Exhibit 10.7
EMPLOYMENT AGREEMENT
Accelevation LLC, a Delaware limited liability company (“Employer”), and Kenneth Krause, a
natural person (“Executive”) hereby enter into this “Employment Agreement”, on May 26, 2026,
and agree as follows:
Employer and Executive desire to enter into this Agreement in respect of the employment of
Executive by Employer on the terms set forth herein, including the covenants and other
obligations of Executive set forth in Sections 5and 6.
1.Employment. Employer hereby employs Executive, and Executive hereby accepts
such employment with Employer, on the terms set forth in this Agreement for the period
beginning on June 15, 2026 (or such other date as mutually agreed by the parties hereto) (the
“Start Date”) and ending on the Termination Date pursuant to Section 4(“Employment Period”).
2.Position and Duties.
(a)During the Employment Period, Executive shall serve as the Chief
Financial Officer of the Company Group. Executive shall have the normal duties, responsibilities
and authority implied by such position, subject to the customary oversight and power of the
Chief Executive Officer and the Board, including to expand or limit such duties, responsibilities
and authority.
(b)Executive shall devote Executive’s best efforts and full business time and
attention to the business and affairs of the Company Group, shall perform Executive’s duties,
responsibilities and functions to the Company Group to the best of Executive’s abilities and in a
diligent, trustworthy, professional and efficient manner and shall comply with the Company
Group’s policies and procedures. So long as Executive is employed by the Company Group,
Executive shall not, without the prior written consent of the Board, perform any services for any
Person (other than the Company Group).
3.Compensation and Benefits.
(a)Salary. During the Employment Period, Employer will pay Executive a
base salary (the “Annual Base Salary”) at the rate of $750,000 per annum; provided, that, upon
completion of an IPO, the Annual Base Salary shall automatically increase to a rate of
$1,000,000 per annum thereafter. The Annual Base Salary shall be payable by Employer in
regular installments in accordance with Employer’s general payroll practices in effect from time
to time. The Annual Base Salary shall be reviewed and may be adjusted by the Board in its sole
discretion from time to time.
(b)Performance Bonus. Executive shall be eligible during the Employment
Period to earn an annual targeted bonus of up to $750,000 (the “Target Performance Bonus”)
based on the Company Group’s performance and Executive’s performance against personal
objectives for the applicable year (to be established in writing in the first 90 days of each
calendar year), in each case, as determined by the Board after consultation with Executive (the
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“Performance Bonus”); provided, that, following completion of an IPO, the Target Performance
Bonus shall automatically increase to $1,000,000 thereafter; provided, that, for clarity, the Target
Performance Bonus for the calendar year in which the IPO is completed shall reflect a proration
for the periods during such calendar year before and after such increase occurred based on the
Target Performance Bonus in effect during such periods. For example, if the IPO occurs on July
1, 2027, Executive’s Target Performance Bonus for the 2027 calendar year shall be up to
$875,000 (i.e., 50% of $750,000 plus 50% of $1,000,000). In addition and notwithstanding the
foregoing, Executive’s Performance Bonus for the 2026 calendar year shall be a full year bonus
equal to 100% of the Target Performance Bonus. Any Performance Bonus payable to Executive
pursuant to this Agreement (x) shall be paid to Executive at the same time as annual bonuses are
generally payable to other senior executives of the Company Group and (y) subject to
Section 4(b), shall be payable to Executive only if Executive has been continuously employed by
the Company Group through the date of such payment; provided however, that no continued
employment condition shall apply to any Performance Bonus earned for a completed calendar
year except if Executive’s employment is terminated by Employer for Cause.
(c)Sign-On Bonus. Promptly (and in any event within 30 days) following the
Start Date, Employer will pay Executive a one-time cash sign-on bonus of $500,000 (the “Sign-
On Bonus”); provided, that if Executive does not relocate Executive’s primary residence to the
Cincinnati, Ohio metropolitan area and Executive’s employment hereunder is terminated by
Employer for Cause or by Executive without Good Reason, in each case, within three (3) months
following the Start Date, Executive shall promptly repay the full amount of the Sign-On Bonus
to Employer.
(d)IPO Awards. Upon completion of an IPO during the Employment Period,
Executive will be eligible to receive an IPO award with an aggregate grant date value of
$25,000,000 on or within 30 days following completion of the IPO, of which (i) $10,000,000
will be paid to Executive in the form of either cash or fully vested shares of common stock of the
IPO Entity (the “IPO Stock Award”), as elected by Executive by delivery of written notice no
later than 30 days prior to the expected completion date of the IPO and (ii) the remaining
$15,000,000 will be granted to Executive in the form of restricted stock units in the IPO Entity
(the “IPO RSU Award”). The IPO RSU Award will vest during the Employment Period at the
faster vesting rate between the following two vesting schedules at any point in time: (A) 12.5%
of the IPO RSU Award on the last day of each of the first 8 full calendar quarters that follow the
completion of the IPO (the “Time-Vesting Schedule”) and (B) a percentage of the IPO RSU
Award (the “Sell-Down Vesting Percentage”) upon each time after the IPO that Investor (as
defined in the LLC Agreement) sells down equity securities in the Company Group then held by
Investor (each such event, an “Investor Sell-Down Event”), with the Sell-Down Vesting
Percentage upon an Investor Sell-Down Event being equal to the percentage, of equity securities
of the Company Group held by Investor as of immediately after the completion of the IPO, that
are sold in the Investor Sell-Down Event (the “Sell-DownVesting Schedule”).
By way of example, if at the IPO, Investor sells 20% of the equity securities of the Company
Group it then holds, and then subsequently sells 25% of the Investor’s remaining equity
securities of the Company Group during the first calendar quarter after the IPO, the latter sale
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will constitute an Investor Sell-Down Event with the resulting the Sell-Down Vesting Percentage
of the IPO RSU Award upon such Investor Sell-Down Event being 25%. At the end of such
calendar quarter and the following quarter, unless additional Investor Sell-Down Events occur
during such period, no additional portion of the IPO RSU Award will vest (even though a total
25% of the IPO RSU Award would otherwise vest based on the Time-Vesting Schedule),
because 25% of the IPO RSU Award was already vested earlier based the Sell-Down Vesting
Schedule as a result of the first Investor Sell-Down Event. Subsequently, if, at the end of the next
calendar quarter (i.e., the third full calendar after the IPO), no additional Investor Sell-Down
Events have occurred, 12.5% of the IPO RSU Award will vest based on the Time-Vesting
Schedule, i.e., a total of 37.5% of the IPO RSU Award would be vested at such time under this
example.
