EMPLOYMENTAGREEMENT
ThisEMPLOYMENTAGREEMENT(this“Agreement”)ismadeandenteredinto
as ofMay24, 2024 (the“EffectiveDate”)byand between Waystar, Inc., a Delaware corporation
(the “Company”), and Steven M. Oreskovich (“Executive”).
WHEREAS, the Company desires to continue to employ Executive and to enter
into this Agreement embodying the terms of such continued employment, and Executive desires
to enter into this Agreement and to accept such continued employment, subject to the terms and
provisions of this Agreement; and
WHEREAS, Executive is a partyto an employment agreement with the Company
or a subsidiary thereof, dated May28, 2018 (the“Prior Agreement”), which shall be superseded
in its entirety by this Agreement as of the Effective Date.
NOW, THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are mutually acknowledged, the Company and Executive hereby agree as follows:
Section1.Definitions.Capitalized terms not otherwise defined in this
Agreement shall have the meaning set forth on Appendix A, attached hereto.
Section2. Acceptance and Term of Employment. The Company agrees to
continuetoemployExecutive,andExecutiveagreestocontinuetobeemployedbytheCompany,
onthetermsandconditionssetforthherein.Executive’semploymenthereundershallcommence
ontheEffectiveDateandcontinueuntilterminatedasprovided inSection 7hereof(the“Termof
Employment”).
Section3.Position,Duties,andResponsibilities;PlaceofPerformance.
(a)Position, Duties, and Responsibilities.During the Term of Employment,
Executive shall be employed and serve as the Chief Financial Officer of the Company, reporting
directly to the Company’s Chief Executive Officer or such other officer of the Company that the
Board or the Company’s Chief Executive Officer designates from time to time, and having such
dutiesandresponsibilitiescommensuratewithsuchposition.Executivealsoagreestoserveasan
officer and/or director of any member of the Company Group, in each case, without additional
compensation.
(b)Performance.Executive shall devote Executive’s full business time,
attention, skill, and best efforts to the performance of Executive’s duties under this Agreement
(excluding periods of vacation and sick leave) and shall not engage in any other business or
occupationduringtheTermofEmployment,including,withoutlimitation,anyactivitythat
(x)conflictswiththeinterestsoftheCompanyoranyothermemberoftheCompanyGroup,
(y)interfereswiththeproperandefficientperformanceofExecutive’sdutiesfortheCompany,or
(z)interferes with Executive’s exercise of judgment in the Company’s best interests.
Notwithstandingtheforegoing,nothinghereinshallprecludeExecutivefrom(i) serving,withthe
priorwrittenconsentoftheBoard(whichshallnotbeunreasonablywithheld),asamemberofthe
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board of directors or advisory board (or the equivalent in the case of a non-corporate entity) of
non-competing for-profit businesses and charitable organizations, (ii) engaging in charitable
activitiesandcommunityaffairs,and(iii)managingExecutive’spersonalinvestmentsandaffairs;
provided, however, that the activities set out in clauses (i), (ii), and (iii) shall be limited by
Executive so as not to materiallyinterfere, individuallyor in the aggregate, with the performance
of Executive’s duties and responsibilities hereunder.
(c)PrincipalPlaceofEmployment.Executive’sprincipalplaceofemployment
shall be Louisville, Kentucky, although Executive understands and agrees that Executive may be
required to travel from time to time for business reasons.
Section4. Compensation.During the Term of Employment, Executive shall
be entitled to the following compensation:
(a)BaseSalary.ExecutiveshallbepaidanannualizedBaseSalary(the“Base
Salary”), payable in accordance with the regular payroll practices of the Company, of $430,000,
with increases, if any, as may be approved in writing by the Compensation Committee.The
Compensation Committee will review Base Salary for increases only and not less than annually.
(b)Annual Bonus.Executive shall be eligible for an annual incentive bonus
awarddeterminedbytheCompensationCommitteeinrespectofeachfiscal yearduringtheTerm
of Employment (the “Annual Bonus”).The target Annual Bonus for each fiscal year shall be
110%ofBaseSalary(the“Target Annual Bonus”),with an opportunityto earnan Annual Bonus
greater than the Target Annual Bonus based on the achievement of “stretch” performance
objectives,asdeterminedbytheCompensationCommitteeinitsreasonablediscretion.Theactual
Annual Bonus payable foranyfiscal yearshall be based upon thelevel of achievement ofannual
CompanyGroupandindividualperformanceobjectivesforsuchfiscal year,asdeterminedbythe
Compensation Committee (after reasonably consulting with the Chief Executive Officer) and
communicated to Executive.The Annual Bonus shall otherwise be subject to the terms and
conditions oftheannual bonus planadoptedbytheBoardortheCompensation Committeeunder
which bonuses are generallypayable to senior executives of the Company, as in effect from time
to time.The Annual Bonus shall be paid to Executive at the same time as annual bonuses are
generally payable to other senior executives of the Company subject to Executive’s continuous
employment through the applicable payment date (subject to Section 7below).
(c)Equity Participation.In connection with Executive’s employment
hereunder, Executive shall be entitled to participate in the Equity Incentive Plan, pursuant to the
termsoftheEquityIncentivePlan,anawardagreementevidencinganyawardthereunderandsuch
other documents Executive is required to execute pursuant to the terms of the Equity Incentive
Plan(theEquityIncentivePlan,anyawardagreement(s),andsuchotherdocuments,collectively,
the“Equity Documents”).Executive’s equity participation shall be exclusively governed by the
terms of the Equity Documents.
Section5. Employee Benefits.During the Term of Employment, Executive
shall be entitled to participate in health, insurance, retirement, and other benefits provided
generallytoseniorexecutivesoftheCompany(subjecttoanyapplicableeligibilityrequirements).
Executiveshallalsobeentitledtothesamenumberofholidays,vacationdays,andsickdays,as
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well as any other benefits, in each case, as are generally allowed to senior executives of the
Company in accordance with the Company policy as in effect from time to time.Nothing
containedhereinshallbeconstruedtolimittheCompany’sabilitytoamend,suspend,orterminate
anyemployeebenefitplanorpolicyatanytime withoutprovidingExecutivenotice,andtheright
to do so is expressly reserved.
Section6. ReimbursementofBusinessExpenses. Executiveisauthorizedto
incur reasonable business expenses in carrying out Executive’s duties and responsibilities under
this Agreement, and the Company shall promptly reimburse Executive for all such reasonable
businessexpenses,subjecttothedocumentationandotherrequirementssetforthintheCompany’s
policy with respect to business expenses as in effect from time to time.
Section7.TerminationofEmployment.
(a)General.The Term of Employment, and Executive’s employment
hereunder,shallterminateupontheearliesttooccurof(i) Executive’sdeath,(ii)aterminationby
reason of a Disability, (iii)a termination by the Company with or without Cause, and (iv)a
termination by Executive with or without Good Reason.Except as otherwise expressly required
bylaw (e.g.,COBRA)or asspecificallyprovided herein, allof Executive’s rightsto Base Salary,
AnnualBonus,executivebenefits,andothercompensatoryamountshereunder(ifany)shallcease
upon the termination of Executive’s employment hereunder.
(b)Deemed Resignation.Upon any termination of Executive’s employment
foranyreason,exceptasmayotherwiseberequestedbytheCompanyinwritingandagreedupon
byExecutiveinwriting,Executiveshallbedeemedtohaveresignedfromanyandalldirectorships,
committeememberships,andanyotherpositionsExecutiveholdswiththeCompanyoranyother
member of the Company Group.Executive agrees to execute any documents that the Company
(or any other member of the Company Group) reasonably deems necessary to effectuate such
resignations and the appointment of person(s) designated by the Company (or any other member
of the Company Group) to serve as Executive’s replacement.
