XBP Global Holdings, Inc 10-K/A, filed Apr 30, 2025
XBP Global Holdings, Inc. (XBP)
About this 10-K/A
XBP Global Holdings, Inc filed this 10-K/A on April 30, 2025, covering the fiscal year ended December 31, 2024.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
(Mark One)
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
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Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ☐ Yes ☒
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ☐ Yes ☒
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Indicate by check mark whether the Registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit such files). ☒
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ | Accelerated filer ☐ | Smaller reporting company | |
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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.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report.
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements.
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Act).
The aggregate market value of the Registrant’s voting and non-voting shares of common stock held by non-affiliates of the Registrant was approximately $
As of April 29, 2025, the Registrant had
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EXPLANATORY NOTE
On March 19, 2025, XBP Europe Holdings, Inc. filed its Annual Report on Form 10-K (the “Original Report”) for the fiscal year ended December 31, 2024 (“Fiscal 2024”). The Original Report omitted Part III, Items 10 (Directors, Executive Officers and Corporate Governance), 11 (Executive Compensation), 12 (Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters), 13 (Certain Relationships and Related Transactions, and Director Independence), and 14 (Principal Accountant Fees and Services) in reliance on General Instruction G(3) to Form 10-K, which provides that such information may be either incorporated by reference from the registrant’s definitive proxy statement or included in an amendment to Form 10-K, in either case filed with the Securities and Exchange Commission (the “SEC”) not later than 120 days after the end of the fiscal year.
Our definitive proxy statement for the 2025 annual meeting of stockholders will not be filed within 120 days of the end of the last fiscal year. Accordingly, this Amendment No. 1 to Form 10-K (this “Amendment”) is being filed solely to:
| ● | delete the reference on the cover of the Original Report to the incorporation by reference of portions of our proxy statement into Part III of the Original Report; |
| ● | amend Part II, Item 9B to include additional information relevant to the disclosures in Part III of this Amendment (this is the only amendment to Part II); |
| ● | amend Part III, Items 10, 11, 12, 13, and 14 of the Original Report to include the information omitted from the Original Report; |
| ● | amend Item 15 (Exhibits and Financial Statement Schedules to include the document described in amended Part II, Item 9B; and |
| ● | file new certifications of our principal executive officer and principal financial officer as exhibits to this Amendment under Item 15 of Part IV hereof, pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). |
Because this Amendment does not contain or amend any disclosure with respect to paragraphs 3, 4, and 5 of Items 307 and 308 of Regulation S-K, the corresponding certifications have been omitted. We are not including the certifications under Section 906 of the Sarbanes-Oxley Act of 2002, as no financial statements are being filed with this Amendment.
This Amendment does not otherwise change or update any of the disclosures set forth in the Original Report except as explicitly set forth in Item 9B or in Part III does not reflect any events occurring after the filing of the Original Report. Accordingly, this Amendment should be read in conjunction with the Original Report and the Company’s filings made with the SEC subsequent to the filing of the Original Report.
Capitalized terms used but not defined herein shall have the same meaning as those given to them in the Original Report.
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PART II
ITEM 9B.OTHER INFORMATION*
On April 29, 2025, our Board of Directors adopted an Executive Severance and Change in Control Plan (the “Severance Plan”) applicable to our named executive officer employees. The description of the material terms of the Severance Plan set forth in Part III, Item 11, Executive Compensation—Narrative to Summary Compensation Table—Compensation Developments contained in this Amendment are incorporated herein by reference. A copy of the Severance Plan is filed as an Exhibit to this Amendment.
*This is the only item being amended in Part II. There is no change to the information previously reported in Item 9B of the Original Report.
PART III
ITEM 10.DIRECTORS, EXECUTIVE OFFICERS, AND CORPORATE GOVERNANCE
Directors
The Company has three classes of directors serving staggered three-year terms, with each of Class I and II consisting of two directorships, and Class III consisting of one directorship. The terms of the Class I, II and III directorships expire on the date of the Annual Meeting to be held for 2027, 2025, and 2026, respectively.
Name |
| Age |
| Class |
| Positions and Offices Held with the Company |
Martin P. Akins | | 58 | | I | | Director |
J. Coley Clark | | 79 | | I | | Director |
Andrej Jonovic | | 44 | | II | | Director, Chief Executive Officer |
James G. Reynolds | | 56 | | II | | Director |
Par S. Chadha | | 70 | | III | | Director, Executive Chairman |
Following are brief biographical sketches of each of our directors, including his experience, qualifications, attributes and skills, which, taken as a whole, have enabled the Board to conclude that each such director should, in light of the Company’s business and structure, serve as a director of the Company.
Class I Directorship — Term Expiring in 2027
Martin P. Akins
Director Since: November 2023
Business Experience: Mr. Akins has served as a director of the Company since the consummation of the Business Combination. Mr. Akins also served as a director of ETI from July 2019 until March 2025. Prior to that, Mr. Akins worked at publicly traded Express Scripts Holding Company (“Express Scripts”), a Fortune 25 company and the largest independent pharmacy benefit management company in the United States. In December of 2018, Express Scripts merged with Cigna Corporation. As Senior Vice President and General Counsel at Express Scripts, Mr. Akins served as the chief legal advisor and was also a member of Express Scripts’ senior executive team where he advised the CEO and outlined strategy to the board of directors. Mr. Akins was at Express Scripts from 2001 through 2019, serving in various legal capacities including Vice President, Deputy General Counsel and Associate General Counsel. Prior to his time at Express Scripts, Mr. Akins was with the Polsinelli law firm. Mr. Akins began his legal career with the firm Thompson Coburn LLP. He received his Juris Doctorate from the University of Illinois College of Law.
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J. Coley Clark
Director Since: November 2023
Business Experience: J. Coley Clark has served as a director of the Company since the consummation of the Business Combination. Mr. Clark also served as a director of ETI from December 2019 until March 2025. Mr. Clark is the retired Chief Executive Officer and Chairman of the board of BancTec, Inc., a global provider of document and payment processing solutions, and former member of the board of directors of Moneygram International, Inc. At BancTec, Inc., Mr. Clark was Co-Chairman of the board from 2014 to December 2016, and Chairman of the board and Chief Executive Officer from September 2004 to 2014. In 2004, Mr. Clark retired from Electronic Data Systems Corporation, or EDS, an outsourcing services company that was acquired by Hewlett-Packard in 2008, as Senior Vice President and head of the Financial and Transportation Industry Group. Mr. Clark joined EDS in 1971 in the Systems Engineering Development Program and progressed through a variety of technical, sales and management roles related to the financial and insurance industries. Prior to his time at EDS, Mr. Clark served three years in the U.S. Army, attaining the rank of Captain, and served as a company commander in Europe and Southeast Asia. Mr. Clark received a Bachelor of Arts in Sociology from the University of Texas.
Class II Directors — Term Expiring in 2025
James G. Reynolds
Director Since: November 2023
Business Experience: Mr. Reynolds has served as a director of the Company since the consummation of the Business Combination. Mr. Reynolds was ETI’s Chief Financial Officer from the closing of the business combination among ETI, SourceHOV Holdings, Inc. (“SourceHOV“), and Novitex Holdings, Inc. on July 12, 2017 (“Novitex Business Combination“) until May 2020. Mr. Reynolds served as a director of ETI from July 2017 until March 2025. Mr. Reynolds served as Co-Chairman of SourceHOV from 2014 until the closing in 2017. Mr. Reynolds was also the Chief Operating Officer and a Partner at Handson Global Management (“HGM”), bringing over 25 years of industry experience to the team. Prior to HGM Mr. Reynolds held numerous executive management or senior advisory positions at SourceHOV and its related subsidiaries and predecessor companies, including serving as Chief Financial Officer for HOV Services, LLC from 2007 to 2011 and Vice President and Corporate Controller for Lason Inc. from 2001 to 2006. Mr. Reynolds was a Senior Manager in the Business Advisory Services Practice at PricewaterhouseCoopers from 1990 to 2001. Mr. Reynolds is a C.P.A. and holds a B.S. in Accounting from Michigan State University.
Andrej Jonovic
Director Since: November 2023
Business Experience: Mr. Jonovic has served as a director and as the Chief Executive Officer of the Company since the consummation of the Business Combination. Mr. Jonovic is responsible for the development and execution of business strategy, shaping the company culture and enhancing shareholder value. Mr. Jonovic has served as the Executive Vice President, Business Strategy and Corporate Affairs of ETI from July 2017 until late 2023, where he was responsible for the oversight of several companywide functions, including M&A and strategic transactions, legal affairs, human resources, marketing and the Digital Assets Group. Mr. Jonovic has transitioned out of his role at ETI and his primary role is as Chief Executive Officer of the Company. Since 2014 Mr. Jonovic has also served as a managing director in HGM, based in London, and oversaw the integration of BancTec, Inc.’s European operations with SourceHOV following their combination in October 2014. Earlier in his career, Mr. Jonovic was an associate at Freshfields Bruckhaus Deringer, LLP, a global law firm headquartered in London. Mr. Jonovic holds a bachelor’s degree in International Studies from The American University, Washington D.C., and a law degree from the London School of Economics and Political Science. Mr. Jonovic is registered with the Law Society of England and Wales however is not currently practicing. Mr. Jonovic is the son-in-law of Par Chadha, our Executive Chairman.
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Class III Director — Term Expiring in 2026
Par S. Chadha
Director Since: November 2023
Business Experience: Mr. Chadha has served as a director and as the Executive Chairman of the Company since the consummation of the Business Combination. Mr. Chadha is also the Executive Chairman of ETI and is the founder, Chief Executive Officer and Chief Investment Officer of HGM, a family office, formed in 2001. Mr. Chadha brings over 40 years of experience in building businesses in the Americas, Europe and Asia, including execution of mergers and acquisitions, integration of businesses and public offerings. Mr. Chadha served as the Chairman of ETI since the closing of the Novitex Business Combination and most recently became Executive Chairman of ETI in September 2021. He also served as Chairman of SourceHOV from 2011 to July 2017 when it was acquired by ETI, and was Chairman of Lason Inc. from 2007 to 2011 until its merger with SourceCorp, a predecessor company of SourceHOV. Mr. Chadha currently serves as the Chairman of HOV Services Limited (NSE:HOVS), a company listed on the National Stock Exchange of India. He previously held this position from 2009 to 2011 and has otherwise served as a director since 2005. Mr. Chadha is co-founder of Rule 14, LLC, an artificial intelligence led automation company formed in 2011. During his career, Mr. Chadha has been a co-founder of technology companies in the fields of metro optical networks, systems-on-silicon, and communications. Mr. Chadha previously participated in director and executive roles in portfolio companies of HGM and currently holds and manages investments in evolving financial technology, health technology and AI industries. Mr. Chadha holds a B.S. degree in Electrical Engineering from the Punjab Engineering College, India. Mr. Chadha is the father-in-law of Andrej Jonovic.
Executive Officers
The following table sets forth the name, age, and position of each of our executive officers as of the date of this Amendment:
Name |
| Age |
| Positions Held |
|
Par Chadha | | 70 | | Executive Chairman | |
Andrej Jonovic | | 44 | | Chief Executive Officer | |
Dejan Avramovic | | 41 | | Chief Financial Officer | |
Vitalie Robu | | 53 | | President | |
Following are brief biographical sketches of each of our executive officers, including his experience, qualifications, attributes and skills. Biographical information about Messrs. Chadha and Jonovic is provided above.
Dejan Avramovic
Business Experience: Mr. Avramovic has served as Chief Financial Officer of the Company since the consummation of the Business Combination. Mr. Avramovic is responsible for finance, accounting, financial reporting, internal controls and investor relations. Previously, Mr. Avramovic served in various finance positions continuously since joining affiliates of ETI in May 2017, including most recently as Senior Vice President, Global Finance, from July 2019 until November 2023. Mr. Avramovic’s prior experience includes eleven years of public company audit and transaction advisory services at Deloitte & Touche LLP, a global accounting and advisory firm. Mr. Avramovic holds an undergraduate degree in accounting from Chicago State University and an M.B.A. degree from the University of Chicago Booth School of Business. Mr. Avramovic is a registered Certified Public Accountant; however, the license is currently inactive.
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Vitalie Robu
Business Experience: Mr. Robu has served as the President of the Company since the consummation of the Business Combination. Previously, Mr. Robu served as the President of the EMEA region of ETI from January 2019 until November 2023 and served as Chief Operating Officer of the EMEA region since the Novitex Business Combination until January 2019. As President of the Company, Mr. Robu is responsible for all sales, operations and business strategy functions across the EMEA region. Mr. Robu specializes in transaction processing services, technology products, and software solutions, and has over 25 years of international management experience in the private and public sectors. Prior to the Novitex Business Combination, he served as Senior Vice President, Operations for the European region of SourceHOV from 2014. From 2010 to 2014, Mr. Robu held the position of President and Executive Director of DataForce UK, a business process outsourcing and software provider that was part of SourceHOV. Prior to joining the SourceHOV group, Mr. Robu served as Manager of Investment and Insurance Products for Citibank EMEA in London from 2007 to 2010. Mr. Robu has degrees in International Relations from the National School for Political Studies, Bucharest and Physics from the State University of Moldova, and earned an MBA from IMD — International Institute for Management Development, Lausanne.
