Exhibit 10.13
| Term: | The term of this Agreement will be for the period commencing upon the IPO Closing Date and ending on the three (3) year anniversary of the IPO Closing Date; provided, however, that the term will be extended for successive one-year periods, unless written notice of nonrenewal is given by either you or the Company at least ninety (90) days prior to any such extension (such initial term, together with any such extension periods, the “Term”). | ||||
| Position: | Chief Financial Officer of the Company and PubCo. | ||||
| Reporting: | You will report directly to the Chief Executive Officer of the Company and PubCo. | ||||
| Commitment: | You will be required to devote all of your business time to the business and affairs of the Company, PubCo and their respective subsidiaries (collectively, the “Company Group”) and to the promotion of their interests. Notwithstanding the foregoing, you may engage in other activities, such as personal investments and civic and charitable activities, so long as: (i) such activities do not interfere with your duties and obligations hereunder and (ii) such activities are disclosed in advance to the Board of Directors of PubCo (the “Board”). In addition, you shall be permitted to serve as a director on any other company’s board of directors subject to the prior consent of the Board (which may be provided in its sole discretion). | ||||
| Base Salary: | During the Term, your base salary will be $475,860 per year and will be payable in accordance with the Company’s normal payroll practices, less the applicable taxes and elective withholdings. Your base salary will be pro-rated for any partial years of employment. Your base salary may be increased, but not decreased, as determined by the Board or the Compensation Committee of the Board (the “Compensation Committee”). | ||||
| Incentive Bonus Eligibility: | During the Term, you will be eligible for an annual cash bonus based on such bonus program as may be established by the Company or PubCo from time to time (the “Bonus Plan”) at the same level as other senior executives of the Company. Under the Bonus Plan, your initial target bonus will be 100% of your base salary, which will be periodically reviewed by the Compensation Committee and may be increased (but not decreased) from time to time (“Target Bonus”). The actual amount of any bonus under the Bonus Plan shall be determined based on the achievement of performance criteria established by the Compensation Committee and shall be paid in accordance with the Bonus Plan. | ||||
Except as otherwise provided herein, you will be entitled to receive any earned bonus under the Bonus Plan for a fiscal year of the Company if you are employed on the last day of the fiscal year. Any amounts payable under the Bonus Plan for a fiscal year are intended to constitute a short-term deferral for purposes of Section 409A of the Internal Revenue Code (the “Code”), and will be paid to you in a lump sum of cash no later than March 15 of the calendar year following the calendar year in which the applicable fiscal year ends. | |||||
| Long-Term Incentive: | You will be eligible to receive long-term incentive awards pursuant to the terms of the Weber Inc. Omnibus Incentive Plan (the “Omnibus Plan”) (or any successor plan thereto). Long-term incentive awards will be granted at the discretion of the Compensation Committee. Your outstanding profits units in the Company (as replaced by profits units in Weber HoldCo LLC) shall remain outstanding and subject to their terms and conditions (collectively, your “Prior Equity Interests”). | ||||
| Benefits: | During your employment with the Company, you will be eligible for the Company’s then current employee health and welfare benefits programs, retirement programs, and other fringe benefits maintained by the Company, to the extent consistent with applicable law and the terms of the applicable plans and programs, which may include certain plans and programs available to similarly situated executives of the Company or otherwise applicable to your position from time to time, subject to all plan terms and eligibility requirements. The benefit plans and programs for which you may be eligible are more fully described in the applicable plan summaries and related documents. The Company retains all rights to amend or terminate any such benefit plans and programs, subject to the terms of such employee benefit plans and programs and applicable law, and nothing contained herein shall obligate the Company to continue any benefit plans or programs in the future. | ||||
| You will be eligible for up to 5 weeks’ vacation, to be accrued in accordance with the Company’s vacation accrual policy. | |||||
| Business Expenses: | During the Term, the Company will reimburse you for reasonable business expenses, including travel, entertainment, and other expenses (including a mobile phone and data service) incurred by you in the furtherance of the performance of your duties hereunder, in accordance with the Company’s expense reimbursement policy as in effect from time to time. | ||||
| Termination: | (a) Upon your termination of employment for any reason, the Company shall pay to you (i) your base salary earned through the date of such termination, (ii) amounts for accrued but unused vacation days in the year of termination, (iii) any earned but unpaid bonus for any prior completed fiscal year, payable when such payments would otherwise be paid and (iv) any unreimbursed business expenses in accordance with the Company’s reimbursement policy, not later than thirty (30) business days after the customary documentation regarding such expenses has been received and only to the extent that such expenses are submitted within one year of your termination (collectively, “Accrued Amounts”). | ||||