(c)Termination Due to Death or Disability.Executive’s employment shall
terminate automatically upon Executive’s death.The Company may terminate Executive’s
employment immediately upon the occurrence of a Disability, such termination to be effective
upon Executive’s receipt of written notice of suchtermination.Upon Executive’s death or in the
event that Executive’s employment is terminated due to Executive’s Disability, Executive or
Executive’s estate or Executive’s beneficiaries, as the case may be, shall be entitled to:
(i)TheAccruedObligations;
(ii)Any unpaid Annual Bonus in respect of any completed fiscal year
that has ended prior to the date of such termination, which amount shall be paid at such
time annual bonuses are paid to other senior executives of the Company, but in no event
laterthanthedatethatis twoandone-half (2½)monthsfollowingthelastdayofthefiscal
year in which such termination occurred;
(iii)Anamountequalto(A)theTargetAnnualBonusmultipliedby
(B) afraction,thenumeratorofwhichisthenumberofdayselapsedfromthe
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commencementofthefiscalyearinwhichsuchterminationoccursthroughthedateofsuch
termination and the denominator of which is three hundred sixty-five(365) (or three
hundredsixty-six(366),asapplicable),whichamountshallbepaidwithinthirty(30)days
following Executive’s termination date; and
(iv)Subject to an election of COBRA continuation coverage under the
Company’sgrouphealthplanbyExecutive(orExecutive’scovereddependentsinthecase
of Executive’s death), on the first regularly scheduled payroll date of each month during
the twelve(12)-month period immediately following Executive’s termination occurred,
paymentofanamountequaltothedifferencebetweenthemonthlyCOBRApremiumcost
and the monthly contribution paid by active employees for the same coverage.
FollowingExecutive’sdeathoraterminationofExecutive’semploymentbyreasonof aDisability,
exceptassetforthinthisSection7(c),Executiveshallhavenofurtherrightstoanycompensation
or any other benefits under this Agreement.
(d)Termination bythe CompanyforCause.
(i)The Company may terminate Executive’s employment at any time
for Cause, effective upon delivery to Executive of written notice of such termination;
provided, however, that with respect to anyCause termination relying on clause (ii), (vi),
or(vii)ofthedefinitionofCause,totheextentthatsuchactoractsorfailureorfailuresto
act are curable, Executive shall be given not less than fifteen(15) business days’ written
notice by the Board of the Company’s intention to terminate Executive for Cause, such
notice to state in detail the particular act or acts or failure or failures to act that constitute
the grounds on which the proposed termination for Cause is based, and such termination
shall be effective at the expiration of such fifteen(15) business day notice period unless
ExecutivehasfullycuredsuchactoractsorfailureorfailurestoactthatgiverisetoCause
during such period.
(ii)In the event that the Companyterminates Executive’s employment
for Cause, Executive shall be entitled only to the Accrued Obligations.Following such
terminationofExecutive’semploymentforCause,exceptassetforthinthis
Section7(d)(ii),Executive shall have no further rights to any compensation or any other
benefits under this Agreement.
(e)TerminationbytheCompanywithoutCause.TheCompanymayterminate
Executive’s employment at any time without Cause, effective upon delivery to Executive of
writtennoticeofsuchtermination.IntheeventthatExecutive’semploymentisterminatedbythe
Company without Cause (other than due to death or Disability), Executive shall be entitled to:
(i)TheAccruedObligations;
(ii)Any unpaid Annual Bonus in respect of any completed fiscal year
that has ended prior to the date of such termination, which amount shall be paid at such
time annual bonuses are paid to other senior executives of the Company, but in no event
laterthanthedatethatis twoandone-half (2½)monthsfollowingthelastdayofthefiscal
year in which such termination occurred;
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(iii)Subject to satisfaction of the performance objectives applicable for
thefiscalyearinwhichsuchterminationoccurs,anamountequalto(A)theAnnualBonus
otherwise payable to Executive for the fiscal year in which such termination occurred,
assuming Executive had remained employed through the applicable payment date (and
assuminganyapplicable subjective performance conditions have been satisfied at target),
multiplied by (B) a fraction, the numerator of which is the number of days elapsed from
the commencement of such fiscal year through the date of such termination and the
denominator of which is three hundred sixty-five(365) (or three hundred sixty-six (366),
as applicable), which amount shall be paid at such time annual bonuses are paid to other
senior executives of the Company, but in no event later than the date that is two and one-
half(2½) months following the last day of the fiscal year in which such termination
occurred; provided, however, if such termination is a CIC Qualified Termination, (x) any
applicable performance objectives shall be deemed satisfied at target, and (y) the amount
referenced in clause (A) above shall instead be the Target Annual Bonus.
(iv)AnamountequaltotheSeveranceMultipliertimesthesumofBase
Salary and the Target Annual Bonus, such amount to be paid in substantially equal
paymentsovertheSeveranceTerm,andpayableinaccordancewiththeCompany’sregular
payroll practices; provided, however, if such termination is a CIC Qualified Termination,
such amount shall instead be payable in a single lump sum within five (5) days of such
termination; and
(v)Subject to Executive’s election of COBRA continuation coverage
under the Company’s group health plan, on the first regularly scheduled payroll date of
each month during the Severance Term, payment of an amount equal to the difference
between the monthly COBRA premium cost and the monthly contribution paid by active
employeesforthesamecoverage;provided,thatthepaymentsdescribedinthisclause(v)
shall cease earlier than the expiration of the Severance Term in the event that Executive
becomes eligible to receive any health benefits as a result of subsequent employment or
service during the Severance Term.
Notwithstanding the foregoing, the payments and benefits described in clauses (ii)through (v)
above shall immediately terminate, and the Company shall have no further obligations to
Executive with respect thereto, in the event that Executive materially breaches any provision set
forthinSection9hereof.FollowingsuchterminationofExecutive’semploymentbytheCompany
withoutCause,exceptassetforthinthisSection7(e),Executiveshallhavenofurtherrightstoany
compensation or any other benefits under this Agreement.
(f)Termination by Executive with Good Reason.Executive may terminate
Executive’s employment with Good Reason by providing the Company thirty (30) days’ written
noticesettingforthinreasonablespecificitytheeventthatconstitutesGoodReason,whichwritten
notice,tobeeffective,mustbeprovidedtotheCompanywithinsixty(60)days oftheoccurrence
of such event.During such thirty(30)-daynotice period, the Companyshall have a cure right (if
curable), and if not cured within such period, Executive’s termination will be effective upon the
expiration of such cureperiod, and Executive shall be entitled tothe samepayments and benefits
asprovidedinSection7(e)hereofforaterminationbytheCompanywithoutCause,subjecttothe
sameconditionsonpaymentandbenefitsasdescribedinSection7(e)hereof.Followingsuch
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terminationofExecutive’semploymentbyExecutivewithGoodReason,exceptassetforthinthis
Section7(f),Executiveshallhavenofurtherrightstoanycompensationoranyotherbenefitsunder
this Agreement.
(g)TerminationbyExecutivewithoutGoodReason.Executivemayterminate
Executive’s employment without Good Reason by providing the Company thirty (30) days’
written notice of such termination.In the event of a termination of employment by Executive
under this Section7(g),Executive shall be entitled onlyto the Accrued Obligations.In the event
of termination of Executive’s employment under this Section7(g),the Company may, in its sole
andabsolutediscretion,bywrittennoticeacceleratesuchdateofterminationwithoutchangingthe
characterization of such termination as a termination by Executive without Good Reason.
Following such termination of Executive’s employment by Executive without Good Reason,
exceptassetforthinthisSection7(g),Executiveshallhavenofurtherrightstoanycompensation
or any other benefits under this Agreement.