Notwithstanding the foregoing, any then outstanding and unvested portion of the IPO
RSU Award will fully vest upon the consummation of a change of control (or equivalent term to
be defined in the Equity Incentive Plan (as defined below)) of the IPO Entity (including via a
sale to a strategic buyer or private equity firm) that occurs during the Employment Period or,
subject to the Severance Requirements, within six (6) months following a termination of
Executive’s employment by Employer without Cause or by Executive for Good Reason. Any
IPO Stock Award and the IPO RSU Award will each be granted pursuant to, and subject entirely
to the terms and conditions (including vesting and lock-up terms, as applicable) of, an equity
incentive plan to be adopted by the IPO Entity in connection with the IPO (the “Equity Incentive
Plan”) and the applicable award agreement thereunder approved by the governing board (or
committee thereof) of the IPO Entity, each to be separately provided to Executive.
(e)Post-IPO Annual Equity Awards. On the first day of the first full calendar
quarter that follows the completion of an IPO and each calendar year thereafter, and in each case,
during the Employment Period, Executive will be eligible to receive an equity or equity-based
award with an aggregate target grant date value of $5,000,000 (each, an
“Annual Equity Award”). Each Annual Equity Award will vest as to 50% thereof on each of the
first two anniversaries of the applicable date of grant during the Employment Period; provided,
that, any then outstanding and unvested portion of an Annual Equity Award will fully vest upon
the consummation of a change of control (or equivalent term to be defined in the Equity
Incentive Plan) of the IPO Entity (including via a sale to a strategic buyer or private equity firm)
that occurs during the Employment Period or, subject to the Severance Requirements, within six
(6) months following a termination of Executive’s employment by Employer without Cause or
by Executive for Good Reason. Each Annual Equity Award will each be granted pursuant to, and
subject entirely to the terms and conditions of, the Equity Incentive Plan and the applicable
award agreement thereunder approved by the governing board (or committee thereof) of the IPO
Entity, each to be separately provided to Executive.
(f)Sale Transaction Bonus. Notwithstanding anything to the contrary, in the
event that a Sale Transaction (as defined in the LLC Agreement) is consummated during the
Employment Period and prior to an IPO, then (i) Employer will pay Executive a one-time cash
sale transaction bonus of $25,000,000 within 30 days following the consummation of such Sale
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Transaction and (ii) Sections 3(d)and 3(e)above will not apply such that Executive will not be
eligible to receive the awards contemplated therein.
(g)Other Benefits. Executive will be entitled to participate in the benefit plans
and programs made generally available to employees of Employer, including health and 401(k),
subject in each case to applicable eligibility requirements. During the Employment Period,
Executive will be entitled to paid vacation consistent with Employer’s past practice, which may
be taken at such times as are reasonable, taking into account the best interests of the Company
Group. Employer shall reimburse Executive for all reasonable costs and out-of-pocket expenses
incurred by Executive in connection with the performance of Executive’s duties under this
Agreement in accordance with the Company Group’s standard policies (including expense
verification policies) regarding the reimbursement of business expenses as in effect from time to
time. Nothing in this Agreement will preclude the Company Group from amending or
terminating any of the plans or programs applicable to employees of the Company Group.
4.Termination.
(a)Termination of Employment Period. The Employment Period shall
terminate on the earliest of (i) 30 days after Executive provides written notice to Employer of
Executive’s resignation without Good Reason (provided that Employer may accelerate the
effective date of such termination upon written notice to Executive without re-characterizing
such termination from a resignation by Executive without Good Reason), (ii) upon written notice
by Executive to Employer of Executive’s resignation for Good Reason (subject to the notice,
cure opportunity and other procedural requirements thereof), (iii) Executive’s Disability or death
and (iv) upon written notice by Employer to Executive of the termination of Executive’s
employment by Employer for any reason (the date the Employment Period terminates for any
reason, “Termination Date”).
(b)Severance. If, following the date hereof, Executive’s employment is
terminated by Employer without Cause (and not due to Executive’s Disability or death) or by
Executive for Good Reason, then Employer shall pay to Executive, as special severance, (i)
Executive’s Annual Base Salary during the Severance Period, payable in equal installments on
Employer’s regular salary payment dates in conformity with Employer’s general payroll
practices, (ii) a pro-rata portion of Executive’s Performance Bonus for the calendar year in which
the Termination Date occurs based on actual achievement of the applicable bonus objectives and/
or conditions as determined by the Board or a committee thereof for such calendar year
(determined by multiplying the amount of the Performance Bonus that would be payable for the
full calendar year by a fraction, the numerator of which shall be equal to the number of days
during the calendar year of termination that Executive is employed by Employer hereunder and
the denominator of which is 365 days), payable in accordance with Section 3(b), and (iii) if
Executive timely elects and remains eligible for COBRA continuation coverage, reimbursement
of the employer portion of premiums for Executive and his eligible dependents for twelve (12)
months following the Termination Date or, if earlier, until Executive obtains other employment
that offers group health benefits. Notwithstanding anything to the contrary herein, (x) Executive
shall not be entitled to receive any payments pursuant to this Section 4(b)(and Executive shall
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forfeit all rights to such payments) unless Executive has executed and delivered to Employer a
general release in favor of the Company Group substantially in the form attached hereto as
Exhibit A(the “General Release”) and such General Release remains in full force and effect, has
not been revoked and is no longer subject to revocation, within 60 calendar days after the
Termination Date, and
(c)Executive shall be entitled to receive (and retain) such payments pursuant
to this Section 4(b)only so long as Executive has not failed to comply with the General Release
or Section 5or Section 6hereof, in each case as determined by the Board (clauses (x) and (y),
collectively, the “Severance Requirements”).
(d)Code Section 409A. Any amounts payable pursuant to Section 4(b)shall
not be paid until the first scheduled payment date following the date the General Release is
executed and no longer subject to revocation, with the first such payment being in an amount
equal to the total amount to which Executive would otherwise have been entitled during the
period following the Termination Date if such deferral had not been required; provided, that any
such amounts that constitute nonqualified deferred compensation within the meaning of Internal
Revenue Code Section 409A and the regulations and guidance promulgated thereunder
(“Code Section 409A”) shall not be paid until the first regularly scheduled payroll date after the
60th day following such Termination Date to the extent necessary to avoid adverse tax
consequences under Code Section 409A, and, if such payments are required to be so deferred,
then the first payment shall be in an amount equal to the total amount to which Executive would
otherwise have been entitled during the period following the Termination Date if such deferral
had not been required.