Committees of the Board of Directors
The Board has three standing committees: an audit committee, a compensation committee and a nominating committee. The Company may from time to time establish other committees. Copies of the charters for each committee are available on the Investor Relations — Governance - Documents & Charters section of our website at investors.xbpeurope.com. These documents are also available upon written request to: Investor Relations, XBP Europe Holdings, Inc., 2701 E. Grauwyler Road, Irving, Texas 75061. Information concerning these committees is set out below.
Audit Committee
Our Board has established an audit committee (the “Audit Committee”) in accordance with Section 3(a)(58)(A) of the Exchange Act consisting of James G. Reynolds, J. Coley Clark, and Martin P. Akins. Mr. Reynolds serves as the chairperson of the Audit Committee. James G. Reynolds, J. Coley Clark and Martin P. Akins are each independent within the meaning of Section 5605(a)(2) of the Nasdaq Marketplace Rules and meet the additional test for independence for Audit Committee members imposed by the SEC, regulation and Section 5605(c)(2)(A) of the Nasdaq Marketplace Rules. The Board has determined that each of Mr. Reynolds, Mr. Clark and Mr. Akins are financially literate and that Mr. Reynolds qualifies as an “audit committee financial expert” as defined in applicable SEC rules.
Compensation Committee
The members of our compensation committee (the “Compensation Committee”) consist of James G. Reynolds, J. Coley Clark, and Martin P. Akins. Mr. Clark serves as the chairperson of the Compensation Committee. Under the Nasdaq Listing Rules, we are required to have at least two members on the Compensation Committee. The Nasdaq Listing Rules require that the Compensation Committee of a listed company (other than that of a “controlled company,” which the Company is) be composed solely of independent directors, and each of James G. Reynolds, J. Coley Clark and Martin P. Akins qualify as independent directors under applicable rules.
Nominating and Corporate Governance Committee
The members of our nominating committee (the “Nominating Committee”) consist of James G. Reynolds, J. Coley Clark, and Martin P. Akins. Mr. Reynolds serves as the chairperson of the Nominating Committee. The Nasdaq Listing Rules require that the Nominating Committee of a listed company (other than that of a “controlled company,” which the Company is) be composed solely of independent directors, and each of James G. Reynolds, J. Coley Clark and Martin P. Akins qualify as independent directors under applicable rules. There have been no material changes to the procedures by which security holders may recommend nominees to the registrant’s board of directors, since such procedures were last announced by the Company.
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Code of Ethics
The Board has adopted a code of business conduct and ethics (“Code of Ethics”) that applies to all of the Company’s directors, officers, and employees in accordance with applicable federal securities laws. The Code of Ethics is available on the Corporate Governance section of the Company’s website at www.xbpeurope.com. The Company intends to post on the Corporate Governance section of the Company’s website all disclosures that are required by law or the listing standards of Nasdaq concerning any amendments to, or waivers from, any provision of the Code of Ethics.
Corporate Governance Guidelines
The Board has adopted Corporate Governance Guidelines to assure that the Board will have the necessary authority and practices in place to review and evaluate our business operations as needed and to make decisions that are independent of our management. The guidelines are also intended to align the interests of directors and management with those of our stockholders. The Corporate Governance Guidelines set forth the practices the Board intends to follow with respect to, among other things, director qualifications, board meetings and involvement of senior management, Chief Executive Officer performance evaluation and succession planning, and board committees.
Insider Trading Policy
The Board has
Pursuant to our insider trading policy, we discourage our employees, directors, and officers from engaging in hedging transactions, including the use of financial instruments, such as put options, call options or similar derivative securities. If a person subject to the policy determines that they must engage in such a transaction, the transaction must comply with our pre-clearance and blackout processes. Our directors, officers and other employees are not prohibited from pledging our securities.
Our insider trading policy has been filed as Exhibit 19.1 to the Original Report.
Delinquent Section 16(a) Reports
Section 16(a) of the Securities Exchange Act of 1934 requires our executive officers, directors and persons who own more than 10% of our Common Stock to file reports with the SEC. Based solely on a review of the copies of reports furnished to us and written representations that no other reports were required, the Company believes that, during fiscal year 2024, all filing requirements were met on a timely basis.
ITEM 11.EXECUTIVE COMPENSATION
This section discusses the material components of the executive compensation program for the Company’s executive officers who are named in the “Summary Compensation Table” below. As a “smaller reporting company” as defined in Rule 12b-2 of the Exchange Act, the Company is not required to include a Compensation Discussion and Analysis and has elected to comply with the scaled disclosure requirements applicable to smaller reporting companies. The Company’s named executive officers for the fiscal year ended December 31, 2024 were as follows:
| ● | Andrej Jonovic, our Chief Executive Officer; |
| ● | Dejan Avramovic, our Chief Financial Officer; |
| ● | Vitalie Robu, our President; and |
| ● | Par Chadha, our Executive Chairman. |
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Summary Compensation Table
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| Stock |
| All Other |
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Name and | | Fiscal | | Salary | | Bonus | | Awards | | Compensation | | |
Principal Position | | Year |
| ($)(1)(2) |
| ($)(3) |
| ($)(4) |
| ($)(5)(6) |
| Total |
Andrej Jonovic | | 2024 | | 552,000 | | 343,157 | | 1,079,411 | | — | | 1,974,568 |
Chief Executive Officer | | 2023 | | 152,100 | | — | | | | 292 | | 152,392 |
Dejan Avramovic | | 2024 | | 399,000 | | 247,445 | | 376,472 | | 7,206 | | 1,030,123 |
Chief Financial Officer |
| 2023 |
| 248,336 |
| — |
| |
| 3,580 | | 251,916 |
Vitalie Robu |
| 2024 |
| 455,586 |
| 283,963 |
| 721,332 |
| 24,959 |
| 1,485,840 |
President, EMEA |
| 2023 |
| 288,465 |
| — |
| |
| 42,364 | | 330,829 |
Par Chadha Executive Chairman (7) |
| 2024 |
| — |
| — |
| 1,388,636 |
| — |
| 1,388,636 |
| (1) | Prior to the consummation of the Business Combination on November 29, 2023, our business was conducted through a wholly-owned indirect subsidiary of ETI that constituted the entirety of ETI’s European business. During 2023, Messrs. Jonovic and Avramovic spent approximately 36% and 83% of their working time on our business (which takes into account the period after consummation of the Business Combination, when they spent all of their working time on our business), and the remainder of their working time during the year on other ETI business matters. Consequently, we have pro-rated the compensation paid to each of Messrs. Jonovic and Avramovic for 2023 for purposes of the Summary Compensation Table to reflect only the approximate portions of their compensation that was earned for work devoted to our business. The compensation amounts reflected in the Summary Compensation Table are not necessarily reflective of the amounts of compensation that were reflected in our financial statements for the 2023 fiscal year, primarily due to the fact that such compensation for Messrs. Jonovic and Avramovic was paid by one or more subsidiaries of ETI prior to November 29, 2023, the date of consummation of the Business Combination. |
| (2) | With respect to Mr. Robu, the salary, bonus, and other compensation amounts have been converted from Great British pounds to U.S. dollars using the average end of month conversion ratio for 2024 of 1.00 GBP to 1.279 USD and conversion ratio for 2023 of 1.00 GBP to 1.247 USD, respectively. |
| (3) | The 2024 bonuses consist of one-time special bonuses and bonuses payable under the Bonus Plan (as defined in and discussed in the narrative below). The amounts awarded for 2024 were not paid during 2024, but will be paid during 2025. No bonus was awarded to any of Messrs. Jonovic, Robu or Avramovic with respect to 2023. |
| (4) | On June 14, 2024, Mr. Jonovic was granted 877,570 restricted stock units (“RSUs”) under the 2024 Equity Plan (as defined below); Mr. Robu was issued 586,449 RSUs; Mr. Avramovic was issued 306,075 RSUs; and Mr. Chadha was issued 1,128,972 RSUs. The RSUs are subject to time-based vesting conditions, with all of the underlying shares scheduled to vest in three annual installments through April 30, 2027. For such time-based vesting awards, we have included the aggregate grant date fair value computed in accordance with FASB ASC Topic 718. There were no stock awards or other equity compensation issued to the named executive officers in 2023. |
| (5) | The amounts reported in this column for 2023 include: (i) for Mr. Jonovic $292 for life insurance coverage, (ii) for Mr. Robu, $2,221 for the cost of his private medical insurance plan in the United Kingdom, $22,751 for a company car, contributions of $17,308 to a UK-based, defined pension plan and $84 for travel insurance; and (iii) for Mr. Avramovic, $3,580 for life and medical insurance coverage. |
| (6) | The amounts reported in this column for 2024 include: (i) for Mr. Robu, $4,781 for the cost of his private medical insurance plan in the United Kingdom, $12,057 for a company car, contributions of $2,597 to a UK-based, defined pension plan and $78 for travel insurance; and (iii) for Mr. Avramovic, $7,206 for medical insurance coverage. |
| (7) | Mr. Chadha sole compensation from the Company was his equity award. He does not receive salary, bonus or other benefits from the Company. Mr. Chadha was not a named executive officer in the prior year and, therefore, in accordance with SEC regulations, only compensation information for the fiscal year in which he became a named executive officer is included in the Summary Compensation Table |
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Narrative to Summary Compensation Table
On June 14, 2024, the Board, upon the recommendation of the Compensation Committee, ratified and approved the following compensation for the Company’s named executive officers for 2024:
|
| | |
| Target Annual |
| Target Long-Term | ||
| | | | | Incentive | | Incentive | ||
Executive Officer | | Base Salary |
| Award(1) |
| Award (2) | |||
Andrej Jonovic Chief Executive Officer | | $ | 552,000 | | $ | 552,000 | | $ | 1,079,411 |
Dejan Avramovic Chief Financial Officer | | $ | 399,000 | | $ | 399,000 | | $ | 376,472 |
Vitalie Robu President | | $ | 452,588 | | $ | 452,588 | | $ | 721,332 |
Par Chadha Executive Chairman | | $ | — | | $ | — | | $ | 1,388,636 |
| (1) | The annual incentive awards were tied to the Company’s financial performance for the fiscal year ended December 31, 2024, and each executive officer was eligible to earn a discretionary annual bonus based on the Company’s achievement in 2024 of performance goals, weighted 50% for revenue and 50% for adjusted EBITDA, as well as a Committee discretionary element. |
| (2) | Represents value of long-term incentive award received by each executive officer, in the form of RSUs, based on the Company’s closing price of $1.23 on June 14, 2024 (the “Closing Price”), the grant date of each executive officer’s award. The actual number of RSUs received by each named executive officer were computed by dividing (x) the dollar value of the long-term incentive compensation award recommended by the Company’s Compensation Committee by (y) a $2.14 per share valuation (instead of the June 14, 2024 Closing Price), resulting in a lower number of RSUs being granted to each named executive officer under the 2024 Equity Plan when compared to the proposed dollar value of such long-term incentive award using the Closing Price. |
The annual incentive awards were established under the Company’s Executive Officer Annual Bonus Plan (the “Bonus Plan”), which was ratified, approved and adopted by the Board on June 14, 2024 upon the recommendation of the Compensation Committee. The purpose of the Bonus Plan is to motivate and reward senior officers through incentive compensation, attract and retain talent, and align individual performance with company goals. Pursuant to the Bonus Plan, executive officers of the Company selected by the Compensation Committee each year will be eligible to receive awards in amounts up to 100% of their annual base salary, based upon individual performance measures, company performance measures, or both, as determined by the Compensation Committee for each participant and year, following a recommendation from management. The awards under the plan typically will be paid in cash in the year following the plan year and are subject to the participant’s continued employment through the payment date, with exceptions made for death, disability, or termination without cause.
Executive Employment Agreements
The compensation paid to Mr. Robu reflected in the summary compensation table was provided pursuant to an employment agreement entered into with HOV Global Services Limited, dated April 23, 2010, pursuant to which Mr. Robu serves as President, EMEA. The employment agreement provides for an indefinite term. During 2024, Mr. Robu’s annual base salary was increased to $455,000 and pursuant to the employment agreement, is entitled to annual increases in his base salary by the greater of (i) ten percent (10%) of his base salary (“Adjustment Percentage”), and (ii) the annual consumer price index of inflation published by the Office for National Statistics of the United Kingdom as of the end of the monthly period following the respective commencement date anniversary, provided that the Company may in its absolute discretion change the Adjustment Percentage, provided, however that the Adjustment Percentage may not be less than the consumer price index. The employment agreement also provides that Mr. Robu will be eligible to participate in the HOV Global Services Limited’s private medical health insurance, travel insurance, and, at the expense of the HOV Global Services Limited, a life insurance plan. The severance provisions contained in Mr. Robu’s employment agreement is described below under “— Potential Payments Upon Termination or Change in Control.” Mr. Robu’s employment agreement also contains restrictive covenants, including customary confidentiality and invention assignment covenants, as well as a non-competition covenant that applies during the term of employment and a covenant not to make use of the Company’s confidential information for personal purposes or on behalf of any other company during the term of employment and at all times thereafter.