(h)Release.Notwithstandinganyprovisionhereintothecontrary,thepayment
ofanyamountorprovisionofanybenefitpursuanttoSection7(e)orSection7(f)hereofotherthan
the Accrued Obligations (collectively, the “Severance Benefits”) shall be conditioned upon
Executive’sexecution,deliverytotheCompany,andnon-revocationoftheReleaseofClaims(and
theexpirationofanyrevocationperiodcontainedinsuchReleaseofClaims)withinsixty(60)days
following the date of Executive’s termination of employment hereunder (the “Release Execution
Period”).If Executive fails to execute the Release of Claims in such a timely manner so as to
permit any revocation period to expire prior to the end of such sixty (60) day period, or timely
revokes Executive’s acceptance of such release following its execution, Executive shall not be
entitled to any of the Severance Benefits.No portion of the Severance Benefits (other than
Accrued Obligations) shall be paid until the Release of Claims has become effective and all such
amounts shall commence to be paid on the first regular payroll date of the Company after the
Release of Claims has become effective; provided, that, if theRelease Execution Period overlaps
two(2)calendar years,thefirstpaymentshallnot bemadesoonerthan thefirstdayofthesecond
year, and shall include any missed payments.
Section8. Certain Payments.In the event that (a)Executive is entitled to
receiveanypayment,benefit,ordistributionofanytypetoorforthebenefitofExecutive,whether
paid or payable, provided or to be provided, or distributed or distributable, pursuant to the terms
of this Agreement or otherwise (collectively, the “Payments”) and (b)the net after-tax amount of
suchPayments,afterExecutivehaspaidalltaxesduethereon(including,withoutlimitation,taxes
due under Section4999 of the Code) is less than the net after-tax amount of all such Payments
otherwiseduetoExecutiveintheaggregate,ifsuchPaymentswerereducedtoanamountequalto
2.99 times Executive’s “base amount” (as defined in Section280G(b)(3) of the Code), then the
aggregateamount ofsuch Payments payableto Executiveshall bereduced to an amount that will
equal2.99timesExecutive’sbaseamount.Totheextentsuchaggregate“parachutepayment”(as
defined in Section280G(b)(2) of the Code) amounts are required to be so reduced, the parachute
payment amounts due to Executive (but no non-parachute payment amounts) shall be reduced in
the following order: (i)the parachute payments that are payable in cash shall be reduced (if
necessary,tozero)withamountsthatarepayablelastreducedfirst;(ii)paymentsandbenefitsdue
inrespectofanyequity,valuedatfullvalue(ratherthanacceleratedvalue),withthehighestvalues
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reducedfirst(assuchvaluesaredeterminedunderTreas.Reg.Section 1.280G-1,Q&A24);and
(iii)allothernon-cashbenefitsnototherwisedescribedinclause(ii)ofthisSection8reducedlast.
Section 9. Restrictive Covenants.
(a)General.Executive acknowledges and recognizes the highly competitive
nature of the business of the Company Group, that access to Confidential Information renders
Executive special and unique within the industryof the CompanyGroup, and that Executive will
have the opportunity to develop substantial relationships with existing and prospective clients,
accounts, customers, consultants, contractors, investors, and strategic partners of the Company
GroupduringthecourseofandasaresultofExecutive’semploymentwiththeCompany.Inlight
oftheforegoing,asaconditionofExecutive’semploymentbytheCompany,andinconsideration
of Executive’s employment hereunder and the compensation and benefits provided herein,
ExecutiveacknowledgesandagreestothecovenantscontainedinthisSection9.Executivefurther
recognizes and acknowledges that the restrictions and limitations set forth in this Section9are
reasonableandvalidingeographicalandtemporalscopeandinallotherrespectsandareessential
to protect the value of the business and assets of the Company Group.
(b)ConfidentialInformation.
(i)Executive acknowledges that, during the Term of Employment,
ExecutivewillhaveaccesstoinformationabouttheCompanyGroupandthatExecutive’s
employment with the Companyshall bring Executive into close contact with confidential
and proprietary information of the Company Group.In recognition of the foregoing,
Executive agrees, at all times during the Term of Employment and thereafter, to hold in
confidence, and not to use, except forthebenefit oftheCompanyGroup, orto discloseto
any Person without written authorization of the Company, any Confidential Information.
(ii)NothinginthisAgreementshallprohibitorimpedeExecutivefrom
communicating, cooperating, or filing a complaint with any U.S. federal, state or local
governmental,orlawenforcementbranch,agency,orentity(collectively,a“Governmental
Entity”) with respect to possible violations of any U.S. federal, state or local law, or
regulation,orotherwisemakingdisclosurestoanyGovernmentalEntity,ineachcase,that
are protected under the whistleblower provisions of any such law or regulation, provided
that,ineachcase,suchcommunicationsanddisclosuresareconsistentwithapplicablelaw.
Executiveunderstandsandacknowledgesthatanindividualshallnotbeheldcriminallyor
civillyliableunderanyFederalorStatetradesecretlawforthedisclosureofatradesecret
that is made (A)in confidence to a Federal, State, or local government official or to an
attorneysolelyforthepurposeofreportingorinvestigatingasuspectedviolationoflawor
(B)in a complaint or other document filed in a lawsuit or other proceeding, if such filing
is made under seal.Executive understands and acknowledges further that an individual
whofilesalawsuitforretaliationbyanemployerforreportingasuspectedviolationoflaw
may disclose the trade secret to the attorney of the individual and use the trade secret
information in the court proceeding, if the individual files any document containing the
trade secret under seal; and does not disclose the trade secret, except pursuant to court
order.Notwithstandingtheforegoing,undernocircumstancewillExecutivebeauthorized
todiscloseanyinformationcoveredbyattorney-clientprivilegeorattorneyworkproduct
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ofanymemberoftheCompanyGroup without priorwrittenconsent ofCompany’s Chief
Legal & Administrative Officer or other officer designated by the Company, unless
otherwise permitted by the applicable whistleblower provisions of any law or regulation.
Executivedoesnotneedthepriorauthorizationof(ortogivenoticeto)anymemberofthe
Company Group regarding any communication, disclosure, or activity permitted by this
subsection.
(c)AssignmentofIntellectualProperty.
(i)Executive agrees that Executive will, without additional
compensation,promptlymakefullwrittendisclosuretotheCompany,andwillholdintrust
for the sole right and benefit of the Company all developments, original works of
authorship, inventions, concepts, know-how, improvements, trade secrets, and similar
proprietaryrights,whetherornotpatentableorregistrableundercopyrightorsimilarlaws,
which Executivemay(or havepreviously) solelyorjointlyconceiveordevelop orreduce
topractice,orcausetobeconceivedordeveloped orreducedtopractice,duringtheTerm
ofEmployment,whetherornotduringregularworkinghours,providedtheyeither
(i)relate at thetimeofconception orreduction to practiceoftheinvention to thebusiness
of any member of the Company Group, or actual or demonstrably anticipated research or
developmentof anymemberoftheCompanyGroup;(ii)resultfromorrelatetoanywork
performed for anymember of the Company Group; or (iii)are developed through the use
of equipment, supplies, or facilities of any member of the Company Group, or any
ConfidentialInformation,orinconsultationwithpersonnelofanymemberoftheCompany
Group(collectivelyreferredtoas “Developments”).Executivefurtheracknowledgesthat
allDevelopmentsmadebyExecutive(solelyorjointlywithothers)withinthescopeofand
duringtheTermofEmploymentare“worksmadeforhire”(tothegreatestextentpermitted
by applicable law) for which Executive is, in part, compensated by Executive’s Base
Salary, unless regulated otherwise bylaw, but that, in the event anysuch Development is
deemed not to be a work made for hire, Executive hereby assigns to the Company, or its
designee,allofExecutive’sright,title,andinterestthroughouttheworldinandtoanysuch
Development.
