RBT Rubicon Technologies Inc

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): July 1, 2024

 

Rubicon Technologies, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware		001-40910		88-3703651
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

950 E Paces Ferry Rd NE Suite 810 Atlanta, GA		30326
(Address of principal executive offices)		(Zip Code)

 

(844) 479-1507

(Registrant’s telephone number, including area code)

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Class A common stock, par value $0.0001 per share		RBTC*		*

 

*

On June 7, 2024, our Class A common stock was suspended from trading on the New York Stock Exchange and began trading under the symbol “RBTC” on the OTC Pink Marketplace maintained by the OTC Markets Group, Inc.

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Departure of Chief Executive Officer

 

On June 27, 2024, Mr. Phil Rodoni and the Company entered into a Separation Agreement (the “Separation Agreement”) wherein Mr. Rodoni resigned from his role as Chief Executive Officer of Rubicon Technologies, Inc. (the “Company”), effective June 28, 2024. The Company sincerely thanks Mr. Rodoni for his leadership and contributions to the Company. The Separation Agreement is attached hereto and incorporated herein as Exhibit 10.1 to this Current Report on Form 8-K.

 

Appointment of Interim Chief Executive Officer

 

On June 27, 2024, the Company entered into an Employment Agreement (the “Employment Agreement”) entered into between the Company and Mr. Osman H. Ahmed, wherein the Company offered Mr. Ahmed the position of Interim Chief Executive Officer. The Employment Agreement is attached hereto and incorporated herein as Exhibit 10.2 to this Current Report on Form 8-K.

 

Prior to his appointment to the position of Interim Chief Executive Officer, Mr. Ahmed served on the Company’s board since August 2022. Mr. Ahmed is a Co-Founder of New Circle Capital LLC. Mr. Ahmed is also a Senior Advisor at 10X Capital, having previously served as Managing Director and Head of Private Equity. He has over 15 years of principal investment, and operating experience. Mr. Ahmed has served as member of the board of African Agriculture Holdings Inc. (NASDAQ: AAGR) since December 2023. Prior to joining 10X Capital, Mr. Ahmed was the CEO of Founder SPAC, a $321M special purpose acquisition company focused on digital transformation. Previously, Mr. Ahmed was an investor at KCK Group, a private markets investor. He also served as CFO of Beehive Industries, a KCK Group Portfolio company. Mr. Ahmed previously has held roles at Volition Capital, Scale Venture Partners, and Stifel Financial (NYSE: SF). Throughout his career, Mr. Ahmed has executed leveraged buyout, special situations, and growth equity investments in technology, business services, industrials, and healthcare. Prior closed deals include: Harvest Food Distributors, Sherwood Food Distributors, Hibernia Networks (acquired by GTT), RingCentral (NYSE: RNG), TraceLink, Al Fakher Tobacco, Better.com (NASDAQ: BETR), and others. Mr. Ahmed holds a B.S. in Computer Science from the University of Southern California and an M.B.A. from the University of Chicago Booth School of Business.

 

Item 7.01. Regulation FD Disclosure.

 

On July 1, 2024, the Company issued both a shareholder letter (the “Shareholder Letter”) and a press release announcing the departure of Mr. Rodoni and the appointment of Mr. Ahmed. The Shareholder Letter and the press release are attached hereto and incorporated herein as Exhibits 10.3 and 99.1 to this Current Report on Form 8-K, respectively.

 

The information in Item 7.01 of this Current Report on Form 8-K, including Exhibits 10.3 and 99.1, is being furnished and shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.

 

 

Item 9.01 Financial Statements and Exhibits.

 

Exhibits

 

10.1		Separation Agreement, dated June 27, 2024.
10.2		Employment Agreement, dated June 27, 2024.
10.3		Shareholder Letter, dated July 1, 2024.
99.1		Press Release, dated July 1, 2024.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Rubicon Technologies, Inc.
By:	/s/ Grant Deans
	Name:	Grant Deans
	Title:	Interim Chief Financial Officer

 

Date: July 1, 2024

 

 

Exhibit 10.1

 

General Release and Separation Agreement

 

This General Release and Separation Agreement (hereinafter the “Agreement”) is made and entered into by and between Rubicon Technologies Holdings, LLC, a Delaware limited liability company (the “Company” or “Rubicon”), and Phil Rodoni (“Executive”), on the date fully executed by the Company and Executive below. This Agreement is entered into pursuant to that certain Employment Agreement, dated on or about March 20, 2023, between Company and Executive, including all subsequent amendments thereto (the “Employment Agreement”), and extinguishes all of Rubicon’s obligations to Executive whether under the Employment Agreement or otherwise except as set forth in this Agreement.

 

WITNESSETH:

 

WHEREAS, Executive’s employment with the Company will end as of the Separation Date (as defined below in Paragraph 1); and

 

WHEREAS, Executive and the Company desire to resolve any and all matters arising from Executive’s employment and/or separation on mutually satisfactory terms as set forth herein;

 

NOW, THEREFORE, in consideration of the terms and mutual promises set forth herein, the parties agree as follows:

 

1. Separation Date. Executive has resigned his employment with the Company and resigned from the Company’s Board of Directors (the “Board”), and any other positions that Executive holds or has held for the Company and/or any parent, subsidiary and/or affiliate of the Company effective June 28, 2024 (the “Separation Date”). The Company and the Board have accepted Executive’s resignation effective upon the Separation Date.

