EX-10.2 2 alit-ex10_2.htm EX-10.2 EX-10.2
ALIGHT SOLUTIONS LLC
EMPLOYMENT AGREEMENT (this “Agreement”) dated as of January 4, 2021, between Alight Solutions LLC (the “Company”) and Cathinka Wahlstrom (the “Executive”).
W I T N E S S E T H
WHEREAS, the Company desires to employ the Executive as the President and Chief Commercial Officer of the Company; and
WHEREAS, the Company and the Executive desire to enter into this Agreement as to the terms of the Executive’s employment with the Company.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
During the Employment Term (as defined in Section 2 hereof), the Executive shall serve as the President and Chief Commercial Officer of the Company. In this capacity, the Executive shall have the duties, authorities and responsibilities as are commensurate with the Executive’s position, and such other duties, authorities and responsibilities as the Chief Executive Officer of the Company shall designate from time to time that are consistent with the Executive’s position as President and Chief Commercial Officer of the Company. During the Employment Term, the Executive shall devote all of the Executive’s business time, energy, business judgment, and knowledge to the performance of the Executive’s duties with the Company (other than during any period of paid time off); provided that the foregoing shall not prevent the Executive from (i) with the prior written approval of the board of directors of Tempo Holding Company, LLC (“THC” and such board, the “Board”), serving on the boards of directors of other business organizations, (ii) participating in charitable, civic, educational, professional, community or industry affairs, and (iii) managing the Executive’s passive personal investments, in each case, so long as such activities do not, individually or in the aggregate, interfere or conflict with the Executive's duties hereunder or create a fiduciary conflict. Notwithstanding the foregoing, it is expressly understood and agreed that during the Employment Term, the Executive shall be entitled to continue participating in the activities in which the Executive engages as of the date hereof as set forth on Schedule A attached hereto, so long as such activities do not, individually or in the aggregate, interfere or conflict with the Executive’s duties hereunder or create a fiduciary conflict.
The Executive shall report directly to the Chief Executive Officer of the Company. The Executive’s principal place of employment with the Company shall be New York, New York, through May 31, 2022, at which time the Executive understands and
agrees that the Company will review such principal place of employment and may mutually agree that the Executive relocate to the Company’s principal place of business as of such time. For the avoidance of doubt, the Executive agrees that neither such relocation request nor any related mutually agreed relocation shall constitute “Good Reason” under Section 6(e) of this Agreement. The Executive understands and agrees that the Executive may be required to travel from time to time for business purposes, including weekly travel as needed to Chicago, Illinois; provided, that until the World Health Organization or the Centers for Disease Control and Prevention has determined that the pandemic related to SARS-CoV-2 or COVID-19 has ended, the Executive may be permitted to perform her duties from the location of the Executive’s choosing, subject to the terms of this Section 1(b) with respect to any required travel for business purposes.
Employment Term. The Company agrees to employ the Executive pursuant to the terms of this Agreement, and the Executive agrees to be so employed, for three (3) years (the “Initial Term”) commencing as of January 16, 2021 (the “Effective Date”). On each anniversary of the Effective Date following the conclusion of the Initial Term, the term of this Agreement shall be automatically extended for successive one-year periods, provided, however, that either party hereto may elect not to extend this Agreement by giving advanced written notice to the other party at least ninety (90) days prior to any such anniversary date. Notwithstanding the foregoing, the Executive’s employment hereunder may be earlier terminated in accordance with Sections 6 and 7 hereof. The period of time between the Effective Date and the termination of the Executive’s employment hereunder shall be referred to herein as the “Employment Term.”
Base Salary. The Company agrees to pay the Executive a base salary at an annual rate of $500,000, payable in accordance with the regular payroll practices of the Company. The Executive’s base salary shall be subject to annual review by the Board (or a committee thereof), and may be increased (but not decreased) from time to time by the Board, and in the event of an Initial Public Offering (as such term is defined in the Incentive Unit Agreement), shall be reviewed by the Board as soon as practicable after the consummation of such Initial Public Offering in comparison to base salaries paid to similarly situated executives at the Company’s peer companies from and after such Initial Public Offering. The base salary as determined herein and as may be increased from time-to-time shall constitute “Base Salary” for purposes of this Agreement.