(ii)Executive agrees to assist the Company, or its designee, at the
Company’s expense, in every way to secure the rights of the Company Group in the
Developments and any copyrights, patents, trademarks, service marks, database rights,
domain names, mask work rights, moral rights, and other intellectual property rights
relating thereto in any and all countries, including the disclosure to the Company of all
pertinent information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments, recordations, and all other instruments that the
Company shall deem necessary in order to apply for, obtain, maintain, and transfer such
rights and in order to assign and convey to the Company Group the sole and exclusive
right, title, and interest in and to such Developments, and any intellectual property and
other proprietary rights relating thereto.Executive further agrees that Executive’s
obligationtoexecuteorcausetobeexecuted,whenitisinExecutive’spowertodoso,any
suchinstrumentorpapersshallcontinueaftertheterminationoftheTermofEmployment
until the expiration of the last such intellectual property right to expire in any country of
theworld;provided,however,thattheCompanyshallreimburseExecutiveforExecutive’s
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reasonableexpensesincurredinconnectionwithcarryingouttheforegoingobligationand,
following termination of the Term of Employment, shall compensate Executive for
Executive’s time incurred in connection with carrying out Executive’s obligations under
this Section9(c)(ii)following such termination at an hourly rate based upon Executive’s
Base Salary as of immediately prior to termination of Executive’s employment.If the
CompanyisunablebecauseofExecutive’smentalorphysicalincapacityorunavailability
for any other reason to secure Executive’s signature to apply for or to pursue any
application for any United States or foreign patents or copyright registrations covering
Developments or original works of authorship assigned to the Company as above, then
ExecutiveherebyirrevocablydesignatesandappointstheCompanyanditsdulyauthorized
officers and agents as Executive’s agent and attorney in fact to act for and in Executive’s
behalf and stead to execute and file any such applications or records and to do all other
lawfully permitted acts to further the application for, prosecution, issuance, maintenance,
andtransferofletterspatentorregistrationsthereonwiththesamelegalforceandeffectas
if originally executed by Executive.Executive hereby waives and irrevocablyquitclaims
to the Company any and all claims, of any nature whatsoever, that Executive now or
hereafter has for past, present, or future infringement of any and all proprietary rights
assigned to the Company.
(d)Non-Competition.During the Term of Employment and the Post-
Termination Restricted Period, Executive shall not, other than for or on behalf of, and in
furtherance of Executive’s duties as an employee, director, or authorized agent of, the Company
Group thereof during the Term of Employment, directly or indirectly engage in, have any equity
interestin,ormanage,provideservicestooroperateanyperson,firm,corporation,partnership,or
business (whether as director, officer, employee, agent, representative, partner, member, security
holder, consultant, or otherwise) that engages in any business, directly or indirectly (through a
subsidiary or otherwise), which competes with the Business within the United States of America
oranyotherjurisdictioninwhichanymemberoftheCompanyGroupengagesinbusinessderives
a material portion of its revenues or has demonstrable plans (as of the date of termination) to
commence material business activities in.Nothing contained in this Agreement shall prohibit
Executive from owning less than three percent (3%) of anyclass of securities listed on a national
securities exchange or traded publicly in the over-the-counter market.
(e)Non-Interference.During the Term of Employment and the Post-
Termination Restricted Period, Executive shall not, directly or indirectly for Executive’s own
account or for the account of any other Person, engage in Interfering Activities.
(f)Non-Disparagement.Subject to Section 9(b)(ii)hereof,Executive agrees
thatExecutivewillneverdisparagetheCompany,itsaffiliates,theirbusiness,theirmanagement
ortheirproductsorservices,andthatExecutivewillnototherwisedoorsayanythingthatcould
reasonablybeanticipatedtomateriallyharmthebusinessinterestsorreputationoftheCompany
or any of its affiliates, provided, that nothing herein shall or shall be construed or interpreted to
prevent or impair Executive from the following actions taken during Executive’s employment
with the Company in the ordinary course of business and in connection with the good faith
performance of Executive’s duties: (x) making public comments, such as in media interviews,
which include good faith, candid discussions or acknowledgments regarding the Company’s
performanceorbusiness,or(y) discussingotherofficers, directors,andemployeesin connection
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with performance evaluations, including impromptu evaluations and feedback and good faith
criticism.Notwithstandingtheforegoing,nothinghereinshallprevent Executivefromtestifying
truthfully in any legal or administrative proceeding where such testimony is compelled or
requested, or from otherwise complying with applicable legal requirements.
(g)Return of Documents.In the event of Executive’s termination of
employmenthereunderforanyreason,ExecutiveshalldelivertotheCompany(andwillnotkeep
inExecutive’spossession,recreate,ordelivertoanyoneelse)anyandallConfidentialInformation
andallotherdocuments,materials,information,andpropertydevelopedbyExecutivepursuantto
Executive’semploymenthereunderorotherwisebelongingtotheCompanyGroup(otherthanany
documents, materials, information, and property to the extent related to Executive’s personal
compensation and personal contacts).
(h)Independence; Severability; BluePencil.Each of therightsenumeratedin
this Section9shall be independent of the others and shall be in addition to and not in lieu of any
other rights and remedies available to the Company Group at law or in equity.If any of the
provisions of this Section 9or anypart of anyof them is hereafter construed or adjudicated to be
invalid orunenforceable, thesameshall not affect theremainderof this Section9, which shall be
given full effect without regard to the invalid portions.If any of the covenants contained herein
are held to be invalid or unenforceable because of the duration of such provisions or the area or
scope covered thereby, each of the Company and Executive agree that the court making such
determinationshallhavethepowertoreducetheduration,scope,and/orareaofsuchprovisionto
the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced
form said provision shall then be enforceable.
(i)Injunctive Relief.Executive expressly acknowledges that any breach or
threatened breach of any of the terms and/or conditions set forth in this Section 9may result in
substantial,continuing,andirreparableinjurytothemembersoftheCompanyGroup.Therefore,
Executive hereby agrees that, in addition to any other remedy that may be available to the
Company, anymember of the CompanyGroup shall be entitled to seek injunctive relief, specific
performance, or other equitable relief by a court of appropriate jurisdiction in the event of any
breachorthreatenedbreachofthetermsofthisSection9.Notwithstandinganyotherprovisionto
thecontrary,ExecutiveacknowledgesandagreesthatthePost-TerminationRestrictedPeriodshall
be tolled during any period of violation of any of the covenants in this Section 9and during any
other period required for litigation during which the Company or any other member of the
Company Group seeks to enforce such covenants against Executive if it is ultimatelydetermined
that Executive was in breach of such covenants.
(j)Disclosure of Covenants.As long as it remains in effect, Executive will
disclose the existence of the covenants contained in this Section9to any prospective employer,
partner,co-venturer,investor,orlenderpriortoenteringintoanemployment,partnership,orother
business relationship with such Person or entity.
(k)Other Covenants.Notwithstanding anything contained in this Agreement
to the contrary, in the event that Executive is subject to similar restrictive covenants pursuant to
anyotheragreementwithanymemberoftheCompanyGroup,including,withoutlimitation,under
the Equity Documents (“Other Covenants”), the covenants contained in this Agreement shall be
| -11- |
in addition to, and not in lieu of, anysuch Other Covenants, and enforcement bythe Companyof
the covenants contained in this Agreement shall not preclude the applicable member of the
Company Group from enforcing such Other Covenants in accordance with their terms.
Section10.Representations and Warranties of Executive.Executive
represents and warrants to the Company that:
(a)Executive is entering into this Agreement voluntarily and that Executive’s
employmenthereunderandcompliancewiththetermsandconditionshereofwillnotconflictwith
or result in the breach by Executive of any agreement to which Executive is a party or by which
Executive may be bound;
(b)Executivehasnotviolated,andinconnectionwithExecutive’semployment
with the Company will not violate, any non-solicitation, non-competition, or other similar
covenant or agreement with any Person by which Executive is or becomes bound;
(c)In connectionwith Executive’semploymentwith theCompany,Executive
will not use any confidential or proprietary information Executive may have obtained in
connection with employment or service with any prior service recipient; and
(d)Executive has not been terminated from any prior employer or service
recipient,orotherwisedisciplinedinconnectionwithanysuchrelationship,inconnectionwith,or
as a result of, any claim of workplace sexual harassment or sex or gender discrimination, and to
Executive’sknowledge,Executivehasnotbeenthesubjectofanyinvestigation,formalallegation,
civilorcriminalcomplaint,charge,orsettlementregardingworkplacesexualharassmentorsexor
gender discrimination.