 

2. Final Wages; Restricted Stock Unit Awards. Executive will be paid all wages earned and accrued as of the Separation Date. Executive will not accrue any additional fringe benefits subsequent to the Separation Date, except as expressly provided in Paragraph 3 of this Agreement. Executive acknowledges and agrees that Executive has received payment in full for all of the compensation, wages, benefits and/or payments of any kind otherwise due from the Company, including, but not limited to compensation, bonuses, commissions, lost wages, expense reimbursements, payments to benefit plans, unused accrued vacation leave and personal time, sick pay or any other payment or benefit under a Company plan, program, policy, practice or promise as of the date of Executive’s signing of this Agreement and that no other compensation, bonuses, commissions, lost wages, expense reimbursements, payments to benefit plans, unused accrued vacation leave and personal time, sick pay or any other payment or benefit under a Company plan, program, policy, practice or promise are due to him except for the Separation Consideration set forth in Paragraph 3, which Executive will receive only if he executes and does not revoke this Agreement. None of the foregoing payments (except for the Separation Consideration set forth in Paragraph 3) constitute consideration for the releases and covenants set forth herein. The wages referred to in this Paragraph 2 have been or will be paid to Executive regardless of whether Executive signs this Agreement. To the extent that Executive claims any additional wages are due, there is a bona fide dispute as to such claims, and Executive agrees that the valuable consideration that Executive acknowledges and accepts by signing this Agreement compensates for and resolves any and all possible claims and disputes he may have against the Company.

 

 

Executive shall retain all Restricted Stock Units (“RSUs”) vested as of March 12, 2024. However, Executive expressly waives all rights he may have to any additional RSUs (whether granted or ungranted), including any right to acceleration of unvested RSUs, and all unvested RSUs are forfeited pursuant to the terms of the Rubicon Technologies, Inc. 2022 Equity Incentive Plan.

 

3. Separation Consideration. In consideration of the covenants and agreements by Executive as described in this Agreement, including, without limitation, the covenants set forth in Paragraphs 7, 8, 9, and 11 and the releases as set forth in Paragraphs 4 and 5, the Company will pay Executive a total of Three Million Six Hundred Thousand Dollars and Zero Cents ($3,600,000.00) (the “Separation Consideration”).

 

(a) The Separation Consideration will be paid as follows:

 

i. the Company will pay Executive over a period of twelve (12) months a separation payment of One Million Two Hundred Thousand Dollars and Zero Cents ($1,200,000.00), subject to standard deductions and withholdings (the “First Separation Payment”), in equal installments pursuant to the Company’s regular payroll schedule beginning as soon as administratively practicable after the Effective Date but no later than twenty-one (21) days following the Effective Date and concluding twelve (12) months after the first payment is made (the “Severance Period”); and

 

ii. the Company will pay Executive an additional one (1) time separation payment of One Million Dollars and Zero Cents ($1,000,000.00), subject to standard deductions and withholdings (the “Second Separation Payment”), within twenty-one (21) days of the expiration of the Severance Period;

 

iii. the Company will pay Executive a separation payment of One Million Dollars and Zero Cents ($1,000,000.00), subject to standard deductions and withholdings (the “Third Separation Payment”), in equal monthly installments beginning as soon as administratively practicable after the Severance Period but no later than twenty-one (21) days following the expiration of the Severance Period and concluding by February 28, 2026 (the “Second Severance Period”); and

 

iv. the Company will pay Executive a separation payment of Four Hundred Thousand Dollars and Zero Cents ($400,000.00), subject to standard deductions and withholdings (the “Fourth Separation Payment”), in equal monthly installments beginning as soon as administratively practicable after the Second Severance Period but no later than twenty-one (21) days following the expiration of the Second Severance Period and concluding by December 31, 2026.

 

 

(b) In the event that there is a single Sale of Assets Event (as defined in Appendix A) or two Change in Control Events (as defined in Appendix A) completed (i) on or after the date on which the first installment of the First Separation Payment is made and (ii) before all of the separation payments as described above in Paragraph 3(a)(i)-(iv) are completed, then any Separation Consideration that is unpaid as of the first completed Sale of Assets Event or the second completed Change in Control Event will be paid within thirty (30) business days of the first completed Sale of Assets Event or the second completed Change in Control Event, as applicable; except that if there is no Change in Control Event before or on March 7, 2025, then the occurrence of only one Change in Control Event is necessary to trigger the acceleration contemplated in this Paragraph 3(b). In no event shall the Separation Consideration exceed Three Million Six Hundred Thousand Dollars and Zero Cents ($3,600,000.00) nor shall the Company ever pay more than Three Million Six Hundred Thousand Dollars and Zero Cents ($3,600,000.00) under this Agreement.

 

(c) Furthermore, the entirety of the then unpaid Separation Consideration shall be accelerated in the event that the Company fails to make any of the payments required in Section 3(a) above or otherwise materially breaches the terms of this Agreement; provided that Executive shall provide the Company with written notice of such alleged non-compliance, citing to the provision(s) of this Agreement and the known facts relied upon by Executive as the basis for the Company’s alleged non-compliance, and provide the Company with a period of thirty (30) days to cure any alleged non-compliance (the “Company Cure Period”). Upon the expiration of the Company Cure Period, Executive shall have a period of ten (10) days to then provide the Company with written notice of the Company’s ongoing breach and failure to cure such breach, at which time the then unpaid portion of the Separation Consideration shall be immediately due and payable, or alternatively that the Company’s breach has been cured. Nothing in this Paragraph 3(c), however, shall preclude the Company from legally challenging or raising any defenses to any breach alleged by Executive.