Annual Bonus. Commencing with the calendar year 2021, for each calendar year that ends during the Executive’s employment, the Executive shall be eligible to receive an annual incentive payment (the “Annual Bonus”) based on a target bonus opportunity of $1,000,000 (the “Target Bonus”) with greater or lesser amounts paid for performance above and below target, based upon the attainment of one or more performance goals established by the Board (or a committee thereof); provided, that, subject to the last sentence of this Section 4, for the calendar year 2021, the Annual Bonus (x) shall not be prorated and (y) shall be no less than the Target Bonus. Annual Bonuses, to the extent earned, will be paid no later than March 15th of the calendar year following the calendar year to which the applicable Annual Bonus relates. Except as otherwise provided in Section 7, payment of any Annual Bonus is contingent upon the Executive’s employment through the applicable bonus payment date.
Benefit Plans. During the Employment Term, the Executive shall be eligible to participate in the employee benefit programs maintained by the Company from time to time, subject to satisfying the applicable eligibility requirements, except to the extent such plans are duplicative of the benefits otherwise provided hereunder. The Executive’s participation will be subject to the terms of the applicable plan documents and generally applicable Company policies. Notwithstanding the foregoing, the Company may amend, modify or terminate any employee benefit plan at any time.
Vacations. During the Employment Term, the Executive shall be entitled to no less than twenty (20) days of paid vacation per calendar year (as prorated for partial years) in accordance with the Company’s policy as in effect from time to time. For the avoidance of doubt, the Executive may not carry forward unused vacation days from one calendar year to a future calendar year.
Business and Entertainment Expenses. Upon presentation of reasonable substantiation and documentation as the Company may specify from time to time, the Executive shall be reimbursed in accordance with the Company’s expense reimbursement policy, for all reasonable and necessary out-of-pocket business, travel and entertainment expenses incurred and paid by the Executive during the Employment Term in connection with the performance of the Executive’s duties hereunder; provided, however, that the Executive shall be entitled to commercial air travel for business purposes in business or first class.
Legal Fees. Upon presentation of reasonable substantiation and documentation, the Company shall pay or reimburse the Executive for all legal fees incurred by the Executive in connection with the negotiation and drafting of this Agreement and the related agreements in the amount of $60,000, which will be paid within thirty (30) days following the Effective Date, subject to the Executive’s continued employment with the Company at the time of such payment.
Indemnification. The Company hereby agrees to indemnify the Executive and hold the Executive harmless to the maximum extent permitted under Delaware law and provided for under the organizational documents of the Company and Tempo Management, LLC (“TM”), as in effect on the date hereof or as may be subsequently modified from time to time, against and in respect of any and all actions, suits, proceedings, claims, demands, judgments, costs, expenses (including advancement of reasonable attorney’s fees), losses, and damages resulting from the Executive’s good faith performance of the Executive’s duties and obligations with the Company. The Company will provide coverage to the Executive under a Directors & Officers liability insurance policy covering other executives of the Company. The obligations under this Section 5(e) shall survive during the Employment Term plus the applicable statute of limitations period.
Termination. The Executive’s employment and the Employment Term shall terminate on the first of the following to occur:
Disability. Upon ten (10) days’ prior written notice by the Company to the Executive of termination due to Disability. For purposes of this Agreement, “Disability” shall mean “disability” pursuant to the standards set forth in, or in circumstances where the Executive qualifies for receipt of benefits under, the long-term disability plan of the Company and/or its subsidiaries. To the extent she is able, the Executive shall cooperate in all respects with the Company if a question arises as to whether the Executive has become disabled (including, without limitation, submitting to reasonable examinations by one or more medical doctors and other health care specialists selected by the Company and authorizing such medical doctors and other health care specialists to discuss the Executive’s condition with the Company).
Death. Automatically upon the date of death of the Executive.
Cause. Immediately upon written notice by the Company to the Executive of a termination for Cause. “Cause” shall mean (i) performing an act of fraud, theft, embezzlement or willful misappropriation involving the Executive’s employment with or service to THC, or any of its subsidiaries or affiliates; (ii) performing an act of race, sex, national origin, religion, disability, or age based discrimination in violation of any THC or Company policy or applicable law; (iii) the Executive’s willful and material violation of THC or any of its subsidiaries’ or affiliates’ material written policies and procedures including, but not limited to, the Company’s Code of Conduct; (iv) the Executive’s willful and material noncompliance with the terms of this Agreement, the Management Award and Contribution Agreement (Capital Units) entered into between the Executive, TM, and THC, dated as of January 4, 2021 (the “Incentive Unit Agreement”), the Amended and Restated Liability Company Agreement of THC (as may be amended from time to time) (the “THC LLC Agreement”), the Amended and Restated Limited Liability Company Agreement of TM (as may be amended from time to time) (the “TM LLC Agreement”), or of any material agreement with THC or any of its affiliates or subsidiaries containing, covenants regarding non-competition, non-solicitation, non-disparagement and/or non-disclosure obligations; or (v) performing any criminal act resulting in a criminal felony charge being brought (provided such charges are not dropped or otherwise reduced to a charge that does not meet these standards within sixty (60) days) against the Executive or the Executive’s criminal conviction of a crime of moral turpitude (other than conviction of a minor traffic violation); provided that no such determination may be made under clauses (iii) or (iv) above until the Executive has been given written notice detailing the specific Cause event and a period of thirty (30) days following receipt of such notice to cure such event, but only to the extent the specific Cause event is actually curable.