Section11.Indemnification.TheCompanyagreesduringandafter
Executive’semploymenttoindemnifyandholdharmlessExecutivetothefullestextentpermitted
bytheorganizationaldocumentsoftheCompany, orifgreater,inaccordancewithapplicablelaw
regarding indemnification, for actions or inactions of Executive in accordance with Executive’s
performance of his duties under this Agreement, as an officer, director, employee or agent of the
Companyoranyaffiliatethereoforasafiduciaryofanybenefitplanofanyoftheforegoing.The
Company also agrees to provide Executive with directors’ and officers’ liability insurance
coverage both during and after Executive’s employment with regard to matters occurring during
employment, or while serving on the governing body of the Company, or any affiliate thereof,
whichcoveragewillbe atalevelatleastequaltothe greatestlevelbeingmaintainedatsuchtime
for any current officer or director and shall continue until such time as suits can no longer be
brought against Executive as a matter of law.Executive will be entitled to advancement of
expensesfromtheCompanyoritsapplicablesubsidiariesinconnectionwithanyclaiminthesame
manner and to the same extent to which any other officer or director of the Company is entitled.
Section12. Taxes.The Company may withhold fromany paymentsmade
under this Agreement or otherwise made in connection with Executive’s employment hereunder,
allapplicabletaxes,includingbutnotlimitedtoincome,employment,and socialinsurancetaxes,
as shall be required bylaw.If anysuch taxes are paid or advanced bythe Companyon behalf of
Executive,Executiveshallremainresponsiblefor,andshallrepay,suchamountstotheCompany,
| -12- |
promptlyfollowingnoticethereofbytheCompany.Executiveacknowledges and represents that
theCompanyhasnotprovidedanytaxadvicetoExecutiveinconnectionwiththisAgreementand
that Executive has been advised by the Company to seek tax advice from Executive’s own tax
advisors regarding this Agreement and payments that may be made to Executive pursuant to this
Agreement, including specifically, the application of the provisions of Section 409A of the Code
to such payments.
Section13. Set Off; Mitigation.The Company’s obligation to pay Executive
the amounts provided and to make the arrangements provided hereunder shall not be subject to
set-off, counterclaim, or recoupment of amounts owed by Executive to the Company or its
affiliates.Executiveshallnotberequiredtomitigatetheamountofanypaymentprovidedpursuant
tothisAgreementbyseekingotheremploymentorotherwise,andexceptasprovidedin
Section7(e)(v)hereof, the amount of anypayment provided for pursuant to this Agreement shall
not be reduced by any compensation earned as a result of Executive’s other employment or
otherwise.
Section 14.AdditionalSection 409AProvisions.Notwithstandingany
provision in this Agreement to the contrary:
(a)AnypaymentotherwiserequiredtobemadehereundertoExecutiveatany
date as a result of the termination of Executive’semployment shall be delayed for such period of
timeasmaybenecessarytomeettherequirementsofSection409A(a)(2)(B)(i)oftheCode
(the“Delay Period”).On the first business day following the expiration of the Delay Period,
Executive shall be paid, in a single cash lump sum, an amount equal to the aggregate amount of
all payments delayed pursuant to the preceding sentence, and any remaining payments not so
delayed shall continue to be paid pursuant to the payment schedule set forth herein.
(b)Each payment in a series of payments hereunder shall be deemed to be a
separate payment for purposes of Section 409A of the Code.
(c)Notwithstanding anything herein to the contrary, the payment (or
commencement of a series of payments) hereunder of any nonqualified deferred compensation
(within the meaning of Section409A of the Code) upon a termination of employment shall be
delayeduntilsuchtimeasExecutivehasalsoundergonea“separationfromservice”asdefinedin
Treas. Reg. Section1.409A-1(h), at which time such nonqualified deferred compensation
(calculated as of the date of Executive’s termination of employment hereunder) shall be paid (or
commence to be paid) to Executive on the schedule set forth in Section 7as if Executive had
undergone such termination of employment (under the same circumstances) on the date of
Executive’s ultimate “separation from service.”
(d)To the extent that any right to reimbursement of expenses or payment of
anybenefitin-kindunder thisAgreement constitutesnonqualifieddeferred compensation(within
themeaningof Section409AoftheCode),(i)anysuch expensereimbursement shall bemadeby
theCompanynolaterthanthelastdayofthetaxableyearfollowingthetaxableyearinwhichsuch
expensewasincurredbyExecutive,(ii)therighttoreimbursementorin-kindbenefitsshallnotbe
subjecttoliquidationorexchangeforanotherbenefit,and(iii)theamountofexpenseseligiblefor
reimbursement or in-kind benefits provided during anytaxable year shall not affect the expenses
| -13- |
eligible for reimbursementorin-kindbenefitsto beprovided inanyother taxable year; provided,
however,thattheforegoingclauseshallnotbeviolatedwithregardtoexpensesreimbursedunder
anyarrangement covered bySection105(b)oftheCodesolelybecausesuchexpensesaresubject
to a limit related to the period the arrangement is in effect.
(e)While the payments and benefits provided hereunder are intended to be
structured in a manner to avoid the implication of any penalty taxes under Section409A of the
Code, and shall beinterpretedin accordancetherewith, in no event whatsoevershall anymember
of the CompanyGroup be liable foranyadditional tax,interest, or penalties that maybe imposed
on Executive as a result of Section409A of the Code or any damages for failing to comply with
Section409A of the Code (other than for withholding obligations or other obligations applicable
to employers, if any, under Section 409A of the Code).
Section15.Successorsand Assigns;NoThird-PartyBeneficiaries.
(a)The Company.This Agreement shall inure to the benefit of the Company
anditsrespectivesuccessorsandassigns.NeitherthisAgreementnoranyoftherights,obligations,
or interests arising hereunder may be assigned by the Company to a Person (other than another
member of the Company Group, or its or their respective successors) without Executive’s prior
written consent (which shall not be unreasonably withheld, delayed, or conditioned); provided,
however, that in the event of a sale of all or substantially all of the assets of the Companyor any
directorindirectdivisionorsubsidiarythereoftowhichExecutive’semploymentprimarilyrelates,
the Companymay provide that this Agreement will be assigned to, and assumed by, the acquiror
of such assets, division or subsidiary, as applicable, without Executive’s consent.
(b)Executive.Executive’s rights and obligations under this Agreement shall
not betransferablebyExecutivebyassignment or otherwise, without thepriorwrittenconsent of
theCompany;provided,however,thatifExecutiveshalldie,allamountsthenpayabletoExecutive
hereunder shall be paid in accordance with the terms of this Agreement to Executive’s devisee,
legatee, or other designee, or if there be no such designee, to Executive’s estate.
(c)NoThird-PartyBeneficiaries.ExceptasotherwisesetforthinSection7(c)
or Section15(b)hereof, nothing expressed or referred to in this Agreement will be construed to
giveanyPersonotherthantheCompany,theothermembersoftheCompanyGroup,andExecutive
any legal or equitable right, remedy, or claim under or with respect to this Agreement or any
provision of this Agreement.
Section16. WaiverandAmendments. Anywaiver,alteration,amendment,or
modificationofanyofthetermsofthisAgreementshallbevalidonlyifmadeinwritingandsigned
byeach of the parties hereto; provided, however, that anysuch waiver, alteration, amendment, or
modificationmustbeconsentedtoontheCompany’sbehalfbytheBoard.Nowaiverbyeitherof
the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to
anysubsequentoccurrencesortransactionshereunderunlesssuchwaiverspecificallystatesthatit
is to be construed as a continuing waiver.
