General Release and Separation Agreement
Exhibit 10.1
General Release and Separation Agreement
This General Release and Separation Agreement (hereinafter the “Agreement”) is made and entered into by and between Rubicon Technologies Holdings, LLC, a Delaware limited liability company (the “Company” or “Rubicon”), and Xxxx Xxxxxx (“Executive”), on the date fully executed by the Company and Executive below. This Agreement is entered into pursuant to that certain Employment Agreement, dated on or about March 20, 2023, between Company and Executive, including all subsequent amendments thereto (the “Employment Agreement”), and extinguishes all of Rubicon’s obligations to Executive whether under the Employment Agreement or otherwise except as set forth in this Agreement.
WITNESSETH:
WHEREAS, Executive’s employment with the Company will end as of the Separation Date (as defined below in Paragraph 1); and
WHEREAS, Executive and the Company desire to resolve any and all matters arising from Executive’s employment and/or separation on mutually satisfactory terms as set forth herein;
NOW, THEREFORE, in consideration of the terms and mutual promises set forth herein, the parties agree as follows:
1. Separation Date. Executive has resigned his employment with the Company and resigned from the Company’s Board of Directors (the “Board”), and any other positions that Executive holds or has held for the Company and/or any parent, subsidiary and/or affiliate of the Company effective June 28, 2024 (the “Separation Date”). The Company and the Board have accepted Executive’s resignation effective upon the Separation Date.
2. Final Wages; Restricted Stock Unit Awards. Executive will be paid all wages earned and accrued as of the Separation Date. Executive will not accrue any additional fringe benefits subsequent to the Separation Date, except as expressly provided in Paragraph 3 of this Agreement. Executive acknowledges and agrees that Executive has received payment in full for all of the compensation, wages, benefits and/or payments of any kind otherwise due from the Company, including, but not limited to compensation, bonuses, commissions, lost wages, expense reimbursements, payments to benefit plans, unused accrued vacation leave and personal time, sick pay or any other payment or benefit under a Company plan, program, policy, practice or promise as of the date of Executive’s signing of this Agreement and that no other compensation, bonuses, commissions, lost wages, expense reimbursements, payments to benefit plans, unused accrued vacation leave and personal time, sick pay or any other payment or benefit under a Company plan, program, policy, practice or promise are due to him except for the Separation Consideration set forth in Paragraph 3, which Executive will receive only if he executes and does not revoke this Agreement. None of the foregoing payments (except for the Separation Consideration set forth in Paragraph 3) constitute consideration for the releases and covenants set forth herein. The wages referred to in this Paragraph 2 have been or will be paid to Executive regardless of whether Executive signs this Agreement. To the extent that Executive claims any additional wages are due, there is a bona fide dispute as to such claims, and Executive agrees that the valuable consideration that Executive acknowledges and accepts by signing this Agreement compensates for and resolves any and all possible claims and disputes he may have against the Company.
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Executive shall retain all Restricted Stock Units (“RSUs”) vested as of March 12, 2024. However, Executive expressly waives all rights he may have to any additional RSUs (whether granted or ungranted), including any right to acceleration of unvested RSUs, and all unvested RSUs are forfeited pursuant to the terms of the Rubicon Technologies, Inc. 2022 Equity Incentive Plan.
3. Separation Consideration. In consideration of the covenants and agreements by Executive as described in this Agreement, including, without limitation, the covenants set forth in Paragraphs 7, 8, 9, and 11 and the releases as set forth in Paragraphs 4 and 5, the Company will pay Executive a total of Three Million Six Hundred Thousand Dollars and Zero Cents ($3,600,000.00) (the “Separation Consideration”).
(a) The Separation Consideration will be paid as follows:
i. the Company will pay Executive over a period of twelve (12) months a separation payment of One Million Two Hundred Thousand Dollars and Zero Cents ($1,200,000.00), subject to standard deductions and withholdings (the “First Separation Payment”), in equal installments pursuant to the Company’s regular payroll schedule beginning as soon as administratively practicable after the Effective Date but no later than twenty-one (21) days following the Effective Date and concluding twelve (12) months after the first payment is made (the “Severance Period”); and
ii. the Company will pay Executive an additional one (1) time separation payment of One Million Dollars and Zero Cents ($1,000,000.00), subject to standard deductions and withholdings (the “Second Separation Payment”), within twenty-one (21) days of the expiration of the Severance Period;
iii. the Company will pay Executive a separation payment of One Million Dollars and Zero Cents ($1,000,000.00), subject to standard deductions and withholdings (the “Third Separation Payment”), in equal monthly installments beginning as soon as administratively practicable after the Severance Period but no later than twenty-one (21) days following the expiration of the Severance Period and concluding by February 28, 2026 (the “Second Severance Period”); and
iv. the Company will pay Executive a separation payment of Four Hundred Thousand Dollars and Zero Cents ($400,000.00), subject to standard deductions and withholdings (the “Fourth Separation Payment”), in equal monthly installments beginning as soon as administratively practicable after the Second Severance Period but no later than twenty-one (21) days following the expiration of the Second Severance Period and concluding by December 31, 2026.