 

(d) Executive acknowledges and agrees that Executive would not receive the Separation Consideration except for Executive’s execution of this Agreement and the fulfillment of the promises contained herein. The Separation Consideration described in this Paragraph 3 is expressly contingent upon the Executive’s material compliance with the terms of this Agreement and those provisions of the Employment Agreement that survive Executive’s separation of employment. Should Executive fail to comply with the terms of this Agreement or the Employment Agreement, then the Company shall provide Executive with written notice of such alleged material non-compliance, citing to the provision(s) of this Agreement and/or Employment Agreement and the known facts relied upon by the Company as the basis for Executive’s alleged non-compliance, and provide Executive with a period of thirty (30) days to cure any alleged non-compliance (the “Executive Cure Period”). During the Executive Cure Period, any payments due in accordance with Paragraph 3(a) above shall be suspended. Upon the expiration of the Executive Cure Period, the Company shall have a period of ten (10) days to then provide Executive with written notice of Executive’s ongoing breach and failure to cure such breach, or alternatively that Executive’s breach has been cured, at which time the Company shall resume the payment of the Separation Consideration, including making a catch-up payment of all payments suspended during the Executive Cure Period. In the event that the Company declares a breach in accordance with this Paragraph 3(d), then Executive shall forfeit rights to receive unpaid Separation Consideration amounts (except that Executive shall retain the right to receive a single payment of one hundred dollars and zero cents ($100.00)), and Executive shall immediately return to the Company the net-of-tax amounts of any payments already made to him, except that Executive may retain one hundred dollars ($100.00) of the net-of-tax payments already made to him. In the event of such a breach, Executive consents and agrees to the following written statement: “Executive has not claimed a FICA refund or credit of the amount of the overcollection, or if he has, such claim has been rejected, and Executive will not claim a FICA refund or credit of the amount.” Further, in the event of such a breach, to the extent the Company is unable to obtain a refund of any income taxes already withheld, Executive shall be responsible for repayment of such income taxes. Nothing in this Paragraph 3(d), however, shall preclude Executive from legally challenging or raising any defenses to any breach alleged by the Company.

 

 

4. Release of Claims. In consideration of the promises and payments set forth herein, and as a material inducement for the parties to enter into this Agreement, the parties state as follows:

 

(a) Executive, on behalf of himself and his representatives, heirs, successors, assigns, devisees and executors, hereby unconditionally releases, acquits, and forever discharges the Company, Rubicon Technologies, Inc., Rubicon Technologies, LLC, Rubicon Technologies International, Inc., Rubicon Global, LLC, Cleanco LLC, Charter Waste Management, Inc., Rubicon Technologies Germany UG, and RiverRoad Waste Solutions, Inc. and each of their current, former and future parents, subsidiaries, affiliates, estates, divisions, successors, insurers and assigns, attorneys and all of their owners, stockholders, general or limited partners, agents, directors, managers, officers, trustees, employees, representatives, executives, the subrogees of all of the above, and all successors and assigns thereof (collectively, the “Releasees”), from any and all claims, charges, complaints, demands, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, entitlements, costs, losses, debts, and expenses (including attorneys’ fees and legal expenses) of any nature whatsoever, known or unknown, which Executive now has, had, or may hereafter claim to have had against the Releasees and/or any of them by reason of any matter, act, omission, transaction, occurrence, or event that has occurred or is alleged to have occurred up to and including the Effective Date (as defined in Paragraph 6) of this Agreement (the “Release”). Notwithstanding the foregoing, this Release shall not operate as a release of: (i) any obligations set forth in this Agreement; (ii) any vested rights held by Executive under any fringe benefit plan maintained by the Company or any of its parents, subsidiaries, and/or affiliates (except as expressly set forth in Paragraph 2 above with respect to Executive’s RSUs, each in accordance with the terms and provisions of such plan; (iii) any rights to indemnification that Executive may have under any bylaws or agreements with the Company and/or its parents, subsidiaries and/or affiliates, or under any insurance policy maintained by the Company and/or its parents, subsidiaries and/or affiliates, including, without limitation, under the Directors and Officers Liability Insurance policy referenced in Section 10 of the Employment Agreement; and/or (iv) any claims that may not be released by operation of law. Any reference to a “general release” in this Agreement shall not operate as a release of the claims in subparts (i) through (iv) herein.

 

(b) Executive also specifically agrees that the parties intend the Release to be general and comprehensive in nature and to release all claims and potential claims against the Releasees to the maximum extent permitted by law. The Release includes a knowing and voluntary waiver and release of any and all claims including, but not limited to, claims relating to any Special Bonus (as defined in the Employment Agreement) and claims for nonpayment of wages, overtime or bonuses or any other claims relating to compensation or Executive’s employment, breach of contract, fraud, loss of consortium, emotional distress, personal injury, injury to reputation, injury to property, intentional torts, negligence, wrongful termination, constructive discharge, retaliation, discrimination, harassment, non-payment of equity in the Company, and any and all claims for recovery of lost wages or back pay, fringe benefits, pension benefits, liquidated damages, front pay, compensatory and/or punitive damages, attorneys’ fees, injunctive or equitable relief, or any other form of relief under any federal, state, or local constitution, statute, law, rule, regulation, judicial doctrine, contract, or common law. Specifically included, without limitation, in this Release is a knowing and voluntary waiver and release of all claims, including without limitation all claims of employment discrimination, harassment, or retaliation or relating to any manner of employee benefits, under: the Americans With Disabilities Act Amendments Act of 2008; Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991; the Age Discrimination in Employment Act; the National Labor Relations Act; the Family and Medical Leave Act; the Occupational Safety and Health Act; the Executive Retirement Income Security Act of 1974; the Lilly Ledbetter Fair Pay Act of 2009; the California Equal Pay Law; the California Fair Employment and Housing Act; the California Business and Professions Code; the California Family Rights Act; the California Pregnancy Disability Leave Law; the California Government Code; the California Labor Code (including, but not limited to, sections 203, 204, 206, 210, 216, 218, 218.5, 218.6, 225.5, 226, 226.3, 226.7, 246, 246.5, 247, 247.5, 248, 248.1, 510, 512, 558, 1050 et seq., 1102.5 et seq., 1194, 1194.2, 1197, 1197.1, 1198, 1400 et seq., and/or 2698 et seq.); any California Industrial Welfare Commission Wage Order; the California Military & Veterans Code; the California Civil Code; the Unruh Civil Rights Act; the California Domestic Violence and Sexual Assault Victim Leave Act; the California Worker Adjustment and Retraining Notification Act; the California Whistleblower Law; any other state and local laws of California that may be lawfully waived by agreement; and any federal, state, or local constitution, statute, law, rule, ordinance, regulation, judicial doctrine, contract, common law, or other theory arising out of any matter, act, omission, transaction, occurrence, or event that has occurred or is alleged to have occurred up to and including the Effective Date of this Agreement.

