Turning Point Brands, Inc 8-K, filed Dec 16, 2021
Turning Point Brands, Inc. (TPB)
8-K
2021-12-16
For: 2021-12-16
View Original
Added on
April 08, 2026
About this 8-K
Turning Point Brands, Inc filed this 8-K on December 16, 2021.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 16, 2021
(Exact name of registrant as specified in its charter)
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(State or other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (502 ) 778-4421
(Former name or former address if changed since last report.)
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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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:
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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))
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Indicate by check mark whether the registrant is an emerging growth company as defined in 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. ☒
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Item 5.02
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
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On December 16, 2021, Turning Point Brands, Inc. (the “Company”) announced that the Board of Directors (the “Board”) has appointed
Yavor Efremov to succeed Larry Wexler as President and Chief Executive Officer of the Company, effective as of January 11, 2022. Mr. Wexler intends to retire as Chief Executive Officer effective January 10, 2022 after 18 years with the Company. Mr.
Wexler will continue to serve on the Board of Directors following his retirement.
Mr. Efremov, age 48, joined the Company’s Board of Directors in July 2021 to help develop its long-term strategic plan. In connection with his appointment as President and
Chief Executive Officer, he will step down as a member of the Audit Committee but will continue to serve as a member of the Board.
Prior to joining the Company’s Board of Directors, Mr. Efremov served as the CEO of Motorsport Network, where he was responsible for upgrading the IT infrastructure,
processes, and company strategy to support the integration of more than 30 businesses around the world. He also served as a senior executive at Liberty Media Corp., where he was instrumental in sourcing, financing, and growing Liberty’s investments
in multibillion-dollar businesses, including Charter Communications and Formula 1. Prior to that, Mr. Efremov worked as an investment banker at Goldman Sachs & Co. and as a corporate lawyer at the law firm of Cleary, Gottlieb, Steen &
Hamilton. Mr. Efremov holds a J.D. from Yale Law School and a Ph.D. in economics from Yale University. He also has a B.S. in mathematics and a B.A. in economics from Furman University. Mr. Efremov currently serves on the board of MDH Acquisition
Corp. Mr. Efremov does not have any family relationships with any of the Company’s directors or executive officers and is not a party to any transactions listed in Item 404(a) of Regulation S-K.
In connection with his appointment as President and Chief Executive Officer, the Company and Mr. Efremov entered into an employment agreement which provides for his
employment to commence on January 11, 2022. The employment agreement provides for an initial term of one-year, subject to automatic one-year renewals unless either party gives at least 90 days’ notice of non-renewal. Mr. Efremov will receive an
annual base salary of $750,000 and a target annual bonus opportunity equal to 100% of base salary. In addition, Mr. Efremov will have a target annual long-term incentive opportunity of not less than $500,000. In the event that Mr. Efremov’s
employment is terminated by the Company without “Cause” or if Mr. Efremov resigns for “Good Reason” (each as defined the employment agreement), Mr. Efremov will be entitled to receive the following severance benefits: (i) a severance payment equal to
12 months’ of annual base salary, payable over 12 months, (ii) an amount equal to a pro-rated portion of his target annual bonus for the year of termination, and (iii) a COBRA stipend equal to 12 months’ COBRA continuation coverage. In addition, any
equity awards granted to Mr. Efremov will be subject to acceleration or continued vesting, as applicable, upon certain resignation or termination events.
The foregoing description of Mr. Efremov’s employment agreement is qualified in its entirety by reference to its full text, a copy of which is attached
to this Form 8-K as Exhibit 10.1.
In connection with Mr. Wexler’s retirement, the Company expects to enter into a
separation agreement with Mr. Wexler pursuant to which he will agree to provide consulting services to the Company through June 30, 2022 in exchange for a monthly payment equal to 1/12th of his base salary, and a payment in respect of healthcare coverage during such period. In addition, Mr. Wexler’s outstanding equity awards will remain outstanding and will continue to vest in accordance with the existing
vesting schedules.
On December 16, 2021, the Company issued a press release in connection with the announcement of the foregoing matters. A copy of the press release is
attached hereto as Exhibit 99.1 and incorporated herein by reference.
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Item 9.01.
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Financial Statements and Exhibits.
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(d)
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Exhibits
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Press Release issued by Turning Point Brands, Inc. dated December 16, 2021.
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Employment Agreement dated December 15, 2021 between the Company and Yavor Efremov.
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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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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TURNING POINT BRANDS, INC.
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Date: December 16, 2021
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By:
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/s/ Brittani Cushman
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Name:
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Brittani Cushman
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Title:
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Senior Vice President, General Counsel and Secretary
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Exhibit 99.1
Turning Point Brands Names Former Liberty Media Executive Yavor Efremov as CEO
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Current Chief Executive Officer, Larry Wexler, To Retire in January 2022, After Leading The Company for Nearly Two Decades; Will Continue To Serve on Board of Directors
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Planned Succession Brings A Seasoned Executive With Extensive Operating and M&A Experience To The Company as It Embraces Its Next Growth Phase
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Company Expects 2021 Revenue and EBITDA To Be Towards The Higher End of Previously Communicated Guidance
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LOUISVILLE, Ky. – December 16, 2021 – Turning Point
Brands, Inc. (“TPB” or “the Company”) (NYSE: TPB), a manufacturer, marketer and distributor of branded consumer products, including alternative smoking accessories and consumables with active ingredients, announced today the
appointment of Yavor Efremov as President and Chief Executive Officer, effective January 11, 2022. Mr. Efremov succeeds the Company’s current CEO, Larry Wexler, who will retire in January following 18 highly successful years at TPB. Mr.
Wexler will remain on the Board of Directors and serve as a consultant to the Company following his retirement.
Prior to joining Turning Point Brands, Mr. Efremov served as the CEO of Motorsport Network, where he was responsible for upgrading the IT infrastructure, processes, and
company strategy to support the integration of more than 30 businesses around the world. He also served as a senior executive at Liberty Media Corp., where he was instrumental in sourcing, financing, and growing Liberty’s investments in
multibillion-dollar businesses, including Charter Communications and Formula 1. Prior to that, Mr. Efremov worked as an investment banker at Goldman Sachs & Co. and as a corporate lawyer at the law firm of Cleary, Gottlieb, Steen & Hamilton.
Mr. Efremov holds a J.D. from Yale Law School and a Ph.D. in economics from Yale University. He also has a B.S. in mathematics and a B.A. in economics from Furman University.
“Yavor joined Turning Point’s Board of Directors in July 2021 to help develop our long-term strategic plan. Since then, he has spent extensive time working closely with
teams in each area of the business,” said David Glazek, Chairman of Turning Point Brands. “Yavor came highly recommended by some of the most successful operators and investors in the world. The Board is confident he has the right skill-set to help
grow the Company to the size and scale necessary to maximize value in a world driven by constantly shifting consumer preferences.”
“During my time as a Board member, I have been impressed by the Company’s prospects across all divisions,” said Mr. Efremov. “In my new role as CEO, I look forward to
working alongside this dynamic team of industry leaders to tackle large, compelling opportunities in our existing business and adjacent categories as continued regulatory developments open new avenues for future growth. Our unique organizational
infrastructure and strong financial position gives us the flexibility to pursue a variety of large organic and inorganic opportunities to increase shareholder value.”
“I would like to thank Larry Wexler for his unwavering dedication to TPB
throughout his long and distinguished career. His vision and leadership helped the Company achieve dramatic growth during his tenure as CEO, including its successful IPO in 2016,” continued Mr. Glazek. “Larry helped create a high-cash generating
engine, with iconic brands and extensive distribution capabilities that reach millions of consumers across over 210,000 retail outlets and industry-leading e-commerce platforms. This foundation puts us in a strong position to tackle large, attractive
opportunities that are inaccessible to many of our competitors.”
