Document/ExhibitDescriptionPagesSize
1: 10-K Annual Report HTML 2.50M
2: EX-10.17 Material Contract HTML 153K
3: EX-10.18 Material Contract HTML 132K
4: EX-21.1 Subsidiaries List HTML 38K
5: EX-23.1 Consent of Expert or Counsel HTML 34K
9: EX-97.1 Clawback Policy re: Recovery of Erroneously HTML 65K
Awarded Compensation
6: EX-31.1 Certification -- §302 - SOA'02 HTML 39K
7: EX-31.2 Certification -- §302 - SOA'02 HTML 39K
8: EX-32.1 Certification -- §906 - SOA'02 HTML 37K
15: R1 Cover Page HTML 105K
16: R2 Audit Information HTML 39K
17: R3 Consolidated Balance Sheets HTML 153K
18: R4 Consolidated Balance Sheets (Parenthetical) HTML 46K
19: R5 Consolidated Statements of Operations and HTML 134K
Comprehensive Income (Loss)
20: R6 Consolidated Statements of Shareholders' Equity HTML 142K
21: R7 Consolidated Statements of Cash Flows HTML 174K
22: R8 Description of Business and Basis of Presentation HTML 48K
23: R9 Summary of Significant Accounting Policies and HTML 122K
Recent Accounting Pronouncements
24: R10 Business Acquisitions HTML 71K
25: R11 Balance Sheet Components HTML 79K
26: R12 Goodwill and Other Intangible Assets HTML 88K
27: R13 Leases HTML 87K
28: R14 Long-Term Debt and Redeemable Preferred Shares HTML 70K
29: R15 Income Taxes HTML 144K
30: R16 Commitments and Contingencies HTML 38K
31: R17 Equity HTML 53K
32: R18 Share-Based Compensation and Employee Benefit HTML 102K
Plans
33: R19 Fair Value Measurements HTML 91K
34: R20 Related Parties HTML 54K
35: R21 Revenue Recognition HTML 53K
36: R22 Earnings Per Share HTML 60K
37: R23 Segment Information HTML 127K
38: R24 Parent Company Information HTML 135K
39: R25 Pay vs Performance Disclosure HTML 47K
40: R26 Insider Trading Arrangements HTML 52K
41: R27 Summary of Significant Accounting Policies and HTML 176K
Recent Accounting Pronouncements (Policies)
42: R28 Summary of Significant Accounting Policies and HTML 47K
Recent Accounting Pronouncements (Tables)
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44: R30 Balance Sheet Components (Tables) HTML 78K
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46: R32 Leases (Tables) HTML 90K
47: R33 Long-Term Debt and Redeemable Preferred Shares HTML 52K
(Tables)
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49: R35 Share-Based Compensation and Employee Benefit HTML 81K
Plans (Tables)
50: R36 Fair Value Measurements (Tables) HTML 86K
51: R37 Revenue Recognition (Tables) HTML 50K
52: R38 Earnings Per Share (Tables) HTML 57K
53: R39 Segment Information (Tables) HTML 128K
54: R40 Parent Company Information (Tables) HTML 155K
55: R41 DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION HTML 36K
- Organization and General (Details)
56: R42 DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION HTML 51K
- Business Operations (Details)
57: R43 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND HTML 37K
RECENT ACCOUNTING PRONOUNCEMENTS - Accounts
Receivable and Allowance for Doubtful Accounts
(Details)
58: R44 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND HTML 50K
RECENT ACCOUNTING PRONOUNCEMENTS - Property, Plant
and Equipment, Net (Details)
59: R45 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND HTML 44K
RECENT ACCOUNTING PRONOUNCEMENTS - Goodwill
(Details)
60: R46 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND HTML 46K
RECENT ACCOUNTING PRONOUNCEMENTS - Revenue
Recognition (Details)
61: R47 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND HTML 66K
RECENT ACCOUNTING PRONOUNCEMENTS - Deferred
Financing Fees (Details)
62: R48 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND HTML 41K
RECENT ACCOUNTING PRONOUNCEMENTS - Leases
(Details)
63: R49 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND HTML 37K
RECENT ACCOUNTING PRONOUNCEMENTS - Foreign
Currencies (Details)
64: R50 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND HTML 65K