During the fiscal year ended December 31, 2024, neither Messrs. Jonovic nor Avramovic were parties to an employment agreement with us or an ETI affiliated entity. During the fiscal year ended December 31, 2024, Mr. Chadha did not have an employment agreement with us, but did have an employment agreement with ETI, which is not reflected in our consolidated financial statements. As noted in the Summary Compensation Table above, Mr. Chadha’s sole compensation for his services to the Company was in the form of the equity incentive.
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Short-Term Incentives
As described above, the annual incentive awards to be paid to our named executive officers under the Bonus Plan are tied to the Company’s financial performance for the fiscal year ended December 31, 2024, and each executive officer was eligible to earn a discretionary annual bonus based on the Company’s achievement in 2024 of performance goals, weighted 50% for revenue and 50% for adjusted EBITDA, as well as a Committee discretionary element. The Compensation Committee determined that the Company had not met the 2024 revenue target and met 98.97% of the adjusted EBITDA under the Bonus Plan and thereby applied their discretion to award bonuses based on such level of attainment (i.e., slightly less than 50%): $237,157 to Mr. Jonovic, $197,445 to Mr. Avramovic and $223,157 to Mr. Robu. In addition, the Compensation Committee determined to provide one-time incremental bonuses of $70,000, $50,000 and $60,000 to each Messrs. Jonovic, Avramovic and Robu, respectively, for their success in completing identified strategic projects.
Stock Plans, Health and Welfare Plans, and Retirement Plans Health and Welfare Plans
On June 13, 2024, our stockholders approved and adopted the Company’s 2024 Stock Incentive Plan (the “2024 Equity Plan”) at the Company’s 2024 Annual Meeting of Stockholders. Under the 2024 Equity Plan, subject to adjustment for certain changes in capitalization or other corporate events, the Company is authorized to issue up to 5,520,270 shares of common stock pursuant to equity-based awards, which may be granted to eligible participants in furtherance of the Company’s broader compensation strategy and philosophy. Awards granted under the 2024 Equity Plan are granted upon terms approved by the Company’s Compensation Committee and set forth in an award agreement or other evidence of an award. The 2024 Equity Plan is described in greater detail in the Company’s Definitive Proxy Statement on Schedule 14A filed with the U.S. Securities and Exchange Commission on April 29, 2024 (the “Proxy Statement”), under the caption “Approval of the XBP Europe Holdings, Inc. 2024 Stock Incentive Plan,” which disclosure is incorporated herein by reference.
On June 14, 2024, the Compensation Committee approved a Form of Restricted Stock Unit Grant Notice and Agreement (the “RSU Award Agreement”) and Form of Option Grant Notice and Agreement (the “Option Award Agreement”) to be used in connection with the grant of awards under the 2024 Equity Plan. In addition, on June 14, 2024, the Board approved non-material amendments to the 2024 Equity Plan to clarify that certain awards made after the Board adoption date but prior to the approval by stockholders to non-Section 16 employees would have a grant date under the 2024 Equity Plan as of the date of the award and to provide an exception to the minimum vesting period for equity awards made prior to stockholder approval date. None of the amendments to the 2024 Equity Plan affected any awards made to directors or executive officers under the 2024 Equity Plan. The descriptions of the 2024 Equity Plan, as amended, contained in the Proxy Statement and this Amendment are qualified in their entirety by reference to the full text of the 2024 Equity Plan.
Our named executive officers would generally be eligible to participate in the employee benefit plans offered to employees based in the same country. Mr. Robu is entitled to participate in the private medical insurance and life insurance made available to employees in the United Kingdom. We have not yet entered into an arrangement pursuant to which Messrs. Jonovic and Avramovic, as our sole employees in the United States, will be entitled to employee benefits, including health insurance; instead we provide a stipend to Mr. Avramovic to obtain his own coverage. We do not provide any such benefits to Messrs. Chadha and Jonovic. While Mr. Chadha has the title of Executive Chairman and has been designated a Section 16 officer, he is not presently an employee of the Company.
The Company’s named executive officers would be generally eligible to participate in the retirement plans offered to those employees based in the same country. As such, Mr. Robu is entitled to participate in the pension scheme made available to employees in the United Kingdom. Messrs. Jonovic, Avramovic and Chadha do not participate in any retirement plans offered by the Company.
Clawback Policy
We have a clawback policy that covers current and former executive officers in accordance with the requirements of Exchange Act Rule 10D-1 and Nasdaq listing standards. Our compensation clawback policy has been filed as Exhibit 97.1 to the Original Report.
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Outstanding Equity-Based Awards at Fiscal Year-End
The following table sets forth information concerning outstanding equity awards held by each of our named executive officers as of December 31, 2024:
|
| |
| Equity incentive plan | |
| | | | awards: | |
| | Equity incentive plan awards: | | Market or payout value of | |
| | Number of unearned shares, units or | | unearned shares, units or other | |
| | other rights that have not | | rights that have not | |
| | vested (#)(1) |
| vested ($)(2) | |
Andrej Jonovic | | 877,570 | | $ | 956,551 |
Dejan Avramovic |
| 306,075 | | $ | 333,622 |
Vitalie Robu |
| 586,449 | | $ | 639,229 |
Par Chadha |
| 1,128,972 | | $ | 1,230,579 |
| (1) | On June 14, 2024, Mr. Jonovic was granted 877,570 restricted stock units (“RSUs”) under the 2024 Equity Plan (as defined below); Mr. Robu was issued 586,449 RSUs; Mr. Avramovic was issued 306,075 RSUs; and Mr. Chadha was issued 1,128,972 RSUs. The RSU are subject to time-based vesting conditions, with all of the underlying shares originally scheduled to vest in three annual installments through April 30, 2027. None of such shares had vested as of December 31, 2024. See also Compensation Developments below regarding the acceleration of vesting of these awards. |
| (2) | Based on a closing share price of our common stock on Nasdaq of $1.09 on December 31, 2024. |
Policies and Practices Regarding the Timing of Equity Awards
Potential Payments Upon Termination or Change in Control
The following summaries describe the potential payments and benefits that the Company would provide in connection with a termination of employment and/or a change in control, in each case, as of December 31, 2024, the last day of XBP Europe’s 2024 fiscal year.
Vitalie Robu. Pursuant to Mr. Robu’s employment agreement with HOV Global Services Limited, a subsidiary of the Company, if Mr. Robu is terminated other than for gross misconduct or material breach of the terms of his employment agreement (as further detailed in Mr. Robu’s employment agreement), in addition to any statutory entitlements, Mr. Robu will be entitled to six months’ prior notice or payment of his base salary in lieu thereof, payable in the form of salary continuation payments.
As of December 31, 2024, we had not entered into a written agreement or adopted a formal policy providing Messrs. Jonvic or Avramovic with severance benefits, upon a termination of his employment by us without cause. See Compensation Developments below regarding the potential payments to certain of our named executive officers in effect as of the date of this Amendment.
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Director Remuneration
Director Compensation Table
The following table sets forth information concerning director compensation for services performed during the year ended December 31, 2024.
|
| Fees earned or |
| | |
| | | |
| | paid in cash | | Stock Award | | Total | |||
Name(1) | | ($) |
| ($)(2)s |
| ($) | |||
Martin Akins | | $ | 72,417 | | $ | 140,000 | | $ | 212,417 |
J. Coley Clark | | $ | 77,000 | | $ | 140,000 | | $ | 217,000 |
James Reynolds | | $ | 85,250 | | $ | 140,000 | | $ | 225,250 |
| (1) | Information regarding Messrs. Jonovic and Chadha, who are named executive officers that also served on the Board of Directors, is provided in the discussion of Executive Compensation above. |
| (2) | In the case of Messrs. Akins, Clark, and Reynolds, the stock award was made as of June 14, 2024, and resulted in 65,421 RSUs being issued under the 2024 Equity Plan which vested on December 31, 2024. |
Restricted Stock Units Outstanding
As a result of the above-described vesting, there were no Restricted Stock Units outstanding held by our non-employee directors as of December 31, 2024.
|
| Aggregate Number of |
| | Restricted Stock Units |
| | Outstanding as of |
Name (1) | | December 31, 2024 |
Martin Akins |
| — |
J. Coley Clark |
| — |
James Reynolds |
| — |
| (1) | Information regarding Messrs. Jonovic and Chadha, who also served on the Board of Directors, is provided in the discussion of Executive Compensation above. |
Non-Employee Director Compensation Policy.
In December 2023, our Compensation Committee retained the services of an independent compensation consultant to evaluate and make recommendations for the non-employee director compensation commencing in fiscal year. Based on information provided by the compensation consultant, the Compensation Committee approved a compensation policy for its non-employee directors for fiscal year 2024. In January 2024, the Board approved, on the recommendation of the Compensation Committee, a non-employee director compensation policy for 2024 consisting of an annual cash retainer of $60,000 and an equity award anticipated to have a value of $140,000, pursuant to and subject to the adoption by the stockholders of the 2024 Equity Plan, as well as annual cash compensation for committee service ranging from $8,000 to $20,000 for chairing a committee and $4,000 to $10,000 for service as a committee member, as follows.
Name |
| Annual Retainer | |
Annual Cash Retainer for Board Membership | | $ | 60,000 |
Annual Equity Award for Board Membership | | $ | 140,000 |
Audit Committee Member (other than the Chair) | | $ | 10,000 |
Audit Committee Chair | | $ | 20,000 |
Compensation Committee Member (other than the Chair) | | $ | 5,000 |
Compensation Committee Chair | | $ | 10,000 |
Nominating and Corporate Governance Committee Member (other than the Chair) | | $ | 4,000 |
Nominating and Corporate Governance Committee Chair | | $ | 8,000 |
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Compensation Developments
During March and April 2025, the Company accelerated the vesting of the outstanding RSUs held by the named executive officers and members of our Board of Directors in addition to accelerating the vesting of certain additional awards granted to such persons during February 2025 together with certain options and awards issued to our employees that are not executive officers. As a result of such accelerated vesting, grants under the 2024 Equity Plan that have not yet vested, as well as forfeitures of shares upon termination of employment or in connection with net settlements of awards for tax purposes, as of April 29, 2025, there remained 294,487 shares available for issuance under the 2024 Equity Plan.
On April 29, 2025, we adopted the Severance Plan which is applicable to Messrs. Jonovic, Robu and Avramovic and any other employee selected by the Compensation Committee to be eligible for severance benefits under the Severance Plan. The Severance Plan is intended to increase the retention of the senior leadership team and to provide severance benefits under specified circumstances to certain individuals who are in a position to contribute materially to the success of the Company. These arrangements also are intended to facilitate changes in the leadership team by setting terms for the termination of an executive officer in advance, thereby allowing a smooth transition of responsibilities when it is in the best interests of the Company.
Pursuant to the terms of the Severance Plan, if an eligible executive’s employment is involuntarily terminated by the Company without “cause” prior to, or 24 months after, the ocurrence of a “change in control” (as such terms are described in the Severance Plan), upon executing a release of claims in favor of the Company, such executive, will be entitled to the following benefits:
| ● | an amount equal to 12 months’ base salary, plus 100% of the target bonus for the performance period in which the termination occurs; |
| ● | continued insurance coverage paid for by the Company for up to 18 months plus related expense reimbursement up to $5,000; |
| ● | full vesting of any unvested time- or service-based stock options, stock appreciation rights, and other equity-based awards that would have vested during the 12-month period following the date of termination; |
| ● | pro rata vesting of any unvested equity-based or long-term cash-based awards subject to performance-based vesting conditions that would have vested at the end of the performance period, based on actual performance during such performance period; and |
| ● | the right to exercise any vested stock options or stock appreciation rights for up to 24 months. |
The Severance Plan also provides that in the event of an executive’s employment is involuntarily terminated by the Company without “cause” within 24 months following a “change in control” or an executive’s employment is voluntarily terminated for “good reason” within 24 months following a “change in control,” upon executing a release of claims in favor of the Company, the executive will be entitled to the following benefits:
| ● | an amount equal to 24 months’ base salary, plus 200% of the annual target bonus for the performance period in which the termination occurs in addition to a pro rated target bonus based on the period before the separation; |
| ● | continued insurance coverage paid for by the Company for up to 18 months plus related expense reimbursement up to $5,000; |
| ● | full vesting of any unvested stock options, stock appreciation rights, and other equity-based awards; |
| ● | full vesting of any unvested equity-based or long-term cash-based awards subject to performance-based vesting conditions, based on actual performance through the date of the change in control; and |
| ● | the right to exercise any vested stock options or stock appreciation rights for up to 24 months. |
ITEM 12SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
Principal Holders of Common Stock
The following table sets forth information known to the Company regarding the beneficial ownership of the Common Stock as of April 29, 2025, by:
| ● | each person or “group” who is known by the Company to be the beneficial owner of more than 5% of the issued and outstanding Common Stock; |
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| ● | each of the Company’s named executive officers and directors; and |
| ● | all current executive officers and directors of the Company, as a group. |
Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days.