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(b) In the event that there is a single Sale of Assets Event (as defined in Appendix A) or two Change in Control Events (as defined in Appendix A) completed (i) on or after the date on which the first installment of the First Separation Payment is made and (ii) before all of the separation payments as described above in Paragraph 3(a)(i)-(iv) are completed, then any Separation Consideration that is unpaid as of the first completed Sale of Assets Event or the second completed Change in Control Event will be paid within thirty (30) business days of the first completed Sale of Assets Event or the second completed Change in Control Event, as applicable; except that if there is no Change in Control Event before or on March 7, 2025, then the occurrence of only one Change in Control Event is necessary to trigger the acceleration contemplated in this Paragraph 3(b). In no event shall the Separation Consideration exceed Three Million Six Hundred Thousand Dollars and Zero Cents ($3,600,000.00) nor shall the Company ever pay more than Three Million Six Hundred Thousand Dollars and Zero Cents ($3,600,000.00) under this Agreement.
(c) Furthermore, the entirety of the then unpaid Separation Consideration shall be accelerated in the event that the Company fails to make any of the payments required in Section 3(a) above or otherwise materially breaches the terms of this Agreement; provided that Executive shall provide the Company with written notice of such alleged non-compliance, citing to the provision(s) of this Agreement and the known facts relied upon by Executive as the basis for the Company’s alleged non-compliance, and provide the Company with a period of thirty (30) days to cure any alleged non-compliance (the “Company Cure Period”). Upon the expiration of the Company Cure Period, Executive shall have a period of ten (10) days to then provide the Company with written notice of the Company’s ongoing breach and failure to cure such breach, at which time the then unpaid portion of the Separation Consideration shall be immediately due and payable, or alternatively that the Company’s breach has been cured. Nothing in this Paragraph 3(c), however, shall preclude the Company from legally challenging or raising any defenses to any breach alleged by Executive.
(d) Executive acknowledges and agrees that Executive would not receive the Separation Consideration except for Executive’s execution of this Agreement and the fulfillment of the promises contained herein. The Separation Consideration described in this Paragraph 3 is expressly contingent upon the Executive’s material compliance with the terms of this Agreement and those provisions of the Employment Agreement that survive Executive’s separation of employment. Should Executive fail to comply with the terms of this Agreement or the Employment Agreement, then the Company shall provide Executive with written notice of such alleged material non-compliance, citing to the provision(s) of this Agreement and/or Employment Agreement and the known facts relied upon by the Company as the basis for Executive’s alleged non-compliance, and provide Executive with a period of thirty (30) days to cure any alleged non-compliance (the “Executive Cure Period”). During the Executive Cure Period, any payments due in accordance with Paragraph 3(a) above shall be suspended. Upon the expiration of the Executive Cure Period, the Company shall have a period of ten (10) days to then provide Executive with written notice of Executive’s ongoing breach and failure to cure such breach, or alternatively that Executive’s breach has been cured, at which time the Company shall resume the payment of the Separation Consideration, including making a catch-up payment of all payments suspended during the Executive Cure Period. In the event that the Company declares a breach in accordance with this Paragraph 3(d), then Executive shall forfeit rights to receive unpaid Separation Consideration amounts (except that Executive shall retain the right to receive a single payment of one hundred dollars and zero cents ($100.00)), and Executive shall immediately return to the Company the net-of-tax amounts of any payments already made to him, except that Executive may retain one hundred dollars ($100.00) of the net-of-tax payments already made to him. In the event of such a breach, Executive consents and agrees to the following written statement: “Executive has not claimed a FICA refund or credit of the amount of the overcollection, or if he has, such claim has been rejected, and Executive will not claim a FICA refund or credit of the amount.” Further, in the event of such a breach, to the extent the Company is unable to obtain a refund of any income taxes already withheld, Executive shall be responsible for repayment of such income taxes. Nothing in this Paragraph 3(d), however, shall preclude Executive from legally challenging or raising any defenses to any breach alleged by the Company.
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4. Release of Claims. In consideration of the promises and payments set forth herein, and as a material inducement for the parties to enter into this Agreement, the parties state as follows:
(a) Executive, on behalf of himself and his representatives, heirs, successors, assigns, devisees and executors, hereby unconditionally releases, acquits, and forever discharges the Company, Rubicon Technologies, Inc., Rubicon Technologies, LLC, Rubicon Technologies International, Inc., Rubicon Global, LLC, Cleanco LLC, Charter Waste Management, Inc., Rubicon Technologies Germany UG, and RiverRoad Waste Solutions, Inc. and each of their current, former and future parents, subsidiaries, affiliates, estates, divisions, successors, insurers and assigns, attorneys and all of their owners, stockholders, general or limited partners, agents, directors, managers, officers, trustees, employees, representatives, executives, the subrogees of all of the above, and all successors and assigns thereof (collectively, the “Releasees”), from any and all claims, charges, complaints, demands, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, entitlements, costs, losses, debts, and expenses (including attorneys’ fees and legal expenses) of any nature whatsoever, known or unknown, which Executive now has, had, or may hereafter claim to have had against the Releasees and/or any of them by reason of any matter, act, omission, transaction, occurrence, or event that has occurred or is alleged to have occurred up to and including the Effective Date (as defined in Paragraph 6) of this Agreement (the “Release”). Notwithstanding the foregoing, this Release shall not operate as a release of: (i) any obligations set forth in this Agreement; (ii) any vested rights held by Executive under any fringe benefit plan maintained by the Company or any of its parents, subsidiaries, and/or affiliates (except as expressly set forth in Paragraph 2 above with respect to Executive’s RSUs, each in accordance with the terms and provisions of such plan; (iii) any rights to indemnification that Executive may have under any bylaws or agreements with the Company and/or its parents, subsidiaries and/or affiliates, or under any insurance policy maintained by the Company and/or its parents, subsidiaries and/or affiliates, including, without limitation, under the Directors and Officers Liability Insurance policy referenced in Section 10 of the Employment Agreement; and/or (iv) any claims that may not be released by operation of law. Any reference to a “general release” in this Agreement shall not operate as a release of the claims in subparts (i) through (iv) herein.
(b) Executive also specifically agrees that the parties intend the Release to be general and comprehensive in nature and to release all claims and potential claims against the Releasees to the maximum extent permitted by law. The Release includes a knowing and voluntary waiver and release of any and all claims including, but not limited to, claims relating to any Special Bonus (as defined in the Employment Agreement) and claims for nonpayment of wages, overtime or bonuses or any other claims relating to compensation or Executive’s employment, breach of contract, fraud, loss of consortium, emotional distress, personal injury, injury to reputation, injury to property, intentional torts, negligence, wrongful termination, constructive discharge, retaliation, discrimination, harassment, non-payment of equity in the Company, and any and all claims for recovery of lost wages or back pay, fringe benefits, pension benefits, liquidated damages, front pay, compensatory and/or punitive damages, attorneys’ fees, injunctive or equitable relief, or any other form of relief under any federal, state, or local constitution, statute, law, rule, regulation, judicial doctrine, contract, or common law. Specifically included, without limitation, in this Release is a knowing and voluntary waiver and release of all claims, including without limitation all claims of employment discrimination, harassment, or retaliation or relating to any manner of employee benefits, under: the Americans With Disabilities Act Amendments Act of 2008; Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991; the Age Discrimination in Employment Act; the National Labor Relations Act; the Family and Medical Leave Act; the Occupational Safety and Health Act; the Executive Retirement Income Security Act of 1974; the Xxxxx Xxxxxxxxx Fair Pay Act of 2009; the California Equal Pay Law; the California Fair Employment and Housing Act; the California Business and Professions Code; the California Family Rights Act; the California Pregnancy Disability Leave Law; the California Government Code; the California Labor Code (including, but not limited to, sections 203, 204, 206, 210, 216, 218, 218.5, 218.6, 225.5, 226, 226.3, 226.7, 246, 246.5, 247, 247.5, 248, 248.1, 510, 512, 558, 1050 et seq., 1102.5 et seq., 1194, 1194.2, 1197, 1197.1, 1198, 1400 et seq., and/or 2698 et seq.); any California Industrial Welfare Commission Wage Order; the California Military & Veterans Code; the California Civil Code; the Xxxxx Civil Rights Act; the California Domestic Violence and Sexual Assault Victim Leave Act; the California Worker Adjustment and Retraining Notification Act; the California Whistleblower Law; any other state and local laws of California that may be lawfully waived by agreement; and any federal, state, or local constitution, statute, law, rule, ordinance, regulation, judicial doctrine, contract, common law, or other theory arising out of any matter, act, omission, transaction, occurrence, or event that has occurred or is alleged to have occurred up to and including the Effective Date of this Agreement.
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(c) Executive expressly acknowledges that this Agreement may be pled as a complete defense and may bar any and all claims, known or unknown, against any or all the Releasees based on any matter, act, omission, transaction, occurrence, or event that has occurred or is alleged to have occurred up to and including the Effective Date of this Agreement.
(d) Executive specifically acknowledges that he is aware of and familiar with the provisions of California Civil Code Section 1542, 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 HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Executive, being aware of this section, hereby expressly waives and relinquishes all rights and benefits he may have under this section as well as any other statutes or common law principles of a similar effect.
(e) Executive acknowledges that this general release extends also to claims that Executive does not know or suspect to exist in Executive’s favor at the time of executing this Agreement which, if known by Executive, might have materially affected Executive’s decision to execute this Agreement.
(f) Executive hereby knowingly and voluntarily waives and relinquishes all rights and benefits which Executive may have under applicable law with respect to such general release provisions.
(g) The Company represents and warrants that it is not presently aware of any facts or information that would give rise to any claims, charges, complaints, demands, actions, causes of action, or lawsuits against Executive. In addition to the foregoing, the Company, on behalf of itself and its parents, subsidiaries, and affiliates, hereby releases Executive and agrees to indemnify, hold harmless and defend Executive from any and all claims that in any way relate to the Company’s dispute with Cass Information Systems.
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5. Release of Claims under the Age Discrimination in Employment Act (“ADEA”) and Older Workers Benefit Protection Act (“OWBPA”). Executive understands and acknowledges that before signing this Agreement:
(a) He has read and been given ample opportunity to study this Agreement;
(b) He has been and hereby is advised in writing to consult with an attorney before signing this Agreement, he has in fact consulted with an attorney prior to signing this Agreement or has voluntarily chosen to forgo advice of counsel in connection with signing this Agreement;
(c) He is waiving any rights he may have under the ADEA and OWBPA, 29 U.S.C. § 621 et. seq.;
(d) He is receiving consideration for this waiver beyond that to which he is otherwise entitled;
(e) He is signing this Agreement voluntarily with full knowledge that it is intended, to the maximum extent permitted by law, as a complete and final release and waiver of any and all claims, including, but not limited to, age discrimination claims;
(f) He has been provided the opportunity to consider this Agreement for twenty-one (21) days before signing it and, in the event that he decides to execute this Agreement in fewer than twenty-one (21) days, he does so with the express understanding that he was given and declined the opportunity to consider this Agreement for twenty-one (21) days; and
(g) He may revoke this Agreement at any time during the seven (7) days following the date he signs this Agreement, and the Agreement shall not become effective or enforceable until the revocation period has expired without the revocation of Executive’s agreement. Any revocation must be in writing and delivered by electronic mail to Rubicon, attention Xxxxx X. Xxxxx, xxxxxxxxxxx@xxxxx.xxx. Failure to revoke within seven (7) days will result in the release of his claims being permanent. If Executive revokes within 7 days, the entire Agreement is void and Executive will have no entitlement to the payments and/or benefits described in Paragraph 3, or any other amount or benefit, from Rubicon.