| (b) In the event your employment is terminated during the Term by the Company without Cause (as defined below) or by you for Good Reason (as defined below) or the Company decides not to renew this Agreement, in addition to the Accrued Amounts, you will be entitled to receive (i) salary continuation for a period of 12 months, payable in accordance with the Company’s normal payroll cycle, (ii) a lump sum payment equal to your Target Bonus pro-rated based on the number of days elapsed from the beginning of the applicable fiscal year until your date of termination, less the sum of any other payments from the Company under any other agreement, plan, program or policy in the nature of severance in respect of such termination, payable on or after the date of such termination and (iii) continued participation in the Company’s group health plan at active employee rates for a period of 12 months following the date of termination. | |||||
| Notwithstanding the foregoing, if such termination is within 24 months following a Change in Control (as defined in the Omnibus Plan), your severance will instead be (i) a lump sum payment equal to the sum of (i) 12 months of your base salary as of the date of the Change in Control, (ii) 100% of the greater of (x) the annual bonus you earned under the Bonus Plan for the fiscal year prior to the fiscal year of your termination and (y) your Target Bonus, (iii) continued participation in the Company’s group health plan at active employee rates for a period of 12 months following the date of termination and (iv) full vesting of any equity awards then held by you (provided that any performance-based equity awards then held by you will vest at “target” level). | |||||
| (c) In the event that your employment is terminated for Cause, other than the amounts specified in subsection (a) above, you will not be entitled to receive any payments under this Agreement. | |||||
(d) Payment of any amounts pursuant to subsection (b) above is expressly conditioned upon your (i) execution of a general waiver and release of claims substantially in the form attached hereto as Exhibit A (the “Release”), within fifty (50) days of your termination, and the Release becoming effective upon the expiration of the revocation period (which is 7 days after the Release is executed and returned to the Company) and (ii) continued compliance with this Agreement and the Covenant Agreement. If an executed Release is not returned to the Company within fifty (50) days of termination or the Release is revoked by you, the Company shall be relieved of all obligations to pay you severance under this Agreement. The payment described in subsection (b)(ii) will be made on the sixtieth (60th) day following your termination of employment. Any payments described in subsection (b)(i) that would have been paid from the termination date through the sixtieth (60th) day following your termination of employment will be paid in a lump sum on the sixtieth (60th) day following your termination and the remaining installments will commence as of the next payroll period following the sixtieth (60th) day following your termination of employment. Notwithstanding the foregoing, if such sixty (60) day period spans two calendar years, then the foregoing payments shall not commence until the second calendar year. All severance payments shall be subject to legally required tax withholdings and any elective withholdings. | |||||
| (e) For purposes of this Agreement: | |||||
“Cause” shall be defined as (i) the commission of a felony or any other crime that is injurious to the business or reputation of any member of the Company Group; (ii) the commission of an act which violates any member of the Company Group’s policies on discrimination, harassment, and conflicts of interest, or repeated violation of any other material employment policy; (iii) the commission of any act or omission involving dishonesty, disloyalty or fraud with respect to any member of the Company Group or any of its customers or suppliers; (iv) conduct intentionally disparaging any member of the Company Group or tending to bring any member of the Company Group into substantial public disgrace or disrepute; (v) repeated failure to substantially perform your duties for any member of the Company Group as reasonably directed by the Chief Executive Officer or the Board; or (vi) gross negligence or willful misconduct with respect to any member of the Company Group, provided, however, that prior to terminating your employment for Cause under any of the events set forth in clauses (ii) through (vi) above, the Company shall provide you written notice thereof and if the Board in its reasonable discretion determines that such actions or conduct are curable by you, then you will be given a reasonable period (as determined by the Board) to cure any such conduct or actions. To the extent you fail to cure following such notice and opportunity to cure, if an event or action is curable, then no further notice of your termination will be required. | |||||