Without Cause. Immediately upon written notice by the Company to the Executive of an involuntary termination without Cause (other than for death or Disability).
Good Reason. Upon written notice by the Executive to the Company of a termination for Good Reason. “Good Reason” shall mean (i) a reduction in the Executive’s Base Salary or Target Bonus, (ii) a relocation of the Executive’s primary place of employment by more than fifty (50) miles from its then current location, (iii) the Company’s material breach of the terms of this Agreement, the Incentive Unit Agreement, the THC LLC Agreement or the TM LLC Agreement, or (iv) a reduction in title or
reporting relationship, such that the Executive no longer reports directly to the Chief Executive Officer of the Company, or a material demotion in the Executive’s duties, authorities, or responsibilities, in each case, without the Executive’s written consent; provided that such reduction shall not constitute “Good Reason,” unless the Executive notifies the Company within thirty (30) days following the initial occurrence of such event, and the Company fails to reverse such event within thirty (30) days of the Company’s receipt of such notice. In order to invoke a termination for “Good Reason,” the Executive must terminate her employment, if at all, within ninety (90) days following the initial occurrence of the “Good Reason” event.
Without Good Reason. Upon ninety (90) days’ prior written notice by the Executive to the Company of the Executive’s voluntary termination of employment without Good Reason (which the Company may, in its sole discretion, make effective earlier than any notice date).
Expiration of Employment Term; Non-Extension of Agreement. Upon the expiration of the Employment Term due to a non-extension of the Agreement by the Company or the Executive pursuant to the provisions of Section 2 hereof.
Consequences of Termination.
Death. In the event the Executive’s employment is terminated due to Executive’s death, the Company shall pay or provide to the Executive or the Executive’s estate, as the case may be, the amounts set forth below within sixty (60) days following termination of employment (or such earlier date as may be required by applicable law) (collectively, Sections 7(a)(i) through 7(a)(v) hereof shall be hereafter referred to as the “Accrued Amounts”).
Any Base Salary earned, but not yet paid by the Company, through date of the Executive’s termination with the Company (such date, the “Termination Date”);
any Annual Bonus earned, but not yet paid by the Company, with respect to a year ending on or preceding the Termination Date;
any accrued but unused vacation;
reimbursement for any unreimbursed business expenses incurred through the Termination Date, provided that such expenses and required substantiation and documentation are submitted within 30 days following such termination and reimbursement under the Company’s policy; and
all other payments, benefits or fringe benefits to which the Executive shall be entitled under the terms of any applicable compensation arrangement or benefit, equity or fringe benefit plan or program or grant or this Agreement.
Disability. In the event that the Executive’s employment and/or Employment Term ends on account of the Executive’s Disability, the Company shall pay or provide the Executive with the Accrued Amounts.
Termination for Cause or Without Good Reason or as a Result of Executive Non-Extension of this Agreement. If the Executive’s employment is terminated (x) by the Company for Cause, (y) by the Executive without Good Reason, or (z) as a result of the Executive’s non-extension of the Employment Term as provided in Section 2 hereof, the Company shall pay to the Executive the Accrued Amounts other than the benefit described in Section 7(a)(ii) hereof.