This table is based upon information supplied by officers, directors and principal stockholders and Schedule 13D and Forms 3 and 4 filed with the SEC. Unless otherwise indicated, the Company believes that all persons named in the table below have sole voting and investment power with respect to the voting securities beneficially owned by them. The beneficial ownership percentages of Common Stock of the Company are based on 35,915,548 shares of Common Stock issued and outstanding as of April 29, 2025.
|
| |
| Percent of |
|
Name and Address of Beneficial Owner | | Ownership | | Class |
|
Directors and Executive Officers(1) |
|
|
|
| |
Par Chadha |
| 1,128,972 |
| 3.1 | % |
Andrej Jonovic |
| 1,573,000 |
| 4.4 | % |
Dejan Avramovic |
| 306,075 |
| * | |
Vitalie Robu |
| 195,483 |
| * | |
James Reynolds |
| 184,857 |
| * | |
J. Coley Clark |
| 184,857 |
| * | |
Martin Akins |
| 184,857 |
| * | |
All executive officers and directors as a group (seven individuals) |
| 3,758,101 |
| 10.5 | % |
5% or More Stockholders: |
|
| | | |
BTC International Holdings, Inc. (2) |
| 21,802,364 |
| 60.7 | % |
CFAC Holdings VIII, LLC(3) |
| 6,449,404 |
| 18.0 | % |
| (1) | Unless otherwise noted, the business address of each of the individuals is c/o XBP Europe Holdings, Inc., 2701 E. Grauwyler Rd., Irving, TX |
| (2) | BTC International Holdings, Inc. (“BTC International”) is the record holder of the shares. BTC International is a direct, wholly owned subsidiary XCV-EMEA, LLC. While ETI retains an indirect economic interest in these shares. XCV-EMEA, LLC is the beneficial owner. XCV-EMEA is controlled by its manager and sole voting member Bernard of Zuroff. Mr. Zuroff thus is deemed to have beneficial ownership of such shares. Mr. Zuroff’s principal business address is 16280 W Ellsworth Ave, Golden, Co, 80401. |
| (3) | CFAC Holdings VIII, LLC (“Sponsor”) is the record holder of the shares. Cantor Fitzgerald, L.P., a Delaware limited partnership (“Cantor”) is the sole member of the Sponsor. CF Group Management, Inc., a New York corporation (“CFGM”) is the managing general partner of Cantor. Mr. Lutnick is the Chairman and Chief Executive Officer of CFGM and is the trustee of CFGM’s sole stockholder. As such, each of Cantor, CFGM and Mr. Lutnick may be deemed to have beneficial ownership of the shares of Common Stock held directly by the Sponsor. Each such entity or person disclaims any beneficial ownership of the reported shares other than to the extent of any pecuniary interest they may have therein, directly or indirectly. Includes 6,064,404 shares of common stock held by CFAC and 385,000 shares of common stock underlying an equal number of warrants to purchase shares of common stock held by CFAC which are exercisable within 60 days. The business address of the Sponsor is 110 East 59th Street, New York, NY 10022. On November 21, 2024, Mr. Lutnick shared a statement in response to being nominated by U.S. President Donald J. Trump to serve as U.S. Secretary of Commerce in which he stated he intends to divest his interests in Cantor to comply with U.S. government ethics rules. |
ITEM 13.CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
We have adopted a written policy requiring that any related person transaction that would require disclosure under Item 404(a) of Regulation S-K under the Exchange Act be reviewed and approved by our Audit Committee or, if the Audit Committee is not able to review the transaction for any reason, the chairman of the Audit Committee. Compensation matters regarding our executive officers or directors are reviewed and approved by our Compensation Committee. All relevant factors with respect to a proposed related person transaction will be considered, and such a transaction will only be approved if it is in our and our stockholders’ best interests. Related persons include our major stockholders and directors and officers, as well as immediate family members of directors and officers.
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Since January 1, 2024, XBP participated in the following transactions with related persons that are required to be reported under the SEC’s rules:
ETI - BTC International Holdings, Inc.
Prior to the Business Combination, the Company’s subsidiaries were indirect wholly owned subsidiaries of ETI. The Company continues to be majority owned by ETI, and ETI’s indirect subsidiary BTC International continues to control a significant percentage of the outstanding voting power of the Company. So long as this ownership and control continues, BTC International will generally have the ability to control the outcome of any matter submitted for the vote of the Company’s stockholders, including the election and removal of directors, changes to the size of the Board, any amendment to the Charter and Bylaws, and the approval of any merger or other significant corporate transaction, including a sale of substantially all of the Company’s assets (other than in certain circumstances set forth in the Charter or Bylaws). In addition, since the beginning of our last fiscal year, and historically, we have relied on ETI’s subsidiaries to provide a number of services, and we have made sales to and received products from such subsidiaries. For more information, see the risk factor entitled “The Company relies on ETI, which is a highly leveraged public company and faces substantial doubt about its ability to continue as a going concern. An adverse event affecting ETI may affect the delivery and availability of the services the Company relies on ETI to provide” in Part I, Item 1A of this Report.
Tax Sharing Agreement
Concurrently with the Closing, the Company entered into the Tax Sharing Agreement. The Tax Sharing Agreement requires ETI to indemnify and hold harmless the Company and its subsidiaries from and against any taxes of any consolidated, combined, or unitary group for U.S. federal (and applicable state and local) tax purposes that include any of ETI and its affiliates imposed on the Company or any of its subsidiaries as a result of having been a member of ETI’s consolidated tax group for any tax year ending on or prior to the Closing Date.
The Tax Sharing Agreement also provides that if the Company (or its subsidiaries) is eligible to be included in an ETI consolidated tax group after the Closing Date (an “ETI Consolidated Tax Group”), (i) ETI will file income tax returns for the ETI Consolidated Group, (ii) the Company will make periodic payments to ETI in such amounts as the estimated tax payments that would be due from the consolidated group that consisting of the Company and its subsidiaries (the “XBP Consolidated Group”) if the XBP Consolidated Group were not included in the ETI Consolidated Group, and (iii) ETI will pay the entire federal (and applicable state and local) income tax liability of the ETI Consolidated Group and will indemnify and hold harmless the XBP Consolidated Group against any such liability (other than the XBP Consolidated Group’s share of such liability). The Tax Sharing Agreement also sets forth rules related to allocating income, losses and credits to the XBP Consolidated Group, preparing consolidated tax returns of the ETI Consolidated Group, and conducting tax audits and litigation involving the ETI Consolidated Group.
Intercompany Confidentiality and Intellectual Property License Agreement
Concurrently with the execution of the Merger Agreement, we entered into the License Agreement pursuant to which we both granted to certain of ETI affiliates and received from such affiliates, a world-wide, non-exclusive, royalty-free, perpetual, irrevocable license to intellectual property in existence at Closing for use in the same manner as used by prior to Closing. The License Agreement includes limited restrictions on sublicenses and assignments to certain parties and contemplates the purchase of post-Closing improvements at negotiated royalties. Additionally, the License Agreement includes customary confidentiality and indemnification obligations from both licensors and licensees.
Services Agreement
Concurrently with the Closing of the Business Combination, we entered into a Services Agreement with Exela Technologies BPA, LLC, a subsidiary of ETI (“Exela BPA”). The Services Agreement requires Exela BPA, its affiliates and its permitted subcontractors to provide to us the services, access to facilities, personnel, equipment, software and hardware and other assistance that were provided to us during the twelve (12) months prior to the Closing Date. Exela BPA is also required to respond in good faith to any request for new services or services in excess of those provided in the twelve (12) months prior to the Closing Date.
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The Services Agreement had an initial term of twelve (12) months and will continue beyond such term to the extent that the parties thereto have mutually agreed to a longer term for any individual service. Services shall generally be charged at cost plus 15%, or as otherwise agreed or required by law Services provided under Annex A of the Services Agreement include sales of certain hardware, operations delivery, finance, accounting, human resource and technology support services. The Company incurred a total of $1.5 million of the related party service fee under Annex A and $3.6 million in connection with the related party shared service center cost allocated to the Company for the year ended December 31, 2024.
Notes Payable
Subsidiaries of Legacy XBP entered into four Intercompany Loan Agreements (“new related party notes payable”) with affiliates of ETI, three of the notes are dated September 4, 2023 (and subsequently amended on September 15, 2023) and one note is dated September 15, 2023. The new related party notes payable have a ten-year term and bear annual interest of 6.0%, due at the end of the term. The consolidated balance sheets included $1.5 million of new related party notes payable as of December 31, 2024, and included $0.1 million of related party interest expense for the year ended December 31, 2024, in the related party interest expense, net.
Lock-Up Agreement
Concurrently with the execution of the Merger Agreement, Sponsor entered into the Lock-Up Agreement with BTC International and us, pursuant to which BTC International agreed that all securities of the Company held by it immediately following the Closing will be locked-up and subject to transfer restrictions until the earlier of: (i) the one year anniversary of the date of the Closing (i.e., November 29, 2024), and (ii) the date on which the Company consummates a liquidation, merger, capital stock exchange, reorganization, or other similar transaction after the Closing which results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property; provided, that BTC International shall be permitted to make transfers (i) by virtue of the laws of the state the entity’s organization and the entity’s organizational documents upon dissolution of the entity, (ii) as a bona fide gift, or to a charitable organization or educational institution in a transaction not involving a disposition for value, and (iii) to a subsidiary of ETI, that is not a restricted subsidiary or subsidiary guarantor as defined in ETI’s credit documents, provided that any such permitted transferee agrees in writing to be subject to receive and hold any shares of Common Stock received subject to the same lock-up restrictions.
Amended and Restated Registration Rights Agreement
Concurrently with the Closing, the Company, the Sponsor, the former independent directors of the Company, and BTC International entered into the Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”). Pursuant to the Registration Rights Agreement, the Company is obligated to file one or more registration statements to register the resales of Common Stock held by the parties to the Registration Rights Agreement after the Closing. Holders of CFVIII Class A Common Stock who were party to the Registration Rights Agreement dated March 11, 2021 between CFVIII and such holders (the “Existing Holders”) or the parties listed under the New Holders on the signature page to the Registration Rights Agreement (the “New Holders”), in each case holding a majority of the registrable securities owned by all the Existing Holders or New Holders, as applicable, are entitled under the Registration Rights Agreement to make a written demand for registration under the Securities Act of all or part of their registrable securities (up to a maximum of two demand registrations by the Sponsor, or five demand registrations by the New Holders). In addition, pursuant to the terms of the Registration Rights Agreement and subject to certain requirements and customary conditions, the Company must file a registration statement on Form S-1 to register the resale of the registrable securities of the Company held by Existing Holders and the New Holders and any person or entity who becomes a party to the Registration Rights Agreement (“Holders”). The Registration Rights Agreement also provides such Holders with “piggy-back” registration rights, subject to certain requirements and customary conditions.
Under the Registration Rights Agreement, the Company indemnifies such Holders and certain persons or entities related to such Holders such as their officers, directors, and control persons against any losses or damages resulting from any untrue or alleged untrue statement of a material fact contained in any registration statement or prospectus pursuant to which the Holders sell their registrable securities, or any omission or alleged omission of a material fact required to be stated therein to make any statements made therein not misleading, unless such liability arose from such Holder’s misstatement or alleged misstatement, or omission or alleged omission, and the Holders including registrable securities in any registration statement or prospectus will indemnify the Company and certain persons or entities related to the Company such as its officers and directors and underwriters against all losses caused by their misstatements or omissions (or alleged misstatements or omissions) in those documents.
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Letter of Intent
On March 4, 2025, the Company announced that it has entered into an exclusive, non-binding letter of intent to acquire the ETI Debtor Subs. The parties have agreed to act in good faith to negotiate definitive agreements, complete due diligence, undertake necessary regulatory approvals, and seek any necessary approvals, including from our shareholders. There can be no assurance, however, that a definitive agreement will be entered into or that the proposed transaction will be consummated.
Agreement with Nventr, LLC.
On February 5, 2025, the Company entered into a new related party agreement with Nventr, LLC, a portfolio company of HGM and in which our executive chairman holds a 20% interest, that provides AI analytics solutions. We incurred approximately $0.2 million in fees pursuant to this agreement through March 31, 2025.
Agreement with HOV Services Ltd.
On February 18, 2025, the Company entered into a new related party agreement with HOV Services Ltd., a company of which our executive chairman also serves as executive chairman, to help mitigate the risk of service disruption from the ongoing chapter 11 proceedings of the ETI Debtor Subs by providing an alternate source for certain BPO, outsourcing, management, and financial transaction processing solutions. We incurred approximately $0.2 million in fees pursuant to this agreement through March 31, 2025.
Purchase Agreement
Pursuant to the Membership Interest Purchase Agreement, dated as of March 25, 2025, the Company issued 1,680,000 shares of common stock to ETI in exchange for 100% of the membership interests in GP 2XCV Holdings LLC, a Delaware limited liability company. GP 2XCV Holdings LLC is the owner of GP 2XCV LLC, which is the holder of $2,301,600 senior secured promissory notes of the ETI Debtor Subs due July 2026 issued and guaranteed by ETI Debtor Subs.
Director Independence
For purposes of the Nasdaq Listing Rules, the Company is a “controlled company.” Under the Nasdaq rules, controlled companies are companies of which more than 50% of the voting power for the election of directors is held by an individual, a group, or another company. BTC International owns a majority of the issued and outstanding Common Stock.
As a “controlled company,” the Company is exempt from the requirement that a majority of the Board be independent. The Common Stock is listed on Nasdaq, and the Company is required to comply with the Nasdaq listing requirements regarding independent directors. Under Nasdaq’s Marketplace Rules, the definition of an “independent director” is a person other than an executive officer or employee of the company or any other individual having a relationship which, in the opinion of the issuer’s Board of Directors, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In addition, under the Nasdaq rules a director (A) who at any time during the past three years was employed by the Company or (B) who accepted, or who has a family member who accepted, compensation from the Company in excess of $120,000 (other than compensation for board and committee service, compensation paid to a family member who is an employee (other than an executive officer), benefits under a tax-qualified retirement plan, or non-discretionary compensation) during any period of twelve consecutive months within the three years preceding the determination of independence, shall not be considered independent.