RECENT ACCOUNTING PRONOUNCEMENTS - Share Based
Compensation (Details)
65: R51 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND HTML 58K
RECENT ACCOUNTING PRONOUNCEMENTS - Concentration
of Credit Risk and Significant Customers (Details)
66: R52 BUSINESS ACQUISITIONS - Perimeter Solutions HTML 108K
(Details)
67: R53 BUSINESS ACQUISITIONS - Perimeter Solutions Cash HTML 41K
Summary (Details)
68: R54 BUSINESS ACQUISITIONS - Summary of Purchase Price HTML 89K
Consideration (Details)
69: R55 BUSINESS ACQUISITIONS - Predecessor's Acquisitions HTML 45K
(Details)
70: R56 BALANCE SHEET COMPONENTS - Summary of Balance HTML 116K
Sheet Components (Details)
71: R57 BALANCE SHEET COMPONENTS - Narrative (Details) HTML 37K
72: R58 GOODWILL AND OTHER INTANGIBLE ASSETS - Schedule of HTML 49K
Changes in Goodwill (Details)
73: R59 GOODWILL AND OTHER INTANGIBLE ASSETS - Schedule of HTML 58K
Definite and Indefinite Lived Intangible Assets
(Details)
74: R60 GOODWILL AND OTHER INTANGIBLE ASSETS - Narrative HTML 47K
(Details)
75: R61 GOODWILL AND OTHER INTANGIBLE ASSETS - Future HTML 50K
Amortization Expense (Details)
76: R62 LEASES - Schedule of Assets and Liabilities, HTML 61K
Lessee (Details)
77: R63 LEASES - Schedule of Lease Costs (Details) HTML 50K
78: R64 LEASES - Narrative (Details) HTML 51K
79: R65 LEASES - Schedule of Supplemental Cash Flow Lease HTML 50K
(Details)
80: R66 LEASES - Schedule of Future Minimum Payment HTML 74K
Obligations for Non-Cancelable Operating Leases
(Details)
81: R67 LONG-TERM DEBT AND REDEEMABLE PREFERRED SHARES - HTML 52K
Schedule of Long-term Debt (Details)
82: R68 LONG-TERM DEBT AND REDEEMABLE PREFERRED SHARES - HTML 54K
Schedule of Maturities of Long-term (Details)
83: R69 LONG-TERM DEBT AND REDEEMABLE PREFERRED SHARES - HTML 108K
Successor Revolving Credit Facility (Details)
84: R70 LONG-TERM DEBT AND REDEEMABLE PREFERRED SHARES - HTML 54K
Successor Bridge Facility (Details)
85: R71 LONG-TERM DEBT AND REDEEMABLE PREFERRED SHARES - HTML 55K
Successor Senior Notes (Details)
86: R72 LONG-TERM DEBT AND REDEEMABLE PREFERRED SHARES - HTML 80K
Successor Redeemable Preferred Shares (Details)
87: R73 LONG-TERM DEBT AND REDEEMABLE PREFERRED SHARES - HTML 50K
Predecessor (Details)
88: R74 INCOME TAXES - Schedule of Company's Income Tax HTML 60K
Benefit (Expense) (Details)
89: R75 INCOME TAXES - Schedule of Company's Income Before HTML 45K
Income Taxes (Details)
90: R76 INCOME TAXES - Schedule of Effective Income Tax HTML 71K
Rate (Details)
91: R77 INCOME TAXES - Schedule of Deferred Tax Assets and HTML 71K
Liabilities (Details)
92: R78 INCOME TAXES - Narrative (Details) HTML 54K
93: R79 INCOME TAXES - Unrecognized Tax Benefits (Details) HTML 41K
94: R80 Commitments and Contingencies (Details) HTML 39K
95: R81 EQUITY - Ordinary Shares (Details) HTML 80K
96: R82 EQUITY - Predecessor (Details) HTML 36K
97: R83 EQUITY - Warrants (Details) HTML 52K
98: R84 SHARE-BASED COMPENSATION AND EMPLOYEE BENEFIT HTML 140K
PLANS - 2021 Equity Plan (Details)
99: R85 SHARE-BASED COMPENSATION AND EMPLOYEE BENEFIT HTML 73K
PLANS - Schedule of Stock Option Activity
(Details)
100: R86 SHARE-BASED COMPENSATION AND EMPLOYEE BENEFIT HTML 86K
PLANS - Schedule of Stock Option Valuation
Assumptions (Details)
101: R87 SHARE-BASED COMPENSATION AND EMPLOYEE BENEFIT HTML 57K
PLANS - Founder Advisory Amounts (Details)
102: R88 SHARE-BASED COMPENSATION AND EMPLOYEE BENEFIT HTML 56K
PLANS - Founder Amount Valuation Assumptions
(Details)
103: R89 SHARE-BASED COMPENSATION AND EMPLOYEE BENEFIT HTML 60K
PLANS - Predecessor Narrative (Details)
104: R90 SHARE-BASED COMPENSATION AND EMPLOYEE BENEFIT HTML 36K
PLANS - Savings and Investment Plans (Details)
105: R91 FAIR VALUE MEASUREMENTS - Narrative (Details) HTML 63K
106: R92 FAIR VALUE MEASUREMENTS - Schedule of Liabilities HTML 50K
Measured on a Recurring Basis (Details)