 

 

(c) Executive expressly acknowledges that this Agreement may be pled as a complete defense and may bar any and all claims, known or unknown, against any or all the Releasees based on any matter, act, omission, transaction, occurrence, or event that has occurred or is alleged to have occurred up to and including the Effective Date of this Agreement.

 

(d) Executive specifically acknowledges that he is aware of and familiar with the provisions of California Civil Code Section 1542, which provides as follows:

 

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

 

Executive, being aware of this section, hereby expressly waives and relinquishes all rights and benefits he may have under this section as well as any other statutes or common law principles of a similar effect.

 

(e) Executive acknowledges that this general release extends also to claims that Executive does not know or suspect to exist in Executive’s favor at the time of executing this Agreement which, if known by Executive, might have materially affected Executive’s decision to execute this Agreement.

 

(f) Executive hereby knowingly and voluntarily waives and relinquishes all rights and benefits which Executive may have under applicable law with respect to such general release provisions.

 

(g) The Company represents and warrants that it is not presently aware of any facts or information that would give rise to any claims, charges, complaints, demands, actions, causes of action, or lawsuits against Executive. In addition to the foregoing, the Company, on behalf of itself and its parents, subsidiaries, and affiliates, hereby releases Executive and agrees to indemnify, hold harmless and defend Executive from any and all claims that in any way relate to the Company’s dispute with Cass Information Systems.

 

 

5. Release of Claims under the Age Discrimination in Employment Act (“ADEA”) and Older Workers Benefit Protection Act (“OWBPA”). Executive understands and acknowledges that before signing this Agreement:

 

(a) He has read and been given ample opportunity to study this Agreement;

 

(b) He has been and hereby is advised in writing to consult with an attorney before signing this Agreement, he has in fact consulted with an attorney prior to signing this Agreement or has voluntarily chosen to forgo advice of counsel in connection with signing this Agreement;

 

(c) He is waiving any rights he may have under the ADEA and OWBPA, 29 U.S.C. § 621 et. seq.;

 

(d) He is receiving consideration for this waiver beyond that to which he is otherwise entitled;

 

(e) He is signing this Agreement voluntarily with full knowledge that it is intended, to the maximum extent permitted by law, as a complete and final release and waiver of any and all claims, including, but not limited to, age discrimination claims;

 

(f) He has been provided the opportunity to consider this Agreement for twenty-one (21) days before signing it and, in the event that he decides to execute this Agreement in fewer than twenty-one (21) days, he does so with the express understanding that he was given and declined the opportunity to consider this Agreement for twenty-one (21) days; and

 

(g) He may revoke this Agreement at any time during the seven (7) days following the date he signs this Agreement, and the Agreement shall not become effective or enforceable until the revocation period has expired without the revocation of Executive’s agreement. Any revocation must be in writing and delivered by electronic mail to Rubicon, attention Osman H. Ahmed, osmanhahmed@gmail.com. Failure to revoke within seven (7) days will result in the release of his claims being permanent. If Executive revokes within 7 days, the entire Agreement is void and Executive will have no entitlement to the payments and/or benefits described in Paragraph 3, or any other amount or benefit, from Rubicon.

 

6. Effective Date of Agreement and Opportunity to Review. This Agreement shall not become effective or enforceable until the “Effective Date,” defined as the date when the last of the following events occurs: (i) Executive executes the Agreement; (ii) the period for revoking the Agreement, as described in Paragraph 5(g), has passed without Executive’s revocation of the Agreement; (iii) receipt by the Company of a scanned copy of this Agreement executed by Executive containing Executive’s ink signature; and (iv) the occurrence of the Separation Date. Executive shall provide copies of the executed Agreement to the Company by electronic mail, Attn: Osman H. Ahmed, osmanhahmed@gmail.com.

 

 

7. Non-Disparagement and Non-Interference. For and in consideration of the payments, promises, and other consideration described in this Agreement, and as a significant material inducement for the Company and Executive to enter into this Agreement, Executive covenants and agrees that, except as inconsistent with Paragraph 10 or applicable law, Executive will not disparage or defame the Company, including its officers, directors, management, executives, employees, suppliers, products and services. Executive understands and agrees that this restriction prohibits Executive from making disparaging or defamatory remarks toward or about the Company, its officers, board, board of advisors, management, executives, employees, suppliers, or products in their capacities as such (1) to any member of the general public, including, but not limited to, any customer or vendor of the Company; (2) to any current or former officer, manager, executive, or employee of the Company; or (3) to any member of the press or other media. If Executive receives a subpoena or other legal document concerning Executive’s employment with the Company, then, to the extent permitted by law and provided it is consistent with Paragraph 10 of this Agreement, Executive agrees to notify the Board within ten (10) business days of receipt of the legal document requiring Executive to provide this information and to cooperate with any reasonable efforts by the Company, at its own cost and expense, to limit the production of any such information, including conditioning any such production on the entry of a confidentiality and/or protective order(s).