(e)Earned Benefits. If the Employment Period is terminated for any reason at
any time, then Executive shall (w) receive all earned but unpaid Annual Base Salary through
such Termination Date, (x) be reimbursed by Employer for expenses incurred by Executive prior
to the Termination Date that are reimbursable pursuant to Section 3(g), (y) except if the
Employment Period is terminated by Employer for Cause, receive any Performance Bonus
actually earned pursuant to Section 3(b)above for the calendar year completed prior to the
calendar year in which the Termination Date occurs but unpaid as of the Termination Date,
which Performance Bonus (if earned) shall be payable in accordance with Section 3(b)and (z)
retain any vested benefits under Employer’s employee benefit plans in accordance with the terms
thereof as then in effect.
(f)No Other Benefits. Except as otherwise expressly provided herein,
Executive shall not be entitled to any other salary, bonuses, employee benefits or compensation
from the Company Group after the Termination Date and all of Executive’s rights to salary,
bonuses, employee benefits and other compensation hereunder which would have accrued or
become payable after the Termination Date shall cease and be forfeited on such termination or
expiration of the Employment Period, other than those expressly required under applicable law
(such as COBRA).
(g)Right of Offset. Employer may offset any bona fide obligations that
Executive owes the Company Group against any amounts the Company Group owes Executive
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hereunder; providedthat, notwithstanding the foregoing or any other provision of this Agreement
to the contrary, in no event shall any payment under this Agreement that constitutes “deferred
compensation” for purposes of Code Section 409A be subject to offset, counterclaim or
recoupment by any other amount unless otherwise permitted by Code Section 409A.
5.Confidential Information.
(a)Executive acknowledges that the Company Group operates in a highly
competitive industry and that the Company Group’s success depends in part on protecting the
confidentiality of all trade secrets and other Confidential Information of the Company Group,
including as specified in this Section 5. As such, the Company Group has and will continue to
develop, compile and own certain Confidential Information that has great value in its businesses.
Executive acknowledges that the Company Group takes reasonable steps to protect the
confidentiality of such Confidential Information, including limiting access to Confidential
Information and having employees with access to Confidential Information sign confidentiality
agreements. Subject to the limitations set forth herein (including Section 5(h)with respect to
protected whistleblower activity), Executive will not at any time (whether during or after the
Employment Period) directly or indirectly through any other Person (i) retain or use for the
benefit, purposes or account of Executive or any other Person (other than the Company Group)
or (ii) disclose, divulge, reveal, communicate, share, transfer or provide access to any Person
outside the Company Group (other than the Company Group’s professional advisors who are
bound by confidentiality obligations), any Confidential Information.
(b)“Confidential Information” shall include (i) all information of a
confidential or proprietary nature (whether or not specifically labeled or identified as
“confidential”), in any form or medium, that relates to the business, products, services, research
and development, relationships, Proprietary Rights and goodwill of the Company Group and its
suppliers, customers, licensors, licensees, independent contractors and other material business
relations; (ii) individual requirements and specifications of and specific contractual arrangements
with suppliers, distributors, customers, independent contractors and other material business
relations; (iii) trade secrets, business processes and other methods, designs, techniques, formulae
and know-how of systems and operations relating to the Company Group’s products or services
(including product or service road maps, research projects, planned products or services and
future releases) and compilations of data and analyses, research and development information
and records, reports, manuals, documentation, models, data and data bases relating thereto; (iv)
inventions, innovations, improvements, developments and all similar or related information
(whether or not patentable) in respect of the products and services of the Company Group; (v)
corporate business structure and business units of the Company Group; (vi) internal business
information of the Company Group (including historical and projected financial information and
budgets and information relating to strategic and staffing plans and practices, business, training,
marketing, promotional and sales plans and practices, cost, rate and pricing structures and
accounting and business methods); (vii) acquisition plans, targets and strategies of the Company
Group; and (viii) financial and other business or strategic information of Olympus and its
affiliated investment vehicles and management entities; provided, that Confidential Information
shall not include any information that is generally known to the industry or the public, in each
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case other than as a result of Executive’s breach of this Agreement. In the event Executive is
required by law to disclose Confidential Information, Executive shall, to the extent permitted by
applicable law, give prompt written notice to Employer of such requirement prior to any such
disclosure, disclose no more information than is so required and, at the sole expense of
Employer, cooperate with any attempts by Company Group to obtain a protective order or
similar treatment.
(c)On a termination of the Employment Period for any reason, Executive
shall (i) cease and not thereafter use any Confidential Information; (ii) immediately destroy,
delete or return to Employer, at Employer’s option, all originals and copies in any form or
medium (including memoranda, books, papers, plans, computer files, letters and other data) in
Executive’s possession or control (including any of the foregoing stored or located in
Executive’s office, home, laptop or other computer, whether or not Company Group property)
that contain Confidential Information; (iii) notify and fully cooperate with the Company Group
regarding the delivery or destruction of any other Confidential Information of which Executive is
or at any later time becomes aware; and (iv) promptly provide written confirmation to the
Company Group in respect the return or destruction of Confidential Information pursuant to the
terms hereunder. For the avoidance of doubt, the provisions of this Section 5are in addition to,
and not in lieu of, any other confidentiality obligations or other protective covenants to which
Executive may be subject.
(d)Executive acknowledges that all inventions, innovations, improvements,
developments, methods, processes, programs, designs, analyses, drawings, reports, patent
applications, copyrightable work and mask work (whether or not including any Confidential
Information) and all registrations or applications related thereto, all other proprietary information
and all similar or related information (whether or not patentable) that relate to the Company
Group’s actual or anticipated business, research and development, or then existing products or
services and that are conceived, developed, contributed to, made, or reduced to practice by
Executive (either solely or jointly with others) while employed by or on behalf of the Company
Group (including any of the foregoing that constitutes any proprietary information or records)
(“Work Product”) belong to the Company Group and Executive hereby assigns, and agrees to
assign, all of Executive’s right, title and interest in and to the above Work Product to the
Company Group. Any copyrightable work prepared in whole or in part by Executive in the
course of Executive’s work for the Company Group shall be deemed a “work made for hire”
under the copyright laws, and the Company Group shall own all rights therein. To the extent that
any such copyrightable work is not a “work made for hire,” Executive hereby assigns and agrees
to assign to the Company Group all right, title, and interest, including without limitation,
copyright in and to such copyrightable work. Executive shall promptly disclose such Work
Product and copyrightable work to the Board and perform all actions reasonably requested by the
Board (whether during or after the Employment Period) to establish and confirm the Company
Group’s ownership (including assignments, consents, powers of attorney and other instruments).
(e)Executive understands that the Company Group has received or will
receive from third parties confidential or proprietary information (“Third Party Information”)
that may be subject to a duty on the Company Group’s part to maintain the confidentiality of
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such information and to use it only for certain limited purposes. During the Employment Period
and thereafter, and without in any way limiting the provisions of Section 5(a)above, Executive
will hold Third Party Information in the strictest confidence and will not disclose to anyone
(other than personnel of the Company Group who need to know such information in connection
with their work for the Company Group) or use, except in connection with Executive’s work for
the Company Group, Third Party Information unless expressly authorized in writing by the
Board or its designee.
(f)During the Employment Period, Executive will not improperly use or
disclose any confidential information or trade secrets, if any, of any former employers or any
other Person to whom Executive has an obligation of confidentiality, and will not bring onto the
premises of the Company Group any unpublished documents or any property belonging to any
former employer or any other Person to whom Executive has an obligation of confidentiality
unless consented to in writing by the former employer or Person.
(g)18 U.S.C. § 1833(b) provides: “An individual shall not be held criminally
or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that
—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly
or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a
suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or
other proceeding, if such filing is made under seal.” Nothing in this Agreement is intended to
conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are
expressly allowed by 18 U.S.C. § 1833(b). Accordingly, the parties to this Agreement have the
right to disclose in confidence trade secrets to federal, state, and local government officials, or to
an attorney, for the sole purpose of reporting or investigating a suspected violation of law. The
parties also have the right to disclose trade secrets in a document filed in a lawsuit or other
proceeding, but only if the filing is made under seal and protected from public disclosure.
(h)Notwithstanding anything to the contrary contained herein, no provision of
this Agreement shall be interpreted so as to impede the Company Group, Employer, Executive,
any other individual or entity or their respective attorneys from (i) reporting possible violations
of applicable law or regulation to, or initiating communications directly with, cooperating with,
providing information to, causing information to be provided to, or otherwise assisting in an
investigation by, any governmental or regulatory agency, official(s) or entity, including but not
limited to the Equal Employment Opportunity Commission, the Department of Justice, the
Securities and Exchange Commission, the Congress, and any agency Inspector General, and any
other governmental agency or commission (collectively, “GovernmentalAuthorities”) regarding
a possible violation of any law, (ii) making other disclosures under the whistleblower provisions
of applicable law, rule or regulation, (iii) responding to any inquiry or legal process from any
such Governmental Authorities; or (iv) testifying, participating or otherwise assisting in an action
or proceeding by any such Governmental Authorities relating to a possible violation of law.
Nothing in this Agreement requires, and Executive does not need, the prior authorization of
Employer or any other entity or individual to make any such reports or disclosures and Executive
shall not be required to notify Employer or any other entity or individual that such reports or
disclosures have been made.
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6.Non-Competition; Non-Solicitation; Non-Disparagement. Executive agrees and
acknowledges that Executive has and will become familiar with the Company Group’s trade
secrets and with other Confidential Information concerning the Company Group and that
Executive’s services have been and will be of special, unique and extraordinary value to the
Company Group and therefore, Executive further agrees that:
(a)Non-Competition. During the Restricted Period, Executive shall not,
directly or indirectly, including through causing another Person to, either for Executive or for
any other Person, own any interest in, invest in, manage, control, participate in, consult with, be
employed or engaged by, render services for, permit Executive’s name to be used in or in any
other manner engage in any business or enterprise competing with the business of the Company
Group (as such businesses exist or are in process during the Employment Period) within any city,
state, county, municipality, locale or jurisdiction in North America or any other geographic
region, in each case in which the Company Group does business during the Employment Period
(or such reasonable scope as would be recognized to the fullest extent under applicable law if
applied). For purposes of this Agreement, the term “participate” includes any direct or indirect
interest in any enterprise, whether as an officer, director, employee, partner, sole proprietor,
agent, representative, independent contractor, seller, franchisor, franchisee, creditor or owner.
Nothing herein shall prohibit Executive from being a passive owner of not more than two percent
(2%) of the outstanding stock of any class of a corporation which is publicly traded, so long as
Executive has no active participation in the business of such corporation.
(b)Non-Solicitation. During the Restricted Period, Executive shall not
directly or indirectly, including through another Person (i) solicit or induce or attempt to solicit
or induce any employee or individual independent contractor of the Company Group to leave the
employ or engagement of the Company Group, or in any way interfere in a manner adverse to
the Company Group with the relationship between the Company Group and any employee or
individual independent contractor thereof; or (ii) solicit or induce or attempt to solicit or induce
any customer, distributor, supplier, manufacturer, licensee, sales agent, licensor or other material
business relation of the Company Group (x) about which Executive has Confidential Information
(or in respect of whom Executive has access to Confidential Information), (y) with whom
Executive has done business with or has a personal contact in connection with Executive’s
employment by or on behalf of Employer or the Company Group or (z) that is otherwise known
by Executive through the opportunity of employment by or on behalf of Employer or the
Company Group (each, a “Business Relation”) to cease or refrain from doing business with, or
otherwise modify adversely its relationship with, the Company Group or in any way interfere
with the relationship (or prospective relationship) between any Business Relation and the
Company Group.
(c)Non-Disparagement. Subject to Section 5(h), Executive will not at any
time (whether during or after the Employment Period), directly or indirectly, make any negative
or disparaging statements or communications regarding the Company Group or Olympus (or any
of their respective direct or indirect equityholders, investors, members, managers, partners,
directors, officers, employees, independent contractors, representatives, advisors, businesses,
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clients, customers, products or services); provided, that this Section 6(c)shall not prohibit
truthful testimony in any legal proceeding.
(d)Remedies. Because Executive’s services are unique and because Executive
has access to Confidential Information, Executive acknowledges and agrees that money damages
would not be an adequate remedy for any breach or threatened breach of any of the provisions of
Section 5or this Section 6and that the harm in respect of any such breach or threatened breach
would be irreparable. Executive acknowledges and agrees that, in such event, the Company
Group and their respective successors or assigns shall, in addition to (and not in lieu of) any
other rights and remedies existing in their favor, be entitled to specific performance, injunctive
(whether temporary, preliminary or permanent, as applicable) and/or other relief in equity from
any court of competent jurisdiction in order to enforce or prevent any violations of the provisions
of Section 5or this Section 6. Any injunction shall be available without the posting of any bond
or other security.
(e)Additional Acknowledgments. Executive acknowledges and agrees that:
(i)the Company Group has a protectable interest in its goodwill,
Confidential Information (including trade secrets) and in preventing unfair competition from
former employees and agents;
(ii)the provisions of Section 5and this Section 6are in addition to,
and not in limitation of, any other confidentiality, non-competition, non-solicitation, non-
disparagement or other similar arrangements between or among Executive and the Company
Group and in consideration of employment with the Company Group and additional other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged;
(iii)Executive’s duties and responsibilities place Executive in a
position to have knowledge of the businesses and Business Relations of the Company Group, the
locations where the Company Group engages or actively plans to engage in businesses and the
employees and contractors of the Company Group;
(iv)(x) the value of the Company Group’s trade secrets and other
Confidential Information arises from the fact that such information is not generally known in the
marketplace, (y) the Company Group’s trade secrets and other Confidential Information will
have continuing vitality during and after the Employment Period and (z) Executive has and will
have such substantial, significant and critical knowledge of the Company Group’s processes,
trade secrets and other Confidential Information that, if Executive were to disclose such
information or use such information in violation of this Agreement then Executive would cause
irreparable harm to the Company Group;
(v)without limiting the foregoing, the trade secrets and other
Confidential Information of the Company Group is so integral to Executive’s position at the
Company Group that if during the Restricted Period Executive accepts a position with or
provides services to an entity that competes with any of the businesses of the Company Group
such that Executive’s position or provision of services overlaps with Executive’s current position
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or services, Executive would inevitably use and/or disclose the trade secrets, processes and other
Confidential Information in performing such services;
(vi)the restrictions contained in Section 5and this Section 6(x) serve a
legitimate interest of Employer and the Company Group to protect the protectable interest of the
Company Group, including the goodwill associated with its businesses; (y) are reasonable with
respect to subject
matter, time period, scope and geographical area and, in any case, no broader than necessary to
protect that interest; and (z) do not unreasonably impose limitations on Executive’s ability to
earn a living;
(vii)the potential harm to the Company Group of the non-enforcement
of the restrictions contained in Section 5and this Section 6outweighs any potential harm to
Executive of such enforcement by injunction or otherwise; and
(viii)Executive has carefully read this Agreement, has given careful
consideration (after consultation with legal counsel) to the restraints imposed on Executive by
this Agreement and is in full accord as to their necessity for the reasonable and proper protection
of the Confidential Information and the Company Group’s business interests.
(f)If, at the time of enforcement of any of Section 5or this Section 6, a court
shall hold that the duration, scope or geographical area restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum duration, scope or
geographical area reasonable under such circumstances shall be substituted for the stated
duration, scope or area and that the court shall be allowed to revise the restrictions contained
herein to cover the maximum duration, scope and area permitted by law.
7.Definitions.
“Affiliate” means, with respect to any particular Person, any other Person that
controls, is controlled by or is under common control with such Person or an Affiliate of such
Person.
“Board” means the board of managers of Topco.
“Cause” means Executive has (i) committed, been indicted for, been convicted of,
or pled guilty or nolo contendere to, any felony, any act of embezzlement, fraud, theft or
dishonesty involving any member of the Company Group, or any crime involving moral
turpitude; (ii) operated any motor vehicle under the influence of alcohol or illegal drugs in a
manner that would violate any law; (iii) failed to submit to any drug or alcohol testing as and
when requested by the Company Group; (iv) failed to follow any lawful direction communicated
to Executive by the Board or Executive’s supervisor (other than due to Executive’s illness or
Disability), which failure, if capable of being cured. is not cured within 10 days following
written notice thereof to Executive; (v) acted with gross negligence or willful misconduct in
respect of Executive’s duties under this Agreement; (vi) been continuously or repeatedly absent
12
from the workplace, unless such absences are (x) in compliance with the terms of this Agreement
or the Company Group’s policies (including vacation policies), (y) a result of Executive’s illness
or Disability or (z) otherwise authorized by applicable law, such as to care for a family member
under the Family & Medical Leave Act; (vii) used any alcohol or illegal drugs or abused any
prescription drugs, in each case, that would reasonably be expected to interfere with the
performance of Executive’s obligations under this Agreement; (viii) engaged in misconduct that
results in reputational or other business harm to the Company Group; (ix) engaged in sexual
relations or a romantic relationship with any employee (excluding, for purposes of this clause
(ix), any relationship existing prior to the date hereof in which Executive is married or engaged
to be married to another employee of the Company Group); or (x) materially breached any
provision of this Agreement or any other agreement with, or policy of, the Company Group,
which material breach, if capable of being cured, is not cured within 10 days following written
notice thereof to Executive.
“Company Group” means, collectively, Topco, the IPO Entity and their respective
direct and indirect subsidiaries and, where applicable, any of Topco, the IPO Entity or any such
direct or indirect subsidiary.
“Disability” means the disability of Executive caused by any physical or mental
injury, illness or incapacity as a result of which Executive is unable to effectively perform the
essential functions of Executive’s duties for a continuous period of more than 90 calendar days
or for 120 calendar days (whether or not continuous) in any 365-day period, as determined by an
independent, legally qualified doctor selected by Employer’s health or disability insurer.
“Good Reason” means, without Executive’s consent, (i) a material diminution of
Executive’s title, duties, responsibilities or reporting authority (providedthat, (A) neither a mere
change in title alone nor reassignment following a direct or indirect change in control of
Employer to a position that is substantially similar to the position and with materially the same
responsibilities held prior to such change in control shall in and of itself constitute a material
diminution of Executive’s duties or responsibilities and (B) in the event that Employer
reasonably believes that Executive may have engaged in conduct that could constitute Cause
hereunder, Employer may, in its sole and absolute discretion, suspend Executive from
performing Executive’s duties hereunder or take any similar action, and in no event shall any
such suspension or other action constitute Good Reason or otherwise constitute a breach
hereunder; providedthat, no such suspension shall alter Employer’s obligations under this
Agreement during such period of suspension), (ii) a material reduction in Annual Base Salary,
Performance Bonus or Annual Equity Award (other than a general reduction in such amounts
that affects all similarly situated executives in substantially the same proportions), IPO Stock
Award, sale transaction bonus (Section 3(f)) or (iii) except for ordinary course business travel in
the course of Executive’s duties, a relocation of Executive’s primary place of employment by
more than fifty miles from its then current location; provided, that in order for a resignation by
Executive for Good Reason to become effective, (x) Executive must deliver written notice to
Employer within 60 days of the first occurrence of the applicable circumstance or event, (y)
Employer must fail to cure such circumstance or event within 60 days following receipt of such
notice and (z) Executive must resign within 60 days following such failure to cure by Employer.
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“IPO” means a bona fide underwritten initial public offering of equity securities
of an IPO Entity pursuant to an effective registration statement filed under the Securities Act (as
defined in the LLC Agreement) pursuant to which such equity securities are listed on the New
York Stock Exchange or the Nasdaq Stock Market or any other exchange as determined by the
Board.
“IPO Entity” means any of (i) Topco, (ii) a direct or indirect subsidiary of Topco
or (iii) a direct or indirect parent of Topco, in each case, the equity securities through which an
IPO occurs.
“LLC Agreement” means the Amended and Restated Limited Liability Company
Agreement of Topco, dated January 2, 2025, as amended, restated or otherwise modified from
time to time.
“Olympus” means Investor and any of its Affiliates.
“Person” means a natural person, a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization, investment fund, any other business entity and a governmental entity or any
department, agency or political subdivision thereof.
“Proprietary Rights” means all of the following, in any jurisdiction throughout the
world: (i) patents, patent disclosures and inventions (whether or not patentable and whether or
not reduced to practice) and any reissue, continuation, continuation-in-part, divisional, extension
or reexamination thereof; (ii) trademarks, service marks and trade dress, logos, slogans, Internet
domain names and other indicia of origin, and all translations, adaptations, derivations and
combinations of the foregoing, together with all goodwill associated therewith; (iii) works of
authorship (whether or not copyrightable), copyrights and copyrightable works; (iv) registrations,
applications for registration, and renewals of any of the foregoing; (v) computer software
(including (w) computer programs, including any and all software implementations of
algorithms, models and methodologies, whether in source code or object code, (x) databases and
compilations, including any and all data and collections of data, whether machine readable or
otherwise, (y) descriptions, schematics, flowcharts and other work product used to design, plan,
organize or develop any of the foregoing, and (z) all documentation, including user
documentation, user manuals and training materials, relating to any of the foregoing); (vi) all
other intellectual property and proprietary rights; and (vii) all copies and tangible embodiments
of any of the foregoing (in whatever form or medium).
“Restricted Period” means collectively, the Employment Period and the twelve-
month period immediately thereafter.
“Severance Period” means the period commencing on the Termination Date and
ending on the date that is twelve months after the Termination Date.
“Topco” means Accelevation Topco LLC, a Delaware limited liability company.
14
8.Notices. All notices, requests, demands, waivers, instructions or other
communications required or permitted hereunder shall be in writing and will be deemed to have
been duly given only if emailed, mailed or delivered to a party hereto at the applicable address or
email address set forth below (or such other addresses and/or with such other copies as are
specified in writing by the parties hereto):
If to Employer:
Accelevation LLC
9555 N. Springboro Pike; Suite 400
Miamisburg, OH 45342
Attention: Michael Rubiera
Email: ****
with copies to (which shall not constitute notice to Employer):
Olympus Growth Fund VIII, L.P.
Metro Center, 4th Floor
One Station Place
Stamford CT 06902
Attention: Matt Boyd; Matt Bujor
Email:****; ****
and
Kirkland & Ellis LLP
555 California Street, 27th Floor
San Francisco CA 94101
Attention: Matthew Goulding, P.C.; Matt Dunnet
Email: ****; ****
If to Executive, to the address on file from time to time with Employer.
or such other address or to the attention of such other Person as the recipient party shall have
specified by prior written notice to the sending party. Any notice under this Agreement will be
deemed to have been given when so delivered or sent or, if mailed, on the earlier of written
confirmation of receipt and five (5) days after deposit in the U.S. mail.
9.General Provisions.
(a)Complete Agreement. This Agreement embodies the complete agreement
and understanding among the parties with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way (including any
offer letter, summary of employment terms or otherwise). Notwithstanding the foregoing, the
covenants contained in Section 5and Section 6(x) are intended to co-exist with and are not
15
affected by any covenants contained in other agreements to which Executive and the Company
Group is or may become parties (including any incentive equity or similar agreement), (y) are
independently enforceable and (z) do not supersede such other covenants.
(b)Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of the offending term
or provision in any other situation or in any other jurisdiction. Any invalid or unenforceable
provision shall be modified to the extent necessary to allow for enforceability to the fullest extent
permitted by law and to give effect to the original intent of the parties to the extent possible.
(c)Governing Law; Choice of Law. The laws of the state of Ohio shall
govern (i) all claims or matters related to or arising from this Agreement (including any tort or
non-contractual claims) and (ii) any questions concerning the construction, interpretation,
validity and enforceability of this Agreement, and the performance of the obligations imposed by
this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules
or provisions (whether of the state of Ohio or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the state of Ohio. Each party to this
Agreement hereby waives all rights to trial by jury in any action, suit or proceeding brought to
resolve any dispute between or among any of the parties (whether arising in contract, tort or
otherwise) arising out of, connected with, related or incidental to this Agreement, the
transactions contemplated hereby and/or the relationships established among the parties
hereunder. Each of the parties hereto submits to the jurisdiction of the state and federal courts in
Ohio in any action or proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding shall be heard and determined in any such court.
Each party hereto also agrees not to bring any proceeding arising out of or relating to this
Agreement in any other court, providedthat in connection with a breach or alleged breach by
Executive of any of the provisions of Section 5or Section 6hereof, the Company Group may
bring an action for an injunction or specific performance in any court of competent jurisdiction.
Nothing in this Section 9(c), however, shall affect the right of any party to serve legal process in
any other manner permitted by law or at equity. Each party hereto agrees that a final judgment in
any proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in
any other manner provided by law or at equity.
(d)Remedies. The Company Group shall be entitled to enforce its rights
under this Agreement specifically, to recover damages and costs (including reasonable attorney’s
fees) caused by any breach of any provision of this Agreement and to exercise all other rights
existing in its favor. Without limiting Section 6(d), the parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party shall be entitled to seek from any court of law or equity of
competent jurisdiction (without posting any bond or deposit or proving monetary damages or the
insufficiency thereof) specific performance or other injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.
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(e)Insurance. The Company Group, at its discretion, may apply for and
procure in its own name and for its own benefit key man, life or disability insurance on
Executive in any amount or amounts considered advisable. Executive agrees to cooperate, at the
expense of Employer, in any medical or other examination, supply any reasonable information
and to execute and deliver any applications or other instruments in writing as may be reasonably
necessary to obtain and constitute such insurance or, in the event Executive is disabled, with
respect to obtaining a determination from an independent, legally qualified medical doctor of
whether Executive’s condition constitutes a Disability.
(f)Indemnification; D&O Insurance. To the fullest extent permitted by
applicable law and the Company Group’s governing documents, Employer shall indemnify,
defend and hold harmless Executive, and advance expenses to Executive, for all claims, actions,
liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out
of or relating to Executive’s service as an officer, employee, fiduciary or agent of the Company
Group or any related entity. During the Employment Period and for at least six (6) years
thereafter, Executive shall be covered by directors’ and officers’ liability insurance on terms no
less favorable than those applicable to similarly situated senior executives of the Company
Group. The rights under this Section are in addition to, and not in limitation of, any rights to
indemnification, advancement or insurance under applicable law, governing documents or any
separate indemnification agreement.
(g)Executive’s Cooperation. During the Employment Period and thereafter,
Executive shall cooperate with the Company Group in any disputes with third parties, internal
investigation or administrative, regulatory or judicial proceeding as reasonably requested by the
Company Group (including Executive being available to the Company Group on reasonable
notice for interviews and factual investigations, appearing at the Company Group’s request to
give testimony without requiring service of a subpoena or other legal process, volunteering to the
Company Group all pertinent information and turning over to the Company Group all relevant
documents which are or may come into Executive’s possession, all at times and on schedules that
are reasonably consistent with Executive’s other permitted activities and commitments). In the
event the Company Group requires Executive’s cooperation in accordance with this paragraph
after the Employment Period, Employer shall reimburse Executive for reasonable travel expenses
on submission of receipts.
(h)Indemnification/Reimbursement of Payments on Behalf of Executive. The
Company Group shall be entitled to deduct or withhold from any amounts owing from the
Company Group to Executive any federal, state, local or foreign withholding taxes, excise taxes
or employment taxes imposed with respect to Executive’s compensation or other payments from
the Company Group or Executive’s ownership interest in the Company Group, including wages,
bonuses, distributions or the receipt or vesting of options or incentive equity. In the event the
Company Group does not make any deductions or withholdings from amounts paid to Executive
of the type referred to in the preceding sentence, Executive shall fully indemnify and promptly
pay over to the Company Group (for further payment to a government entity to the extent not
previously paid) the amount of any such taxes, and if such failure to deduct or withhold is not a
17
result of the Company Group’s negligence or omission, the amount of any interest, penalties and
related expenses thereto.
(i)Survival. Sections 4through 9shall survive any termination of this
Agreement.
(j)Corporate Opportunity. During the Employment Period, (x) Executive
shall submit to the Board all business, commercial and investment opportunities or offers
presented to Executive or of which Executive becomes aware which relate to the business of the
Company Group at any time during the Employment Period (“Corporate Opportunities”) and (y)
unless approved by the Board, Executive shall not accept or pursue, directly or indirectly, any
Corporate Opportunities on Executive’s own behalf.
(k)Miscellaneous. The language used in this Agreement shall be deemed to
be the language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. The words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without limitation”. Unless the
context requires otherwise (i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth herein), (ii) any reference herein to
any Person shall be construed to include such Person’s successors and assigns, (iii) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof and (iv) all references
herein to Sections shall be construed to refer to Sections of this Agreement unless otherwise
noted. The descriptive headings of the sections and subsections of this Agreement are for
convenience only and do not constitute a part of this Agreement. Unless otherwise indicated
herein, determinations made by the Board shall be made in the Board’s sole discretion. This
Agreement may be executed in counterparts and delivered by email. Except as otherwise
provided herein, this Agreement shall bind and inure to the benefit of and be enforceable by
Executive, Employer and their respective successors and assigns, except that Executive may not
assign Executive’s rights or delegate Executive’s duties or obligations hereunder without the
prior written consent of Employer. Notwithstanding anything to the contrary herein, Employer
may assign this Agreement to any member of the Company Group at any time without
Executive’s consent. This Agreement may be amended and waived only with the prior written
consent of Employer and Executive. Without limiting the foregoing, the Board may amend any
restrictive covenant provisions or obligations without the consent or approval of Executive to
provide for less restrictive limitations as to duration, geographical area, scope of activity to be
restrained, or to incorporate legal developments. Any such less restrictive limitations may, in the
Board’s sole discretion, apply only with respect to the enforcement of this Agreement in certain
jurisdictions specified in any such amendment. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or federal holiday, the time period
shall be automatically extended to the business day immediately following such Saturday,
Sunday or federal holiday.
18
(l)Code Section 409A Compliance.
(i)The intent of the parties is that payments and benefits under this
Agreement comply with or be exempt from Code Section 409A and, accordingly, to the
maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith or
exempt therefrom. Notwithstanding the foregoing, in no event whatsoever shall Company Group
be liable for any additional tax, interest or penalty that may be imposed on Executive by Code
Section 409A or damages for failing to comply with Code Section 409A.
(ii)A termination of employment shall not be deemed to have
occurred for purposes of any provision of this Agreement providing for the payment of any
amounts or benefits on or following a termination of employment unless such termination is also
a “separation from service” within the meaning of Code Section 409A and, for purposes of any
such provision of this Agreement, references to a “termination,” “termination of employment” or
like terms shall mean “separation from service.” Notwithstanding anything to the contrary in this
Agreement, if Executive is deemed on the date of termination to be a “specified employee”
within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any
payment or the provision of any benefit that is considered deferred compensation under Code
Section 409A payable on account of a “separation from service,” such payment or benefit shall
not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-
month period measured from the date of such “separation from service” of Executive, and (B)
the date of Executive’s death, to the extent required under Code Section 409A. On the expiration
of the foregoing delay period, all payments and benefits delayed pursuant to this Section 9(l)(ii)
(whether they would have otherwise been payable in a single sum or in installments in the
absence of such delay) shall be paid or reimbursed to Executive in a lump sum, and any
remaining payments and benefits due under this Agreement shall be paid or provided in
accordance with the normal payment dates specified for them herein.
(iii)To the extent that reimbursements or other in-kind benefits under
this Agreement constitute “nonqualified deferred compensation” for purposes of Code Section
409A, (A) all expenses or other reimbursements hereunder shall be made on or prior to the last
day of the taxable year following the taxable year in which such expenses were incurred by
Executive, (B) any right to reimbursement or in-kind benefits shall not be subject to liquidation
or exchange for another benefit and (C) no such reimbursement, expenses eligible for
reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the
expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable
year.
(iv)For purposes of Code Section 409A, Executive’s right to receive
any installment payments pursuant to this Agreement shall be treated as a right to receive a series
of separate and distinct payments. Whenever a payment under this Agreement specifies a
payment period with reference to a number of days, the actual date of payment within the
specified period shall be within the sole discretion of Employer.
(m)Code Section 280G. If any payment or distribution Executive would
receive pursuant to this Agreement or otherwise (“Payment”) would (a) constitute a “parachute
19
payment” within the meaning of Section 280G of the Code, and (b) but for this sentence, be
subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such
Payment shall either be (i) delivered in full, or (ii) delivered as to such lesser extent which would
result in no portion of such Payment being subject to the Excise Tax, whichever of the foregoing
amounts, taking into account the applicable federal, state and local income taxes and the Excise
Tax, results in the receipt by Executive on an after-tax basis, of the largest payment,
notwithstanding that all or some portion of the Payment may be taxable under Section 4999 of
the Code. The accounting firm engaged by Employer for general audit purposes as of the day
prior to the effective date of the relevant change in control (within the meaning of Code Section
280G) shall perform the foregoing calculations. Any good faith determinations of Employer
made hereunder based on the calculations of the foregoing accounting firm shall be final, binding
and conclusive on all Persons. Any reduction in payments and/or benefits pursuant to this
Section 9(m) will occur in the following order: (1) reduction of cash payments; (2) cancellation
of accelerated vesting of equity awards other than stock options; (3) cancellation of accelerated
vesting of stock options; and (4) reduction of other benefits payable to Executive.
Notwithstanding anything to the contrary in this Agreement, if, in connection with any change in
ownership or control, IPO, or other transaction or event that constitutes or may reasonably be
expected to constitute a change in ownership or control within the meaning of Section 280G of
the Code, any payment or benefit to be received or retained by Executive, whether pursuant to
this Agreement or otherwise, would or may reasonably be expected to constitute a “parachute
payment” within the meaning of Section 280G of the Code and result in the imposition of the
excise tax under Section 4999 of the Code, then, before applying any reduction or cutback under
this Section 9(m), Employer shall, and shall cause the applicable member of the Company Group
to, to the extent the shareholder approval exemption under Section 280G(b)(5)(A)(ii) and Section
280G(b)(5)(B) of the Code is available, use reasonable best efforts to submit such payment or
benefit, or such portion thereof as is necessary or advisable, for approval by the shareholders,
members, partners or other equityholders whose approval is required under Section 280G of the
Code and the Treasury Regulations promulgated thereunder. For purposes of this Section, “280G
Approval” means approval intended to satisfy Section 280G(b)(5)(B) of the Code and Treasury
Regulation Section 1.280G-1, Q/A-7, including, to the extent applicable, approval by more than
75% of the voting power entitled to vote for such purpose, after full and truthful disclosure to all
persons entitled to vote of all material facts concerning the payments or benefits that would,
absent such approval, constitute parachute payments. In furtherance of the foregoing, Employer
shall, and shall cause the applicable member of the Company Group to: (A) provide Executive
and Executive’s legal and tax advisors with copies of the proposed calculations, disclosure
materials, shareholder consent, ballot and any waiver or contingent waiver (in each case, solely
with respect to Executive’s payments or arrangements described or analyzed therein) reasonably
in advance of delivery to the applicable shareholders or equityholders, and consider in good faith
any reasonable comments thereto; (B) prepare and distribute disclosure materials that are
intended to satisfy the adequate disclosure requirements of Section 280G(b)(5)(B) of the Code
and the Treasury Regulations promulgated thereunder; (C) solicit the requisite 280G Approval
prior to the consummation of the applicable transaction or event; (D) not take any action, or omit
to take any action, for the purpose of frustrating or avoiding the 280G Approval process; and (E)
bear all fees, costs and expenses of the foregoing process. Executive shall reasonably cooperate
with such 280G Approval process, including by executing, prior to the applicable vote, a
20
customary contingent waiver of Executive’s right to receive or retain the applicable payments or
benefits, but only to the extent required for the 280G Approval to be effective and only with
respect to the minimum portion of such payments or benefits that the applicable accounting firm,
compensation consultant or tax counsel determines is necessary to avoid the imposition of the
excise tax under Section 4999 of the Code if 280G Approval is not obtained. Any such waiver
shall be effective only if, and only to the extent that, the requisite 280G Approval is not obtained,
and shall be void ab initio with respect to any payments or benefits that are approved pursuant to
the 280G Approval process. Nothing in this Section 9(m)shall require Employer or any of its
Affiliates to be responsible for, or have any liability or obligation with respect to, Executive’s
excise tax liabilities under Section 4999 of the Code.
(n)Clawback. Only with respect to any period following an IPO, amounts
paid or payable under this Agreement shall be subject to the provisions of any applicable
clawback policies or procedures adopted by Employer or any of its Affiliates applicable to
Executive, which clawback policies or procedures may provide for forfeiture and/or recoupment
of amounts paid or payable under this Agreement. Notwithstanding any provision of this
Agreement to the contrary, for any post-IPO compensation, Employer and each of its Affiliates
reserves the right, without the consent of Executive, to adopt any such clawback policies and
procedures, including such policies and procedures applicable to this Agreement with retroactive
effect.
*****
{Signature Page to Employment Agreement}
Each of Employer and Executive has executed this Employment Agreement as of the date
first above written.
| EMPLOYER: | |||
| ACCELEVATION LLC | |||
| By: | /s/ Michael Rubiera | ||
| Name: | Michael Rubiera | ||
| Title: | Chief Executive Officer |
{Signature Page to Employment Agreement}
| EXECUTIVE: | |
| /s/ Kenneth Krause | |
| Kenneth Krause |