Termination Without Cause or for Good Reason or as a Result of Company Non-Extension of this Agreement. If the Executive’s employment by the Company is terminated (x) by the Company other than for Cause (and not due to the Executive’s death or Disability) or (y) by the Executive for Good Reason, the Company shall pay or provide the Executive with the following, below, subject to Executive’s continued compliance with the terms of this Agreement (including Executive’s timely execution and non-revocation of the release as set forth in Section 7(e) herein and continued compliance with Sections 8 and 9):
An amount equal to two (2) times the sum of (i) the Executive’s Base Salary (at the highest rate in effect in the six (6) month period preceding the Termination Date) and (ii) the Executive’s average Annual Bonus over the two most recent full completed fiscal years immediately preceding the fiscal year in which the Termination Date occurs (provided that, (x) if the Executive was not employed by the Company during each of the two full completed fiscal years immediately preceding the fiscal year in which the Termination Date occurs, the amount shall be determined based on the Executive’s average annualized Annual Bonus received in respect of the fiscal years in which the Executive was employed; and (y) if the Executive has not received an Annual Bonus for a full completed fiscal year at any time prior to the Termination Date due to having been a new hire, the amount shall be equal to the Executive’s Target Bonus), payable in substantially equal installments in accordance with the Company’s normal payroll policies commencing on the first payroll period following the date on which the Release (as defined in Section 7(e) herein) is executed and no longer subject to revocation, and continuing for twenty-four (24) consecutive months thereafter;
a pro-rata portion of the Executive’s Annual Bonus for the year in which the Termination Date occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full year by a fraction, the numerator of which is the number of full or partial months during the applicable year that the Executive is employed by the Company and the denominator of which is twelve (12)), payable in accordance with Section 4 hereof;
subject to (A) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), (B) the Executive’s continued copayment of premiums at the same
level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), and (C) the Executive’s continued compliance with the obligations in Sections 8 and 9 hereof, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage; provided, further, that the Company may modify the continuation coverage contemplated by this Section 7 to the extent reasonably necessary to avoid the imposition of any excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and/or the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable); and provided, further, that in the event that the Executive obtains other employment that offers group health benefits, such continuation of coverage by the Company under this Section 7 shall immediately cease; and
for twelve (12) months following the Termination Date, the Executive will have access to Company provided outplacement services at a level commensurate with the Executive’s position in accordance with the Company’s practices as in effect from time to time.
Notwithstanding any provision in this Agreement to the contrary, the Executive hereby agrees that the Company’s obligations to provide the payments set forth in Section 7(d) herein (such payments, the “Severance Payments”) shall be conditioned upon the Executive’s execution and nonrevocation of, and compliance with, the Company’s release of claims contained in Exhibit A to this Agreement, as modified in the Company’s reasonable, good faith discretion to preserve the enforceability of such agreement under applicable local law (the “Release”), within twenty-eight (28) days of the Executive’s Termination Date and the Executive’s continued compliance with any other existing non-competition, non-solicitation of clients and employees, and confidentiality agreements between the Executive and the Company. Any Severance Payments payable under this Agreement shall not be paid until the first scheduled payment date following the date the 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 the Executive would otherwise have been entitled during the period following the Termination Date if such deferral had not been required; provided, however, 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 (“Section 409A”) shall not be paid until the 28th day following such termination to the extent necessary to avoid adverse tax consequences under Section 409A, and, if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which the Executive would otherwise have been entitled during the period following the Termination Date if such deferral had not been required; provided further that 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 amount or benefit that constitutes nonqualified deferred
compensation within the meaning of Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of 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”, and if the Executive is deemed a “specified employee” within the meaning of Section 409A on the Termination Date, then any Severance Payments payable to the Executive under this Agreement during the first six months and one day following the Termination Date that constitute nonqualified deferred compensation within the meaning of Section 409A shall not be paid until the date that is six (6) months and one day following such termination to the extent necessary to avoid adverse tax consequences under Section 409A, and, if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which the Executive would otherwise have been entitled to during the period following the Termination Date if such deferral had not been required.
In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, nor shall the amount of any payment hereunder be reduced by any compensation earned by Executive as a result of employment by a subsequent employer, other than as set forth in Section 7(d)(iii). The Company’s obligations to pay the Executive amounts hereunder shall not be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or any of its affiliates.
Restrictive Covenants. The Executive acknowledges and recognizes the highly competitive nature of the business of the Company, and accordingly agrees to the following restrictive covenants.
Non-Competition; Non-Solicitation; Non-Disparagement.
the Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries, and accordingly agrees as follows:
During the Employment Term and for a period of two (2) years following the date the Executive ceases to be employed by the Company (together, the “Restricted Period”), the Executive will not, whether on the Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (for the purposes of this Section 8, a “Person”), directly or indirectly solicit or assist in soliciting any business of the same type or kind as the Covered Business performed by the Restricted Group from or with respect to (A) clients or customers of the Restricted Group with respect to whom the Executive provided services, either alone or with others, or had a business relationship, or on whose account the Executive worked or became familiar, or supervised directly or indirectly the servicing activities with respect to that client or customer,
during the twenty-four (24) month period prior to the Executive’s Termination Date, and further provided such clients or customers were clients or customers of the Restricted Group either on such Termination Date or during the twenty-four (24) months prior thereto, and (B) prospective clients or customers of the Restricted Group which the Executive alone, in combination with others, or in a supervisory capacity, solicited during the eighteen (18) months prior to the Executive’s Termination Date. Notwithstanding the foregoing, the provisions of this Section 8(a)(i)(1) shall not be violated by (A) general advertising or solicitation not specifically targeted at Company-related persons or entities, (B) the Executive serving solely as a reference, upon request, for any customer or client of the Company Group, or (C) actions taken by any person or entity with which the Executive is associated if the Executive is not directly or indirectly involved in the matter and has not directly or indirectly identified such Company-related person or entity for soliciting or hiring.
During the Restricted Period, the Executive will not directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant:
engage in, or acquire a financial interest in or otherwise become actively involved with any Person engaged in, the Covered Business within any country where the Restricted Group engages, or plans to engage, in the Covered Business as of the Executive’s Termination Date; or
intentionally and adversely interfere with, or intentionally attempt to adversely interfere with, business relationships between the members of the Restricted Group and any of their clients, customers, suppliers, partners, members or investors.
Notwithstanding anything to the contrary in this Section 8, (A) the Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the Covered Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Executive (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or indirectly, own 2% or more of any class of securities of such Person; and (B) the Executive may, as an employee, director, officer or consultant, (1) engage in, or otherwise become actively involved with, an affiliated group of Persons engaged in the Covered Business so long as the Executive is not directly or indirectly involved with such Covered Business; (2) supervise multiple business lines of an affiliated group of Persons engaged in Covered Businesses, so long as the Covered Businesses do not, individually or in the aggregate, constitute a material portion of the revenue or operations of the
businesses over which the Executive has supervisory authority, as reasonably determined in good faith by the Company and/or THC; or (3) provide services to certain companies as set forth on Exhibit B attached hereto.
During the Restricted Period, the Executive will not, whether on the Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
solicit or encourage any employee of the Restricted Group to leave the employment of the Restricted Group;
hire any executive-level employee (i.e., ELT or XLT member) who was employed by the Restricted Group as of the Executive’s Termination Date or who left the employment of the Restricted Group coincident with, or within one (1) year prior to, or after, the Executive’s Termination Date, excluding an executive-level employee whose employment with the Restricted Group ceased at least twelve (12) months prior to the date of such hiring; or
encourage any consultant of the Restricted Group to cease working with the Restricted Group.
Notwithstanding the foregoing, the provisions of this Section 8(a)(i)(4) shall not be violated by (A) general advertising or solicitation not specifically targeted at Company-related persons or entities, (B) the Executive serving solely as a reference, upon request, for any employee of the Company Group, or (C) actions taken by any person or entity with which the Executive is associated if the Executive is not directly or indirectly involved in the matter and has not directly or indirectly identified such Company-related person or entity for soliciting or hiring.
For purposes of this Section 8:
“Covered Business” means (1) developing and implementing software and services solutions for, and providing (x) health and welfare (including participant advocacy and other ancillary point solutions services) and retirement (including any defined contribution participant financial advisory and self-directed brokerage account services and other ancillary point solutions services) benefits administration services and (y) hosted and cloud-based human resources business process outsourcing administration and implementation services (including payroll processing and financial systems implementation), and/or (2) such businesses (not described in (1) above) in which the Restricted Group engages or
has active plans to engage in (as evidenced by the investment of time or resources therein), in each case, as of the Executive’s Termination Date.
“Restricted Group” means, collectively, the Company, TM, THC and their respective subsidiaries.
During the Employment Term and at all times thereafter, the Executive agrees not to make, or cause any other person to make, any communication that is intended to disparage, or has the effect of disparaging, the Company or its affiliates, subsidiaries, agents, shareholders, members, or advisors (or any of its or their respective employees, officers or directors, it being understood that communication made in the Executive’s good faith performance of the Executive’s duties hereunder shall not be deemed disparaging for purposes of this Agreement). The Company agrees to instruct the members of the applicable boards of directors or managers and the Restricted Group’s executives not to make negative comments about the Executive or otherwise disparage the Executive in any manner that is likely to be harmful to the Executive’s business reputation. Nothing set forth herein shall be interpreted to prohibit the Executive, the Restricted Group (or their respective executives) or such members of the applicable boards of directors or managers from responding truthfully to incorrect public statements, making truthful statements when required by law, subpoena or court order, from responding to any inquiry by any regulatory or investigatory organization and/or making truthful statements in connection with any legal proceeding related to the enforcement or defense of the Executive’s rights hereunder.
Confidentiality; Intellectual Property.
The Executive will not at any time (whether during the Employment Term or thereafter) (A) retain or use for the benefit, purposes or account of the Executive or any other Person; or (B) disclose, divulge, reveal, communicate, share, transfer or provide access to any Person outside the Company and its affiliates (other than the Executive’s professional advisers who are bound by confidentiality obligations or otherwise in performance of the Executive’s duties under the Executive’s employment and pursuant to customary industry practice or information with respect to Executive’s compensation and/or restrictive covenants), any non-public, proprietary or confidential information -- including without limitation trade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals -- concerning the past, current or future business, activities and operations of
the Company or any of its affiliates and/or any third party that has disclosed or provided any of same to the Company or any of its affiliates or Subsidiaries on a confidential basis (“Confidential Information”), without the prior written authorization of the Board.
Notwithstanding the foregoing, the Executive may deliver or disclose Confidential Information to any federal or state regulatory authority having jurisdiction over the Executive to the extent required in connection with any audit or other legal proceeding by such authority, or to any court, arbitrator, or other tribunal (x) in response to any subpoena or other legal compulsory process or (y) in the enforcement of the Executive’s rights and remedies under this Agreement or any other agreement with the Restricted Group; provided, that the Executive will (to the extent legally permissible) promptly notify the Company in advance so that the Company may seek (at its own expense) a protective order or other appropriate remedy or waive compliance with this Section 8(b).
“Confidential Information” shall not include any information that is (A) generally known to the industry or the public other than as a result of the Executive’s breach of this covenant; (B) made legitimately available to the Executive by a third party without breach of any confidentiality obligation of which the Executive has knowledge; or (C) required by law to be disclosed; provided that with respect to subsection (C) the Executive shall give prompt written notice to the Company of such requirement, disclose no more information than is so required, and reasonably cooperate with any attempts by the Company to obtain a protective order or similar treatment.
Except as required by law, the Executive will not disclose to anyone, other than the Executive’s family (it being understood that, in this Agreement, the term “family” refers to the Executive, the Executive’s spouse, children, parents and spouse’s parents) and advisors, the existence or contents of this Agreement; provided that the Executive may disclose to any prospective future employer the Executive’s compensation and the provisions of this Section 8. Subsection (b)(i)(3) of this Section 8 shall terminate if any member of the Restricted Group publicly discloses a copy of this Agreement (or, publicly discloses summaries or excerpts of this Agreement, to the extent so disclosed).
Upon termination of the Executive’s employment with the Company for any reason, the Executive shall (A) cease and not thereafter commence use of any Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the Company or its affiliates; and (B) immediately destroy, delete, or return to the Company, at the Company’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans,
computer files, letters and other data) in the Executive’s possession or control (including any of the foregoing stored or located in the Executive’s office, home, laptop or other computer, whether or not Company property) that contain Confidential Information, except that the Executive may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information and any information related to the Executive’s compensation and restrictive covenants, including a copy of this Agreement.
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 (x) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (y) 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.
Nothing in this Agreement shall prohibit or restrict the Executive from, or shall be interpreted so as to impede the Executive (or any other individual) from, reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures under the whistleblower provisions of federal law or regulation. The Executive does not need the prior authorization of the Company to make any such reports or disclosures, and the Executive shall not be required to notify the Company that such reports or disclosures have been made.
If the Executive creates, invents, designs, develops, contributes to or improves any works of authorship, inventions, intellectual property, materials, documents or other work product (including without limitation, research, reports, software, databases, systems, applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, at any time during the Executive’s employment by the Company and within the scope of such employment and/or with the use of any resources of Company or any of its affiliates
(“Alight Works”), the Executive shall promptly and fully disclose same to the Company and hereby irrevocably assigns, transfers and conveys, to the maximum extent permitted by applicable law, all of the Executive’s right, title, and interest therein (including rights under patent, industrial property, copyright, trademark, trade secret, unfair competition, other intellectual property laws, and related laws) to the Company to the extent ownership of any such rights does not vest originally in the Company. If the Executive creates any written records (in the form of notes, sketches, drawings, or any other tangible form or media) of any Alight Works, the Executive will keep and maintain same. The records will be available to and remain the sole property and intellectual property of the Company at all times.
The Executive shall take all requested actions and execute all requested documents (including any licenses or assignments required by a government contract) at the Company’s expense (but without further remuneration) to assist the Company in validating, maintaining, protecting, enforcing, perfecting, recording, patenting or registering any of the rights of the Company or its affiliates in the Alight Works.
The Executive shall not improperly use for the benefit of, bring to any premises of, divulge, disclose, communicate, reveal, transfer or provide access to, or share with the Company or any of its affiliates any confidential, proprietary or non-public information or intellectual property relating to a former employer or other third party without the prior written permission of such third party. The Executive shall comply with all relevant policies and guidelines of the Company and its affiliates that are from time to time previously disclosed to the Executive, including regarding the protection of Confidential Information and intellectual property and potential conflicts of interest.
The provisions of subsection (b) of this Section 8 hereof shall survive the termination of the Executive’s employment for any reason.
Reasonableness of Covenants. In signing this Agreement, the Executive gives the Company assurance that the Executive has carefully read and considered all of the terms and conditions of this Agreement, including the restraints imposed under this Section 8. The Executive agrees that these restraints are necessary for the reasonable and proper protection of the Company and its affiliates and their trade secrets and confidential information and that each and every one of the restraints is reasonable in respect to subject matter, length of time and geographic area, and that these restraints, individually or in the aggregate, will not prevent the Executive from obtaining other suitable employment during the period in which the Executive is bound by the restraints. The Executive acknowledges that each of these covenants has a unique, very substantial and immeasurable value to the Company and its affiliates and that the Executive has sufficient assets and skills to provide a livelihood while such covenants remain in force. The Executive further covenants that the Executive will not challenge the reasonableness or enforceability of any of the covenants set forth in this Section 8. It is also agreed that the Company’s affiliates will
have the right to enforce all of the Executive’s obligations to such affiliates under this Agreement, including, without limitation, pursuant to this Section 8.
Reformation. If it is determined by a court of competent jurisdiction in any state that any restriction in this Section 8 is excessive in duration or scope or is unreasonable or unenforceable under applicable law, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state.
Tolling. In the event of any violation of the provisions of this Section 8, the Executive acknowledges and agrees that the post-termination restrictions contained in this Section 8 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the applicable post-termination restriction period shall be tolled during any period of such violation.
Remedies. The Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this Section 8 would be inadequate and, in recognition of this fact, the Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond or other security, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be available, without the necessity of showing actual monetary damages.
Survival. The Executive’s obligations under Section 8 of this Agreement shall survive the termination of Executive’s employment with the Company for any reason and shall thereafter be enforceable whether or not such termination is found to be wrongful or to constitute or result in a material breach of any contract, including, but not limited to, a breach of any employment contract or of any other material duty owed or claimed to be owed to the Executive by the Company or any Company employee, agent or contractor.
Cooperation. Upon the receipt of reasonable notice from the Company (including outside counsel), the Executive agrees that while employed by the Company and for the five (5) year period thereafter, the Executive will respond and provide information with regard to matters in which the Executive has knowledge as a result of the Executive’s employment with the Company, and will provide reasonable assistance to the Company, its affiliates and their respective representatives in defense of any claims that may be made against the Company or its affiliates, and will assist the Company and its affiliates in the prosecution of any claims that may be made by the Company or its affiliates, to the extent that such claims may relate to the period of the Executive’s employment with the Company (collectively, the “Claims”). The Executive agrees to promptly inform the Company if the Executive becomes aware of any lawsuits involving Claims that may be filed or threatened against the Company or its affiliates. The Executive also agrees to promptly inform the Company (to the extent that the Executive is legally permitted to do so) if the Executive is asked to assist in any investigation of the Company or its affiliates (or their actions) or another party attempts to obtain information or documents from the Executive (other than in connection with any litigation or other proceeding in which the Executive is a party-in-opposition) with respect to matters the Executive believes in good faith to relate to any investigation of the
Company or its affiliates, in each case, regardless of whether a lawsuit or other proceeding has then been filed against the Company or its affiliates with respect to such investigation, and shall do so unless legally prohibited. During the pendency of any litigation or other proceeding involving Claims, the Executive shall not communicate with anyone (other than the Executive’s attorneys and tax and/or financial advisors and except to the extent that the Executive determines in good faith is necessary in connection with the performance of the Executive’s duties hereunder) with respect to the facts or subject matter of any pending or potential litigation or regulatory or administrative proceeding involving the Company or any of its affiliates without giving prior written notice to the Company or the Company’s counsel. Upon presentation of appropriate documentation, the Company shall pay or reimburse the Executive for all reasonable out-of-pocket travel, duplicating or telephonic expenses incurred by the Executive in complying with this Section 9. It is expressly agreed that the Company’s rights to avail itself of the Executive’s advice and consultation services shall at all times be exercised in a reasonable manner (after taking into account the Executive’s reasonable personal and professional obligations) and that adequate notice shall be given to the Executive in such events. For the avoidance of doubt, and to the extent applicable, the Executive’s obligations under this Section shall be covered by Section 5(e).