 

This Paragraph does not in any way restrict or impede Executive from exercising protected rights (to the extent Executive is deemed to have such rights under applicable law), including rights under: (i) the National Labor Relations Act and the right to file unlawful labor practice (ULP) charges or participate, assist, or cooperate in ULP investigations; and (ii) the federal securities laws, including the right to report possible securities law violations to the SEC, without notice to the Company. Moreover, nothing in this Agreement is intended to or does in any way: (i) prevent Executive from discussing or disclosing information about unlawful acts in the workplace, such as harassment (including sexual harassment), discrimination, sexual assault, or any other conduct that Executive has reason to believe is unlawful; (ii) waive any rights which cannot be waived by agreement; (iii) prevent Executive from engaging in lawful competition in connection with Executive’s business endeavors following the Separation Date; or (iv) prevent Executive from otherwise disclosing information as permitted or required by law. This Paragraph also does not prevent Executive from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order.

 

In exchange for Executive’s promises in this Section 7, the Company agrees to instruct its Board to not disparage or defame Executive: (1) to any member of the general public, including, but not limited to, any customer or vendor of the Company; (2) to any current or former officer, manager, executive, or employee of the Company; or (3) to any member of the press or other media. Moreover, Executive must direct any recruiter or prospective employer of Executive to the Vice President of Human Resources of the Company who shall confirm Executive’s last position and salary held with the Company and that Executive voluntarily resigned from his employment. Executive agrees that the Company shall have no obligations under this Paragraph to the extent that the recruiter or prospective employer of Executive contacts anyone other than the Vice President of Human Resources of the Company.

 

 

8. Return to Company. Executive warrants, represents, covenants, and agrees that as of the Effective Date, Executive has returned to the Company all Company documents, records, property, and information, in any form, including, but not limited to, Company files, electronic messages, notes, drawings, records, business plans and forecasts, financial information, specifications, business planning or strategy information, information about the Company’s executives, customer identity information, tangible property including, but not limited to, computers, intellectual property, credit cards, key fobs, mobile telephones, entry cards, identification badges and keys; and any materials of any kind which contain or embody trade secrets or other confidential information of the Company (and all embodiments, copies, or extracts thereof), which Executive has acquired or possessed during Executive’s employment. Executive also warrants, represents, covenants, and agrees that Executive has not made or retained and shall not make or retain any embodiment, copy, or extract thereof. Executive will not copy, delete, or alter any information contained upon Executive’s Rubicon computer or Rubicon equipment before Executive returns it to Rubicon. Notwithstanding the foregoing, Executive may retain copies of any agreements and documents related to his compensation and benefits provided by the Company.

 

9. Cooperation. Executive agrees to be reasonably available to the Company to respond to reasonable requests by the Company for information pertaining to or relating to the Company and/or any of the Releasees or any of their agents, officers, directors, managers, executives, or employees which may be within the knowledge of Executive. Executive will cooperate fully with the Company in connection with any and all existing or future depositions, litigations and/or investigations (including internal investigations) brought by or against the Company or any of the Releasees or any of their agents, officers, directors, managers, executives or employees, whether administrative, civil or criminal in nature, in which and to the extent the Company, in its sole discretion, deems Executive’s cooperation necessary. This cooperation may include without limitation making himself reasonably available to participate in any proceeding, inquiry, and/or investigation involving any of the Releasees, allowing himself to be interviewed by representatives of the Releasees, participating as requested in interviews and/or preparation by any of the Releasees of other witnesses, appearing for depositions and testimony without requiring a subpoena, and producing and/or providing any documents and/or information. Executive also understands and agrees to provide only honest, accurate, and complete information in connection with any and all existing or future depositions, litigations and/or investigations (including internal investigations) brought by or against the Company or any of the Releasees in which and to the extent the Company deems Executive’s cooperation necessary. Executive also represents and agrees that he has not and will not withhold, tamper with or fail to communicate relevant information and will provide and maintain all relevant information as directed by the Releasees. Executive hereby further agrees to execute all truthful documents and take such other actions as the Company may reasonably request in order to accomplish the purposes of this Agreement. The Company will reimburse Executive for reasonable out-of-pocket expenses incurred as a result of such cooperation (this does not include an hourly fee), provided that Executive complies with all Company policies and/or directions for submission of expense reimbursement requests. The prior sentence is not intended to affect the substance of any testimony or cooperation that Executive provides. In connection with Executive’s cooperation under this Paragraph 9, the Company agrees to take reasonable measures, to the extent possible under the circumstances, not to interfere with Executive’s professional and personal obligations.

 

 

10. Cooperation with Government Agencies and Regulatory Organizations. Nothing in this Agreement (or any other policy, plan, or program of the Company) is intended to, or shall be deemed to, prohibit or restrict Executive in any way from communicating directly with, reporting to, cooperating with, responding to any inquiry from, or providing testimony before, the Securities and Exchange Commission, FINRA, or any other self-regulatory organization, or any other federal or state regulatory authority, or governmental agency or entity, regarding any possible securities violation or other possible violation of law or this Agreement or its underlying facts and circumstances. In addition, nothing in this Agreement is intended, or shall be deemed, to interfere with Executive’s ability to file a charge or complaint with the Equal Employment Opportunity Commission or any other federal, state, or local government agency or commission, including those agencies responsible for enforcing equal opportunity laws or limit Executive’s ability to participate in any investigation or proceeding conducted by any such agency or commission. Moreover, Executive is not required to provide advance notice to, or have prior authorization from, the Company in order to engage in any of the foregoing activity referenced in this Paragraph. Without prior authorization of the Board, however, the Company does not authorize Executive to disclose to any third party (including any government official or any attorney Executive may retain) any communication that is covered by the Company’s attorney-client or other privilege. Executive further acknowledges and agrees that the consideration paid to him under this Agreement represents full and complete satisfaction of any monetary recovery against any of the Releasees that could be sought by or awarded to him in any judicial, administrative, or arbitral proceeding with respect to any claim released under this Agreement and that he will not be able to obtain any monetary relief or any other remedy, including costs or attorneys’ fees in connection with any proceeding initiated or maintained by the EEOC or any state or local government agency responsible for enforcing equal employment opportunity laws. For the avoidance of doubt, this Agreement does not limit Executive’s eligibility to receive an award out of monetary sanctions collected by any government agency as provided by applicable whistle-blower programs.

 

11. Mandatory Binding Arbitration.

 

11.1 Mandatory Arbitration of All Disputes. This Paragraph 11 shall be governed by and interpreted in accordance with the Federal Arbitration Act. Executive and the Company agree that any controversy, claim, or dispute between or among them that cannot be resolved shall be adjudicated exclusively by final and binding individual arbitration in San Francisco, California or another agreed-upon location. The parties agree that the American Arbitration Association (the “AAA”) shall be the exclusive provider for all arbitrations, and Executive and the Company agree not to file, institute, or maintain any arbitration other than with the AAA. The arbitration will be governed by the AAA Employment Arbitration Rules and Mediation Procedures (available at www.adr.org/employment) and subject to the AAA Employment Due Process Protocol, if applicable, except as they are modified by the parties. Unless otherwise agreed by the parties, the arbitration will be submitted to a single arbitrator selected in accordance with AAA rules. The arbitrator must follow applicable law and may award only those remedies (including, without limitation, attorney’s fees and costs) that would have been available had the claim(s) been heard in court. In addition, the arbitrator is required to issue a written arbitration award setting forth the essential findings and conclusions on which any award is based. The Company will pay all arbitration administrative fees (including filing fees), the arbitrator’s fees and costs, and any other fees or costs unique to arbitration. The Company will pay the arbitration administrative fees, the arbitrator’s fees and costs, and any other fees or costs unique to arbitration within one hundred eighty (180) days of receipt of an invoice from the AAA setting forth the full amount of unique arbitration fees and costs due. Each party shall be responsible for paying her/its own litigation costs for the arbitration, including, but not limited to, attorneys’ fees, witness fees, transcript fees, or other litigation expenses that each party would otherwise be required to bear in a court action, subject to any relief awarded by the arbitrator in accordance with applicable law.

 

 

The parties shall be entitled to conduct adequate and reasonable discovery in accordance with the AAA Rules and the applicable provisions of the California Code of Civil Procedure. The arbitrator has the authority to resolve all discovery disputes and limit the form and amount of discovery to that reasonably necessary to arbitrate the dispute or claim presented.

 

11.2 Covered Disputes. Except as expressly set forth below, the foregoing shall apply to the following “Covered Disputes”: (i) all disputes and claims related to the Release and all other disputes and claims of any nature that Executive may have against the Releasees, including any and all statutory, contractual, and common law claims unless prohibited by applicable law, (ii) all disputes and claims of any nature that the Releasees may have against Executive or that Executive may have against any Releasee(s), (iii) all disputes and claims related to any breach of this Agreement or any post-employment obligation under the Employment Agreement, (iv) all disputes and claims concerning the validity and/or enforceability of the Agreement, and (v) all disputes concerning the validity, enforceability, or the applicability of this Paragraph 11 to any dispute or claim. The term “Covered Disputes” does not include, and this Paragraph 11 does not apply to: (a) claims seeking unemployment insurance benefits, state disability insurance benefits, or workers’ compensation benefits, except that claims for retaliation pursuant to these laws shall be subject to arbitration under this Paragraph 11; (b) claims for benefits under ERISA, which must be resolved in accordance with the terms and procedures set forth in the applicable plan documents; (c) Sarbanes-Oxley Act, Consumer Financial Protection Bureau, and Commodity Futures Trading Commission whistleblower claims; or (d) any other claims that are not permitted to be subject to a pre-dispute arbitration agreement under applicable federal law and/or federal regulation.

 

11.3 Delegation. The arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this Paragraph 11 and/or to the arbitrability of any claim or counterclaim.

 

11.4 Charges/Complaints with Government Agencies. Nothing in this Paragraph 11 affects Executive’s right to file a charge with, make a complaint to, or participate in an investigation or other proceeding of the EEOC (or any similar state or local bodies), the National Labor Relations Board, or any other administrative, law enforcement, or regulatory body. Notwithstanding the foregoing, Executive may seek monetary relief with respect to a dispute or claim covered by this Paragraph 11 only through an arbitration conducted pursuant to this Paragraph 11.

 

11.5 Enforcement of Arbitration Award. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Paragraph 11 and to enforce an arbitration award.

 

11.6 Waiver of Class, Collective, and Representative Actions. To the extent permitted by law, Executive and the Releasees waive any right or authority to have any Covered Disputes heard as a class, collective, or representative action. Executive and the Releasees must bring any Covered Dispute in an individual capacity, and not as a plaintiff, “opt-in”, or class member in any purported class, collective, or representative proceeding. The arbitrator may not join or adjudicate the claims or interests of any other person or employee in the arbitration proceeding, nor may the arbitrator otherwise order any consolidation of actions or arbitrations or any class, collective, or representative arbitration.