“Good Reason” shall be defined as (i) reduction, without your consent, of your base salary, unless substantially all similarly situated executives also have a similar reduction in their base salary that is not replaced by other compensation; (ii) reduction, without your consent, of your Target Bonus; (iii) geographic reassignment of your principal location of employment by more than fifty (50) miles from the Company’s headquarters in Palatine, Illinois; (iv) a material reduction in your title, position, job duties or responsibilities, other than insubstantial or inadvertent actions not taken in bad faith which are remedied by the Company promptly after receipt of notice thereof from you; or (v) a material breach of the Company of its obligations under this Agreement. Good Reason shall not exist, unless (a) you provide written notice of such breach within thirty (30) days after the event giving rise to Good Reason, (b) the Company does not cure or gives you written notice of its intent not to cure within thirty (30) days after receiving your written notice, and (c) you terminate your employment within sixty (60) days after your written notice and if the Company fails to cure within the thirty (30) day cure period. | |||||
| Resignation: | Effective as of the date of your termination of employment, unless otherwise requested by the Company in writing, you will, automatically and without further action on your part or any other person or entity, resign from all offices, boards of directors (or similar governing bodies) and committees of each member of the Company Group. You agree that you will, at the request of the Company, execute and deliver such documentation as may be required to effect such resignations, and authorize any member of the Company Group to file (or cause to be filed) such documentation, as necessary, with any applicable governmental authority. | ||||
| Cooperation: | In consideration for the promises and payments by the Company pursuant to this Agreement, at the request of the Company, for a one-year period following your termination of employment for any reason, you agree to cooperate to the fullest extent possible with respect to matters involving any member of the Company Group about which you have or may have knowledge, including any such matters which may arise before or after the Term; provided such cooperation shall not unreasonably interfere with any obligations you may have to your current employer at the time. The Company will reimburse you for any reasonable, properly documented out-of-pocket expenses, including your travel expenses and attorneys’ fees, that you actually incur in connection with such cooperation. | ||||
| D&O Insurance: | So long as you are an officer of the Company or PubCo, you will be covered by the Company’s or PubCo’s directors and officers liability (“D&O”) insurance (as applicable) consistent with the coverage received by other officers of the Company and/or PubCo, as applicable. The Company and/or PubCo, as applicable, shall not amend or modify such insurance following the termination of your service as an officer unless such amendment or termination affects all directors and officers in the same manner. | ||||
| Section 409A: | All references in this Agreement to your termination of employment shall mean your separation from service within the meaning of Section 409A of the Code and Treasury regulations promulgated thereunder. This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. In the event the terms of this Agreement would subject you to the imposition of taxes and penalties under Section 409A (“409A Penalties”), the Company and you shall cooperate diligently to amend the terms of this Agreement to avoid such 409A Penalties, to the extent possible; provided that, for the avoidance of doubt, you shall be solely liable for any 409A Penalties incurred by you. To the extent that any amounts payable in installments under this Agreement are reasonably determined to be nonqualified deferred compensation within the meaning of Section 409A of the Code, then each such installment shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Section 409A of the Code. Notwithstanding any other provision in this Agreement, if as of the date on which your employment terminates, you are a “specified employee” as determined by the Company, then with respect to any amount payable or benefit provided under this Agreement or otherwise that the Company reasonably determines would be nonqualified deferred compensation within the meaning of Section 409A of the Code and that under the terms of this Agreement would be payable prior to the six-month anniversary of your effective date of termination, then if required in order to avoid any penalties under Section 409A of the Code, such payment or benefit shall be delayed until the earlier to occur of (a) the first payroll date following the six-month anniversary of such termination date and (b) the date of your death. With respect to any reimbursements under this Agreement, such reimbursement shall be made on or before the last day of your taxable year following the taxable year in which you incurred the expense. The amount of any expenses eligible for reimbursement or the amount of any in-kind benefits provided, as the case may be, under this Agreement during any calendar year shall not affect the amount of expenses eligible for reimbursement or the amount of any in-kind benefits provided during any other calendar year. The right to reimbursement or to any in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit. You acknowledge and agree that notwithstanding any provision of this Agreement, the Company and its affiliates are not providing you with any tax advice with respect to Section 409A of the Code or otherwise and are not making any guarantees or other assurances of any kind to you with respect to the tax consequences or treatment of any amounts paid or payable to you under this Agreement. | ||||
Sincerely, WEBER-STEPHEN PRODUCTS LLC | |||||
| By: | /s/ Chris Scherzinger | ||||
| Name: Chris Scherzinger | |||||
Position: Chief Executive Officer | |||||
Agreed to and Accepted: /s/ William Horton | ||
William Horton Date: July 22, 2021 | ||