Section17.Severability.If any covenants or such other provisions of this
Agreementarefoundtobeinvalidorunenforceablebyafinaldeterminationofacourtof
| -14- |
competentjurisdiction,(a)theremainingtermsandprovisionshereofshallbeunimpairedand
(b)the invalid or unenforceable term or provision hereof shall be deemed replaced by a term or
provision that is valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision hereof.
Section18.Governing Law; Choice of Venue; Waiver of Jury Trial.THIS
AGREEMENT IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF
THE COMMONWEALTHOF KENTUCKY WITHOUTREFERENCE TOTHE PRINCIPLES
OFCONFLICTOFLAW,ANDBOTHEXECUTIVEANDTHECOMPANYCONSENTAND
SUBJECT TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS FOR THE
COMMONWEALTH OF KENTUCKY.EACH PARTY TO THIS AGREEMENT ALSO
HEREBYWAIVESANYRIGHTTOTRIALBYJURYINCONNECTIONWITHANYSUIT,
ACTION,ORPROCEEDINGUNDERORINCONNECTIONWITHTHISAGREEMENT.
Except as permitted under Section9hereof, anycontroversyor claim arising out of or relating to
this Agreement (or the breach thereof) shall be settled by final, binding and non-appealable
arbitration in Louisville, Kentucky by three arbitrators.The arbitration shall be conducted by
JAMSpursuanttoitsEmploymentArbitrationRulesandProceduresandsubjecttoJAMSPolicy
onEmploymentArbitrationinaccordancewithitsEmploymentArbitrationRulesandProcedures
then in effect.Judgment on the award rendered by the arbitrators may be entered in any court
havingjurisdictionthereof.Thearbitratorsshall havetheauthorityto awardanyremedyorrelief
that a court of competent jurisdiction could order or grant, including, without limitation, the
issuanceof an injunction.However, either partymay, without inconsistencywith this arbitration
provision,applytoanycourthavingjurisdictionoversuchdisputeorcontroversyandseekinterim
provisional, injunctive or other equitable relief until the arbitration award is rendered or the
controversy is otherwise resolved, or permanent injunctive relief.Except as necessary in court
proceedingstoenforcethisarbitrationprovisionoranawardrenderedhereunder,toobtaininterim
relieforasotherwiserequiredbylaw,neitherapartynoranarbitratormaydisclosethecontentor
results of any arbitration hereunder without the prior written consent of the Company and
Executive, other than general statements.The fees charged by JAMS and any arbitrator shall be
split equally between the parties to the arbitration.
Section19.Notices.Allnoticesandothercommunicationsrequiredor
permitted under this Agreement which are addressed as provided in this Section19, (A)if
delivered personally against proper receipt shall be effective upon delivery and (B)if sent (x)by
certified or registered mail with postage prepaid or (y)by Federal Express or similar courier
service with courier fees paid by the sender, shall be effective upon receipt.The parties hereto
mayfromtimetotimechangetheirrespectiveaddressesforthepurposeofnoticestothatpartyby
asimilarnoticespecifyinganewaddress,butnosuchchangeshallbedeemedtohavebeengiven
unless it is sent and received in accordance with this Section 19.
IftotheCompany:
888 W. Market Street
Louisville,Kentucky40202
Attn:ChiefLegal&AdministrativeOfficer
| -15- |
Withcopyto:
SimpsonThacher&Bartlett,LLP
2475 Hanover Street
PaloAlto,CA94304
Attn: Tristan Brown
IftoExecutive:
TothemostrecentaddressofExecutivesetforthinthepersonnelrecordsofthe
Company
Section20. SectionHeadings. Theheadingsofthesectionsandsubsectionsof
this Agreement are inserted for convenience only and shall not be deemed to constitute a part
thereoforaffectthemeaningorinterpretationofthisAgreementorofanytermorprovisionhereof.
Section21.Entire Agreement.This Agreement, together with any exhibits
attachedhereto,constitutestheentireunderstandingandagreementofthepartiesheretoregarding
the employment of Executive.This Agreement supersedes all prior negotiations, discussions,
correspondence,communications,understandings,andagreementsbetweenthepartiesrelatingto
the subject matter of this Agreement, including, without limitation, the Prior Agreement.
Section22.Survival of Operative Sections.Upon any termination of
Executive’s employment, the provisions of Section7through Section23of this Agreement
(togetherwithanyrelateddefinitionssetforthonAppendixA)shallsurvivetotheextentnecessary
to give effect to the provisions thereof.
Section23.Counterparts.This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.The execution of this Agreement may be by actual or
facsimile signature.
***
[Signaturesto appear onthe following page.]
| [SignaturePagetoEmploymentAgreement] |
INWITNESSWHEREOF,theundersignedhaveexecutedthisAgreementasof
the date first above written.
WAYSTAR,INC.
/s/ Matthew R. A. Heiman
By: Matthew R. A. Heiman
Title: Chief Legal & Admin. Officer
EXECUTIVE
/s/ Steven M. Oreskovich
Steven M. Oreskovich
APPENDIXA
Definitions
(a)“Accrued Obligations” shall mean (i)all accrued but unpaid Base Salary
through the date of termination of Executive’s employment, (ii)any unpaid or unreimbursed
expenses incurred in accordance with Section6hereof, (iii)an amount equal to Executive’s
accrued, but unused vacation days in accordance with the Company’s vacation policies in effect
from time to time, and (iv)any benefits provided under the Company’s employee benefit plans
upon atermination ofemployment, including rights with respect to equityparticipation underthe
Equity Documents, in accordance with the terms contained therein.
(b)“Board”shallmeantheBoardofDirectorsofWaystarHoldings Corp.
(c)“Business” shall mean (i)any business activities related to healthcare-
related software and services, or (ii)any business in which the Company Group is actively
contemplating in engaging at the relevant time (or, with respect to Executive’s obligations under
Section9(d)hereof during the Post-Termination Restricted Period, at the time of termination of
Executive’semploymentwiththeCompany)ifExecutivehasactualorconstructiveknowledgeof
such contemplation.
(d)“BusinessRelation”shallmeananycurrentorprospectiveclient,customer,
licensee,supplier,orotherbusinessrelationoftheCompanyGroup,oranysuch relationthatwas
a client, customer, licensee or other business relation at the relevant time (or, with respect to
Executive’s obligations under Section9(e)hereof duringthe Post-Termination Restricted Period,
atthetimeofterminationofExecutive’semploymentwiththeCompany)orwithintheprior
six (6)-month period thereto, in each case, with whom Executive transacted business or whose
identity became known to Executive in connection with Executive’s employment hereunder.
(e)“Cause” shall mean (i)Executive’s act(s) of gross negligence or willful
misconduct in the course of Executive’s employment hereunder, (ii)willful failure or refusal by
Executive to perform in any material respect Executive’s duties or responsibilities,
(iii)misappropriation (or attempted misappropriation) by Executive of any assets or business
opportunitiesoftheCompanyoranyothermemberoftheCompanyGroup,(iv)embezzlementor
fraud committed (or attempted) by Executive, or at Executive’s direction, (v)Executive’s
convictionof,indictmentfor,orpleading“guilty”or“nocontest”to,(x)afelonyor(y)anyother
criminal charge that has, or could be reasonably expected to have, an adverse impact on the
performance of Executive’s duties to the Company or any other member of the Company Group
or otherwise result in material injury to the reputation or business of the Company or any other
member of the Company Group, (vi) any material violation by Executive of the policies of the
Company, including but not limited to those relating to sexual harassment or business conduct,
andthoseotherwisesetforthinthemanualsorstatementsofpolicyoftheCompany,or
(vii)Executive’s material breach of this Agreement or any other written agreement between
Executive and any group (including any restrictive covenants).
(f)“ChangeinControl”hasthemeaningsetforthintheEquityIncentivePlan.
| -2- |
(g)“CIC Qualified Termination” means a termination of Executive’s
employmentpursuanttoSection7(e)orSection7(f),ineithercase,withinthesix(6)-monthperiod
prior to, on or within the twenty-four (24) month period following a Change in Control.