107: R93 FAIR VALUE MEASUREMENTS - Schedule Reconciliation HTML 53K
of Level 3 Liabilities Measured on a Recurring
Basis (Details)
108: R94 FAIR VALUE MEASUREMENTS - Schedule of Estimated HTML 47K
Fair Value of Intangible Assets Acquired (Details)
109: R95 RELATED PARTIES - Successor Narrative (Details) HTML 130K
110: R96 RELATED PARTIES - Predecessor Narrative (Details) HTML 58K
111: R97 REVENUE RECOGNITION - Schedule of Revenue HTML 48K
(Details)
112: R98 Earnings Per Share (Details) HTML 83K
113: R99 SEGMENT INFORMATION - Narrative (Details) HTML 36K
114: R100 SEGMENT INFORMATION - Schedule of Segment HTML 88K
Information (Details)
115: R101 SEGMENT INFORMATION - Schedule of Net Sales by HTML 48K
Geographic Area (Details)
116: R102 SEGMENT INFORMATION - Schedule of Property, Plant HTML 45K
and Equipment (Details)
117: R103 PARENT COMPANY INFORMATION - Condensed Balance HTML 125K
Sheets (Details)
118: R104 PARENT COMPANY INFORMATION - Condensed Statements HTML 75K
of Operations and Comprehensive Income (Loss)
(Details)
119: R105 PARENT COMPANY INFORMATION - Condensed Statement HTML 127K
of Cash Flows (Details)
121: XML IDEA XML File -- Filing Summary XML 230K
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This Separation and Release Agreement (this “Agreement”) is entered into as of the date first set forth above by and among Perimeter Solutions, SA, a public company limited by shares duly incorporated and validly existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 12E, rue Guillaume Kroll, L-1882 Luxembourg, Grand Duchy of Luxembourg and
registered with the Registre de Commerce et des Sociétés, Luxembourg (Luxembourg Trade and Companies Register) under number B 256.548 (the “Parent”), Perimeter Solutions LP, a Delaware limited partnership (the “Company”), and Charles W Kropp (the “Executive”).
WHEREAS, Executive has been employed by the Company as its Chief Financial Officer pursuant to that certain Employment Agreement, dated effective as of May 6, 2022 (the “Employment Agreement”), pursuant to
which, among other things, (i) the Company agreed to make certain severance payments upon certain types of terminations; and (ii)
the Executive agreed to certain non-compete, non- solicit and non-disclosure covenants;
WHEREAS, the Parent and Executive entered into that certain Option Agreement, dated as of November 8, 2021 (as amended, the “2021 Option Agreement”), and that certain Option Agreement, dated as of May 6,
2022 (as amended, the “2022 Option Agreement”, and together with the 2021 Option Agreement, the “Option Agreements”, and the Option Agreements together with the Employment Agreement, the “Existing Agreements”), under the Parent’s 2021 Equity Incentive Plan (the “Plan”), pursuant to which the Executive was
granted a nonqualified stock option to purchase an aggregate of up to 602,917 ordinary shares of the Parent, subject to the achievement of certain performance and other vesting conditions (the “Options”);
WHEREAS, the parties have mutually agreed that the Executive’s employment with the Company and its Affiliates will terminate effective as of November
16, 2023 (the “Separation Date”), and that the Company shall provide Executive with the severance payments that are described in Section 6(b) of the Employment Agreement;
WHEREAS, in light of Executive’s service with the Company and its Affiliates through the Separation Date and certain additional
covenants of the Executive set forth in this Agreement, the Parent desires to adjust certain vesting and exercisability provisions under the Option Agreements; and
WHEREAS, the parties desire to enter
into this Agreement to reflect their mutual undertakings, promises, and agreements following the termination of the Executive’s employment with the Company and payments and benefits to the Executive as a result of such termination.