Notice. For purposes of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given (a) on the date of delivery, if delivered by hand, (b) on the date of transmission, if delivered by confirmed facsimile or electronic mail, (c) on the first business day following the date of deposit, if delivered by guaranteed overnight delivery service, or (d) on the fourth business day following the date delivered or mailed by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
At the address (or to the facsimile number) shown
in the books and records of the Company.
If to the Company:
Alight Solutions, LLC
4 Overlook Point
Lincolnshire, IL 60069
Attention: Paulette Dodson, General Counsel
With copies to:
The Blackstone Group L.P.
345 Park Avenue, 44th Floor
New York, NY 10154
Attention: Peter Wallace; David Kestnbaum; Vikram Suresh
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attention: Andrew Arons, P.C.
Michael Krasnovsky, P.C.
Following the date hereof, notice may be delivered to either party at such other address as either party hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective upon receipt thereof by the addressee.
Section Headings; Inconsistency. The section headings used in this Agreement are included solely for convenience and shall not affect, or be used in connection with, the interpretation of this Agreement. In the event of any inconsistency between the terms of this Agreement and any form, award, plan or policy of the Company, the terms of this Agreement shall govern and control.
Severability. The provisions of this Agreement shall be deemed severable. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by applicable law.
Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
Withholding. The Company may withhold from all payments due to the Executive under this letter agreement all taxes which, by applicable federal, state, local, or other law, the Company is required to withhold therefrom.
The intent of the parties is that payments and benefits under this Agreement comply with or be exempt from Section 409A and, accordingly, to the maximum extent permitted this Agreement shall be interpreted to be in compliance therewith or exempt therefrom. Neither the Company nor any of its affiliates shall be liable for any additional tax, interest or penalty that may be imposed on the Executive by Section 409A or damages for failing to comply with Section 409A.
All expenses or other reimbursements under this Agreement that would constitute nonqualified deferred compensation subject to Section 409A, (i) shall be paid on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) no such reimbursement or expenses eligible for reimbursement in any taxable year shall in any way affect the Executive’s right to reimbursement of any other expenses eligible for reimbursement in any other taxable year,
and (iii) the Executive’s right to reimbursement shall not be subject to liquidation in exchange for any other benefit.
For purposes of Section 409A, the Executive’s right to receive any installment payment 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 (e.g., “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.
Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment under this Agreement that constitutes nonqualified deferred compensation subject to Section 409A, be subject to offset, counterclaim or recoupment by any other amount payable to the Executive unless otherwise permitted by Section 409A.
This Agreement is personal to the Executive and, without the prior written consent of the Company, will not be assignable by the Executive otherwise than by will or the laws of descent and distribution, and any assignment in violation of this Agreement will be void. Notwithstanding the foregoing sentence, this Agreement and all of the Executive’s rights hereunder will inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.
The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company (a “Successor”) to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would have been required to perform it if no such succession had taken place. As used in this Agreement, the term “Company” will mean the Company as defined herein and any Successor and any permitted assignee to which this Agreement is assigned.
Amendment/Waiver. No provisions of this Agreement may be amended, modified, waived or discharged except by a written document signed by the Executive and a duly authorized officer of the Company. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion will not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
Entire Agreement. This Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto (other than with respect to the Incentive Unit Agreement). None of the parties will be liable or bound to any other party in
any manner by any representations and warranties or covenants relating to such subject matter except as specifically set forth herein.
Governing Law; Venue. The validity, interpretation, construction and performance of this Agreement will be governed by the laws of the State of Delaware, without giving effect to its conflicts of law. Each party hereto (i) irrevocably agrees that any legal action, suit or proceeding against it arising out of or in connection with this Agreement shall be brought exclusively in the Court of Chancery of the State of Delaware (unless the federal courts have exclusive jurisdiction, in which case each party consents to the jurisdiction of the United States District Court for the District of Delaware), (ii) unconditionally waives any objection to venue in such jurisdiction, and agrees not to plead or claim forum non conveniens, and (iii) waives their respective rights to a jury trial of any and such legal action, suit or proceeding.
Representations. The Executive represents and warrants to the Company that the Executive has provided to the Company all of the agreements to which the Executive is party which could prevent the Executive from entering into this Agreement or performing all of the Executive’s duties and obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
ALIGHT SOLUTIONS LLC
By: /s/ Stephan Scholl
Name: Stephan Scholl
Title: Chief Executive Officer
/s/ Cathinka Wahlstrom
Signature Page to Employment Agreement