(h)“Code”shallmeantheInternalRevenueCodeof1986,asamended,andthe
rules and regulations promulgated thereunder.
(i)“Company Group” shall mean Waystar Holdings Corp. together with any
of its direct or indirect subsidiaries, including, without limitation, the Company.
(j)“CompensationCommittee”shallmeantheCompensationCommitteeof
theBoard.
(k)“ConfidentialInformation”meansinformationthattheCompanyGrouphas
or will develop, acquire, create, compile, discover, or own, that has value in or to the business of
the Company Group that is not generally known and that the Company wishes to maintain as
confidential.Confidential Information includes, but is not limited to, any and all non-public
information that relates to the actual or anticipated business and/or products, research, or
development of the CompanyGroup, or to the CompanyGroup’s technical data, trade secrets, or
know-how, including, but not limited to, research, plans, or other information regarding the
CompanyGroup’sproductsorservicesandmarkets,customerlists,andcustomers(including,but
notlimitedto,customersoftheCompanyonwhomExecutivecalledorwithwhomExecutivemay
become acquainted during the Term of Employment), software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, hardware configuration
information,marketing,finances,andotherbusinessinformationdisclosedbytheCompanyeither
directlyorindirectlyinwriting,orally,orbydrawingsorinspectionofpremises,parts,equipment,
orotherCompanyGroupproperty.Notwithstandingtheforegoing,ConfidentialInformationshall
not include any of the foregoing items that have become publicly and widely known through no
unauthorized disclosure by Executive or others who were under confidentiality obligations as to
the item or items involved.
(l)“Disability” shall mean any physical or mental disability or infirmity of
Executive that prevents the performance of Executive’s duties for a period of (i) ninety(90)
consecutive days or (ii) one hundred twenty (120) non-consecutive days during any twelve (12)
month period.Any question as to the existence, extent, or potentiality of Executive’s Disability
upon which Executive and the Company cannot agree shall be determined by a qualified,
independentphysicianselectedbytheCompanyandapprovedbyExecutive(whichapprovalshall
not be unreasonablywithheld, delayed or conditioned).The determination of anysuch physician
shall be final and conclusive for all purposes of this Agreement.
(m)“Equity Incentive Plan” means the Waystar Holdings Corp. 2024 Equity
Incentive Plan, as may be amended and/or restated from time to time, and any successor plan
thereto.
(n)“Good Reason” shall mean, without Executive’s consent, (i)a material
diminution or demotion in Executive’s title, duties, or responsibilities as set forth in Section3
hereof,(ii)areductioninBaseSalaryorTargetAnnualBonusopportunity(otherthanpursuantto
| -3- |
an across-the-board reduction applicable to all similarly situated executives), (iii)requiring
Executive to relocate Executive’s principal business location to a work site more than fifty(50)
milesfromthecurrentprincipalbusinesslocation,or(iv)anyothermaterialbreachofaprovision
ofthisAgreementbytheCompany(otherthanaprovisionthatiscoveredbyclause (i),(ii),or(iii)
above).ExecutiveacknowledgesandagreesthatExecutive’sexclusiveremedyintheeventofany
breach of this Agreement shall be to assert Good Reason pursuant to the terms and conditions of
Section7(f)hereof.Notwithstandingtheforegoing,duringtheTermofEmployment,intheevent
that the Board reasonably believes that Executive may have engaged in conduct that could
constituteCausehereunder,theBoardmay,initssoleandabsolutediscretion,suspendExecutive
from performing Executive’s duties hereunder, and in no event shall any such suspension
constituteaneventpursuanttowhichExecutivemayterminateemploymentwithGoodReasonor
otherwise constitute a breach hereunder; provided, that no such suspension shall alter the
Company’s obligations under this Agreement during such period of suspension.
(o)“Interfering Activities” shall mean (A)recruiting, encouraging, soliciting,
or inducing, or in any manner attempting to recruit, encourage, solicit, or induce, any Person
employedby,orprovidingconsultingservicesto,anymemberoftheCompanyGrouptoterminate
such Person’s employment or services (or in the case of a consultant, materially reducing such
services)withtheCompanyGroup(otherthan,inanycase,solicitationsgeneratedbyaformoffer
letter, blanket mailing or published advertisement), (B)hiring, or engaging any individual who
was employed by or providing services to the Company Group at or within the six (6)-month
period prior to the date of such hiring or engagement (or, with respect to Executive’s obligations
under Section9(e)hereof during the Post-Termination Restricted Period, at or within the six (6)-
monthperiodpriortotheterminationofExecutive’semploymentwiththeCompany),or
(C)encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or
induce, any Business Relation to cease doing business with or reduce the amount of business
conducted with the CompanyGroup, or in anyway intentionallyinterfering with the relationship
betweenanysuchBusinessRelationandtheCompanyGroup(provided,thatsuchrestrictionshall
apply: (x) only with respect to those Persons who are, or have been, a Business Relation of the
Company or any of its affiliates at any time within the eighteen (18)-month period immediately
precedingtheactivityorwhosebusinesshasbeensolicitedonbehalfoftheCompanyoranyofits
affiliates by any of their officers, employees or agents within such eighteen (18)-month period,
other than by a form offer letter, blanket mailing or published advertisement; and (y) only if
ExecutivehasperformedworkforsuchPersonduringExecutive’semploymentwiththeCompany
oroneofitsaffiliatesorbeenintroducedto,orotherwisehadcontactwith,suchPersonorhashad
accesstoConfidentialInformationthatwouldassistExecutiveinthesolicitationofsuchPerson).
(p)“Person” shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust (charitable or non-
charitable), unincorporated organization, or other form of business entity.
(q)“Post-Termination Restricted Period” shall mean the period commencing
on the date of the termination of the Term of Employment for any reason and ending on the
twelve (12)-month anniversary of such date of termination.
(r)“SeveranceMultiplier”meansone(1).
| -4- |
(s)“Severance Term” means the period commencing on the date of the
termination pursuant to Section7(e)or Section7(f)and ending a number of months thereafter
calculated by multiplying the Severance Multiplier by twelve (12).
(t)“Release of Claims” shall mean the Release of Claims in substantially the
sameformattachedheretoasAppendix B(asthesamemayberevisedforupdatesduetochanges
in applicable law).
***
APPENDIX B
RELEASEOFCLAIMS
As used in this Release of Claims (this “Release”), the term “claims” will include
all claims, covenants, warranties, promises, undertakings, actions, suits, causes of action,
obligations,debts,accounts,attorneys’fees,judgments,losses,andliabilities,ofwhatsoeverkind
or nature, in law, in equity, or otherwise.
For and in consideration of the Severance Benefits, and other good and valuable
consideration, I, Steven M. Oreskovich for and on behalf of myself and myheirs, administrators,
executors, and assigns, effective the date on which this release becomes effective pursuant to its
terms, do fully and forever release, remise, and discharge each of the Company and each of its
direct and indirect subsidiaries and affiliates, together with their respective officers, directors,
partners,shareholders,employees,andagents(collectively,the “Group”)fromanyandallclaims
whatsoever up to the date hereof that Ihad, may have had, or now have against the Group, for or
by reason of any matter, cause, or thing whatsoever, including any claim arising out of or
attributabletomyemploymentortheterminationofmyemploymentwiththeCompany,whether
for tort, breach of express or implied employment contract, intentional infliction of emotional
distress,wrongfultermination,unjustdismissal,defamation,libel,orslander,orunderanyfederal,
state, or local law dealing with discrimination based on age, race, sex, national origin, handicap,
religion,disability,orsexualorientation.Thisreleaseofclaimsincludes, butisnotlimitedto,all
claimsarisingundertheAgeDiscriminationinEmploymentAct(“ADEA”),TitleVIIoftheCivil
RightsAct,theAmericanswithDisabilitiesAct,theCivilRightsActof1991,theFamilyMedical
LeaveAct,andtheEqualPayAct,eachasmaybeamendedfromtimetotime,andallotherfederal,
state,andlocallaws,the commonlaw,andanyotherpurportedrestrictiononanemployer’sright
to terminate the employment of employees.The release contained herein is intended to be a
general release of any and all claims to the fullest extent permissible by law.