NOW, THEREFORE, in consideration
of the foregoing and of the respective covenants and agreements set forth below, the parties hereto agree as follows:
1.Separation Date; Effect of Separation.
a.Executive’s employment with the Company and any of its Affiliates (as defined in the Employment Agreement) shall terminate effective as of the Separation Date and the Executive
shall therefore be relieved of all of his duties, responsibilities, and authorities for the Company and is Affiliates effective as of the Separation Date.
b.Effective as of the Separation Date, the Executive shall resign, and does hereby resign, without further action, from all other positions, if
any, Executive held with the Company and its Affiliates. As of the Separation Date, the Executive shall also experience an involuntary separation from service from the Company and its affiliates within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder (“Section 409A”).
2.Termination of Employment Agreement; Continuing Obligations; Non-Disparagement.
a.The
Executive acknowledges and agrees that the Employment Agreement will terminate without further action of the parties effective as of the Separation Date and that, therefore, as of that date, the Company and its Affiliates will have no further liabilities, obligations, or duties to the Executive, and the Executive forfeits all remaining rights and benefits, under the Employment Agreement, except as provided in this Agreement. Notwithstanding the previous sentence, the Executive further acknowledges and agrees that all of the post-termination rights and obligations of the parties which continue by their terms under the Employment Agreement, including without limitation under Sections 6 (Severance Payments) (without duplication to the separation benefits set forth in Section 3 of this Agreement), 7 (Non-Competition; Non-Solicitation), 8 (Nondisclosure of Proprietary Information), 9 (Injunctive
Relief), 10 (Whistleblower Protections), 11 (Survival), 12 (Binding on Successors), 13 (Governing Law), 14 (Validity), 15 (Notices), 19 (No Inconsistent Actions), 20 (Arbitration) of the Employment Agreement, shall continue in full force and effect according to their terms notwithstanding the termination of the Executive’s employment with the Company, the termination of the Employment Agreement, or the execution of this Agreement (the “Continuing Employment Agreement Obligations”).
b.The Executive acknowledges and agrees that Executive has fully complied with such Continuing Obligations at all times before Executive signs this Agreement and that Executive intends to,
and shall, fully comply with such Continuing Obligations after he signs this Agreement.
3.Separation Benefits.
a.Accrued Obligations. In accordance with Section 6(a)
of the Employment Agreement, the Company shall pay the Executive any unpaid Annual Base Salary (as defined in the Employment Agreement) that has accrued as of the Date of Termination, any unreimbursed expenses due to the Executive in accordance with the Company’s expense reimbursement policy and an amount equal to compensation for accrued but unused sick days and vacation days (the “Accrued Obligations”). The Accrued Obligations shall be paid in accordance with the Company’s
regular payroll practices.
b.COBRA. In accordance with Section 6(a) of the Employment Agreement, if the Executive elects to continue health plan coverage in accordance with the requirements of applicable law (e.g., COBRA coverage), at the applicable monthly cost charged for such coverage, the Company may require the Executive to complete and file any election forms that are generally required of other employees
to obtain COBRA coverage; and the Executive’s COBRA coverage may be terminable in accordance with applicable law.
c.Severance Payments. As described in Section 6(b) of the Employment Agreement, the Company shall pay to the Executive, an amount equal to the sum of (the “Severance Amount”):
i.$412,500 (representing 1.25 times the Executive’s Annual Base Salary),
ii.$165,000
(representing 1.0 times the Executive’s target bonus for the fiscal year in which the Separation Date falls), and
iii.15.0 times the difference of (A) the Monthly COBRA Continuation Coverage Rate (as defined in the Employment Agreement) determined as of the Separation Date for the Executive’s applicable health and welfare plan coverages as in effect on such date,
less (B)
the monthly cost to Executive that is being charged for such coverage as of the Separation Date.