“It has been my sincere privilege to serve Turning Point Brands and its stakeholders during this period of significant growth as we increased EBITDA fivefold over the
past 18 years,” said Mr. Wexler. “I want to thank both the Board for the opportunity to serve our shareholders, and my colleagues for their dedication, hard work and, most importantly, their resiliency during my tenure. Turning Point Brands is
well-positioned with highly recognizable brands and a strong management team. I look forward to working with Yavor and the next generation of leaders to build upon the success we have achieved.”
About Turning Point Brands
Turning Point Brands (NYSE: TPB) is a manufacturer, marketer and distributor of branded consumer products, including alternative smoking accessories and consumables with
active ingredients, through its iconic core brands Zig-Zag® and Stoker’s® and its emerging brands within the NewGen segment. TPB’s products are available in more than 210,000 retail outlets in North America, in addition to sites
such as www.zigzag.com, www.nu-x.com and www.solacevapor.com. For the latest news and information about TPB and
its brands, please visit www.turningpointbrands.com.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the federal securities laws. Forward-looking statements may generally be identified by the
use of words such as “anticipate,” “believe,” “expect,” “intend,” “plan” and “will” or, in each case, their negative, or other variations or comparable terminology. These forward-looking statements include all matters that are not historical facts.
By their nature, forward-looking statements involve risks and uncertainties because they relate to events and depend on circumstances that may or may not occur in the future. As a result, these statements are not guarantees of future performance and
actual events may differ materially from those expressed in or suggested by the forward-looking statements. Any forward-looking statement made by TPB in this press release, its reports filed with the Securities and Exchange Commission (the “SEC”) and
other public statements made from time-to-time speak only as of the date made. New risks and uncertainties come up from time to time, and it is impossible for TPB to predict or identify all such events or how they may affect it. TPB has no
obligation, and does not intend, to update any forward-looking statements after the date hereof, except as required by federal securities laws. Factors that could cause these differences include, but are not limited to those included it the Company’s
Annual reports on Form 10-K, Quarterly Reports on Form 10-Q and other reports filed by the Company with the SEC. These statements constitute the Company’s cautionary statements under the Private Securities Litigation Reform Act of 1995.
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Media Contacts
Turning Point Brands, Inc.:
Raquel Cona
KCSA Strategic Communications
212.896.1204
rcona@kcsa.com
Investor Contacts
Turning Point Brands, Inc.:
Louie Reformina, Senior Vice President, CFO
Turning Point Brands, Inc.
502.774.9238
ir@tpbi.com
Exhibit 10.1
Execution Version
Turning Point Brands, Inc.
5201 Interchange Way
Louisville, KY 40229
December 15, 2021
Yavor Efremov
[Address]
Dear Mr. Efremov:
As discussed, Turning Point Brands, Inc., together with any successor thereto (“Turning Point” and,
together with its applicable employing subsidiaries, the “Company”), agrees to retain your services on the terms, provisions and conditions set forth in this employment letter (this “Agreement”). If you find these terms, provisions and conditions acceptable, please sign this Agreement where indicated and return it to me as soon as possible. This Agreement will become effective on the date
that both you and the Company have executed this Agreement, subject to your commencement of employment with the Company on the terms and conditions set forth in this Agreement on January 11, 2022 (the “Commencement
Date”).
Position: As of the
Commencement Date, your job position and title will be Chief Executive Officer and President of the Company, reporting to the Board of Directors of Turning Point (the “Board”), and you will continue to serve as a member of the Board. The Company will also nominate you for election or reelection to
serve as member of the Board at all relevant times during the Term (as defined below).
Duration of Employment: You will be employed by the Company for an initial term of one year, commencing on the Commencement Date and ending on the one-year anniversary of the Commencement Date (the “Initial Term”),
and your employment period will be automatically renewed each year at the expiration of the Initial Term, or upon the applicable anniversary thereof, whichever applicable, unless either you or the Company provides the other with a written notice of
non-renewal at least 90 days prior to the applicable expiration date (the Initial Term and any renewal period(s) together, the “Term”).
Location of Employment: You will be employed by the Company based out of Denver, Colorado. You understand that, notwithstanding your primary location of employment, you shall be expected to travel from time to time, as requested by the Board.
Salary:
Your annual base compensation (“Salary”) will be $750,000 per calendar year, subject to automatic annual increases of 3% each year of your employment commencing in 2023. Salary will be disbursed in
periodic installments throughout the year in accordance with the Company’s regular payroll cycle and policies.
Annual Bonus: During each year of the Term, you will have the opportunity to earn an annual cash bonus, with the target amount of such annual cash bonus equal to 100% of your Salary, based on the attainment of pre-established performance goals set
each year by the Board or a committee thereof. The actual amount of your annual bonus that is earned each year will be determined by the Board or a committee thereof and may exceed (or be less than) the target bonus based on the level of
achievement of the designated performance goals, as determined in accordance with the terms and conditions of the Company’s annual bonus award program as may be in effect from time to time. The annual bonus for a particular calendar year shall be
paid to you in the first quarter of the calendar year immediately following the calendar year to which such Annual Bonus relates, subject to your continued employment with the Company on the applicable payment date, except as otherwise provided in
paragraph 5.1.
Equity Compensation. During each year of the Term, you will be eligible to receive an equity award under the Company’s long-term equity incentive program, with an annual grant date value of at least $500,000, consisting of a mix of restricted stock
units and stock options, as determined by the Board or the Compensation Committee (the “Annual LTI”). Restricted stock units shall be valued at the market value of the
Company’s common stock on the grant date and stock options shall be valued based-on a Black-Scholes calculation prepared in good faith by the Board or Compensation Committee. The Annual LTI awards will be subject to the terms and conditions of the
Company’s equity incentive plan and the applicable award agreement(s), which will be provided to you at the time the applicable Annual LTI award is granted, which agreements will be in a form substantially similar to the forms attached hereto as Exhibit B. In addition, you and the Company agree to the terms outlined on Exhibit C. The Annual LTI grant in respect of 2022 will be made at the time that
annual LTI grants are made in respect of 2022 to the Company’s senior executives.
Compensation Review: The Board intends to review your compensation on an annual basis for increase, but not decrease, with the first such review to occur in or around March 2023.
Annual Paid Vacation Allowance: Four weeks, subject to the terms and conditions herein and in the Company’s vacation policies as in effect from time to time.
Restricted Period: The Term, plus an additional 12 months following any termination of employment.
Additional Benefits: You will be entitled to participate in the medical, dental and 401(k) savings benefit plans offered to the Company’s executives pursuant to the terms and conditions of each such benefit plan in effect from time to time, which may be
authorized, amended or discontinued by the Company in its sole discretion. The Company will provide a description of the group benefit programs and enrollment forms. You will be entitled to travel accommodations in accordance with the terms
separately communicated to you (which terms are hereby incorporated by reference into this Agreement).
Additional Terms and Conditions
1. Your Representations: You represent that you are eligible to accept and continue employment, and that you are not subject to any agreement or obligation which
would bar or limit your ability to perform your duties and responsibilities with the Company. You also represent that all information you have submitted to the Company as part of any application process and your prior employment with the
Company, including without limitation your resume, application for employment and employment records, is true and complete.
2. Duties and Responsibilities:
You will be responsible for carrying out all duties and responsibilities associated with your position as Chief Executive Officer and President of the Company, which may include travel as requested by the Board. You shall have all of the
authority, and perform all of the functions, that are consistent with such position, subject to lawful direction by the Board. You will be subject to, and agree to abide by, such rules, policies and procedures as the Company maintains and has
provided to you in writing (including, but not limited to, the Turning Point Brands, Inc. Code of Business Conduct and Ethics (as amended from time to time, the “Code of Conduct and Ethics”)) or may
from time to time establish with respect to executives, employees in general, standard operating procedures, business operations, etc., provided that the Company has first provided you with written
copies of all such rules, policies and procedures that are intended to be applicable to you.
3. Use of Vacation: Your
Annual Paid Vacation Allowance may be used at any time, subject to the Company’s policies regarding vacations. Vacation days will not carry over from one year to the next, and no compensation will be paid for unused vacation (except as may be
required by law upon separation from employment).
4. Separation from Employment:
You will, upon separation from employment with the Company and its subsidiaries for any reason (such as termination, resignation, death or disability) (each, a “Separation”), receive such salary and
other benefits as have accrued as of the date and time of Separation, and as may otherwise be required by law, as well as such Salary, bonuses and benefits as may be due and owing under this Agreement. Notwithstanding the forgoing, in the event
that the Company determines in good faith that your Separation is not considered a “separation from service” under Treasury Regulation § 1.409A-1(h) because (a) you have not separated but have changed status to a part time employee, consultant or
independent contractor performing more than 20% of the average level of bona fide services (whether as an employee, consultant or independent contractor) you performed over the immediately preceding 36-month period, or (b) you are continuing
employment with another entity that is considered a single entity with the Company (“Employer Group”) under Section 414(b) or (c) of the Internal Revenue
Code of 1986, as amended (the “Code”), any Severance Benefits to which you may be entitled under other provisions of this Agreement shall begin immediately when your status changes such that the
Company determines that you have “separated from service” under Treasury Regulation § 1.409A-1 (h). For this purpose, service performed as an employee or as an independent contractor is counted, except that service as a member of the board of
directors of a member of the Employer Group is not counted unless termination benefits under this Agreement are aggregated for purposes of Section 409A of the Code with benefits under any other Employer Group plan or agreement in which you also
participate as a director.
Notwithstanding any provisions of this Agreement to the contrary, if you are a “specified employee” (within the meaning of Section 409A of the Code and determined pursuant to procedures adopted by
the Company) at the time of your separation from service and if any portion of the payments or benefits to be received by you upon separation from service would be considered deferred compensation under Section 409A of the Code, amounts that would
otherwise be payable pursuant to this Agreement during the six-month period immediately following your separation from service shall instead be paid or made available, with interest at the Wall Street Journal prime rate as of the date of separation
from service, on the earlier of (i) the first business day of the seventh month following the date of your separation from service or (ii) your death. For the avoidance of doubt, for purposes of Code Section 409A, your right to receive any
installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.
4.1 Resignation: You may resign at any time for any reason. In such event, the Company may, in the Board’s sole discretion, choose to relieve you of your duties
prior to the expiration of the notice period set forth in your letter of resignation and pay you two weeks’ compensation or your notice period, whichever is shorter. If you resign without Good Reason, you shall not be entitled to receive the
Severance Benefits. If you resign for Good Reason, you shall be entitled to receive the Severance Benefits, provided that you have executed and delivered a Release and Severance Agreement in accordance with paragraph 5.1.
4.2 Good Reason: As used herein, the term “Good Reason” means any of the following without
your consent: (i) a material diminution in your duties, position, authorities or responsibilities, including, for the avoidance of doubt, if you are not serving as the Chief Executive Officer and President of the combined entity following a Change
of Control of the Company; (ii) the failure by the Company to pay or provide to you, within 30 days after receipt of a written demand therefor, any material amount of compensation or expense reimbursement or any benefit which is due, owing and
payable pursuant to the terms hereof or of any applicable plan, program, arrangement or policy; (iii) a reduction in your Salary, target annual Bonus opportunity or target Annual LTI award opportunity; (iv) a material reduction in your employee
benefits, other than a reduction generally applicable to similarly-situated executives of the Company; (v) the breach in any material respect by the Company of any of its other obligations or agreements set forth in this Agreement (including, for
the avoidance of doubt, in any exhibit to this Agreement), including the Board’s failure to make the Annual LTI grant to you in respect of the first calendar year of the Term; (vi) the Company requires you to be based at any office or location more
than 50 miles from the Location of Employment set forth above, or (vii) the Company gives notice that it does not wish to renew this Agreement upon expiration of the Term. A termination for Good Reason shall not occur unless: (x) you provide the
Company with a written notice detailing the specific circumstances alleged to constitute Good Reason within 90 days after the first occurrence of such circumstances, (y) the Company fails to cure such Good Reason event(s) within 30 days following
receipt of such notice to cure such circumstances in all material respects, and (z) following the Company’s failure to cure during the 30 day cure period, you terminate employment no later than 60 days after the expiration of such period.
Change of Control: As used
herein, the term “Change of Control” means the consummation of any of the following events:
(a) any sale, lease, exchange or other disposition (in one transaction or a series of related transactions) of all or substantially all of the assets
of the Company and its subsidiaries;
(b) a majority of the Board shall consist of Persons who are not Continuing Directors, as the case may be; or
(c) (i) any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act, becomes the beneficial owner of the power, directly
or indirectly, to vote or direct the voting of securities having more than fifty percent (50%) of the ordinary voting power for the election of directors of the Company or (ii) any Person together with its Affiliates becomes the owner, directly or
indirectly, of more than sixty-six and two-thirds (66 2/3%) of the economic interests of the Company.
For the purposes of this definition of Change of Control, “Affiliate” shall mean any entity (i) that, directly or indirectly, is controlled by,
controls or is under common control with, the Company or (ii) in which the Company has a significant equity interest. “Person” shall mean any individual, corporation, partnership, association, limited liability company, joint-stock company, trust,
unincorporated organization, government, political subdivision or other entity. “Continuing Directors” means, as of any date of determination, any Person who (a) was a member of the Board on the effective date of the 2021 Equity Incentive Plan or
(b) was nominated for election or elected to the Board with the affirmative vote of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election.
Notwithstanding the foregoing, if a Change of Control constitutes a payment event with respect to any amount which provides for the deferral of
compensation that is subject to Section 409A of the Code, then, to the extent required to avoid the imposition of additional taxes under Section 409A of the Code, the transaction or event described in paragraph (a), (b), or (c) above, with respect to
such amount, shall only constitute a Change of Control for purposes of the payment timing of such Award if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation §1.409A-3(i)(5).
4.3 Death or Disability: The Term will end and your employment relationship with the Company will be severed upon your death or disability.
For purposes of this Agreement, you will be considered “disabled” if you are so considered under any applicable long-term disability insurance policy maintained by the Company that covers you, or if no
such disability insurance policy is in effect, on the date that a physician mutually agreed to by you and the Company determines that you are or will be unable by reason of illness, accident or other physical or mental condition to perform your
duties for a continuous period of 120 days, or for a period of more than 120 days in any 12 month period, and that there is no objectively reasonable accommodation that would allow you to perform your duties.
In the event of the termination of the Term and your employment with the Company due to your death or disability, notwithstanding
anything to the contrary in this Agreement, the Company will pay a lump sum payment to you in amount equal to the cost of coverage for continued medical coverage under COBRA for you (except in the event of death) and your dependents for six months,
payable on the 60th day following the date of such termination of employment. Moreover, you may be eligible for disability benefits under the Company’s disability benefits plan in accordance with the terms of such plan, if any, in effect
at such time.
4.4 Termination Without Cause: The Company may terminate the Term and your employment hereunder without your consent, for no stated reason,
or for a stated reason but without Cause, on thirty (30) days advance written notice.
4.5 Termination for Cause: The Term and your employment with the Company may be terminated by the Company, and without your consent, for
Cause at any time; provided that a termination of the Term and your employment for Cause shall not occur unless and until there shall have been delivered to you a copy of the resolution duly adopted by the affirmative vote of the majority of the
membership of the Board of Directors of the Company finding that the Term and your employment has been terminated for Cause. You shall not be entitled to receive the Severance Benefits if the Term and your Employment are terminated for any one or
more of the following reasons (“Cause”):
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You fail to perform your duties in any material respect (other than due to your physical or mental incapacity), including, for the avoidance of doubt, your failure to follow any lawful
direction of the Board, or your continued failure to take specific action requested by the Board that is within your individual control and consistent with your position, duties and responsibilities, in each case, if not cured within 30 days
after written notice thereof;
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You are in material breach of any of the terms and conditions of this Agreement, if not cured within 15 days after written notice thereof;
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Your material breach of any other material written agreement between you and the Employer Group if not cured within 15 days after written
notice thereof, or any material violation of any rule, policy, procedure or other requirement of the Company;
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Your indictment for, conviction of, or plea of nolo contendre to, an act of fraud, embezzlement or similar dishonest act against any
member of the Employer Group or any customer, client or business associate of any member of the Employer Group; or
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Your conviction for any felony or crime of dishonesty (as determined by a court of competent jurisdiction, and which is not subject to further appeal);
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Any egregious conduct by you that is materially detrimental to the reputation or standing of any member of the Employer Group; or
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You are guilty of gross negligence or willful misconduct in the performance of your duties for the Company (other than due to your physical or mental incapacity), if not cured within 15 days
after written notice thereof
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5.1 Severance Benefits: If the Term and your employment with the Company are terminated by
the Company without Cause (as defined in paragraph 4.5), but excluding death or disability, or if your resign for Good Reason, or if the Company chooses not to renew the Term of this Agreement, you shall be entitled to receive the Severance
Benefits described below in paragraphs 5.1(a) and 5.1(b), provided that you have executed and delivered a Release and Severance Agreement in the form of Exhibit A attached hereto (as may be modified by the Company and reasonably acceptable to
you due to subsequent changes in law), and all applicable revocation periods relating to the release expire, within 55 days following the date of such Separation.
5.1(a) Severance Benefits: The Company will pay you an amount equal to your then-current Salary (in the case of a Good Reason termination due
to a decrease in Salary, at the Salary in effect immediately prior to such reduction), plus an amount equal to your target bonus opportunity (in the case of a Good Reason termination due to a reduction in Salary or target bonus opportunity, at the
target bonus opportunity in effect immediately prior to such reduction) for the year in which such termination occurs (“Severance Pay”). Any Severance Pay will be paid to you in equal installments during
the 12-month period following the Separation, in accordance with the Company’s regular payroll cycle, with the first such payment beginning on the 60th day following your Separation (the “Payment Date”),
and the first such payment will include all accrued amounts during the 60-day period from your Separation date until the 60th day following your Separation date. You will also receive a severance bonus equal to a pro-rated target annual
cash bonus for the year in which your Separation occurs (“Severance Bonus”) on the Payment Date. Severance Pay and Severance Bonus payment timing shall also be subject to the “specified employee” delay
in paragraph 4 above for any portion of such amounts that are subject to Section 409A of the Code and which cannot be paid without such delay without incurring an excise tax under Section 409A of the Code. Normal payroll taxes and deductions will
be withheld from any Severance Pay and Severance Bonus payments.
5.1(b) Health Benefits Stipend and Access: Upon a termination event described in
paragraph 5.1 above, the Company will pay a lump sum payment to you in an amount equal to the cost of COBRA coverage for continued medical coverage for you and your dependents for 12 months, payable on the Payment Date, and, to the extent
determined by the Company to be permitted by the applicable plans and applicable laws (without the imposition of any excise taxes or other penalties), allow you access to group health coverage at the COBRA premium rate payable by you on an
after-tax basis, during the 12 month period following the Separation date, plus the period of actual COBRA coverage to begin at the end of such 12-month period.
5.2 Other Additional Benefits: Any outstanding equity awards held by you upon the termination of the Term and your termination of
employment with the Company will be treated in accordance with the terms of the applicable award agreements. Your entitlement to actively participate as an employee in the Company’s health and welfare and retirement plans will cease upon your
Separation, except as otherwise provided in this Agreement or the written terms of the applicable benefit plans. Upon any termination of the Term and your employment with the Company, the Company will remain obligated to satisfy any
then-outstanding obligations to you, if any, set forth on Exhibit C of this Agreement.
6. 280G Cap: Notwithstanding any other provisions in this Agreement, in the event that any payment or benefit
received or to be received by you (including any payment or benefit received in connection with a Change of Control or the termination of your employment related to such a Change of Control, whether pursuant to the terms of this Agreement or any
other plan, program, arrangement or agreement) (all such payments and benefits, together, the “Total Payments”) would be subject (in whole or part), to any excise tax imposed under Section 4999 of the
Code, or any successor provision thereto (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan,
program, arrangement or agreement, the Company will reduce the Total Payments to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax (but in no event to less than zero); provided, however, that the Total
Payments will only be reduced if the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state, municipal and local income and employment taxes on such reduced Total Payments and after taking into
account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to the net amount of such Total Payments without such reduction (but after subtracting the net amount of
federal, state, municipal and local income and employment taxes on such Total Payments and the amount of Excise Tax to which you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized
deductions and personal exemptions attributable to such unreduced Total Payments).
In the case of a reduction in the Total Payments, the Total Payments will be reduced in the following order: (i) payments that
are payable in cash that are valued at full value under Treasury Regulation § 1.280G-1, Q&A 24(a) will be reduced (if necessary, to zero), with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any equity
valued at full value under Treasury Regulation § 1.280G-1, Q&A 24(a), with the highest values reduced first (as such values are determined under Treasury Regulation Section 1.280G-1, Q&A 24), will next be reduced; (iii) payments that are
payable in cash that are valued at less than full value under Treasury Regulation § 1.280G-1, Q&A 24, with amounts that are payable last reduced first, will next be reduced; (iv) payments and benefits due in respect of any equity valued at less
than full value under Treasury Regulation § 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), will next be reduced; and (v) all other non-cash benefits
not otherwise described in clauses (ii) or (iv) will be next reduced pro-rata. Any reductions made pursuant to each of clauses (i)-(v) above will be made in the following manner: first, a pro-rata reduction of cash payment and payments and benefits
due in respect of any equity not subject to Section 409A of the Code, and second, a pro-rata reduction of cash payments and payments and benefits due in respect of any equity subject to Section 409A of the Code as deferred compensation.
For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax: (i) no portion
of the Total Payments the receipt or enjoyment of which you shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code will be taken into account; (ii) no portion of the Total
Payments will be taken into account which, in the opinion of a nationally recognized tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to you, and a nationally recognized
accounting firm selected by the Company and reasonably acceptable to you (the “Auditor”), does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason
of Section 280G(b)(4) (A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments will be taken into account which, in the opinion of Tax Counsel, constitutes reasonable compensation for services actually rendered, within
the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as set forth in Section 280G(b)(3) of the Code) that is allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment
or benefit included in the Total Payments will be determined by the Auditor in accordance with the principles of Sections 280G(d) (3) and (4) of the Code.
At the time that payments are made under this Agreement, the Company will provide you with a written statement setting forth the manner in which such
payments were calculated and the basis for such calculations, including but not limited to, any opinions or other advice the Company received from Tax Counsel, the Auditor, or other advisors or consultants (and any such opinions or advice which are
in writing will be attached to the statement). If you object to the Company’s calculations, the Company will pay to you such portion of the Total Payments (up to 100% thereof) as you determine is necessary to result in the proper application of this
subsection. All determinations required by this subsection (or requested by either you or the Company in connection with this subsection) will be at the expense of the Company. The fact that your right to payments or benefits may be reduced by reason
of the limitations contained in this subsection will not of itself limit or otherwise affect any other rights you have under this Agreement.
If you receive reduced payments and benefits by reason of this subsection and it is established pursuant to a determination of a
court of competent jurisdiction which is not subject to review or as to which the time to appeal has expired, or pursuant to an Internal Revenue Service proceeding, that you could have received a greater amount without resulting in any Excise Tax,
then the Company shall thereafter pay you the aggregate additional amount which could have been paid without resulting in any Excise Tax as soon as reasonably practicable.
7. Resignations: Following the termination of your employment for any reason, if and to the extent requested by the Board, you hereby agree to resign from all fiduciary positions
(including as trustee) and all other offices and positions you hold as of the date of such termination; provided, however, that if you fail to tender your resignation after the Board has made such request, then you will be deemed to have resigned
from such offices and positions.
8. Indemnification: The Company shall, to the fullest extent to which it is
empowered to do so by applicable law, defend, indemnify and hold you harmless from and against all claims, demands, lawsuits, liabilities, losses, damages, penalties, fines, costs and expense (including, but not limited to, reasonable related
attorneys’ fees) arising from any actual, threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise, to which you are or are threatened to be made a party by reason of your
services as an officer and/or director of the Company.
9. Non-Disclosure; Non-Use: You agree not to disclose, give, sell or otherwise divulge the “Confidential Information” (as defined in the Code of Conduct and Ethics) to
any other person or entity at any time without the Company’s prior written consent, except (i) where required by law or pursuant to a subpoena or court order or (ii) during the Term, disclosures to third parties that are made in your capacity as
CEO and President to the extent required to benefit the Company’s business. You further agree not to (i) use any of the Confidential Information for your own account for or for the account of any other person or entity or (ii) use or retain,
without the Company’s prior written consent, any figures, calculations, letters, papers, drawings, computer printouts, computer discs or tapes, or copies thereof or other Confidential Information of any type or description pertaining to the
Company, except in furtherance of the Company’s interests.
You further agree that, upon your Separation, you will (i) return physical copies of the Company’s information and Confidential Information in your
possession, under your control or removed from the Company’s premises by you or under your direction, (ii) destroy all electronic copies of the Company’s information and Confidential Information in your possession, under your control or which was
copied or removed from the Company’s premises or equipment by you or under your direction and (iii) return all Company property in your possession or under your control, including without limitation the following: Company computers, Blackberry or
other mobile devices, cellular telephones, Company automobiles and keys and access cards to Company property.
In the event that you are legally compelled by regulatory or legal process to disclose the Confidential Information, the foregoing confidentiality
obligations shall not apply to you with respect to such information, provided that, to the extent permitted by applicable law, you use commercially reasonable efforts to (a) give the Company prompt prior written notice of such compulsion, (b)
cooperate with the Company in connection with any of its efforts to prevent or limit the scope of such disclosure and, (c) following completion of such efforts, you only disclose such information as required under such regulatory or legal process
then applicable to you.
Notwithstanding anything set forth herein to the contrary, nothing in this Agreement shall (i) prohibit you from making reports of possible
violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934, as amended, or Section 806 of the Sarbanes-Oxley Act of
2002, or of any other whistleblower protection provisions of federal law or regulation, or (ii) require notification or prior approval by the Company of any such report; provided that, you are not authorized to disclose communications with counsel
that were made for the purpose of receiving legal advice or that contain legal advice or that are protected by the attorney work product or similar privilege. Furthermore, you shall not be held criminally or civilly liable under any federal or state
trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of reporting or
investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or proceeding, if such filings are made under seal. Nothing in this paragraph 9, or in the remainder of this Agreement, shall prohibit you from
filing a charge with any government agency, including the U.S. Equal Employment Opportunity Commission or any similar state or local fair employment practices agency, or from talking to or cooperating in any government investigation by the U.S. Equal
Employment Opportunity Commission, any similar state or local fair employment practices agency, or the Securities and Exchange Commission, and no notice to the Company is required under these circumstances.
10. Non-Competition: You acknowledge and agree that, during the course of employment with the Company, you may: (i) receive significant training in, and generate and use, the Company’s good
will and experience; (ii) be exposed to confidential aspects of the Company’s business and have access to and became familiar with Confidential Information, and (iii) perform services for the Company that are special, unique, extraordinary and
intellectual in character—none of which is commonly known or readily accessible to the public and any of which place or placed you in a position of confidence and trust with the customers, potential customers, vendors, employees of the Company
and other persons, the loss of which cannot adequately be compensated by damages in an action at law.
You acknowledge and agree that the Company desires to enter into this Agreement to, in part, protect the Company’s vital interest in maintaining its
Confidential Information, protect the Company’s investment in your training and development, protect the Company’s business and good will, and avoid Competition (as defined below) with you or any other person or entity with which you are employed or
affiliated for a time certain following your Separation. For purposes of this Agreement, “Competition” means engaging in, aiding, assisting, owning, or controlling (whether as a shareholder, principal,
partner, employee, trustee, officer, director agent, independent contractor, or otherwise) any interest greater than two percent (2%) in any firm, corporation, business, or other entity which is (or with any other person(s) who are) engaged in
competition with the Company in any line of business which, at the time of your Separation (or within three months following your Separation), comprised fifteen percent (15%) or more of the Company’s gross sales revenues.
For purposes of this Agreement, the “Restricted Area” shall be the entire United
States of America.
You agree that, during the Restricted Period, you will not, directly or indirectly, alone or with others, engage in Competition
with the Company, its successors or assigns or any purchaser of all or substantially all of Company’s assets within your Restricted Area.
You acknowledge having carefully read and considered the non-competition provisions of this Agreement and, having done so, agree
that the covenants and restrictions contained herein are, taken as a whole, fair and reasonable in their duration, geographic scope and scope of restricted activities, do not unduly restrict your ability to obtain or maintain a livelihood and are
necessary to protect the Company’s good will, trade secrets, Confidential Information and business interests. You expressly agree not to raise any issue disputing the reasonableness of the: (i) geographic scope, (ii) type of employment or line of
business or (iii) duration of any such covenants in any proceeding to enforce such covenants and restrictions.
11. No Solicitation, No Interference and No Hire Covenants: You agree that, during the Restricted Period, you will not, directly or
indirectly: (i) solicit or encourage any employee or other service provider of the Company or its subsidiaries to leave such employment or service; (ii) interfere with the relationship between the Company and any of its employees or service
providers; or (iii) hire any person who, within the twelve (12) month period preceding such hiring, was employed by, or providing services to, the Company or its subsidiaries.
12. Mutual Nondisparagement: You agree that following the termination of your employment for any reason, you shall not publicly make any negative,
disparaging, detrimental or derogatory remarks or statements (written, oral, telephonic, electronic, or by any other method) about the Company or its subsidiaries or any of their respective owners, partners, managers, directors, officers,
employees or agents, including, without limitation, any remarks or statements that could be reasonably expected to adversely affect in a material manner (i) the conduct of the Company’s or its subsidiaries’ businesses or (ii) the business
reputation or relationships of the Company or its subsidiaries and/or any of their successors and assigns, in each case, except to the extent required by law or legal process. Similarly, following termination of your employment for any reason,
the Company and its subsidiaries, successors and assigns, as well as their respective officers and directors, shall not publicly make any negative, disparaging, detrimental or derogatory remarks or statements (written, oral, telephonic,
electronic, or by any other method) about you or that could be reasonably expected to adversely affect in a material manner your business reputation or relationships, and the Company shall similarly instruct its other executives not to make any
such statements about you.
Nothing in this paragraph 11, or in the remainder of this Agreement, shall prohibit you from filing a charge with a government agency, including the U.S. Equal
Employment Opportunity Commission or any similar state or local fair employment practices agency, or from talking to or cooperating in any investigation by with the U.S. Equal Employment Opportunity Commission, any similar state or local fair
employment practices agency, or the Securities and Exchange Commission, and no notice to the Company is required under these circumstances.
13. Intellectual Property: You agree that all patentable inventions, discoveries, and trade secrets, whether or not patented, and whether or not reduced to practice, and all copyright interests that are or have
been conceived or developed during your employment with the Company, either alone or jointly with others, if on the Company’s time, using the Company’s facilities, specifically relating to the Company, or to the Company’s business are done as
“works made for hire” for the Company, and you hereby assign to the Company all right, title, and interest in all such intellectual property. You agree that the Company shall be the sole owner of all domestic and foreign patents, trademarks,
trade names, service marks, domain names and other rights pertaining thereto related to such intellectual property, and further agree to execute all documents consistent therewith that the Company reasonably determines to be necessary or
convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights, including the execution of any assignments, patent applications, or other documents that the Company may reasonably request.
Upon your failure to do so within 10 business days following the Company’s written request, you hereby irrevocably appoint the Company as your true and lawful attorney-in-fact with full power of delegation and substitution to execute, deliver,
file and record, and on your behalf and in the Company’s name, such documents consistent with this Agreement. This provision is intended to apply only to the extent permitted by applicable law.
14. Arbitration: Any dispute, claim or controversy arising
out of or relating to this Agreement, including without limitation any dispute, claim or controversy concerning validity, enforceability, breach or termination hereof), shall be finally settled through arbitration under the rules of the
American Arbitration Association for arbitration of employment disputes, such arbitration to be conducted in the county and state in which the Company has its principal headquarters at the time such dispute arises. Each party will be entitled
to present evidence and argument to the arbitrator(s). The arbitrator(s) will have the right only to interpret and apply the provisions of this Agreement and may not change any of its provisions, except as expressly provided herein. The
arbitrator(s) will permit reasonable pre-hearing discovery of facts, to the extent necessary to establish a claim or a defense to a claim, subject to supervision by the arbitrator(s). The determination of the arbitrator(s) will be conclusive
and binding upon the parties and judgment upon the same may be entered in any court having jurisdiction thereof. The arbitrator(s) will give written notice to the parties stating the arbitrator’s determination, and will furnish to each party a
signed copy of such determination. The expenses of arbitration will be borne by the Company, unless the arbitrator(s) determine that you have materially failed to succeed in any claim, in which case the arbitrator(s) may equitably determine,
consistent with the application of state or federal law, to apportion some of the fees and expenses to you, not to exceed the maximum permitted by law. Each party shall bear its own costs and expenses of counsel, unless the arbitrator(s)
determine that the Company has material liability to you hereunder, in which event the arbitrator(s) may equitably determine that your reasonable counsel fees shall be paid by the Company. Any arbitration hereunder shall be governed by and
construed in accordance with the substantive laws of the State of Delaware and, where applicable, federal law, without giving effect to the conflict of laws principles of such State.
15. Section 409A of the Code: To the extent that Section 409A of the Code is applicable to any provisions of this Agreement, including the arrangements set forth on Exhibit C of
this Agreement, it is the intent of the parties that such provisions comply with Section 409A of the Code and related regulations, and this Agreement shall be so construed.
Any reimbursements by the Company to you of any eligible expenses under this Agreement that are not excludable from your income for Federal income tax purposes (the “Taxable Reimbursements”) shall be made by no later than the earlier of the date on which they would be paid under the Company’s normal policies and the last day of the calendar year following the year in which
the expense was incurred. The amount of any Taxable Reimbursements, and the value of any in-kind benefits to be provided to you, during any calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in
any other calendar year (except for any life-term or other aggregate limitation applicable to medical expenses). The right to Taxable Reimbursement, or in-kind benefits, shall not be subject to liquidation or exchange for another benefit.
16. Choice of Law: This Agreement shall in all respects be interpreted, enforced and
governed by the laws of the State of Delaware, without giving effect to conflict of laws principles of such State. The language of all parts of this Agreement shall in all cases be interpreted as a whole, according to its fair meaning, and not
strictly for or against any of the parties.
17. Choice
of Forum: Subject to paragraph 14 above, you consent to the exclusive jurisdiction of courts located in the State of Delaware.
18. Equitable Remedies:
Notwithstanding any other provisions of this Agreement to the contrary, the Company will not be required to seek or participate in arbitration regarding any actual or threatened breach by you of the Non-Disclosure, Non-Competition, No
Solicitation, No Interference and No Hire covenants contained in this Agreement or any other covenant under this Agreement for which equitable relief may be sought. You agree that the Company will suffer irreparable harm for any such breach or
threatened breach and that the Company may not be adequately compensated by damages, and that, in addition to all other remedies, the Company shall be entitled to injunctive relief and specific performance and to pursue such remedies in a court
of competent jurisdiction in the State of Delaware and no arbitrator may make any ruling inconsistent with the findings or rulings of such court. You agree to waive any argument of lack of personal jurisdiction or forum non-convenience with
respect to the pursuit of such injunctive relief and specific performance arising out of or relating to this Agreement.
19. Remedies Cumulative: You agree that nothing herein stated shall be construed as prohibiting the Company from pursuing
any and all other remedies that may be available to the Company at law, in equity, by contract or otherwise in connection with a violation or threatened violation by you of the Non-Disclosure, Non-Competition, No Solicitation, No Interference and
No Hire covenants contained in this Agreement, including without limitation the recovery of monetary damages from you, all of which shall be cumulative to the fullest extent permissible under applicable laws.
20. Insurance and Corporate Document Protections: Nothing in this Agreement shall be deemed to preclude you from receiving
any of the benefits or protections, including without limitation representation, available to you following any Separation under (a) any officers and directors insurance policy maintained by the Company which provides coverage during your
employment by the Company as an officer or director of the Company or (b) the Company’s bylaws, Certificate of Incorporation or under applicable law. Any such benefits and protections shall or shall not be provided solely in accordance with the
terms and conditions of any such policies, documents and applicable law. The Company covenants to maintain, even after your Separation, its officers and directors insurance policy as in effect as of your Separation from the Company or another
officers and directors policy that provides equivalent or greater benefits and protections to you.
21. Attorney’s Fees. The Company shall pay your reasonable attorney’s fees and any disbursements reasonably incurred by
you in connection with the negotiation of this Agreement up to $50,000; provided, that any such attorney’s fees shall only become payable if and to the extent this Agreement is executed and you have been appointed Chief Executive Officer and
President of the Company by the Board.