Our Board of Directors has reviewed the Nasdaq rules and such information as the Board has deemed appropriate for purposes of determining whether any of the directors has a relationship which, in the opinion of the Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director, including the beneficial ownership by our directors of Common Stock. Based on such review, the Board of Directors has determined that each director, other than Par Chadha and Andrej Jonovic, qualifies as an independent director under Nasdaq listing standards and applicable SEC rules: non-management directors meet periodically in executive session without members of the Company’s management at the conclusion of regularly scheduled Board meetings. In addition, Messrs. Akins, Clark, and Reynolds qualify as independent directors for the purpose of serving on the Audit Committee of the Company under SEC rules (Messrs. Akins, Clark and Reynolds being the current members of the Audit Committee).
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ITEM 14.PRINCIPAL ACCOUNTANT FEES AND SERVICES
UHY LLP (“UHY”) has been serving as our independent registered public accounting firm since December 15, 2023.
The following table summarizes the aggregate fees for professional audit services and other services rendered by UHY to us (including to us prior to the Business Combination) for the years ended December 31, 2024 and 2023. These fees are categorized as audit fees, audit-related fees, tax fees and all other fees, however, we have only paid for audit fees during the last two fiscal years.
|
| Year Ended December 31 | ||||
| | 2024 |
| 2023(2) | ||
Audit Fees(1) | | $ | 1,285,000 | | $ | 1,242,686 |
Audit-Related Fees | |
| — | |
| — |
Tax Fees | |
| — | |
| — |
All Other Fees | |
| — | |
| — |
Total fees | | $ | 1,285,000 | | $ | 1,242,686 |
| (1) | Includes fees incurred on the annual audit, quarterly reviews and reviews of registration and proxy statements. |
| (2) | As described above, UHY was appointed as our independent registered accounting firm in December 2023, upon the dismissal of Withum. UHY has audited the financial statements of our subsidiaries prior to the Business Combination since 2022. The fees of UHY presented above with respect to fiscal year ended December 31, 2023 include such prior fees. |
As an emerging growth company and a smaller reporting company, we are exempt from the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act, and as a result, our audit fees are significantly lower than if we were required to provide an auditor attestation under Section 404(b). Depending on our public float as of June 30, 2025, we may become subject to the auditor attestation requirements of Section 404(b) of the Sarbanes-Oxley Act for the fiscal year ended December 31, 2025, which will require us to incur significant additional costs and to re-assess our required audit services for the fiscal year ended December 31, 2025 with our independent registered public accounting firm.
Pursuant to its charter, the Audit Committee is responsible for the appointment, retention, compensation and oversight of the Company’s independent registered public accounting firm. In addition to assuring the regular rotation of the lead audit partner as required by law, the Audit Committee is involved in the evaluation of the lead audit partner and considers whether there should be regular rotation of the independent registered public accounting firm. The Audit Committee is also required to review and pre-approve all of the audit and non-audit services to be performed by the Company’s independent registered public accounting firm, including the firm’s engagement letter for the annual audit of the consolidated financial statements and internal controls over financial reporting of the Company, the proposed fees in connection with such audit services, and any additional services that management chooses to hire the independent auditors to perform. Additionally, the Audit Committee can establish pre-approval policies and procedures with respect to the engagement of the Company’s independent registered public accounting firm for non-audit services. In accordance with the Audit Committee Charter, all of the foregoing audit fees paid to, and the related service provided by, UHY were pre-approved by the Audit Committee. During the last two fiscal years, the Company did not incur any audit related, tax fees or other fees to UHY and which were required to be approved by the Audit Committee and/or disclosed in this Report.
19
PART IV
ITEM 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
| (a) | The following documents are filed as part of this Amendment: |
| (1) | Consolidated Financial Statements: |
No Consolidated Financial Statements are filed with this Amendment, These items were filed as part of the Original Report.
| (2) | Financial Statement Schedules: |
None.
(4) | Exhibits: |
Exhibits filed as part of this Amendment are:
Exhibit No. |
| Description |
10.1* † | | Executive Severance and Change in Control Plan, dated as of April 29, 2025 |
31.1* | | |
31.2* | | |
104* | | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
* | Filed herewith |
† | A contract, compensatory plan or arrangement in which directors or executive officers are eligible to participate. |
20
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| By: | /s/ Andrej Jonovic |
| | Andrej Jonovic, Chief Executive Officer |
Dated: April 30, 2025 | | (Principal Executive Officer) |
21
Exhibit 10.1
XBP EUROPE HOLDINGS, INC.
EXECUTIVE SEVERANCE AND CHANGE IN CONTROL PLAN
1.Purpose. This XBP Europe Holdings, Inc. Executive Severance and Change in Control Plan, as set forth herein or as hereafter amended from time to time (the “Plan”), is effective as of April 29, 2025 (“Effective Date”). The purpose of the Plan is to provide severance benefits under specified circumstances to certain eligible employees of XBP Europe Holdings, Inc. and its wholly-owned subsidiaries (collectively the “Company”) who are in a position to contribute materially to the success of the Company. As consideration for severance benefits under this Plan, the Participant (as defined below) shall release the Company from any and all actions, suits, proceedings, claims and demands related to employment with the Company and to the termination of such employment by signing a waiver and release document in a form provided by the Company. Such document shall include a statement that benefits under this Plan are conditioned upon the Company’s receipt of a signed release.
2.Definitions.
For purposes of the Plan, the following terms are defined as follows:
(a)“Base Salary” means the fixed annual base salary (excluding bonuses and other benefits) paid to an employee regularly each pay period for performing assigned job responsibilities.
(b)“Cause” means, as determined by the Company:
(i)the willful failure by the Participant to substantially perform his or her duties with the Company (other than any such failure resulting from the Participant’s incapacity due to physical or mental illness);
(ii)the Participant’s willful misconduct that is demonstrably and materially injurious to the Company, monetarily or otherwise;
(iii)the Participant’s willful violation of the Company’s code of conduct or any policy applicable to the Participant;
(iv)the Participant’s commission of such acts of dishonesty, fraud, misrepresentation or other acts of moral turpitude as would prevent the effective performance of the Participant’s duties; or
(v)the Participant’s conviction or plea of no contest to a felony or a crime of moral turpitude.
For purposes of this Plan, no act, or failure to act, on the Participant’s part shall be deemed “willful” unless done, or omitted to be done, by the Participant not in good faith and without the reasonable belief that the Participant’s action or omission was in the best interest of the Company.
(c)“Change in Control” shall be deemed to have occurred if:
(i)any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) (other than the Company; any trustee or other fiduciary holding securities under an employee benefit plan of the Company; or any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of Stock of the Company) is or becomes after the Effective Date the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 30% or more of the combined voting power of the Company’s then outstanding securities, whether or not the Board of Directors of the Company (“Board”) shall have first given its approval to such acquisition:
(ii)individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Board (where “Incumbent Board” means the portion of the Board constituted of the individuals who are members of the Board as of the Effective Date and any individual who becomes a director of the Company after the Effective Date and whose election or appointment by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least a two-thirds (2/3) of the directors then constituting the Incumbent Board in the ordinary course of the Company’s business; or whose election or nomination for election was previously so approved); or;
(iii)the consummation of a merger or consolidation of the Company with any other corporation, other than (A) a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person acquires more than 30% of the combined voting power of the Company’s then outstanding securities; or
(iv)the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets;
provided, that with respect to any non-qualified deferred compensation that becomes payable on account of the Change in Control, the transaction or event described in subsection (i), (ii), (iii) or (iv) also constitutes a “change in control event,” as defined in Treasury Regulation §1.409A-3(i)(5) if required in order for the payment not to violate Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”).
(d)“Change in Control Period” means the period beginning on the date of a Change in Control and ending 24 months after such Change in Control.
(e)“Change in Control Severance Benefits” means the severance pay and benefits set forth in Section 5 of this Plan.
(f)“Participant” means an employee (i) who serves as an officer of the Company on the Effective Date and is subject to Section 16 of the Exchange Act or (ii) who is selected by the Compensation Committee of the Board of Directors of the Company (the “Committee”) to be eligible for severance benefits under this Plan as a person in a position to contribute materially to the success of the Company and is notified of such participation in writing.
(g)“Good Reason” for voluntary termination of employment means that the Company: (i) materially breaches its obligations to pay any salary, benefit, or bonus due to a Participant or otherwise materially breaches any material term of this Plan; (ii) requires the Participant to relocate more than 50 miles from the Participant’s principal place of employment;
(iii) assigns to the Participant duties inconsistent with the Participant’s position, significantly alters the nature or status of the Participant’s responsibilities, or causes a material diminution in the Participant’s authority, reporting structure, or title; (iv) reduces the Participant’s Base Salary and/or target bonus opportunity( including long term incentive opportunities), except for across-the-board reductions similarly affecting all management personnel of the Company provided that no such reduction exceeds 15% of the Participant’s Base Salary or target bonus opportunity; (v) materially reduces or eliminates the Participant’s health insurance, retirement benefits, or other material employee benefits, without providing a substantially equivalent replacement; (v) is unable to reasonably accommodate the Participant’s condition Following the Participant becoming unable to perform the essential functions of their position due to physical or mental health reasons, or (vi) fails to have any successor assume and perform the obligations under this Plan substantially in the same manner and to the same extent that the Company would be required to perform. In the event of any of (i), through (vi), the Participant must provide written notice to the Plan Administrator (as defined below) detailing the basis for Good Reason within 60 days following the initial occurrence of the event constituting Good Reason. The Company shall have 30 days after receipt of such notice to cure the event. If the Company does not cure the event within the 30-day cure period, the Participant’s termination for Good Reason must occur within 90 days after the expiration of the cure period. If the Participant does not terminate within such period, Good Reason with respect to such event shall be deemed waived.
(h)“Severance Benefits” means the severance pay and benefits set forth in Section 4 of this Plan.
3.Participation. Each Participant shall be eligible for severance benefits pursuant to, and subject to the terms of, Section 4 or Section 5, below. For the avoidance doubt, an employee of the Company who would otherwise qualify as a Participant but who as of the Effective Date is entitled to in the aggregate more favorable severance benefits pursuant to a separate severance benefit arrangement, change in control severance agreement, employment agreement or other written agreement with the Company or who following the Effective Date negotiates an agreement with respect to such terms (whether or not such terms are in the aggregate more favorable) shall not be eligible for severance benefits under this Plan.
4.Severance Benefits. Any Participant whose employment with the Company is involuntarily terminated by the Company without Cause, other than a termination that occurs within a Change in Control Period, shall be eligible for Severance Benefits under this Section 4, provided the Participant has returned a signed general release of all claims, substantially in the form attached hereto as Exhibit A (the “Release”), to the Company within the time period requested by the Company and has not revoked the Release within the time permitted under the terms of the Release or any applicable state and federal laws. The Release may be revised from time to time to comply with applicable law or to reflect changes made to the Company’s standard form of general release of all claims for all Participants. The Company shall provide the form of Release for signature to the Participant no later than the Participant’s termination date. Regardless of whether a Participant signs and returns a Release, a Participant shall be entitled to receive (1) within 10 business days following the effective date of such Participant’s termination of employment (or such earlier date as required by applicable law) the payment of that portion of the Participant’s Base Salary accrued through the date of termination to the extent not previously paid, any annual bonus earned during the prior fiscal year but not yet paid to the Participant, any incurred but unreimbursed expenses owed to the Participant in accordance with the Company’s policy, and any accrued but unused vacation pay owed to the Participant in accordance with the Company’s policy (the “Accrued Obligations”) and (2) all amounts arising from the Participant’s participation in, or benefits under, any employee benefit plans, programs or arrangements, which amounts shall be payable in accordance with the terms and conditions of such employee benefit plans, programs or arrangements (the “Other Benefits”).
(a)Severance Pay. The severance pay to which a Participant is eligible pursuant to this Section 4 shall be a payment equal to the sum of (i) 12 months’ Base Salary and (ii) 100% of the Participant’s target annual bonus for the performance period during which the termination of employment occurs. The payment described in this Section 4(a) shall be paid to the eligible Participant in a lump sum within 30 days after the effective date of the Participant’s termination of employment, except to the extent payment is required to be delayed pursuant to Section 11, and provided that if such 30-day period straddles two consecutive calendar years, payment shall be made in the second of such years.
(b)Continued Benefits. In the event the Participant elects COBRA coverage, the Company will pay 100% of the COBRA premium cost and reimburse up to $5,000 for out-of-pocket medical expenses for the Participant and such dependent(s) as are designated as of the termination date for 18 months, or until the Participant becomes eligible for benefits through another employer, whichever is earlier. To the extent that the Participant becomes eligible for benefits through another employer during this time, the Participant shall give prompt written notice to the Company, no later than 30 days after the Participant becomes eligible for such benefits.
(c)Accelerated Vesting of Equity and Long-Term Incentive Awards. Any unvested stock options, stock appreciation rights, restricted stock awards, restricted stock units and any other equity-based or long-term cash-based awards held by the Participant that are subject only to service or time-based vesting conditions (and not performance-based vesting conditions) and that would have vested during the 12-month period following the Participant’s termination will vest as of the day immediately preceding the effective date of the Participant’s termination of employment. Any unvested equity-based or long-term cash-based awards held by the Participant that are subject to any performance-based vesting conditions shall become vested on a prorated basis, based on the portion of the performance period that has elapsed prior to the date of termination, determined in accordance with the Company’s administrative practices, and shall be paid at the time such award would have been paid to the Participant had he or she remained employed through the end of the applicable performance period, based on actual performance during such performance period. Any stock options or stock appreciation rights held by the Participant shall remain exercisable until the earlier of 24 months after the date of termination or their original expiration date. Notwithstanding the foregoing, in the event an equity-based or long-term cash-based award agreement or the plan pursuant to which an equity-based or long-term cash-based award was granted provides for more favorable treatment of such awards upon a Change in Control or Participant’s termination of employment, nothing in this Plan is intended to limit the Participant’s right to such more favorable treatment as provided in such award agreement or plan, but this Plan shall supersede any less favorable vesting therein.
(d)Death of Participant. If a Participant dies after signing the Release and prior to receiving Severance Benefits to which he or she is entitled pursuant to the Plan, payment shall be made to the beneficiary designated by the Participant to the Company or, in the event of no designation of beneficiary, then to the estate of the deceased Participant.
(e)Outplacement Benefit. The Company shall provide standard outplacement services at the expense of the Company from an outplacement firm selected by the Company. In order to receive outplacement services, the Participant must begin utilizing the services within 90 days of his or her date of termination.
5.Change in Control Severance Benefits. Any Participant whose employment with the Company is involuntarily terminated by the Company without Cause or whose employment is voluntarily terminated by the Participant for Good Reason, in either case during a Change in Control Period, shall be eligible for the Change in Control Severance Benefits under this Section 5, provided the Participant has
returned a signed Release to the Company within the time period requested by the Company and has not revoked the Release within the time permitted under the terms of the Release or any applicable state and federal laws. Change in Control Severance Benefits payable pursuant to this Section 5 shall be in lieu of any Severance Benefits which accrue under Section 4 of this Plan. Regardless of whether a Participant signs and returns a Release, such Participant shall be entitled to receive all Accrued Obligations and Other Benefits.
(a)Severance Pay. The amount of severance pay for which a Participant is eligible hereunder shall be a payment equal to the sum of (i) 24 months’ Base Salary and (ii) 200% of the Participant’s target annual bonus for the performance period during which the termination of employment occurs. Additionally, the Participant shall receive a payment equal to the Participant’s target annual bonus under the Company’s annual incentive plan for the then current fiscal year, prorated based on the portion of the performance period that has elapsed prior to the date of termination. The severance pay payable pursuant to this Section 5(a) shall be paid to an eligible Participant in a lump sum issued within 30 days after the effective date of the Participant’s termination of employment, except to the extent payment is required to be delayed pursuant to Section 11, and provided that if such 30-day period straddles two consecutive calendar years, payment shall be made in the second of such years.
(b)Continued Benefits. In the event the Participant elects COBRA coverage, the Company will pay 100% of the COBRA premium cost and reimburse up to $5,000 for out-of-pocket medical expenses for the Participant and such dependent(s) as are designated as of the separation date for 18 months, or until the Participant becomes eligible for benefits through another employer, whichever is earlier. To the extent that the Participant becomes eligible for benefits through another employer during this time, the Participant shall give prompt written notice to the Company, no later than 30 days after the Participant becomes eligible for such benefits.
(c)Accelerated Vesting of Equity and Long-Term Incentive Awards.
(i)Any unvested stock options, stock appreciation rights, restricted stock awards, restricted stock units, and other equity-based awards held by the Participant that are subject only to service and time based vesting conditions (and not performance-based vesting conditions) will vest as of the day immediately preceding the effective date of the termination of the Participant’s employment and, to the extent applicable, will become exercisable, and any restrictions or conditions on such equity-based awards shall immediately lapse and be deemed satisfied. Any stock options or stock appreciation rights held by the Participant shall remain exercisable until the earlier of 24 months after the date of termination or their original expiration date.
(ii)Upon the occurrence of a Change in Control, each Participant shall, with respect to all outstanding, unvested performance units and any other equity-based and long-term cash-based compensation awards subject to performance-based vesting criteria that are held by such Participant immediately prior to the Change in Control, be deemed to have satisfied any performance-based vesting criteria at the target level of performance, and following the Change in Control any such awards shall continue to vest based upon the time or service-based vesting criteria, if any, to which the award is subject; provided that in the case of performance-based awards, if actual performance as of the date of the Change in Control is tracking above target, vesting will reflect such performance, as reasonably determined by the Plan Administrator.
(iii)If the Participant’s employment terminates in accordance with the terms and conditions of this Section 5 after such Change in Control, such performance-based awards shall
become immediately and fully vested, and shall be paid to the Participant not later than 30 days after the date of such termination.
(iv)Notwithstanding the foregoing, in the event an equity-based or long-term cash-based award agreement or the plan pursuant to which an equity-based or long-term cash-based award was granted provides for more favorable treatment of such awards upon a Change in Control or Participant’s termination of employment, nothing in this Plan is intended to limit the Participant’s right to such more favorable treatment as provided in such award agreement or plan, but this Plan shall supersede any less favorable vesting therein.
(d)Death of Participant. If a Participant dies after signing the Release and prior to receiving Change in Control Severance Benefits to which he or she is entitled pursuant to the Plan, payment shall be made to the beneficiary designated by the Participant to the Company or, in the event of no designation of beneficiary, then to the estate of the deceased Participant.
(e)Outplacement and other Benefits. The Company shall provide standard outplacement services at the expense of the Company from an outplacement firm selected by the Company. In order to receive outplacement services, the Participant must begin utilizing the services within 90 days of his or her date of termination. In addition, the Company shall reimburse up to $5,000 in documented mental health services, executive coaching, or financial planning expenses incurred by the Participant within 12 months of the separation date.
6.No Duplication of Benefits. This Plan supersedes any and all prior policies or practices in effect from time to time relating to severance, separation or termination pay for the Participant. The acceptance of any Severance Benefits or Change in Control Severance Benefits under this Plan shall constitute a waiver of any severance pay or other severance benefits the Participant would have been entitled to under any prior policies or practices, any employment or other agreement between the Company and the Participant, and under any other severance policy of the Company.
7.Funding. The Plan shall at all times be entirely unfunded and no provision shall at any time be made with respect to segregating assets of the Company for payment of any Severance Benefits or Change in Control Severance Benefits hereunder. No Participant or other person shall have any interest in any particular assets of the Company by reason of the right to receive Severance Benefits or Change in Control Severance Benefits under the Plan and any such Participant or any other person shall have only the rights of a general unsecured creditor of the Company with respect to any rights under the Plan.
8.Taxation. All Severance Benefits and Change in Control Severance Benefits shall be subject to federal, state and local tax deductions and withholding for the same.
9.Non-Exclusivity of Rights. The terms of the Plan shall not prevent or limit the right of a Participant to receive any base annual salary, pension or welfare benefit, perquisite, bonus or other payment provided by the Company to the Participant, except for severance benefits under any other policy or arrangement and such other rights as the Participant may have specifically waived in writing. Amounts that are vested benefits or which the Participant is otherwise entitled to receive under any benefit policy or program provided by the Company shall be payable in accordance with the terms of such policy or program.
10.Amendment and Termination. This Plan may be amended or terminated by the Committee acting in its sole discretion at any time; provided that unless the affected Participant consents to an amendment or termination in writing: (i) no Plan termination or amendment that adversely affects the rights of a Participant shall take effect until 12 months after the Company provides written notice of
such termination or amendment to the affected Participant, (ii) the Plan shall not be terminated or amended in a manner that adversely affects the rights of a Participant during a Change in Control Period or for 6 months following the end of such period and (iii) no such termination or amendment shall adversely affect the rights of any individual who is then entitled to receive Severance Benefits or Change in Control Severance Benefits at the time of such amendment or termination.
11.Compliance with IRC Section 409A. This Plan is intended to comply with the requirements of Section 409A of the Code and shall be interpreted and construed consistently with such intent. The payments to a Participant pursuant to this Plan are also intended to be exempt from Section 409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury regulation §1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury regulation §1.409A-1(b)(4), and for this purpose each payment shall constitute a “separately identified” amount within the meaning of Treasury Regulation§1.409A-2(b)(2). In the event the terms of this Plan would subject a Participant to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Company and the Participant shall cooperate diligently to amend the terms of this Plan to avoid such 409A Penalties, to the extent possible; provided that in no event shall the Company be responsible for any 409A Penalties that arise in connection with any amounts payable under this Plan. To the extent any amounts under this Plan are payable by reference to a Participant’s “termination of employment,” such term shall be deemed to refer to the Participant’s “separation from service,” within the meaning of Section 409A of the Code. Notwithstanding any other provision in this Plan, if a Participant is a “specified employee,” as defined in Section 409A of the Code, as of the date of such Participant’s separation from service, then to the extent any amount payable to the Participant (i) constitutes the payment of nonqualified deferred compensation, within the meaning of Section 409A of the Code, (ii) is payable upon the Participant’s separation from service and (iii) under the terms of this Plan would be payable prior to the six-month anniversary of the Participant’s separation from service, such payment shall be delayed until the earlier to occur of (a) the first business day following the six-month anniversary of the separation from service and (b) the date of the Participant’s death. Any reimbursement or advancement payable to a Participant pursuant to this Plan or otherwise shall be conditioned on the submission by the Participant of all expense reports reasonably required by the Company under any applicable expense reimbursement policy, and shall be paid to the Participant not later than the last day of the calendar year following the calendar year in which the Participant incurred the reimbursable expense. Any amount of expenses eligible for reimbursement, or in-kind benefit provided, during a calendar year shall not affect the amount of expenses eligible for reimbursement, or in-kind benefit to be provided, during any other calendar year. The right to any reimbursement or in-kind benefit pursuant to this Plan or otherwise shall not be subject to liquidation or exchange for any other benefit.
12.Parachute Payment Matters.
(a)Notwithstanding any other provision of this Plan, if by reason of Section 280G of the Code any payment or benefit received or to be received by a Participant in connection with a Change in Control or the termination of the Participant’s employment (whether payable pursuant to the terms of this Plan (“Plan Payments”) or any other plan, arrangements or agreement with the Company or an Affiliate (as defined below) (collectively with the Plan Payments, “Total Payments”)) would not be deductible (in whole or part) by the Company, an Affiliate or other person making such payment or providing such benefit, then the Plan Payments shall be reduced and, if Plan Payments are reduced to zero, other Total Payments shall be reduced (first, by reducing payments to which Treas. Reg. § 1.280G-1 Q&A 24(a) applies (“Full Value Payments”), and second, by reducing payments to which Treas. Reg. § 1.280G-1 Q&A 24(c) applies; and, in each case, (i) reducing the payments furthest in time from the date of the Change in Control and (ii) in compliance with Section 409A of the Code) until no portion of the Total Payments is not deductible by reason of Section 280G of the Code, provided, however, that no such reduction shall be made unless the net after-tax benefit
received by the Participant after such reduction would exceed the net after-tax benefit received by the Participant if no such reduction was made. The foregoing determination and all determinations under this Section 12 shall be made by the Accountants (as defined below). For purposes of this Section 12, “net after-tax benefit” shall mean (i) the Total Payments that would constitute “parachute payments” within the meaning of Section 280G of the Code, less (ii) the amount of all federal, state and local income taxes payable with respect to such payments calculated at the maximum marginal income tax rate for each year in which the foregoing shall be paid to the Participant (based on the rate in effect for such year as set forth in the Code as in effect at the time of the first payment of the foregoing), less (iii) the amount of excise taxes imposed with respect to the payments and benefits described in (i) above by Section 4999 of the Code.
(b)For purposes of the foregoing determinations, (a) no portion of the Total Payments the receipt or enjoyment of which the Participant shall have effectively waived in writing prior to the date of payment of any Plan Payment shall be taken into account; (b) no portion of the Total Payments shall be taken into account which in the opinion of the Accountants does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (without regard to subsection (A)(ii) thereof); (c) the Plan Payments (and, thereafter, other Total Payments) shall be reduced only to the extent necessary so that the Total Payments in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code, in the opinion of the Accountants; and (d) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Accountants in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of this Section 12, the term “Affiliate” means the Company’s successors, any Person whose actions result in a Change in Control or any company affiliated (or which, as a result of the completion of the transactions causing a Change in Control shall become affiliated) with the Company within the meaning of Section 1504 of the Code and “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the Change in Control, unless the Accountants are also serving as accountant or auditor for the individual, entity or group effecting the Change in Control, in which case the Company shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accountants hereunder). For purposes of making the determinations and calculations required herein, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, provided that the Accountant’s determinations must be made on the basis of “substantial authority” (within the meaning of Section 6662 of the Code). All fees and expenses of the Accountants shall be borne solely by the Company.
13.Administration
(a)This Plan shall be interpreted and administered by the Chief Executive Officer of the Company (the “Plan Administrator”), who shall have complete authority, in his or her sole discretion subject to the express provisions of this Plan, to prescribe, amend and rescind rules and regulations relating to this Plan and to make all other determinations necessary or advisable for the administration of this Plan; provided, however, that the Plan Administrator must receive approval from the Committee in order to authorize severance benefits outside of the terms of this Plan to any employees covered by this Plan; and to the extent any such interpretation, determination, administration or rule shall involve a conflict of interest for the Plan Administrator, they shall to the extent applicable obtain ratification of their determinations by the Committee or delegate the same to the Committee in each case before giving effect thereto. The Plan Administrator shall be the “administrator” and a “named fiduciary” under this Plan for purposes of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”). All questions arising in connection with the interpretation of this Plan or its administration shall be submitted to and determined by the Plan Administrator in an equitable and fair manner in accordance with the procedure for claims and appeals described in Section 13(c) hereof.
(b)The Plan Administrator may from time to time delegate any of his or her duties hereunder to such person or persons as the Plan Administrator may designate. The Plan Administrator is empowered, on behalf of this Plan, to engage accountants, legal counsel and such other persons as the Plan Administrator deems necessary advisable for the performance of his or her duties under this Plan. The functions of any such persons engaged by the Plan Administrator shall be limited to the specified services and duties for which they are engaged, and such persons shall have no other duties, obligations or responsibilities under this Plan. Such persons shall exercise no discretionary authority or discretionary control respecting the administration of this Plan. All reasonable fees and expenses of such persons shall be borne by the Company.
(c)Any Participant or other person who believes that he or she is entitled to receive benefits under this Plan, including benefits other than those initially determined by the Plan Administrator to be payable, may file a claim in writing with the Plan Administrator, specifying the reasons for such claim. The Plan Administrator shall, within 60 days of receipt of such written claim, send a written notification to the Participant or other person Employee as to the disposition of such claim. In the event that such claim is denied in whole or in part, such written notification shall be written in a manner calculated to be understood by the claimant and shall (1) state the specific reason or reasons for the denial, (2) make specific reference to the pertinent Plan provisions on which the denial is based, (3) provide a description of any additional material or information necessary for the Participant to perfect the claim and an explanation of why such material or information is necessary, and (4) set forth the procedure by which the Participant or other person may appeal the denial of such claim. The Participant or other person (or his or her duly authorized representative) may request a review of the denial of any such claim or portion thereof by making application in writing to the Plan Administrator within 60 days after receipt of such denial. Such Participant or other person (or his or her duly authorized representative) may, upon written request to the Plan Administrator, review any documents pertinent to such claim, and submit in writing issues and comments in support of such claim. Within 60 days after receipt of a written appeal (unless special circumstances, such as the need to hold a hearing, require an extension of time but in no event more than 120 days after such receipt), the Plan Administrator shall notify the Participant or other person of the final decision with respect to such claim. Such final decision shall be in writing and shall include specific reasons for such decision, written in a manner calculated to be understood by the claimant, with specific references to the pertinent Plan provisions on which such decision is based.
14.Non-Assignability. Severance Benefits and Change in Control Severance Benefits pursuant to the Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge prior to actual receipt thereof by a Participant; and any attempt to so anticipate, alienate, sell, transfer, assign, pledge, encumber or charge prior to such receipt shall be void; and the Company shall not be liable in any manner for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to any Severance Benefits or Change in Control Severance Benefits under this Plan.
15.Termination of Employment. Nothing in the Plan shall be deemed to entitle a Participant to continued employment with the Company, and the rights of the Company to terminate the employment of a Participant shall continue as though the Plan were not in effect.
16.General Provisions.
(a)A Participant shall not be entitled to any severance pay, notice pay or other similar benefits by virtue of this Plan except as provided in this Plan. Subject to the foregoing, all rights of a Participant under any employee benefit plan maintained by the Company shall be determined in accordance with provisions of such plan.
(b)A Participant shall not be required to seek other employment or otherwise mitigate the severance benefits provided under this Plan, and such benefits shall not be reduced by any compensation or benefits received from any subsequent employment.
(c)If the Company is obligated by law or contract to pay severance pay, notice pay or other similar benefits, or if the Company is obligated by law or by contract to provide advance notice or separation (“Notice Period”), then any Severance Benefits or Change in Control Severance Benefits hereunder shall be reduced by the amount of any such severance pay, notice pay or other similar benefits, as applicable, and by the amount of any severance pay, notice pay or other similar benefits received during any Notice Period.
(d)Any benefit payable to or for the benefit of a minor, an incompetent person or other person incapable of giving a receipt therefor shall be deemed paid when paid to such person’s guardian or to the party providing or reasonably appearing to provide for the care of such person, and such payment shall fully discharge the Employer, the Plan Administrator and all other parties with respect thereto.
(e)This Plan shall be binding upon the heirs, executors, administrators, successors and assigns of the parties, including each Participant, present and future, and any successor to the Company. This Plan shall not be terminated by any merger or consolidation of the Company whereby the Company is or is not the surviving or resulting corporation or as a result of any transfer of all or substantially all of the assets of the Company. In the event of any such merger, consolidation or transfer of assets, the provisions of this Plan shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred.
(f)The headings and captions herein are provided for reference and convenience only, shall not be considered part of this Plan and shall not be employed in the construction of this Plan.
(g)If any provision of this Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, and this Plan shall be construed and enforced as if such provision had not been included.
(h)Any notice or other communication required or permitted pursuant to the terms hereof shall have been duly given when delivered or mailed by United States mail, first class, postage prepaid, addressed to the intended recipient at his, her or its last known address or by email to the recipient’s email address as set forth in the records of the Company.
(i)This Plan shall be administered on a calendar year basis.
(j)This Plan shall be governed by, and construed and enforced in accordance with (1) ERISA and all applicable rules and regulations thereunder and (2) the internal laws of the State of California (without regard to principles of conflicts of laws) to the extent not preempted by Federal law, which shall otherwise control.
(k)Severance Benefits or Change in Control Severance Benefits under the Plan shall be subject to any policy of recoupment of compensation adopted or amended from time to time by the Board or the Committee, including, without limitation, any policy adopted to comply with the requirements of Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (providing for recovery of erroneously awarded compensation), Section 304 of the Sarbanes-Oxley Act of 2002 (providing for forfeiture of certain bonuses and profits), and any implementing rules and regulations of the U.S. Securities and Exchange Commission and applicable listing standards of a national securities exchange adopted in accordance with either of these Acts which policy is incorporated into this Plan.
(l)A Participant shall be entitled to reimbursement of its own costs and expenses, including legal fees, that may be incurred in good faith in enforcing Participant’s rights under this Plan.
Exhibit A
CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE
This Confidential Severance Agreement and General Release (the “Agreement”) dated as of _____________ is entered into by and between _____________ (hereinafter referred to as “Executive”) and [XBP Europe Holdings, Inc. ], its [parents,] affiliates, and subsidiaries (hereinafter referred to as the “Company”). Throughout this Agreement, Executive and the Company may be referred to individually as a “Party” and collectively as the “Parties.”
Recitals
A. | Executive has been employed by the Company. Executive’s last day of employment by the Company will be ______________ (the “Separation Date”). |
B.Executive is a Participant in the Company’s Executive Severance and Change in Control Plan (the “Plan”).
C.Executive and the Company wish to enter into an Agreement to set forth all of the Separation Benefits payable pursuant to the terms of the Plan and to clarify and resolve any potential or actual disputes that may exist between them arising out of the employment relationship and termination thereof, and any continuing obligations of one Party to another following the end of the employment relationship.
D.In consideration of the Company’s agreement to pay Executive the Separation Benefits (as defined below), Executive agrees to waive any and all rights Executive may have in potential or actual actions, suits, proceedings, claims, and demands against the Company, directly or indirectly, except for those rights provided in this Agreement and Executive’s continuing right to enforce the terms and provisions of this Agreement against the Company.
E.The Company has advised Executive of Executive’s right to consult an attorney at Executive’s own expense prior to signing this Agreement and has provided Executive with 21 calendar days in which to consider this Agreement and seek legal assistance. Executive has either consulted an attorney of Executive’s choice or voluntarily elected not to consult legal counsel and understands that except for Executive’s rights preserved, and provided for above and elsewhere in this Agreement, Executive is waiving all potential or actual actions, suits, proceedings, claims, and demands against the Company and its agents.
F.This Agreement is not and should not be construed as an admission or statement by either Party that it or any other party has acted wrongfully or unlawfully. Both Parties expressly deny any wrongful or unlawful action and enter into this Agreement for the sole purpose of addressing any potential or actual issues between them.
G.The Effective Date of this Agreement is defined in Paragraph 11(d) herein. Each of the covenants and obligations set forth herein is contingent upon the occurrence of the Effective Date.
Agreement
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual rights and obligations contained below, the Parties agree as follows:
1.Employment Ending Date. Executive’s employment with the Company will terminate on the Separation Date. Executive will have no further employment duties or responsibilities to the Company after the Separation Date.
2.Payments and Benefits. In full satisfaction of Executive’s rights under the Plan and in exchange for the promises contained in this Agreement, and so long as Executive does not revoke this Agreement, Executive shall receive the Severance Benefits or Change in Control Severance Benefits as defined in and in accordance with the Plan, as applicable (the “Separation Benefits”), and further described on Schedule 1 hereto. Executive agrees to indemnify and hold the Company harmless from and against any potential or actual actions, suits, proceedings, claims, and demands for any non-payment of taxes by Executive. In addition to the Separation Benefits set forth above, Executive will receive all Accrued Obligations and Other Benefits, as defined in the Plan, separate and apart from this Agreement.
3.Valid Consideration. The Parties hereto acknowledge and agree that Executive’s right to be paid the Separation Benefits identified in Paragraph 2 is expressly conditioned on Executive signing this Agreement and not thereafter revoking this Agreement. The Parties further acknowledge and agree that the mutual promises and covenants contained herein constitute good, valid, and sufficient consideration for this Agreement.
4.Return of Company Property. Executive covenants, represents, and warrants to the Company that by the Separation Date, Executive will return to the Company any and all materials and property of the Company of any type whatsoever (including, without limitation, any vehicles and vehicles’ keys, mobile phones, office or other keys, access cards, identification badges, computer equipment, correspondence, tangible proprietary information or intellectual property, documents, records, notes, contracts, and other confidential or proprietary materials) that are in Executive’s possession or control.
5.Confidentiality and Fiduciary Duties. Executive acknowledges and agrees that Executive remains bound by all confidentiality, proprietary information, non-competition, non-solicitation, and similar agreements previously entered into with the Company, and further remains subject to any fiduciary duties owed to the Company, to the extent applicable following the termination of Executive’s employment.
6.Non-Disparagement.
(a)Executive shall not disparage the Company, its officers, directors, independent contractors, and employees.
(b)The Company will respond to requests for information from prospective employers by stating Executive’s dates of employment and position held.
(c)Nothing in this Agreement prevents Executive from discussing or disclosing information about unlawful acts in the workplace, such as harassment, discrimination, or retaliation or any other conduct that Executive has reason to believe is unlawful.
7.General Release of Claims. Executive expressly waives any and all claims against the Company and releases it including, without limitation, each of its officers, directors, partners, members, stockholders, managers, employees, consultants, agents, insurers, attorneys, parent and subsidiary corporations, and representatives (the “Company Releasees”), from any and all claims, demands, lawsuits, causes of action, obligations, and liabilities of whatever kind, which Executive may have or
thinks Executive may have against the Company Releasees or any of them based upon events or facts arising at any time on or before the Effective Date of this Agreement including, but not limited to, claims that relate to Executive’s employment, compensation, and/or the separation of employment with the Company. Executive agrees this General Release of claims includes, but is not limited to, claims for breach of any implied or express contract or covenant; claims for promissory estoppel; claims of entitlement to any pay; claims of wrongful denial of insurance and employee benefits; claims for wrongful termination, public policy violations, defamation, invasion of privacy, fraud, misrepresentation, emotional distress, or other common law or tort matters; claims of harassment, retaliation, or discrimination based on age, race, color, religion, sex, national origin, ancestry, physical or mental disability, legally protected medical condition, genetic information, marital or family status, sexual orientation, gender identity or expression, union activity, military status or veteran status, or any other status protected by law; claims based upon the California or United States Constitutions; any claims based on alleged restrictions on the Company’s right to terminate, not to hire or promote employees, or on the Company’s ability to change an employee’s compensation or other terms and conditions of employment; and claims based on any federal, state, or local law including, without limitation: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Equal Pay Act, 29 U.S.C. § 206(d)(1); the Americans with Disabilities Act; the Americans with Disabilities Act Amendments Act; the Labor Management Relations Act; the Family and Medical Leave Act; the Employee Retirement Income Security Act; the Worker Adjustment and Retraining Notification Act (“WARN”); the California WARN Act; the California Fair Employment and Housing Act; the California Labor Code; the California Family Rights Act, the California Constitution; the California Industrial Welfare Commission Wage Orders; and the California Government Code, as well as any amendments to those laws. Executive expressly understands that among the various claims and rights being waived by Executive in this Agreement are those arising under the Age Discrimination in Employment Act (“ADEA”), as amended, and in that regard, Executive specifically acknowledges that Executive has read and understands the provisions of Paragraph 11 below before signing this Agreement.