The Severance Amount shall be payable in substantially equal installments over the 15- month period following the later of the Separation Date and Effective Date (as defined below), commencing no later than thirty (30) days following such date and in accordance with the Company’s regular payroll practices. Notwithstanding the foregoing, and in accordance with Section 6(d) of the Employment Agreement, in the event that any portion of the amount payable under this Section 3(c) shall be treated as deferred compensation subject to Code Section 409A, that portion (and
only that portion) which would otherwise have been paid prior to the six (6) month anniversary of the Separation Date shall not be paid until the 181st day following the Separation Date.
d.Accelerated Vesting and Other Adjustments to Retained Options.
i.The parties acknowledge and agree that as of the date hereof, only 2,917 of the Options have vested in accordance with the terms of the
2021 Option Agreement (the “Vested Options”).
ii.Notwithstanding the vesting, forfeiture or other provisions of the Plan or the Option Agreement, (a) up to 40% of the 5-Year Option (as defined in the 2021 Option Agreement) (i.e., up to 40,000 ordinary shares of the Parent covered by the 5-Year Option) shall remain eligible to become vested based
solely on actual performance for fiscal year 2023, as calculated in accordance with the terms of the 2021 Option Agreement (the “Retained 5-Year Option”); and (b) up to 40% of the Options granted under the 2022 Option Agreement (i.e., up to 200,000 ordinary shares of the Parent covered by such Options) shall remain eligible to become vested based solely on actual performance for fiscal year 2023, as calculated in accordance with the terms of the 2022 Option Agreement (the “Retained 2022 Option”, and together with the Retained 5-Year Option, the “Retained Options”); provided, however, that
no portion of the Retained Options shall remain eligible for vesting or any of the adjustments contemplated by the Option Agreements for performance in any performance years after fiscal 2023. For the avoidance of doubt, the portion of the Retained Options that becomes vested, if any, shall be considered final following the verification by the Committee (as defined in the Option Agreements) of the AOP (as defined in the Option Agreements) for fiscal year 2023, and if such AOP is less than the maximum AOP target, the amount vested shall not be eligible to any upward adjustments for future performance and the unvested portion of the Retained Options shall immediately be deemed forfeited by the Executive and cancelled
by the Company. All Options other than the Retained Options and Vested Options shall be immediately forfeited in accordance with their terms effective as of the Separation Date.
iii.In addition, and notwithstanding any other provision of the Plan or the
Option Agreement, (a) the Parent shall and hereby does permit the Vested Options and any vested Retained Options to be exercised at any time during the 36-month period following the Separation Date (but not thereafter) by the Executive or his guardian or legal representative (or by his estate or the person who acquires the Retained Options by will or the laws of descent and distribution or otherwise by reason of the Executive’s death if he dies during such period); and (b) the Executive shall have no dividend equivalent rights of any kind
with respect to the Vested Options or the Retained Options.
iv.The Executive acknowledges and agrees that the Executive has no rights in any employment-related equity or equity-related interests in the Parent or its Affiliates other
than the Executive’s rights in
(i) the Vested Options and Retained Options in accordance with the terms of the Plan, the Option Agreements and this Agreement, as
applicable; and (ii) the ordinary shares of Parent that are held directly or indirectly by Executive as of the date hereof. If Parent declares a dividend on its ordinary shares, and Executive holds such shares on the applicable record date, Parent shall pay or cause to be paid such dividend to Executive in a manner reasonably consistent with the other holders of ordinary shares.
4.Return of Property. By the Effective Date, the Employee must return all property of the Parent or any of its Affiliates, including identification cards or badges, access codes or devices, keys, laptops, computers, telephones, mobile phones, hand-held electronic devices, credit cards, electronically stored documents or files, physical files, and any other property of the Parent or its Affiliates in the Executive’s possession. Executive
further acknowledges and agrees that Executive no longer has access to and does not claim ownership of any of the cloud storage or social media accounts of the Parent or its Affiliates.