I acknowledge and agree that as of the date I execute this Release, I have no
knowledge of anyfacts or circumstances that give rise or could give rise to anyclaims under any
of the laws listed in the preceding paragraph.
By executing this Release, I specifically release all claims relating to my
employment and its termination under ADEA, a United States federal statute that, among other
things, prohibits discrimination on the basis of age in employment and employee benefit plans.
Notwithstanding any provision of this Release to the contrary, by executing this
Release,Iamnotreleasing(i)anyclaimsrelatingtomyrightsunderSection 7oftheEmployment
Agreement (as defined below), (ii)any claims that cannot be waived by law, (iii) any claims
relating to any vested benefits or rights as a shareholder of the Company, or (iv)my right of
indemnificationasprovidedby,andinaccordancewiththetermsof,theCompany’sby-laws,the
Employment Agreement oraCompanyinsurance policyprovidingsuch coverage, as anyofsuch
may be amended from time to time.
Iexpresslyacknowledgeand agreethatI–
•Am able to read the language, and understand the meaning and effect, of
this Release;
•Havenophysicalormentalimpairmentofanykindthathasinterferedwith
myabilityto read and understand the meaning of this Release or its terms,
and that I am not acting under the influence of any medication, drug, or
chemical of any type in entering into this Release;
•Am specifically agreeing to the terms of the release contained in this
ReleasebecausetheCompanyhasagreedtopaymetheSeveranceBenefits
in consideration for my agreement to accept it in full settlement of all
possible claims I might have or ever had, and because of my execution of
this Release;
•Acknowledge that, but for my execution of this Release, I would not be
entitled to the Severance Benefits;
•Understand that, by entering into this Release, I do not waive rights or
claims under ADEA that may arise after the date I execute this Release;
•Hadorcouldhave[twenty-one(21)][forty-five(45)]1daysfromthedateof
myterminationofemployment(the“ReleaseExpirationDate”)inwhichto
review and considerthis Release, and that if Iexecutethis Releasepriorto
the Release Expiration Date, I have voluntarily and knowingly waived the
remainder of the review period;
•Have not relied upon any representation or statement not set forth in this
ReleaseormyEmploymentAgreementmadebytheCompanyoranyofits
representatives;
•Was advised to consult with myattorneyregarding the terms and effect of
this Release; and
•HavesignedthisReleaseknowinglyand voluntarily.
IrepresentandwarrantthatIhavenotpreviouslyfiled,andtothemaximumextent
permitted bylaw agree that I will not file, a complaint, charge, or lawsuit against anymember of
theGroupregardinganyoftheclaimsreleasedherein.If,notwithstandingthisrepresentationand
warranty, I have filed or file such a complaint, charge, or lawsuit, I agree that I shall cause such
complaint, charge, or lawsuit to be dismissed with prejudice and shall pay any and all costs
requiredinobtainingdismissalofsuchcomplaint,charge,orlawsuit,includingwithoutlimitation
theattorneys’feesofanymemberoftheGroupagainstwhomIhavefiledsuchacomplaint,
1To be selected based on whether applicable termination was “in connection with an exit incentive or other
employmentterminationprogram” (assuchphraseisdefinedintheAgeDiscriminationinEmploymentActof
1967).
charge,orlawsuit.Thisparagraphshallnotapply,however,toaclaimofagediscriminationunder
ADEA or to any non-waivable right to file a charge with the United States Equal Employment
OpportunityCommission(the“EEOC”);provided,however,thatiftheEEOCweretopursueany
claimsrelatingtomyemploymentwithCompany,IagreethatIshallnotbeentitledtorecoverany
monetary damages or any other remedies or benefits as a result and that this Release and the
Severance Benefits will control as the exclusive remedyand full settlement of all such claims by
me.
Nothing in this Release shall prohibit or impede me from communicating,
cooperating,orfilingacomplaintwithanyGovernmentalEntitywithrespecttopossibleviolations
of any U.S. federal, state or local law, or regulation, or otherwise making disclosures to any
Governmental Entity, in each case, that are protected under the whistleblower provisions of any
such law or regulation; provided, that, in each case, such communications and disclosures are
consistentwithapplicablelaw.Iunderstandandacknowledgethatanindividualshallnotbeheld
criminallyor civillyliable under anyfederal or state trade secret law for the disclosure of a trade
secret that is made (1)in confidence to a federal, state, or local government official or to an
attorneysolelyfor the purpose of reporting or investigating a suspected violation of law or (2)in
acomplaint or other document filed in alawsuit orother proceeding, if such filing is made under
seal.I understand and acknowledge further that an individual who files a lawsuit for retaliation
by an employer for reporting a suspected violation of law may disclose the trade secret to the
attorney of the individual and use the trade secret information in the court proceeding, if the
individual files any document containing the trade secret under seal; and does not disclose the
trade secret, except pursuant to court order.Except as otherwise provided in this paragraph or
underapplicablelaw,undernocircumstanceamIauthorizedtodiscloseanyinformationcovered
by the Company’s attorney-client privilege or attorney work product, or the Company’s trade
secrets,withoutthepriorwrittenconsentoftheCompany’sChiefLegal&AdministrativeOfficer
or other officer designated by the Company.I do not need the prior authorization of (or to give
notice to) any member of the Company Group regarding any communication, disclosure, or
activity permitted by this paragraph.
Iherebyagreetowaiveanyand allclaimstore-employmentwiththeCompanyor
any other member of the Company Group (as defined in my Employment Agreement) and
affirmativelyagreenottoseekfurtheremploymentwiththeCompanyoranyothermemberofthe
Company Group.
Notwithstanding anything contained herein to the contrary, this Release will not
become effective or enforceable prior to the expiration of the period of seven (7) calendar days
following the date of its execution by me (the “Revocation Period”), during which time I may
revokemyacceptanceofthisReleasebynotifyingtheCompanyandtheBoardofDirectorsofthe
Company, in writing, delivered to the Company at its principal executive office, marked for the
attention of its Chief Legal & Administrative Officer.To be effective, such revocation must be
receivedbytheCompanyno laterthan11:59p.m. Eastern Timeontheseventh(7th)calendarday
followingtheexecutionofthisRelease.ProvidedthattheReleaseisexecutedandIdonotrevoke
it during the Revocation Period, the eighth (8th) day following the date on which this Release is
executed shall be its effective date.Iacknowledge and agree that if Irevoke this Release during
theRevocationPeriod,thisReleasewillbenullandvoidandofnoeffect,andneithertheCompany
noranyothermemberoftheCompanywillhaveanyobligationstopaymetheSeveranceBenefits.
The provisions of this Release shall be binding upon my heirs, executors,
administrators, legal personal representatives, and assigns.If any provision of this Release shall
beheldbyanycourtofcompetentjurisdictiontobeillegal,void,orunenforceable,suchprovision
shall beofno forceoreffect.Theillegalityorunenforceabilityofsuch provision, however,shall
haveno effect upon andshall not impairthe enforceabilityof anyother provision ofthis Release.
EXCEPTWHEREPREEMPTEDBYFEDERALLAW,THISRELEASESHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH FEDERAL LAW AND
THE LAWS OF THECOMMONWEALTH OF KENTUCKY, APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE WITHOUT GIVING
EFFECTTOTHEPRINCIPLESOFCONFLICTSOFLAWS.IHEREBYWAIVEANYRIGHT
TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING
UNDER OR IN CONNECTION WITH THIS RELEASE.
Capitalizedtermsused,butnotdefinedherein,shallhavethemeaningsascribedto
suchtermsinmyEmploymentAgreement,datedMay24,2024,withtheCompany (the
“Employment Agreement”).
StevenM.Oreskovich
Date: