
6. Future Rights or Claims. The release of claims shall not affect any rights or claims of Executive which arise after the time Executive signs this Agreement.
7. Administrative Charges. Nothing in this Agreement limits Executive’s ability to file a charge or complaint with the Equal Employment Opportunity Commission (or a charge with a comparable state or local administrative agency), the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”). Executive further understands that this Agreement does not limit Executive’s ability to communicate with any Government Agencies or otherwise participate in any investigation or
proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. For purposes of clarity, nothing in this Agreement prohibits Executive from providing information voluntarily to the Securities and Exchange Commission pursuant to Section 21F of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company nonetheless asserts and does not waive its attorney-client privilege over any information appropriately protected by privilege. Executive is waiving, however, Executive’s right to any monetary recovery or relief (including but not limited to reinstatement to employment) should the EEOC or any other agency or commission pursue any claims on Executive’s behalf. Executive further agrees that if any person, organization, or other entity should bring a claim against the Company or any of the Released Parties, involving any matter covered by the General Release in this Agreement, Executive will not accept any personal relief in any such action, including damages, attorneys’ fees, costs, and all other legal or equitable relief. For the avoidance of doubt, however, nothing herein prevents Executive from receiving any whistleblower award, including any monetary recovery under the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Sarbanes-Oxley Act of 2002, or any monetary award offered by the Securities and Exchange Commission pursuant to Section 21F of the Exchange Act.
8. No Knowledge of Wrongful Conduct. As of the date Executive signs this Agreement, Executive represents that Executive has no knowledge of any actions or inactions by the Company or its affiliates, their Board members, officers or employees, any of the Released Parties, or by Executive with respect to Executive’s employment with the Company, that Executive believes could possibly constitute a basis for a claimed violation of any federal, state, or local law, any common law, or any rule or regulation issued by any government agency. Further, Executive represents that Executive: (i) has not made any claims or allegations to the Company or any Released Party related to sexual harassment or sexual abuse; and (ii) is not aware of any facts or circumstances that would support a claim of sexual harassment or sexual abuse against the Company or any Released Party.
9. No Encouragement of Claims/No Disparagement. Executive shall not in any way encourage or assist any person or entity (including, but not limited to, any past, present, or future employee(s) of the Company and/or its affiliated companies and entities) to take or participate in any legal or administrative action against any of the Company or any of the Released Parties, except as otherwise protected by law. Neither shall Executive take any action which in any way disparages, or which could harm the reputation of and/or goodwill of, the Company and any of the Released Parties, including, but not limited to, making (directly or indirectly), or encouraging any other(s) to make, any public attack(s) against, or criticism(s) of, any of the Company or any of the Released Parties, and/or communicating with any newspaper or other news media concerning the Company or any of the Released Parties, the terms of this Agreement, or the claims settled pursuant to this Agreement.
10. Nondisclosure. Except as provided in Paragraphs 7 and 11 hereof, Executive will make no disclosure, in any manner whatsoever, of any information of any kind concerning this
Agreement, including, without limitation, the terms of this Agreement and the consideration provided hereunder (further, including intimating in any way the amount of consideration provided Executive hereunder), to any person, persons, agencies or organizations (including any current or former employee of the Company and/or of its affiliated companies and entities), and Executive hereby warrants and represents that Executive has not made any such disclosure.
11. Permitted Disclosure. Notwithstanding the provisions of Paragraph 10 hereof, nothing in this Agreement shall prohibit Executive from discussing the existence and terms of this Agreement with Executive’s spouse (if any), or a tax, legal or financial advisor; advising a government taxing authority, or testifying about the existence and terms of this Agreement pursuant to a court order or subpoena properly issued by a governmental authority; provided, however, that before disclosing any such information to any such person or entity, Executive shall advise such person or entity that the terms of this Agreement are confidential, and further that the disclosure of such terms is prohibited. Further, nothing in this Agreement, including the provisions of Paragraphs 9 and 10 hereof, in any way restricts or impedes Executive from disclosing the underlying facts or circumstances giving rise to any claim of sexual harassment or sexual assault in accordance with the Speak Out Act.
12. Trade Secrets/Confidential Business Information. Executive recognizes and acknowledges that the Company and its affiliated companies and entities have, through the expenditure of substantial time, effort, and money, developed and acquired certain secret, confidential, and proprietary information and trade secrets of a special and unique nature and of great value to the Company. Executive further acknowledges and understands that through Executive’s employment with the Company, Executive has had access to the secret, confidential, and proprietary information and trade secrets of the Company and its affiliated companies and entities. Executive covenants that Executive has returned to the Company all embodiments of such trade secrets and/or secret, confidential, and proprietary information that were in Executive’s possession, custody or control. Executive further acknowledges that such information has been and will continue to be of central importance to the business of the Company and that the Company and its affiliated companies and entities would be severely damaged if Executive or others misuse or improperly disclose this information. To prevent this harm, Executive makes the following promises and acknowledges that the Company and its affiliated companies and entities would be irreparably harmed if Executive breaches any of them:
(a) Executive shall not use or disclose any trade secret information before it has become generally known by the public through no fault of Executive’s own. Executive agrees that this prohibition on disclosure and use shall last as long as such information constitutes a trade secret under applicable law.