5.Release of Claims. In consideration of the performance by the Parent and the Company of their obligations under the Employment Agreement and this Agreement, the Executive hereby releases and forever discharges as of the date hereof the Parent, the Company and their respective Affiliates and all present, former and future managers, directors, officers, employees, successors and assigns of the Parent, Company and their respective affiliates and direct or indirect owners (collectively, the “Released Parties”)
to the extent provided in this Section 5 (this “General Release”). The Released Parties are intended to be third-party beneficiaries of this General Release, and this General Release may be enforced by each of them in accordance with the terms hereof in respect of the rights granted to such Released Parties hereunder.
a.Executive understands that any payments or benefits paid or granted to Executive under Section 3 of this Agreement (other than the Accrued Obligations) represent, in part, consideration for signing this General Release and are not salary, wages or benefits to which Executive was already entitled. Executive understands and agree that Executive will not receive certain of the payments and benefits specified in Section 6 of the Agreement (other than the Accrued Obligations) unless Executive executes
this General Release and do not revoke this General Release within the time period permitted hereafter. Such payments and benefits will not be considered compensation for purposes of any employee benefit plan, program, policy or arrangement maintained or hereafter established by the Company or its affiliates.
b.Except as provided in Sections 5(d) and 5(e) below and except for the provisions of the Agreement which expressly survive the termination of Executive’s employment with the Company, Executive knowingly and voluntarily (for Executive, Executive’s heirs, executors, administrators and assigns) releases and forever discharges the Company and the
other Released Parties from any and all claims, suits, controversies, actions, causes of action, cross-claims, counter-claims, demands, debts, compensatory damages, liquidated damages, punitive or exemplary damages, other damages, claims for costs and attorneys’ fees, or liabilities of any nature whatsoever in law and in equity, both past and present (through the date that this General Release becomes effective and enforceable) and whether known or unknown, suspected, or claimed against the Company or any of the Released Parties which Executive, Executive’s spouse, or any of Executive’s heirs, executors, administrators or assigns, may have, which arise out of or are connected with Executive’s employment with or service for, or Executive’s separation or termination from,
the Company, Parent or their affiliates (including, but not limited to, any allegation, claim or violation, arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990;
the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive Order Programs; the Fair Labor Standards Act; or their state or local counterparts; the New Jersey Law Against Discrimination, the
New Jersey Conscientious Employee Protection Act, the New Jersey Family Leave Act, the New Jersey Security and Financial Empowerment Act, the New Jersey Wage Payment Law, the New Jersey Wage and Hour Law, or retaliation claims under the New Jersey Workers' Compensation Law; any amendments or implementing regulations of the foregoing; or under any other federal,
state or local civil or human rights law, or under any other local, state, or federal law, regulation or ordinance that may be legally waived and released; or under any public policy, contract or tort, or under common law; or arising under any policies, practices or procedures of the Company, Parent or their affiliates; or any claim for wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of the foregoing collectively referred to herein as the “Claims”). For the avoidance of doubt, the identification of specific statutes
or laws in this Section 5(b) is for purposes of example only, and the omission of any specific statute or law shall not limit the scope of this General Release in any manner.
c.Executive represents that Executive has made no assignment or transfer of any right, claim, demand, cause of action, or other matter covered by Section 5(b) above.
d.Executive agrees that this General Release does not waive or release any rights or claims that Executive may have under the Age Discrimination in Employment Act of 1967 which arise after the date Executive executes this General Release. Executive acknowledges and agrees that Executive’s separation from employment with the Company in compliance with the terms of the Agreement shall not serve as the basis for any claim
or action (including, without limitation, any claim under the Age Discrimination in Employment Act of 1967).
e.Executive hereby waives all rights to sue or obtain equitable, remedial or punitive relief from any or all Released Parties of any kind whatsoever in respect of any Claim, including, without limitation, reinstatement, back pay, front pay, and any form of injunctive relief. Notwithstanding the above, Executive further acknowledges that Executive is not waiving and is not being required to waive any right that cannot be waived under law, including the right to file an administrative charge or participate in an administrative investigation or proceeding, including with the Equal Employment Opportunity Commission (“EEOC”); provided, however, that Executive disclaims and waives any right to share or participate in any monetary award resulting from the prosecution
of such EEOC charge or investigation or proceeding. Additionally, Executive is not waiving (i) any right to the Accrued Obligations
or any severance benefits to which Executive is entitled under the Agreement or (ii) any claim relating to any right of indemnification under the Company’s directors’ and officers’ liability or other insurance coverage, the Company’s organizational documents, or otherwise.