22. Entire Agreement: Other than agreements concerning equity incentive programs and the Code of Conduct and Ethics, this
Agreement constitutes and sets forth the entire agreement between you and the Company with respect to the subject matter contained herein and supersedes any and all prior and contemporaneous oral or written agreements or understandings between
the parties. You acknowledge and agree that no representation, promise, inducement or statement of intention has been made by the Company that is not expressly set forth in this Agreement. No party hereto shall be bound by, or liable for, any
alleged representation, promise, inducement or statement of intention not expressly set forth in this Agreement. This Agreement cannot be amended, modified or supplemented in any respect, except by a subsequent written agreement signed by all
parties hereto.
23. Binding Effect: This Agreement shall be binding upon and inure to the benefit of you and your heirs and the Company
and its legal representatives, parent, successors and assigns.
24. No Waiver: No action or inaction by either party shall be taken as a waiver of its right to insist that the other
party abide by the obligations under this Agreement, unless such waiver is in writing, expressly waives such rights and is signed by legal counsel for the party making such waiver.
25. Severability: The parties hereby agree that (a) the provisions of this Agreement will be severable in the event that
for any reason whatsoever any of the provisions hereof are invalid, void or otherwise unenforceable, (b) any such invalid, void or otherwise unenforceable provisions will be replaced by other provisions which are as similar as possible in terms
to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the remaining provisions will remain valid and enforceable to the fullest extent permitted by applicable law.
26. Survival: Any provision contained in this Agreement, which by its nature or terms survives the Term or the Restricted
Period (including but not limited to of the Non-Disclosure, Non-Competition, No Solicitation, No Interference and No Hire covenants), shall survive the Term and the Restricted Period and continue to be binding.
I trust that this adequately outlines the Company’s offer and our discussions. If, however, you have any questions or concerns, please do not hesitate
to call me.
We are pleased to offer you this position and look forward to a long and mutually rewarding employment relationship.
| /s/ Brittani Cushman |
December 15, 2021 |
|
|
Brittani Cushman, General Counsel
|
Date
|
I agree to the terms and conditions of the employment offer set forth above.
| /s/ Yavor Efremov |
December 15, 2021 | |
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Yavor Efremov
|
Date
|
EXHIBIT A
FORM OF
RELEASE AND SEVERANCE AGREMENT
This Release and Severance Agreement (this “Release”) is entered into by and between Yavor Efremov (“Employee”)
and Turning Point Brands, Inc. (“Turning Point” and, collectively with its parent(s), subsdiary(ies), and all other related companies, the “Company”). Employee and Turning Point are referred to herein as the “Parties.”
RECITALS
| A. |
Employee and Turning Point are parties to an Employment Letter, dated as of December 15, 2021 (the “Employment Agreement”), which provides for severance after termination in certain
circumstances, conditioned upon Employee first signing a general release of claims following termination of Employee’s employment, which release becomes irrevocable in accordance with its terms.
|
| B. |
This Release is the contemplated release of claims under the Employment Agreement of which Employee has had notice since the Employment Agreement was executed, it being annexed thereto (the “Presentation Date”).
|
| C. |
Employee’s employment with the Company [ended] [will end] on [___________________] (the “Separation Date”).
|
| D. |
The Parties desire to settle any and all other claims, if any, that Employee may have against the Company and the other Releasees (as defined below) that are releasable by law.
|
AGREEMENT
NOW, THEREFORE, in
consideration for the covenants and mutual promises contained in the Employment Agreement, the Parties agree as follows:
For and in consideration of the promises made herein by Employee in Part II and Part III of this Release, and his performance thereof, the sufficiency of which, either
separately or combined, is hereby acknowledged, Turning Point agrees as follows:
1.1 Severance Benefits to
Employee. In exchange for Employee signing this Release, complying with its terms, and not revoking this Release, the Company will pay to Employee the “Severance Benefits” (as
defined in the Employment Agreement), as and when therein required, if, and only if, Employee signs this Release and returns it to the Company; and (2) the seven (7) day revocation period in Part
II, Section 2.4 below has expired on or before the 55th day after Separation Date, provided that Employee has not exercised his right to revoke this Release in
accordance with Part II, Section 2.4 below.
1.2 Separate
and Adequate Age Claim Consideration. The Parties expressly agree and acknowledge that a portion of the Severance Benefits in Section 1.1 above represents
separate and adequate consideration, to which Employee is not otherwise entitled, in exchange for Employee’s Age Claim Waiver, set out below in Part II. Turning Point’s present promise to provide this consideration is exchanged for Employee’s
present release of any Age Claims at the time of the execution of this Release.
For and in consideration of the promises made herein by Turning Point in Part I of this Release, and its performance thereof, the sufficiency of which is hereby
acknowledged, Employee agrees as follows:
2.1 General Release and Waiver of All Claims and Potential Claims. Employee hereby releases all claims and potential claims, known and unknown, against the Company and the other Releasees (as defined
below) that are releasable by law. More specifically, for and on behalf of himself and his family, dependents, heirs, executors, administrators and assigns, Employee hereby irrevocably and unconditionally releases the Company and its respective
predecessors, successors, and all their past, present or future assigns, parents, subsidiaries, affiliates, insurers, attorneys, divisions, subdivisions and affiliated entities, together with their respective current and former officers, directors,
shareholders, fiduciaries, administrators, trustees, agents, employees, attorneys, insurers and/or representatives, and their respective predecessors, successors and assigns, heirs, executors, administrators, and any and all other affiliated
persons, firms, plans or corporations which may have an interest by or through them (collectively “Releasees”), both jointly and individually, from any and all claims, actions,
arbitrations, and lawsuits, of any nature whatsoever, known or unknown to Employee, accrued or unaccrued, which he ever had, now has or may have had against Releasees since the beginning of time through the date of execution of this Release. This
general release and waiver of claims includes, but is not limited to, any and all claims, demands, causes of action, suits, debts, complaints, liabilities, obligations, promises, agreements, controversies, damages and expenses that are releasable
by law (including, without limitation, attorneys fees and costs actually incurred or to be incurred) of any nature or description whatsoever, in law or equity, whether known or unknown, in connection with or arising out of his employment with the
Company and/or termination of said employment. Claims being released include, without limitation, any and all employment-related claims that are releasable by law arising under federal, state or local statutes, ordinances, resolutions, regulations
or constitutional provisions prohibiting discrimination in employment on the basis of sex, race, religion, national origin, age, disability and/or veterans’ status, including, but not limited to, claims arising under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 1981, 1981a, 1983 and 1985, the Civil Rights Act of the State in which Employee resides and works, the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, et seq.,
the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, the Federal Rehabilitation Act of 1973, Executive Order 11246, the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., the Family and Medical Leave Act, 29
U.S.C. §§ 2601, et seq., the Genetic Information Non-Discrimination Act, 42 U.S.C. §§ 2000ff et seq, the minimum wage act, wage payment law and wage discrimination statutes and workers compensation statures and similar state laws of the state in which Employee has provided
services, in all instances as amended. This general release and waiver of claims also includes, but is not limited to, any and all claims for unpaid benefits or entitlements asserted under any plan, policy, benefits offering or program (except as
otherwise required by law), any and all contract or tort claims, including, without limitation, claims of wrongful discharge, assault, battery, intentional infliction of emotional distress, negligence, and/or defamation against Releasees.
Nothing in this Section 2.1, Section 2.2, or any other provision in the remainder of this Release shall be interpreted to waive, release, or
relinquish Employee’ rights to, or construed to prevent Employee from making a claim for, (a) indemnity under law or governance documents providing for indemnity or insurance against claims for acts or omissions in his capacity acting as an officer
or director of the Company or (b) vested benefits, if any, to which Employee may be entitled under the Company’s benefit plans. In addition, nothing herein shall release the Company from its obligations arising under or referred to or described
in the Employment Agreement to be performed after the date of this Release (including without limitation payment of the Severance Benefits).