 

 

11.7 Confidentiality of Proceedings. Executive and the Company agree that the resolution of Covered Disputes likely would involve information that each considers to be sensitive, personal, confidential, and/or proprietary and that Executive and the Releasees intend to resolve the Covered Disputes in a non-public forum. Accordingly, except as provided by Paragraph 10, Executive and the Company agree that all information regarding the Covered Dispute or arbitration proceedings, including the arbitration award, will not be disclosed by Executive, the Company, any arbitrator, or the AAA to any third party without the written consent of both Executive and the Company, except as necessary to comply with a subpoena, court order or other legal requirement, to prosecute or to defend a claim, to enforce an arbitration award, or to meet a reasonable business need of the Company. To the extent that either party files any suit, complaint, or proceeding with any court or other public forum with respect to a Covered Dispute (including, but not limited to, proceedings to challenge the arbitrability of a matter, to compel arbitration or to enforce an arbitration award or for injunctive relief pending arbitration), such party shall take all measures and use best efforts to file such complaint or proceeding under seal or in other manner designed to protect the confidentiality of the Covered Dispute to the maximum extent possible.

 

11.8 Injunctive Relief Pending Arbitration. Notwithstanding the foregoing, Executive and/or the Company may seek any injunctive relief (including without limitation temporary and preliminary injunctive relief) necessary in order to maintain (or restore) the status quo and/or to prevent the possibility of irreversible or irreparable harm during the pendency of any arbitration.

 

11.9 Governing Terms. In the event there is any conflict between this Paragraph 11 and any provisions in the Employment Agreement providing for arbitration, the provisions of this Paragraph shall supersede and govern.

 

12. Code Section 409A. Certain compensation and benefits payable under this Agreement are intended to be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and regulations and other official guidance thereunder (“Code Section 409A”), and other compensation and payments are intended to comply with Code Section 409A. The provisions of this Agreement shall be construed and interpreted in a manner that compensation and benefits are either exempt from or compliant with the application of Code Section 409A, and which does not result in additional tax or interest to Executive under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, if upon Executive’s termination of employment Executive is a specified employee, as defined in Code Section 409A(a)(2)(B), and if any portion of the payments or benefits to be received by Executive upon separation from service would be considered deferred compensation under Code Section 409A, then such payments shall be delayed until the earliest of (a) the date that is at least six months after Executive terminates employment for reasons other than Executive’s death, (b) the date of Executive’s death, or (c) any earlier specified date that does not result in additional tax or interest to Executive under Code Section 409A. As soon as practicable after the expiration of such period, the entire amount of the delayed payments shall be paid to Executive in a single lump sum.

 

For purposes of this Agreement, references to a termination of employment shall be construed consistently with the definition of a “separation from service” under Code Section 409A. With respect to any taxable reimbursements or in-kind benefits provided for under this Agreement or otherwise payable to Executive, the Company (a) shall make all such reimbursements no later than Executive’s taxable year following the taxable year in which the expense was incurred, (b) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, and (c) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for other benefits. Each payment and benefit payable under this Agreement is intended to constitute separate payments for purposes of Section l.409A-2(b)(2) of the Treasury Regulations.

 

 

13. Code Section 280G. In the event amounts payable hereunder are contingent on a change in control for purposes of Code Section 280G and it is determined by a tax practitioner retained by the Company that any payments made or provided to the Executive in connection with this Agreement or otherwise (“Total Payments”) would be subject to the excise tax under Code Section 4999 (the “Parachute Tax”), such payments otherwise to be paid under this Plan will be payable in full or, if applicable, in such lesser amount which would result in no portion of the Total Payments being subject to the Parachute Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Parachute Tax, results in the receipt by the Executive, on an after-tax basis, of the greatest amount of Total Payments. The reporting and payment of any Parachute Tax will be the responsibility of the Executive and neither the Company nor any other member of Rubicon will provide a gross-up or any other payment to compensate the Executive for the payment of the Parachute Tax. The Company will withhold from such payments any amounts it reasonably determines is required under Code Section 4999(c).

 

14. Tax Consequences. Executive shall be responsible for any tax consequences of any payment, benefit, or reimbursement made or provided pursuant to this Agreement. Executive shall indemnify the Company and hold it harmless for any tax liability (including any penalties and/or attorneys’ fees) incurred as a result of any payment, benefit, or reimbursement described herein. Executive acknowledges and agrees that the Company is not undertaking to advise Executive with respect to any tax consequences of this Agreement, and that Executive is solely responsible for determining those consequences and satisfying all applicable tax obligations resulting from any payment described herein.

 

15. Non-Admission of Liability or Wrongdoing. The furnishing of the consideration for this Agreement shall not be deemed or construed as an admission of liability, responsibility, or wrongdoing by the Company or Executive for any purpose. The Company expressly denies that it (or any other entity or individual of the Company) ever engaged in any wrongdoing in relation to Executive’s employment with the Company or otherwise, and expressly denies liability for any and all claims alleged, or that may be alleged, by Executive.

 

16. No Assignment by Executive. Executive represents and warrants that Executive has not assigned to any other person, and that no other person is entitled to assert on Executive’s behalf, any claim against any of the Releasees based on matters released in this Agreement. Executive shall indemnify and hold the Company harmless from and against any liability, costs, or expenses (including any penalties and/or attorneys’ fees) incurred in the defense or as a result of any such claims or the breach of the representation and warranty made by Executive in this Paragraph. Executive further represents and warrants that he may not assign this Agreement. Without limiting the foregoing, the Company may assign its rights and delegate its duties hereunder in whole or in part and/or to any transferee of all or a portion of the assets or business to which this Agreement relates. Any such assignment, however, shall not operate to limit the Company’s obligations to Executive under this Agreement.

 

 

17. Successors and Assigns. Executive expressly agrees that this Agreement, including the rights and obligations hereunder, maybe transferred and/or assigned by Rubicon without the further consent of Executive, and that this Agreement is for the benefit of and may be enforced by Rubicon, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but it is not assignable by Executive.