f.In signing this General Release, Executive acknowledges and intends that it shall be effective as a bar to each and every one of the Claims hereinabove mentioned or implied. Executive expressly consents that this
General Release shall be given full force and effect according to each and all of its express terms and provisions, including those relating to unknown and unsuspected Claims (notwithstanding any state or local statute that expressly limits the effectiveness of a general release of unknown, unsuspected and unanticipated Claims), if any, as well as those relating to any other Claims hereinabove mentioned or implied. Executive acknowledges and agrees that this waiver is an essential and material term of this General Release and that without such waiver the Company would not have agreed to the terms of the Agreement. Executive further agrees that in the event Executive should bring a Claim seeking damages against the Company, or in the event Executive should seek to recover against the
Company in any Claim brought by a governmental agency on Executive’s behalf, this General Release shall serve as a complete defense to such Claims to the maximum extent permitted by law. Executive further agrees that Executive is not aware of any pending claim of the type described in Section 2 above as of the execution of this General Release.
g.Executive agrees that neither this General Release, nor the furnishing of the consideration for this General Release, shall be deemed or construed at any time to be an admission by the Company, any Released Party or Executive of any improper or unlawful conduct.
h.Executive agrees
that if Executive violates this General Release by suing the Company or the other Released Parties, Executive will pay all costs and expenses of defending against the suit incurred by the Released Parties, including reasonable attorneys’ fees.
i.Executive represents that Executive is not aware of any claim by Executive other than the claims that are released by this General Release. Executive acknowledges that Executive may hereafter discover claims or facts in addition to or different than those which Executive now knows or believes to exist with respect to the subject matter of the release set forth in Section 5(b) above and which, if known or suspected at the time of entering into this General Release, may have materially affected this General Release and Executive’s decision to enter into it.
j.Notwithstanding
anything in this General Release to the contrary, this General Release shall not relinquish, diminish, or in any way affect any rights or claims arising out of any breach by the Company or by any Released Party of the Agreement after the date hereof.
k.Whenever possible, each provision of this General Release shall be interpreted in, such manner as to be effective and valid under applicable law, but if any provision of this General Release is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this General Release shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been
contained herein.
l.BY SIGNING THIS AGREEMENT AND AGREEING TO THIS GENERAL RELEASE, EXECUTIVE REPRESENTS AND AGREES THAT:
i.EXECUTIVE HAS READ IT CAREFULLY;
ii.EXECUTIVE UNDERSTANDS ALL OF ITS TERMS AND KNOWS THAT EXECUTIVE IS GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;
iii.EXECUTIVE VOLUNTARILY CONSENTS TO EVERYTHING IN IT;
iv.EXECUTIVE HAS BEEN ADVISED TO
CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND EXECUTIVE HAS DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION, EXECUTIVE HAS CHOSEN NOT TO DO SO OF EXECUTIVE’S OWN VOLITION;
v.EXECUTIVE HAS HAD AT LEAST 21 DAYS FROM THE DATE OF EXECUTIVE’S RECEIPT OF THIS RELEASE TO CONSIDER IT, AND THE CHANGES MADE SINCE EXECUTIVE’S RECEIPT OF THIS RELEASE ARE NOT MATERIAL OR WERE MADE AT EXECUTIVE’S REQUEST AND WILL NOT RESTART THE REQUIRED 21-DAY PERIOD;
vi.EXECUTIVE UNDERSTANDS THAT EXECUTIVE HAS SEVEN (7) DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;
vii.EXECUTIVE
HAS SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE EXECUTIVE WITH RESPECT TO IT; AND
viii.EXECUTIVE AGREES THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY EXECUTIVE.
6.Miscellaneous Provisions.
a.Binding on Successors. This Agreement shall be binding upon and inure to the benefit of the Company, Parent, the Executive and their respective successors, assigns,
personnel and legal representatives, executors, administrators, heirs, distributees, devisees, and legatees, as applicable.
b.Governing Law. This Agreement shall be governed, construed, interpreted and enforced in accordance with the substantive laws of Delaware.
c.Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
d.Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement. The signatures to this Agreement
need not all be on a single copy of this Agreement, and may be electronic signatures (e.g., DocuSign) or copies on portable document format (.pdf) rather than originals, and in each case shall be fully effective as though all signatures were originals on the same copy.