6. Effective Date of Agreement and Opportunity to Review. This Agreement shall not become effective or enforceable until the “Effective Date,” defined as the date when the last of the following events occurs: (i) Executive executes the Agreement; (ii) the period for revoking the Agreement, as described in Paragraph 5(g), has passed without Executive’s revocation of the Agreement; (iii) receipt by the Company of a scanned copy of this Agreement executed by Executive containing Executive’s ink signature; and (iv) the occurrence of the Separation Date. Executive shall provide copies of the executed Agreement to the Company by electronic mail, Attn: Xxxxx X. Xxxxx, xxxxxxxxxxx@xxxxx.xxx.
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7. Non-Disparagement and Non-Interference. For and in consideration of the payments, promises, and other consideration described in this Agreement, and as a significant material inducement for the Company and Executive to enter into this Agreement, Executive covenants and agrees that, except as inconsistent with Paragraph 10 or applicable law, Executive will not disparage or defame the Company, including its officers, directors, management, executives, employees, suppliers, products and services. Executive understands and agrees that this restriction prohibits Executive from making disparaging or defamatory remarks toward or about the Company, its officers, board, board of advisors, management, executives, employees, suppliers, or products in their capacities as such (1) to any member of the general public, including, but not limited to, any customer or vendor of the Company; (2) to any current or former officer, manager, executive, or employee of the Company; or (3) to any member of the press or other media. If Executive receives a subpoena or other legal document concerning Executive’s employment with the Company, then, to the extent permitted by law and provided it is consistent with Paragraph 10 of this Agreement, Executive agrees to notify the Board within ten (10) business days of receipt of the legal document requiring Executive to provide this information and to cooperate with any reasonable efforts by the Company, at its own cost and expense, to limit the production of any such information, including conditioning any such production on the entry of a confidentiality and/or protective order(s).
This Paragraph does not in any way restrict or impede Executive from exercising protected rights (to the extent Executive is deemed to have such rights under applicable law), including rights under: (i) the National Labor Relations Act and the right to file unlawful labor practice (ULP) charges or participate, assist, or cooperate in ULP investigations; and (ii) the federal securities laws, including the right to report possible securities law violations to the SEC, without notice to the Company. Moreover, nothing in this Agreement is intended to or does in any way: (i) prevent Executive from discussing or disclosing information about unlawful acts in the workplace, such as harassment (including sexual harassment), discrimination, sexual assault, or any other conduct that Executive has reason to believe is unlawful; (ii) waive any rights which cannot be waived by agreement; (iii) prevent Executive from engaging in lawful competition in connection with Executive’s business endeavors following the Separation Date; or (iv) prevent Executive from otherwise disclosing information as permitted or required by law. This Paragraph also does not prevent Executive from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order.
In exchange for Executive’s promises in this Section 7, the Company agrees to instruct its Board to not disparage or defame Executive: (1) to any member of the general public, including, but not limited to, any customer or vendor of the Company; (2) to any current or former officer, manager, executive, or employee of the Company; or (3) to any member of the press or other media. Moreover, Executive must direct any recruiter or prospective employer of Executive to the Vice President of Human Resources of the Company who shall confirm Executive’s last position and salary held with the Company and that Executive voluntarily resigned from his employment. Executive agrees that the Company shall have no obligations under this Paragraph to the extent that the recruiter or prospective employer of Executive contacts anyone other than the Vice President of Human Resources of the Company.
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8. Return to Company. Executive warrants, represents, covenants, and agrees that as of the Effective Date, Executive has returned to the Company all Company documents, records, property, and information, in any form, including, but not limited to, Company files, electronic messages, notes, drawings, records, business plans and forecasts, financial information, specifications, business planning or strategy information, information about the Company’s executives, customer identity information, tangible property including, but not limited to, computers, intellectual property, credit cards, key fobs, mobile telephones, entry cards, identification badges and keys; and any materials of any kind which contain or embody trade secrets or other confidential information of the Company (and all embodiments, copies, or extracts thereof), which Executive has acquired or possessed during Executive’s employment. Executive also warrants, represents, covenants, and agrees that Executive has not made or retained and shall not make or retain any embodiment, copy, or extract thereof. Executive will not copy, delete, or alter any information contained upon Executive’s Rubicon computer or Rubicon equipment before Executive returns it to Rubicon. Notwithstanding the foregoing, Executive may retain copies of any agreements and documents related to his compensation and benefits provided by the Company.
9. Cooperation. Executive agrees to be reasonably available to the Company to respond to reasonable requests by the Company for information pertaining to or relating to the Company and/or any of the Releasees or any of their agents, officers, directors, managers, executives, or employees which may be within the knowledge of Executive. Executive will cooperate fully with the Company in connection with any and all existing or future depositions, litigations and/or investigations (including internal investigations) brought by or against the Company or any of the Releasees or any of their agents, officers, directors, managers, executives or employees, whether administrative, civil or criminal in nature, in which and to the extent the Company, in its sole discretion, deems Executive’s cooperation necessary. This cooperation may include without limitation making himself reasonably available to participate in any proceeding, inquiry, and/or investigation involving any of the Releasees, allowing himself to be interviewed by representatives of the Releasees, participating as requested in interviews and/or preparation by any of the Releasees of other witnesses, appearing for depositions and testimony without requiring a subpoena, and producing and/or providing any documents and/or information. Executive also understands and agrees to provide only honest, accurate, and complete information in connection with any and all existing or future depositions, litigations and/or investigations (including internal investigations) brought by or against the Company or any of the Releasees in which and to the extent the Company deems Executive’s cooperation necessary. Executive also represents and agrees that he has not and will not withhold, tamper with or fail to communicate relevant information and will provide and maintain all relevant information as directed by the Releasees. Executive hereby further agrees to execute all truthful documents and take such other actions as the Company may reasonably request in order to accomplish the purposes of this Agreement. The Company will reimburse Executive for reasonable out-of-pocket expenses incurred as a result of such cooperation (this does not include an hourly fee), provided that Executive complies with all Company policies and/or directions for submission of expense reimbursement requests. The prior sentence is not intended to affect the substance of any testimony or cooperation that Executive provides. In connection with Executive’s cooperation under this Paragraph 9, the Company agrees to take reasonable measures, to the extent possible under the circumstances, not to interfere with Executive’s professional and personal obligations.
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10. Cooperation with Government Agencies and Regulatory Organizations. Nothing in this Agreement (or any other policy, plan, or program of the Company) is intended to, or shall be deemed to, prohibit or restrict Executive in any way from communicating directly with, reporting to, cooperating with, responding to any inquiry from, or providing testimony before, the Securities and Exchange Commission, FINRA, or any other self-regulatory organization, or any other federal or state regulatory authority, or governmental agency or entity, regarding any possible securities violation or other possible violation of law or this Agreement or its underlying facts and circumstances. In addition, nothing in this Agreement is intended, or shall be deemed, to interfere with Executive’s ability to file a charge or complaint with the Equal Employment Opportunity Commission or any other federal, state, or local government agency or commission, including those agencies responsible for enforcing equal opportunity laws or limit Executive’s ability to participate in any investigation or proceeding conducted by any such agency or commission. Moreover, Executive is not required to provide advance notice to, or have prior authorization from, the Company in order to engage in any of the foregoing activity referenced in this Paragraph. Without prior authorization of the Board, however, the Company does not authorize Executive to disclose to any third party (including any government official or any attorney Executive may retain) any communication that is covered by the Company’s attorney-client or other privilege. Executive further acknowledges and agrees that the consideration paid to him under this Agreement represents full and complete satisfaction of any monetary recovery against any of the Releasees that could be sought by or awarded to him in any judicial, administrative, or arbitral proceeding with respect to any claim released under this Agreement and that he will not be able to obtain any monetary relief or any other remedy, including costs or attorneys’ fees in connection with any proceeding initiated or maintained by the EEOC or any state or local government agency responsible for enforcing equal employment opportunity laws. For the avoidance of doubt, this Agreement does not limit Executive’s eligibility to receive an award out of monetary sanctions collected by any government agency as provided by applicable whistle-blower programs.
11. Mandatory Binding Arbitration.
11.1 Mandatory Arbitration of All Disputes. This Paragraph 11 shall be governed by and interpreted in accordance with the Federal Arbitration Act. Executive and the Company agree that any controversy, claim, or dispute between or among them that cannot be resolved shall be adjudicated exclusively by final and binding individual arbitration in San Francisco, California or another agreed-upon location. The parties agree that the American Arbitration Association (the “AAA”) shall be the exclusive provider for all arbitrations, and Executive and the Company agree not to file, institute, or maintain any arbitration other than with the AAA. The arbitration will be governed by the AAA Employment Arbitration Rules and Mediation Procedures (available at xxx.xxx.xxx/xxxxxxxxxx) and subject to the AAA Employment Due Process Protocol, if applicable, except as they are modified by the parties. Unless otherwise agreed by the parties, the arbitration will be submitted to a single arbitrator selected in accordance with AAA rules. The arbitrator must follow applicable law and may award only those remedies (including, without limitation, attorney’s fees and costs) that would have been available had the claim(s) been heard in court. In addition, the arbitrator is required to issue a written arbitration award setting forth the essential findings and conclusions on which any award is based. The Company will pay all arbitration administrative fees (including filing fees), the arbitrator’s fees and costs, and any other fees or costs unique to arbitration. The Company will pay the arbitration administrative fees, the arbitrator’s fees and costs, and any other fees or costs unique to arbitration within one hundred eighty (180) days of receipt of an invoice from the AAA setting forth the full amount of unique arbitration fees and costs due. Each party shall be responsible for paying her/its own litigation costs for the arbitration, including, but not limited to, attorneys’ fees, witness fees, transcript fees, or other litigation expenses that each party would otherwise be required to bear in a court action, subject to any relief awarded by the arbitrator in accordance with applicable law.
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The parties shall be entitled to conduct adequate and reasonable discovery in accordance with the AAA Rules and the applicable provisions of the California Code of Civil Procedure. The arbitrator has the authority to resolve all discovery disputes and limit the form and amount of discovery to that reasonably necessary to arbitrate the dispute or claim presented.
11.2 Covered Disputes. Except as expressly set forth below, the foregoing shall apply to the following “Covered Disputes”: (i) all disputes and claims related to the Release and all other disputes and claims of any nature that Executive may have against the Releasees, including any and all statutory, contractual, and common law claims unless prohibited by applicable law, (ii) all disputes and claims of any nature that the Releasees may have against Executive or that Executive may have against any Releasee(s), (iii) all disputes and claims related to any breach of this Agreement or any post-employment obligation under the Employment Agreement, (iv) all disputes and claims concerning the validity and/or enforceability of the Agreement, and (v) all disputes concerning the validity, enforceability, or the applicability of this Paragraph 11 to any dispute or claim. The term “Covered Disputes” does not include, and this Paragraph 11 does not apply to: (a) claims seeking unemployment insurance benefits, state disability insurance benefits, or workers’ compensation benefits, except that claims for retaliation pursuant to these laws shall be subject to arbitration under this Paragraph 11; (b) claims for benefits under ERISA, which must be resolved in accordance with the terms and procedures set forth in the applicable plan documents; (c) Xxxxxxxx-Xxxxx Act, Consumer Financial Protection Bureau, and Commodity Futures Trading Commission whistleblower claims; or (d) any other claims that are not permitted to be subject to a pre-dispute arbitration agreement under applicable federal law and/or federal regulation.
11.3 Delegation. The arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this Paragraph 11 and/or to the arbitrability of any claim or counterclaim.
11.4 Charges/Complaints with Government Agencies. Nothing in this Paragraph 11 affects Executive’s right to file a charge with, make a complaint to, or participate in an investigation or other proceeding of the EEOC (or any similar state or local bodies), the National Labor Relations Board, or any other administrative, law enforcement, or regulatory body. Notwithstanding the foregoing, Executive may seek monetary relief with respect to a dispute or claim covered by this Paragraph 11 only through an arbitration conducted pursuant to this Paragraph 11.
11.5 Enforcement of Arbitration Award. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Paragraph 11 and to enforce an arbitration award.
11.6 Waiver of Class, Collective, and Representative Actions. To the extent permitted by law, Executive and the Releasees waive any right or authority to have any Covered Disputes heard as a class, collective, or representative action. Executive and the Releasees must bring any Covered Dispute in an individual capacity, and not as a plaintiff, “opt-in”, or class member in any purported class, collective, or representative proceeding. The arbitrator may not join or adjudicate the claims or interests of any other person or employee in the arbitration proceeding, nor may the arbitrator otherwise order any consolidation of actions or arbitrations or any class, collective, or representative arbitration.
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11.7 Confidentiality of Proceedings. Executive and the Company agree that the resolution of Covered Disputes likely would involve information that each considers to be sensitive, personal, confidential, and/or proprietary and that Executive and the Releasees intend to resolve the Covered Disputes in a non-public forum. Accordingly, except as provided by Paragraph 10, Executive and the Company agree that all information regarding the Covered Dispute or arbitration proceedings, including the arbitration award, will not be disclosed by Executive, the Company, any arbitrator, or the AAA to any third party without the written consent of both Executive and the Company, except as necessary to comply with a subpoena, court order or other legal requirement, to prosecute or to defend a claim, to enforce an arbitration award, or to meet a reasonable business need of the Company. To the extent that either party files any suit, complaint, or proceeding with any court or other public forum with respect to a Covered Dispute (including, but not limited to, proceedings to challenge the arbitrability of a matter, to compel arbitration or to enforce an arbitration award or for injunctive relief pending arbitration), such party shall take all measures and use best efforts to file such complaint or proceeding under seal or in other manner designed to protect the confidentiality of the Covered Dispute to the maximum extent possible.
11.8 Injunctive Relief Pending Arbitration. Notwithstanding the foregoing, Executive and/or the Company may seek any injunctive relief (including without limitation temporary and preliminary injunctive relief) necessary in order to maintain (or restore) the status quo and/or to prevent the possibility of irreversible or irreparable harm during the pendency of any arbitration.
11.9 Governing Terms. In the event there is any conflict between this Paragraph 11 and any provisions in the Employment Agreement providing for arbitration, the provisions of this Paragraph shall supersede and govern.
12. Code Section 409A. Certain compensation and benefits payable under this Agreement are intended to be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and regulations and other official guidance thereunder (“Code Section 409A”), and other compensation and payments are intended to comply with Code Section 409A. The provisions of this Agreement shall be construed and interpreted in a manner that compensation and benefits are either exempt from or compliant with the application of Code Section 409A, and which does not result in additional tax or interest to Executive under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, if upon Executive’s termination of employment Executive is a specified employee, as defined in Code Section 409A(a)(2)(B), and if any portion of the payments or benefits to be received by Executive upon separation from service would be considered deferred compensation under Code Section 409A, then such payments shall be delayed until the earliest of (a) the date that is at least six months after Executive terminates employment for reasons other than Executive’s death, (b) the date of Executive’s death, or (c) any earlier specified date that does not result in additional tax or interest to Executive under Code Section 409A. As soon as practicable after the expiration of such period, the entire amount of the delayed payments shall be paid to Executive in a single lump sum.
For purposes of this Agreement, references to a termination of employment shall be construed consistently with the definition of a “separation from service” under Code Section 409A. With respect to any taxable reimbursements or in-kind benefits provided for under this Agreement or otherwise payable to Executive, the Company (a) shall make all such reimbursements no later than Executive’s taxable year following the taxable year in which the expense was incurred, (b) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, and (c) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for other benefits. Each payment and benefit payable under this Agreement is intended to constitute separate payments for purposes of Section l.409A-2(b)(2) of the Treasury Regulations.
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13. Code Section 280G. In the event amounts payable hereunder are contingent on a change in control for purposes of Code Section 280G and it is determined by a tax practitioner retained by the Company that any payments made or provided to the Executive in connection with this Agreement or otherwise (“Total Payments”) would be subject to the excise tax under Code Section 4999 (the “Parachute Tax”), such payments otherwise to be paid under this Plan will be payable in full or, if applicable, in such lesser amount which would result in no portion of the Total Payments being subject to the Parachute Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Parachute Tax, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of Total Payments. The reporting and payment of any Parachute Tax will be the responsibility of the Executive and neither the Company nor any other member of Xxxxxxx will provide a gross-up or any other payment to compensate the Executive for the payment of the Parachute Tax. The Company will withhold from such payments any amounts it reasonably determines is required under Code Section 4999(c).
14. Tax Consequences. Executive shall be responsible for any tax consequences of any payment, benefit, or reimbursement made or provided pursuant to this Agreement. Executive shall indemnify the Company and hold it harmless for any tax liability (including any penalties and/or attorneys’ fees) incurred as a result of any payment, benefit, or reimbursement described herein. Executive acknowledges and agrees that the Company is not undertaking to advise Executive with respect to any tax consequences of this Agreement, and that Executive is solely responsible for determining those consequences and satisfying all applicable tax obligations resulting from any payment described herein.
15. Non-Admission of Liability or Wrongdoing. The furnishing of the consideration for this Agreement shall not be deemed or construed as an admission of liability, responsibility, or wrongdoing by the Company or Executive for any purpose. The Company expressly denies that it (or any other entity or individual of the Company) ever engaged in any wrongdoing in relation to Executive’s employment with the Company or otherwise, and expressly denies liability for any and all claims alleged, or that may be alleged, by Executive.
16. No Assignment by Executive. Executive represents and warrants that Executive has not assigned to any other person, and that no other person is entitled to assert on Executive’s behalf, any claim against any of the Releasees based on matters released in this Agreement. Executive shall indemnify and hold the Company harmless from and against any liability, costs, or expenses (including any penalties and/or attorneys’ fees) incurred in the defense or as a result of any such claims or the breach of the representation and warranty made by Executive in this Paragraph. Executive further represents and warrants that he may not assign this Agreement. Without limiting the foregoing, the Company may assign its rights and delegate its duties hereunder in whole or in part and/or to any transferee of all or a portion of the assets or business to which this Agreement relates. Any such assignment, however, shall not operate to limit the Company’s obligations to Executive under this Agreement.
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17. Successors and Assigns. Executive expressly agrees that this Agreement, including the rights and obligations hereunder, maybe transferred and/or assigned by Xxxxxxx without the further consent of Executive, and that this Agreement is for the benefit of and may be enforced by Xxxxxxx, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but it is not assignable by Executive.
18. Waiver of Breach. The failure of the Company or Executive at any time to require performance of any provision of this Agreement shall in no way affect its or his right thereafter to enforce the same, nor shall the waiver by the Company or Executive of any breach of any provision of this Agreement be taken or held to be a waiver of any succeeding breach of any provision, or as a waiver of the provision itself.
19. Binding Agreement. This Agreement is a contract between Executive and the Company and not merely a recital. Executive acknowledges that any breach by the Company of any contractual, statutory, or other legal obligation to Executive shall not excuse or terminate Executive’s obligations hereunder or otherwise preclude the Company from seeking relief pursuant to any provision of this Agreement, except as expressly set forth in this Agreement. The Company likewise acknowledges that any breach by Executive of any contractual, statutory, or other legal obligation to the Company shall not excuse or terminate the Company’s obligations hereunder or otherwise preclude Executive from seeking relief pursuant to any provision of this Agreement, except as expressly set forth in this Agreement.
20. Modification. No change or modification to this Agreement shall be valid or binding unless the same is in writing and signed by the parties hereto.
21. Severability. The terms, conditions, covenants, restrictions, and other provisions contained in this Agreement are separate, severable, and divisible. If any term, provision, covenant, restriction, or condition of this Agreement or part thereof, or the application thereof to any person, place, or circumstance, shall be held to be invalid, unenforceable, or void, the remainder of this Agreement and such term, provision, covenant, or condition shall remain in full force and effect to the greatest extent permissible by law, and any such invalid, unenforceable, or void term, provision, covenant, or condition shall be deemed, without further action on the part of the parties hereto, modified, amended, limited, or deleted to the extent necessary to render the same and the remainder of this Agreement valid, enforceable, and lawful.
22. Complete Agreement. Except as provided herein, this Agreement supersedes all previous or contemporaneous agreements, whether oral or written, between and among the parties hereto, if any, with respect to the subject matter referred to herein. Executive affirms that the only consideration for executing this Agreement is the payments, promises, and other consideration expressly contained or described herein. Executive further represents and acknowledges that, in executing this Agreement, Executive does not rely and has not relied upon any promise, inducement, representation, or statement by the Company or any of the Releasees or their respective agents, representatives, or attorneys about the subject matter, meaning, or effect of this Agreement that is not stated in this document. For avoidance of doubt, all provisions in the Employment Agreement which by their terms survive the termination of employment shall survive as provided in the Employment Agreement (and, if applicable, as modified by this Agreement) and shall not be extinguished or superseded by this Agreement; provided that, all provisions providing for compensation (including but not limited to in the event of any sale event or change in control), RSUs, equity, and bonuses (including but not limited to annual bonuses, incentive bonuses, special bonuses, and retention bonuses) are extinguished and superseded by this Agreement.
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23. Construction. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. The paragraph headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
24. Governing Law. This Agreement shall be governed, construed, and interpreted under and in accordance with the laws of the State of California, without regard to any conflict of laws principles that would direct the application of another jurisdiction’s laws.
25. Acknowledgments. Executive acknowledges and represents that the waiver and release of claims in this Agreement are knowing and voluntary and are given only in exchange for new consideration that is in addition to anything of value to which Executive already is entitled absent this Agreement. Executive acknowledges that the language of this Agreement is understandable to Executive and is understood by Executive, and that Executive has been given a reasonable period within which to consider the Agreement before executing it. Executive further acknowledges that Executive has been and is hereby advised to consult, and has in fact consulted or had a reasonable opportunity to consult, an attorney of Executive’s choosing before executing the Agreement, and that Executive has obtained all advice and counsel Executive needs to understand all terms and conditions of this Agreement.
26. Notices. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and be deemed to have been duly given if delivered or three days after mailing if mailed, first class, certified mail, postage prepaid:
To the Company:
Rubicon Technologies Holdings, LLC
000 Xxxxxxx Xxxxxx
Floor 4, Suite A
New York, New York 10017
Attn: Board of Directors
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To the Executive:
Xxxx Xxxxxx
PO Box 1296
Point Xxxxx Station, CA 94956
With a copy, via electronic mail, to:
Xxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxx Xxxxxxx LLP
Xxxxx.Xxxxxxxxx@xxx.xxx
Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.
27. Execution. This Agreement may be executed in one or more counterparts as originals, all of which constitute one original.
AS PROVIDED IN PARAGRAPH 6, THIS AGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL RECEIPT BY THE COMPANY OF A SCANNED COPY OF THIS AGREEMENT EXECUTED (AND NOT REVOKED) BY EXECUTIVE CONTAINING EXECUTIVE’S INK SIGNATURE.
THE UNDERSIGNED HAVE CAREFULLY READ THIS AGREEMENT; THEY KNOW AND UNDERSTAND ITS CONTENTS; THEY FREELY AND VOLUNTARILY AGREE TO ABIDE BY ITS TERMS; AND THEY HAVE NOT BEEN COERCED INTO SIGNING THIS AGREEMENT.
| XXXX XXXXXX | RUBICON TECHNOLOGIES HOLDINGS, LLC | |||
 |
By: | /s/ Xxxxx X. Xxxxx | ||
| Xxxxx X. Xxxxx | ||||
| Title: | Lead Independent Director | |||
| Date: | June 27, 2024 | Date: | June 27, 2024 | |
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APPENDIX A
DEFINITIONS
For the purposes of Paragraph 3(b) of this Agreement, the following terms shall have the following meanings:
(a) “Affiliate” means any organization, firm, or entity (i) in respect of which Company has or shall have during the term of this Agreement, an ownership interest of fifty percent (50%) or more; or (ii) which directly or indirectly through one or more intermediates, controls, is controlled by, or is in common control with Company.
(b) “Change in Control Event” shall mean the occurrence of any of the following:
(i) any sale, directly or indirectly, of more than 50% of the equity securities of the Company to any Person or group of Persons acting in concert excluding a sale to any Affiliate of the Company;
(ii) any merger or consolidation of the Company with or into any Person where those Persons who, directly or indirectly, own equity securities in the Company immediately prior to the effective date of the merger or consolidation and their Affiliates own, directly or indirectly, less than 50% of the equity securities in the entity surviving the merger or consolidation;
(iii) the meaning ascribed in the Company’s Operating Agreement, as amended and includes a transaction pursuant to which a special purpose acquisition company or other similar vehicle (or, in either case, a subsidiary thereof) acquires ownership of the Company or its operating subsidiaries, whether by merger, purchase or otherwise; or
(iv) a minority recapitalization of the business with an investor investing new capital into the Company and, upon such investment, then owning more than forty percent (40%) of the Company’s common stock.
For the avoidance of doubt, any transfer, directly or indirectly, of equity securities of the Company by gift or bequest shall not constitute a Change of Control. Notwithstanding the foregoing, a transaction shall not be deemed a Change of Control unless the transaction qualifies as a Change of Control event within the meaning of Code Section 409A, as it has been and may be amended from time to time, and any proposed or final Treasury Regulations and Internal Revenue Service guidance that has been promulgated or may be promulgated thereunder from time to time.
(c) “Person(s)” mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities, other than the Company or an Affiliate of the Company.
(d) “Sale of Assets Event” means a sale(s) of all or substantially all of the Company’s assets to any Person, excluding any Affiliate of the Company.
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