Notwithstanding anything set forth herein to the contrary, nothing in this Release shall (i) prohibit Employee from making reports of possible
violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934, as amended, or Section 806 of the Sarbanes-Oxley Act
of 2002, or of any other whistleblower protection provisions of federal law or regulation, or (ii) require notification or prior approval by the Company of any such report; provided that, Employee is not authorized to disclose communications with
counsel that were made for the purpose of receiving legal advice or that contain legal advice or that are protected by the attorney work product or similar privilege. Furthermore, Employee shall not be held criminally or civilly liable under any
federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, in each case, solely for the purpose of
reporting or investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or proceeding, if such filings are made under seal. Furthermore, nothing in this Section
2.1, Section 2.2, or any other provision in the remainder of this Release shall be construed to prohibit Employee from talking to, cooperating in any investigation by, and/or filing a charge with, the U.S. Equal Employment Opportunity Commission
(the “EEOC”) or any other similar state or local fair employment practices administrative agency. However, by signing this Release, Employee hereby waives the right to recover from Releasees any relief from any charge or claim pursued or
otherwise prosecuted by him, or by persons or entities like the EEOC acting by or through him, including, without limitation, the right to attorneys’ fees, costs, and any other relief, whether legal or equitable, sought in such charge, claim, or
other proceeding.
2.2 Age Claim Waiver. Employee further agrees that his full general release includes a waiver of his rights, if any, to assert or allege
discrimination based upon age pursuant to the Age Discrimination in Employment Act or any and all other federal, state or local laws or regulations prohibiting discrimination on the basis of age (collectively, “Age Claim Waiver”).
2.3 Adequate Consideration Period/Consult an Attorney. Employee acknowledges that he is hereby instructed that he may and should consult an attorney of his own choosing regarding the terms of this Release, and specifically including the Age Claim Waiver, and that he has been given at least [twenty-one (21)] [forty-five (45)] days to consider the terms of this Release and whether to sign this Release, although Employee may choose to sign this Release prior to the
expiration of this [twenty-one (21)] [forty-five (45)] day period. The Parties agree that if Employee fails to execute this Release prior to the expiration of the [twenty-one (21)] [forty-five (45)] day period or prior to the deadline set forth in Section 1.1 hereof, this Release will be null and void.
2.4 Seven (7) Day Revocation Period. Employee further agrees that he is hereby instructed by the Company that, following his signing of this
Release, Employee shall have up to seven (7) days to withdraw, rescind or revoke this Release by providing written notice to [____________________________________________],
but that, in the event Employee exercises his right to withdraw or rescind this Release, all terms of this Release, including, without limitation, Turning Point’s duty to provide
the Severance Benefits provided in Part I, Section 1.1, above, shall be void and of no effect.
2.5 Permanent Waiver of Re-employment. In order to effect the degree of separation contemplated by the
Parties, Employee acknowledges his present intent to permanently remove himself from the labor pool of Releasees as of the Separation Date and forever thereafter. In order to accomplish this present permanent removal from Releasees’ labor pool,
Employee agrees that he will not seek and will not accept hiring, rehiring, placement, or reinstatement with Releasees, either as an employee, an independent contractor, a temporary worker, or in any other capacity.
PART III
3.1 Additional Covenants by Employee. Employee represents, warrants and covenants that, as of the date he signs this Release, (1) he is unaware of any wages
(as that term is defined by applicable state law) that are owed to him by the Company and that have not been paid; (2) he is unaware of any request for leave under the Family and Medical Leave Act that was denied; (3) he has no known work-related
injury, disability, or illness, and has not requested any accommodation under the Americans With Disabilities Act or similar state law that has not been satisfied; and (4) he is unaware of any document, circumstance, occurrence, or any conduct on
behalf of the Company or any of its agents, employees, officers or directors, or any Releasee, which can or should be reported to any state or federal authority as a violation of any law, standard, or regulation, upon which representations the
Company expressly relies in entering into this Release.
3.2 Knowing and Voluntary Agreement. Employee agrees and acknowledges that he has been advised to consult an attorney regarding the terms of this Release and
that he has carefully reviewed, studied and thought over the terms of this Release. Employee further acknowledges and agrees that he knowingly and voluntarily entered into and signed this Release after deliberate consideration and review of all
of its terms and provisions, that he was not coerced, pressured or forced in any way by the Company, any Releasee or anyone else to accept the terms of this Release, and that the decision to accept the terms of this Release was entirely his own.
3.3 No Wrongdoing By the Parties. The Parties further agree that they have entered this Release to resolve any and all claims, if any, Employee may have against
the Company or any other Releasee, and that this Release does not constitute an admission of, or is to be used as evidence of, any liability, violation or wrongdoing of any kind.
3.4 Choice of Law; Interpretation; Captions. The Parties understand and agree that this Release shall in all respects be interpreted, enforced and governed under
the laws of the State of Kentucky and the language of this Release shall in all cases be interpreted as a whole, according to its fair meaning and not strictly for or against either of the Parties, regardless of which is the drafter of this
Release. Captions and headings used herein are for convenience of reference only.
3.5 Exclusive Jurisdiction; Venue. The Parties understand and agree that the federal and/or state courts located in the State of Kentucky shall have exclusive
jurisdiction with regard to any litigation relating to this Release and that venue shall be proper only in the State of Kentucky and any federal court whose judicial district encompasses the State of Kentucky, and that any objection to this
jurisdiction or venue is specifically waived.
3.6 Entire Agreement. The Parties agree that this Release sets forth the entire agreement between the
Parties on the subject matter herein and fully supersedes any and all other prior agreements or understandings between them, except for the terms in the
Employment agreement referred to herein (and any exhibits thereto) and any agreements between Employee and the Company regarding non-disclosure of confidential information, intellectual property, non-solicitation of customers, employees or
contractors, non-competition, and/or other restrictive covenant obligations, which agreements, if any, shall remain in full force and effect
according to their terms. This includes, without limitation, Employee’s continuing obligations under Sections 7-11 of the Employment Agreement. This Release may be amended or superseded only by a subsequent writing, executed by the Party
against whom enforcement is sought.
3.7 Agreement to Indemnify. The Parties agree that should Employee seek to overturn, set aside, or legally
challenge any release of claims, promise or covenant made by him under this Release, by judicial action or otherwise, the Company and/or Releasees shall be entitled to recover from Employee its costs of defending and enforcing the terms of this
Release and/or any other claim brought by or against the Company or Releasees, including, without limitation, reasonable attorneys’ fees. The Parties acknowledge and agree that each Releasee is an intended third-party beneficiary of this Release
and may enforce the terms of this Release accordingly.
[signature page follows]
I, [_______________], UNDERSTAND AND AGREE THAT THIS RELEASE CONSTITUTES A FULL AND FINAL RELEASE OF ALL CLAIMS THAT ARE RELEASEABLE BY LAW.
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Print Name:
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Date:
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Subscribed and sworn to before me by _________, this _______ day of ______________, 20__.
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Notary Public
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My Commission expires:
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TURNING POINT BRANDS, INC.
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By:
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Title:
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Subscribed and sworn to before me by __________________________, on behalf of Turning Point Brands, Inc., this _______ day of ______________, 20__.
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Notary Public
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My Commission expires: |
EXHIBIT B
EXHIBIT C