e.Amendments; Waivers. This Agreement may not be modified, amended, or terminated except by an instrument in writing, signed by the Executive and duly appointed officer of the Company. By an instrument in writing similarly executed, the Executive or the Company or Parent may waive compliance by the other party or parties with any provision of this Agreement that such other party was or is obligated to comply with or perform; provided, however,
that such waiver shall not operate as a waiver of, or estoppel with respect to, any other or subsequent failure. No failure to exercise and no delay in exercising any right, remedy or power hereunder shall preclude any other or further exercise of any other right, remedy or power provided herein or by law or in equity.
f.No Inconsistent Actions. The parties hereto shall not voluntarily undertake or fail to undertake any action or course of action inconsistent with the provisions or essential intent of this Agreement. Furthermore, it is the intent of the parties hereto to act in a fair and reasonable manner with respect to the interpretation and application of the provisions of this Agreement.
g.Arbitration. Except as expressly provided elsewhere in this Agreement, any dispute arising out of,
relating to, or having any connection with, this Agreement, including any question regarding its existence, validity, interpretation, performance, breach or termination, and any tort or other extra-contractual or statutory claims arising out of or relating to its negotiation, execution or performance, shall be exclusively and finally settled by arbitration in accordance with the Rules of the
International Court of Arbitration of the International Chamber of Commerce (the “ICC Rules”)
by one or more arbitrators appointed in accordance with the ICC Rules; provided, however, that nothing in this Section 6(g) shall prohibit: (i) a party from instituting litigation to enforce any final award in any court of competent jurisdiction; or (ii) the Company from seeking a restraining order or injunction in any court of competent jurisdiction to prevent any continuation of any violation of the Continuing Obligations and the Executive hereby consents that such restraining order or injunction may be
granted without the necessity of the Company’s posting any bond. The seat of the arbitration shall be in St. Louis, Missouri. The language of the arbitration shall be English. The parties undertake to carry out any award of the tribunal without delay, and waive their right to refer any question of law and any right of
appeal on the law or merits to a court of law or other judicial authority, insofar as such waiver may be validly made. The parties agree that an arbitral tribunal appointed under this Agreement may exercise jurisdiction with respect to this Agreement and any amendments or exhibits or schedules hereto (except as otherwise expressly provided therein), and that any disputes involving more than one of such agreements, exhibits or schedules shall proceed as a consolidated arbitration in accordance with Article 10 of the ICC Rules. The arbitrator selected pursuant to this Section 6(g) shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration and, if the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award
the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration and the enforcement of its rights under this Agreement.
h.Tax Treatment; Right to Consult a Tax Advisor. The payments and benefits provided under this Agreement are intended to be exempt from Section 409A
and this Agreement shall be interpreted and administered in a manner consistent with that intent. Notwithstanding any contrary provision in this Agreement, the Individual shall be solely responsible for any risk that the tax treatment of the benefits under by this Agreement may be affected by Section 409A, which may impose significant adverse tax consequences on them, including accelerated taxation, a 20% additional tax, and interest. Because of the potential tax consequences, the Individual has the right, and is encouraged by this paragraph, to consult with a tax advisor of his choice before signing this Agreement.
i.Expiration Date. The Company’s offer of this Agreement shall expire after a period of 21 days after the date the Executive first received this Agreement for consideration (the “Expiration
Date”). Changes to this Agreement, whether material or immaterial, do not restart the running of the consideration period. The Individual may accept the offer at any time before the Expiration Date by signing this Agreement in the space provided below and delivering it to the attention of the General Counsel of the Company.
j.Limited Revocation Right; Effect of Revocation. After signing this Agreement, the Executive shall have a period of seven days to reconsider and revoke his acceptance of this Agreement in his discretion (the “Revocation Period”). If the Executive chooses to revoke his acceptance of this Agreement, he must do so by providing written notice to the
Company’s Chief Executive Officer and General Counsel on or before the seventh day after signing this Agreement, in which case this Agreement shall not become effective or enforceable and the Executive shall not receive the separation benefits set forth in Sections 3(c) and 3(d) of this Agreement.
k.Effective Date. This Agreement shall become effective and enforceable upon the expiration of seven days after the Executive signs it (the “Effective Date”), provided that the Executive signs the Agreement on or before the Expiration Date and does not revoke his acceptance of the Agreement during the Revocation Period.
(Signature Page Follows)
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above written.