(b) Executive further promises not to use or disclose any secret, confidential, and proprietary information which does not constitute a trade secret under applicable law before it has become generally known by the public through no fault of Executive’s own. Executive understands that this promise will continue during the five year period after Executive signs this Agreement.
These promises contained in Paragraph 12 of the Agreement are in addition to, not in lieu of, all prohibitions against disclosure and use of trade secrets and other confidential information under
applicable state and federal law and any other agreements Executive has entered into with the Company or its affiliated companies and entities.
13. DTSA Notice. The U.S. Defend Trade Secrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (x) is made in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (y) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, the DTSA provides 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 court order.
14. Restrictive Covenants.
15. Nonadmission of Wrongdoing. Nothing contained in this Agreement, or the fact that the parties have signed this Agreement and exchanged the consideration provided for hereunder, or the fact that the Company has proposed this Agreement to Executive, constitutes or should be construed as an admission of liability and/or any wrongdoing whatsoever by the Company or any of the Released Parties, by whom liability and/or any wrongdoing is expressly denied. Moreover, neither this Agreement nor anything herein shall be admissible in any proceeding as evidence of, or an admission by the Company or any of the Released Parties of, any violation of any federal, state, or local laws, or of their own policies or procedures.
16. Return of Property. Executive affirms that Executive will have returned within a reasonable time after the Separation Date, to the Company in reasonable working order all Company Property, as described more fully below. “Company Property” includes company-owned or leased motor vehicles, equipment, computers, supplies and documents. Such documents may include but are not limited to customer lists, financial statements, business plans, cost data, price lists, invoices, forms, passwords, electronic files and media, mailing lists, contracts, reports, manuals, personnel files, correspondence, business cards, drawings, employee lists or directories, lists of vendors, photographs, maps, surveys, and the like, including copies, notes or compilations made there from, whether such documents are embodied on “hard copies” or contained on computer disk or any other medium. Executive further agrees that Executive will not retain any copies or duplicates of any such Company Property.
17. Voluntary Execution/Interpretation. All parties to this Agreement hereby declare and represent that no promise, inducement, or agreement not herein expressed has been made to them regarding this Agreement, and that each has sought advice concerning this Agreement from counsel of his, her, or its choice. All parties to this Agreement further acknowledge that each has executed this Agreement freely and voluntarily, with full knowledge
of all material facts after independent investigation, and without fraud, duress or undue influence of any kind or nature whatsoever; and that they fully understand each and every provision contained herein. Therefore, the normal rule of construction that any ambiguity or uncertainty in a writing shall be interpreted against the party drafting the writing shall not apply to any action on this Agreement. Executive further acknowledges that this Agreement was written in a manner calculated to be understood by Executive and that Executive understands the contents of this Agreement.
18. Successors in Interest. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legal representatives, and successors in interest. Such heirs, legal representatives and successors in interest are expressly authorized to enforce the terms of this Agreement, including, but not limited to, the confidentiality provisions hereof. This Agreement is non-assignable except that the Company’s rights, duties, and obligations under this Agreement may be assigned to any affiliated company or entity.
19. Tax Matters. By signing this Agreement, Executive acknowledges that Executive will be solely responsible for any taxes which may be imposed on Executive as a result of the Severance Benefits, all amounts payable to Executive under this Agreement will be subject to applicable tax withholding by the Company, and the Company has not made any representations or guarantees regarding the tax result for Executive with respect to any income recognized by Executive in connection with this Agreement or the Severance Benefits.
20. Waiver. No waiver of any breach of any term or provision of this Agreement shall be, or shall be construed to be, a waiver of any other breach of this Agreement. No waiver shall be binding under this Agreement unless in writing and signed by the party waiving the breach.
21. Savings Provision. The parties agree that if any provision of this Agreement is unenforceable, that provision either may be enforced to the maximum extent allowed by law, modified as necessary to make it fully enforceable, or considered severed from this Agreement. The parties further agree that any unenforceable provision does not invalidate any other provision of this Agreement, or the Agreement in its entirety, and they agree they will continue to fulfill all other obligations hereunder. Should any portion, word, clause, phrase, sentence or paragraph of this Agreement be declared unreasonable, overbroad, unduly restrictive, void or unenforceable, such portion shall be modified or deleted in such a manner as to make this Agreement as modified legal and enforceable to the fullest extent permitted under applicable law.
22. Confidentiality of Agreement. In any action regarding this Agreement, including any enforcement action, the introduction of this Agreement into evidence shall be preceded by a motion for a court order protecting its confidentiality.
23. Entire Agreement. This Agreement is the entire agreement between the parties that exists as of the effective date hereof with regard to the subject matter hereof. Any and all prior agreements or understandings, written, oral or otherwise between the parties, not embodied in this Agreement, are of no force and effect. This is an integrated document. The terms of this Agreement may not be modified, except by written agreement of the parties or as set forth in Paragraph 21 hereof.
24. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of [Georgia] without regard to conflict of law principles. The parties further agree that this Agreement may be enforced exclusively in any court of competent jurisdiction in the State of Georgia and the parties hereby subject themselves to the jurisdiction of such courts in any such enforcement action.
25. No Assignment. Executive warrants that Executive has not assigned or transferred, or purported to assign or transfer, to any person or other entity, any right, claim, demand, or cause of action (or any interest therein) that is subject to this Agreement.
26. Cooperation. Executive shall cooperate with the Company in any necessary transition of Executive’s responsibilities. Executive shall also respond to reasonable requests for information from the Company regarding matters that may arise in the Company’s business. Further, Executive shall cooperate with the Company in any legal proceeding. Such cooperation in any legal proceeding shall include, but is not limited to:
(b) Make himself or herself available upon reasonable advance notice for any legal proceeding, irrespective of other commitments or schedule conflicts;
(c) Make himself or herself available, upon request by the Company’s counsel and at reasonable times, with at least 14 calendar days’ prior notice, for meetings and depositions;
(d) Execute accurately stated affidavit(s) if requested by the Company’s counsel; and
(e) Provide any documents and information in Executive’s possession on a timely basis as requested by the Company’s counsel.
27. Acknowledgements. By signing below, Executive represents and warrants that Executive has been offered a period of at least 21 calendar days to consider this Agreement. Executive acknowledges that if Executive signs this Agreement prior to the expiration of the 21-day period, that Executive did so voluntarily. Executive waives any right that Executive may have to additional time beyond this consideration period within which to consider this Agreement. By signing this Agreement, Executive further acknowledges and agrees that:
28. Revocation. This Agreement may be revoked by Executive within seven calendar days after the date Executive signs this Agreement, by filing a written revocation notice with [NAME AND ADDRESS], and will not become effective or enforceable until this Revocation Period has expired, without revocation (the “Effective Date”). Should Executive choose to revoke this Agreement within this seven calendar day Revocation Period, Executive must, concurrent with such revocation, return to the Company all consideration provided Executive hereunder, if any. If this Agreement is not revoked within the Revocation Period, the Effective Date will be the date immediately following the last day of Revocation Period.
29. Clawback. Notwithstanding anything in this Agreement to the contrary, Executive acknowledges and agrees that this Agreement and the award described herein, as well as any prior equity-based awards, annual incentive awards and/or other incentive-based compensation Executive has received or may receive, are subject to the terms and conditions of the Flowers Foods, Inc. Executive Compensation Recoupment Policy, as it may be amended from time, or any other applicable recoupment, recapture, clawback, or recovery policy of the Company as adopted by the Company or its affiliates and in effect from time to time including specifically to implement Section 10D of the Exchange Act and any applicable rules or regulations promulgated thereunder (including applicable rules and regulations of any national securities exchange on which the Company or its affiliates’ common stock may be traded) (the “Compensation Recovery Policy”), and that applicable provisions of this Agreement shall be deemed superseded by and subject to the terms and conditions of the Compensation Recovery Policy from and after the effective date hereof. A copy of the Compensation Recovery Policy is available upon request.
EXECUTIVE ACKNOWLEDGES AND AGREES THAT EXECUTIVE HAS READ AND UNDERSTANDS THIS AGREEMENT AND THAT EXECUTIVE HAS SIGNED THIS AGREEMENT VOLUNTARILY FOR THE PURPOSE OF RECEIVING ADDITIONAL COMPENSATION FROM THE COMPANY BEYOND THAT PROVIDED BY NORMAL COMPANY POLICY.
[Signature Page Follows]
IN WITNESS HEREOF, the Parties have executed this Agreement.
Executive [EMPLOYER]
_____________________________ By:____________________________
Signature
Print: __________________________
Title: __________________________
Date:__________________________ Date:___________________________
[Signature Page to Settlement, General Release and Severance Agreement]
Schedule A
Participants
TITLE / GRADE LEVEL |
MULTIPLE(1)(2) |
CEO |
3X |
Grade Level 32 & above (other than CEO) |
2X |
Grade Levels 29-31 |
1X |