8.Exclusions From General Release/Additional Protections. Excluded from the General Release above are: (i) rights and claims which cannot be waived by law including claims for Workers’ Compensation, unemployment compensation, and accrued and vested retirement benefits; (ii) claims arising after the Effective Date of this Agreement; and (iii) claims for breach of the Agreement. Neither the General Release above nor anything else in this Agreement limits Executive’s rights to file a charge with an administrative agency (such as the U.S. Equal Employment Opportunity Commission), provide information to an administrative agency, or participate in an agency investigation. The exclusions and protections contained in this Paragraph 9 override any language to the contrary in any other part of this Agreement. Executive is, however, waiving all rights to receive money or other individual relief in connection with an administrative charge or investigation, regardless of whether that charge or investigation was initiated by Executive, on Executive’s behalf, on behalf of a group or class to which Executive purportedly belongs, or otherwise, provided, however, that Executive may accept bounty money properly awarded by the U.S. Securities and Exchange Commission.
9.Release of Unknown Claims. It is the intention of Executive and the Company that this Agreement is a General Release which shall be effective as a bar to each and every claim, demand, or cause of action it releases. Executive recognizes that Executive may have some claim, demand, or cause of action against the Company that Executive is totally unaware and unsuspecting of which Executive is giving up by execution of the General Release. It is the intention of the Executive in executing this Agreement that it will deprive Executive of each such claim, demand, or cause of action and prevent Executive from asserting it against the Company. In furtherance of this intention, Executive expressly waives any rights or benefits conferred by the provisions of Section 1542 of the Civil Code of the State of California (and/or other similar provision(s) of any other jurisdiction), which provides as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her would have materially affected his or his/her settlement with the debtor or released party.”
10.Right of Revocation. In compliance with the Older Workers Benefit Protection Act (P.L. 101-433), Executive does hereby acknowledge and agree as follows:
(a)That this Agreement does not purport to waive rights or claims that may arise from acts or events occurring after the date that the Parties execute this Agreement;
(b)That this Agreement specifically applies to any rights or claims Executive may have against the Company under the federal Age Discrimination in Employment Act of 1967, as amended;
(c)That the consideration provided for in this Agreement is in addition to that to which Executive is already entitled;
(d)That this Agreement shall be revocable by Executive for a 7-day period following execution of this Agreement by Executive. Accordingly, this Agreement shall not become effective or enforceable until the expiration of the 7-day revocation period has occurred without a revocation by Executive (“Effective Date”); and
(e)That Executive, having carefully read this Agreement and knowing the contents hereof, freely and voluntarily consents to all the terms and conditions herein, understands the final and binding effect of this Agreement, has been advised of Executive’s right to and has been given a chance to consult with and review this Agreement with an attorney of Executive’s choice prior to signing this Agreement, and has been given a period of 21 days within which to consider whether to sign this Agreement. In the event that Executive chooses to waive this 21-day period, Executive acknowledges that Executive was given a reasonable period of time within which to consider this Agreement and that Executive’s waiver was made freely and voluntarily and without duress or any coercion by any other person, including anyone at the Company or the Company Releasees.
11.Payment of Moneys Owed. The Parties acknowledge and agree that the Company has paid Executive or shall pay Executive all wages or salary earned, including any accrued but unused or unpaid vacation pay, according to the Company’s policy and eligibility requirements, business expenses, and other benefits, if any, to which Executive was entitled during employment through the Separation Date. Executive shall provide the Company with final expense report(s) no later than 7 days before the Separation Date, and the Company shall reimburse Executive for such expenses, in accordance with the Company’s policy. Executive is entitled to this payment regardless of whether Executive signs this Agreement.
12.Section 409A. The payments made under this Agreement are intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended, and applicable guidance issued thereunder (“Section 409A”). Payments made under this Agreement will be interpreted and construed, to the extent possible, to be distributed in the short-term deferral period, as defined under Treasury Regulation Section 1.409A-1(b)(4), or the separation pay exemption, as provided in Treasury Regulation Section 1.409A-1(b)(9). For purposes of this Agreement, the phrase “Separation Date” means the date in which Executive’s “separation from service,” as defined in Treasury Regulation Section 1.409A-1(h), occurred. For purposes of this Agreement, each payment made and benefits provided under this Agreement is hereby designated as a separate payment and will not collectively be treated as a single
payment, as provided in Treasury Regulation Section 1.409A-2(b)(2)(iii). Section 11 of the Plan is hereby incorporated herein by reference.
13.No Assignment. Executive represents and warrants that Executive has made no assignment or other transfer and covenants that Executive will make no assignment or other transfer of any interest in any Claim which Executive may have against the Company Releasees, or any of them.
14.Indemnification of Released Parties. Executive agrees to indemnify and hold harmless the Company Releasees, and each of them, against any loss, claim, demand, damages, expenses, or any other liability whatsoever, including reasonable attorneys’ fees and costs resulting from: (a) any breach of this release by Executive or Executive’s successors in interest; (b) any assignment or transfer, or attempted assignment or transfer, of any claims released hereunder; or (c) any action or proceeding brought by Executive or Executive’s successors in interest, or any other, if such action or proceeding arises out of, is based upon, or is related to any claims, demands, or causes of action released herein; provided, however, that this indemnification provision shall not apply to any challenge by Executive of the release of claims under the ADEA, Title VII, or similar discrimination laws, and any right of the released Parties to recover reasonable attorneys’ fees and/or expenses for such breach shall be governed by applicable law. It is the intention of the Parties that this indemnity does not require payment as a condition precedent to recovery by any of the Company Releasees under this indemnity.
15.No On-the-Job Injury. Executive represents and warrants that Executive has not experienced a job-related illness or injury during employment with the Company for which Executive has not already filed a claim and that Executive has disclosed to the Company any pending or previously filed claim relating to an on-the-job injury or illness.
16.Cooperation. Executive agrees to cooperate fully with the Company and its subsidiaries and affiliates in the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company or its subsidiaries or affiliates which relate to events or occurrences that transpired while Executive was employed by the Company; and in connection with any investigation or review by any federal, state, or local regulatory, quasi-regulatory, or self-governing authority (including, without limitation, the U.S. Securities and Exchange Commission) as any such investigation or review relates to events or occurrences that transpired while Executive was employed by the Company. Executive’s full cooperation shall include, but not be limited to, being available to meet and speak with officers or employees of the Company and/or its counsel at reasonable times and locations, executing accurate and truthful documents, appearing at the Company’s request as a witness at depositions, trials, or other proceedings without the necessity of a subpoena, with reasonable advance notice, providing truthful testimony and taking such other actions as may reasonably be requested by of the Company and/or its counsel to effectuate the foregoing. In requesting such services, the Company will consider other commitments that Executive may have at the time of the request, and Executive’s availability and obligations under this Paragraph shall in all instances reasonably be subject to Executive’s other commitments. The Company agrees to reimburse Executive for any reasonable, out-of-pocket travel, hotel, and meal expenses incurred in connection with Executive’s performance of obligations pursuant to this Paragraph for which Executive has obtained prior written approval from the Company, and the Company shall pay Executive $450 per hour for any services performed by Executive at the request of the Company pursuant to this Paragraph.
17.Truthful Testimony; Notice of Request for Testimony. Nothing in this Agreement is intended to or shall preclude either Party from providing testimony that such Party reasonably and in good faith believes to be truthful in response to a valid subpoena, court order, regulatory request, or other judicial, administrative, or legal process or otherwise as required by law. Executive shall notify the Company in writing as promptly as practicable after receiving any such request of the anticipated
testimony and at least 10 days prior to providing such testimony (or, if such notice is not possible under the circumstances, with as much prior notice as is possible) to afford the Company a reasonable opportunity to challenge the subpoena, court order, or similar legal process. Moreover, nothing in this Agreement shall be construed or applied so as to limit any person from providing candid statements that such Party reasonably and in good faith believes to be truthful to any governmental or regulatory body or any self-regulatory organization.
18.Non-Solicitation. During a period of two years following the Separation Date, Executive will not, directly or indirectly, whether as owner, partner, shareholder, consultant, agent, employee, co-venturer, or otherwise, or through any other “person” (which, for the purposes of this Paragraph, shall mean an individual, a corporation, a partnership, an association, a joint-stock company, a trust, any unincorporated organization, or a government or political subdivision thereof): (1) solicit, encourage, or assist any employee of the Company or any affiliate of the Company to terminate his or her relationship with the Company or any affiliate of the Company; or (2) request or cause customers, suppliers, or other parties with whom the Company or any of its affiliates has a business relationship to cancel or terminate any such business relationship with the Company or any of its affiliates.
19.Tax Indemnification. It is understood between the Parties that Executive has not relied upon any representation, express or implied, made by the Company or any of its representatives as to the tax consequences of this Agreement and that Executive releases the Company Releasees from any and all liability in connection with any such tax consequences. The Company’s payments to Executive described above in Paragraph 2 represent a compromise of any and all of Executive’s known or unknown claims against the Company Releasees. Executive agrees that any liability for state or federal income tax payments or penalties arising from said payments shall be Executive’s sole responsibility. Executive agrees to indemnify and to hold harmless the Company Releasees from any and all actions, claims, or demands brought by any tax or other authority based upon Executive’s tax obligations arising from payments to be made pursuant to this Agreement, and Executive agrees specifically to reimburse the Company for any taxes, interest, and penalties paid by the Company and for the costs, legal fees, and any other expenses incurred by the Company as a result of any such actions, claims, or demands.
20.Arbitration. Except for an action for injunctive relief to enforce the terms of this Agreement, any dispute concerning the application of this Agreement, and any other dispute from time to time between Executive and the Company, shall be settled by arbitration, to take place in Los Angeles, California before an arbitrator selected by the Parties. Any arbitration shall be in accordance with and under the auspices and rules of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) for the resolution of disputes. The arbitration shall be held in accordance with the JAMS then current Arbitration Rules & Procedures. Unless otherwise provided by law, the Company shall bear 100% of the arbitration costs and fees. The decision of the arbitrator shall be final and conclusive, and the Parties waive the right to trial de novo or appeal.
21.Binding Agreement. This Agreement shall be binding upon each Party and its and his or her heirs, administrators, representatives, executors, successors, and assigns and shall inure to the benefit of the Company Releasees and each of them and to their heirs, administrators, representatives, executors, successors, and assigns.
22.Contract Interpretation. The language of this Agreement shall not be construed for or against any particular Party. The Paragraph headings are inserted as a matter of convenience and in no way define, limit, or describe the scope of such Paragraph or affect the interpretation of this Agreement. The invalidity or enforceability, in whole or in part, of any provision of this Agreement will not affect the validity or enforceability of any other provision. In the event of a conflict or inconsistency between the
terms of this Agreement and any other agreement between the Parties, the terms of this Agreement shall control.
23.Entire Agreement/Survival. Executive acknowledges that no promises or representations other than those set forth in this Agreement have been made to Executive to induce Executive to sign this Agreement and that Executive only has relied on promises expressly stated herein. This Agreement sets forth the entire understanding between Executive and the Company and supersedes any prior agreements or understandings, express or implied, pertaining to the terms of Executive’s employment with the Company and the termination of the employment relationship. The provisions of this Agreement shall survive the Separation Date and the termination of Executive’s employment.
24.Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of California, without regard to its conflicts of law provisions.
25.Waiver. No purported waiver of a breach or default will be valid unless specifically stated in writing by the waiving Party. No such waiver waives any subsequent breach or default of the same or any other term in this Agreement.
26.No Further Amendment. No amendment or modification of this Agreement will be binding unless executed in writing by the Parties or their permitted successors or assigns. No course of conduct or course of performance under this Agreement or any other agreement between the Parties will be deemed to amend or modify this Agreement.
27.Attorneys’ Fees. Should legal action be necessary to enforce or interpret this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs.
28.Counterparts. This Agreement may be executed in any number of counterparts and by any electronic means, each of which shall be deemed an. original and all of which, when taken together, shall constitute one and the same agreement.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES THE RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
The Parties have executed this Agreement, consisting of [xx] pages, including this page, as of the dates indicated below.
Dated: ___________ | [XBP Europe Holdings, Inc.], the “Company” | |
| | |
| | |
| By: | |
| Its: | |
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Dated: ___________ | ____________________________ the “Executive” | |
Exhibit 31.1
CERTIFICATION OF THE PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO RULE 13a-14(a) AND RULE 15d-14(a)
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Andrej Jonovic, certify that:
1. | I have reviewed this Amendment No. 1 on Form 10-K/A for the year ended December 31, 2024 of XBP Europe Holdings, Inc.; and |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
Date: April 30, 2025 | By: | /s/ Andrej Jonovic |
| | Andrej Jonovic |
| | Chief Executive Officer |
Exhibit 31.2
CERTIFICATION OF THE PRINCIPAL FINANCIAL OFFICER
PURSUANT TO RULE 13a-14(a) AND RULE 15d-14(a)
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS ADOPTED PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Dejan Avramovic, certify that:
1. | I have reviewed this Amendment No. 1 on Form 10-K/A for the year ended December 31, 2024 of XBP Europe Holdings, Inc.; and |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
Date: April 30, 2025 | By: | /s/ Dejan Avramovic |
| | Dejan Avramovic |
| | Chief Financial Officer |