 

18. Waiver of Breach. The failure of the Company or Executive at any time to require performance of any provision of this Agreement shall in no way affect its or his right thereafter to enforce the same, nor shall the waiver by the Company or Executive of any breach of any provision of this Agreement be taken or held to be a waiver of any succeeding breach of any provision, or as a waiver of the provision itself.

 

19. Binding Agreement. This Agreement is a contract between Executive and the Company and not merely a recital. Executive acknowledges that any breach by the Company of any contractual, statutory, or other legal obligation to Executive shall not excuse or terminate Executive’s obligations hereunder or otherwise preclude the Company from seeking relief pursuant to any provision of this Agreement, except as expressly set forth in this Agreement. The Company likewise acknowledges that any breach by Executive of any contractual, statutory, or other legal obligation to the Company shall not excuse or terminate the Company’s obligations hereunder or otherwise preclude Executive from seeking relief pursuant to any provision of this Agreement, except as expressly set forth in this Agreement.

 

20. Modification. No change or modification to this Agreement shall be valid or binding unless the same is in writing and signed by the parties hereto.

 

21. Severability. The terms, conditions, covenants, restrictions, and other provisions contained in this Agreement are separate, severable, and divisible. If any term, provision, covenant, restriction, or condition of this Agreement or part thereof, or the application thereof to any person, place, or circumstance, shall be held to be invalid, unenforceable, or void, the remainder of this Agreement and such term, provision, covenant, or condition shall remain in full force and effect to the greatest extent permissible by law, and any such invalid, unenforceable, or void term, provision, covenant, or condition shall be deemed, without further action on the part of the parties hereto, modified, amended, limited, or deleted to the extent necessary to render the same and the remainder of this Agreement valid, enforceable, and lawful.

 

22. Complete Agreement. Except as provided herein, this Agreement supersedes all previous or contemporaneous agreements, whether oral or written, between and among the parties hereto, if any, with respect to the subject matter referred to herein. Executive affirms that the only consideration for executing this Agreement is the payments, promises, and other consideration expressly contained or described herein. Executive further represents and acknowledges that, in executing this Agreement, Executive does not rely and has not relied upon any promise, inducement, representation, or statement by the Company or any of the Releasees or their respective agents, representatives, or attorneys about the subject matter, meaning, or effect of this Agreement that is not stated in this document. For avoidance of doubt, all provisions in the Employment Agreement which by their terms survive the termination of employment shall survive as provided in the Employment Agreement (and, if applicable, as modified by this Agreement) and shall not be extinguished or superseded by this Agreement; provided that, all provisions providing for compensation (including but not limited to in the event of any sale event or change in control), RSUs, equity, and bonuses (including but not limited to annual bonuses, incentive bonuses, special bonuses, and retention bonuses) are extinguished and superseded by this Agreement.

 

 

23. Construction. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. The paragraph headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

 

24. Governing Law. This Agreement shall be governed, construed, and interpreted under and in accordance with the laws of the State of California, without regard to any conflict of laws principles that would direct the application of another jurisdiction’s laws.

 

25. Acknowledgments. Executive acknowledges and represents that the waiver and release of claims in this Agreement are knowing and voluntary and are given only in exchange for new consideration that is in addition to anything of value to which Executive already is entitled absent this Agreement. Executive acknowledges that the language of this Agreement is understandable to Executive and is understood by Executive, and that Executive has been given a reasonable period within which to consider the Agreement before executing it. Executive further acknowledges that Executive has been and is hereby advised to consult, and has in fact consulted or had a reasonable opportunity to consult, an attorney of Executive’s choosing before executing the Agreement, and that Executive has obtained all advice and counsel Executive needs to understand all terms and conditions of this Agreement.

 

26. Notices. All notices, requests, demands and other communications required or permitted hereunder shall be in writing and be deemed to have been duly given if delivered or three days after mailing if mailed, first class, certified mail, postage prepaid:

 

To the Company:

 

Rubicon Technologies Holdings, LLC

335 Madison Avenue

Floor 4, Suite A

New York, New York 10017

Attn: Board of Directors

 

 

To the Executive:

 

Phil Rodoni

PO Box 1296

Point Reyes Station, CA 94956

 

With a copy, via electronic mail, to:

 

Henry M. Perlowski

Arnall Golden Gregory LLP

Henry.Perlowski@agg.com

 

Any party may change the address to which notices, requests, demands and other communications shall be delivered or mailed by giving notice thereof to the other party in the same manner provided herein.

 

27. Execution. This Agreement may be executed in one or more counterparts as originals, all of which constitute one original.

 

AS PROVIDED IN PARAGRAPH 6, THIS AGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL RECEIPT BY THE COMPANY OF A SCANNED COPY OF THIS AGREEMENT EXECUTED (AND NOT REVOKED) BY EXECUTIVE CONTAINING EXECUTIVE’S INK SIGNATURE.

 

THE UNDERSIGNED HAVE CAREFULLY READ THIS AGREEMENT; THEY KNOW AND UNDERSTAND ITS CONTENTS; THEY FREELY AND VOLUNTARILY AGREE TO ABIDE BY ITS TERMS; AND THEY HAVE NOT BEEN COERCED INTO SIGNING THIS AGREEMENT.

 

PHIL RODONI			RUBICON TECHNOLOGIES HOLDINGS, LLC
			By:	/s/ Osman H. Ahmed
				Osman H. Ahmed
			Title:	Lead Independent Director
Date:	June 27, 2024		Date:	June 27, 2024

 

 

APPENDIX A

 

DEFINITIONS

 

For the purposes of Paragraph 3(b) of this Agreement, the following terms shall have the following meanings:

 

(a) “Affiliate” means any organization, firm, or entity (i) in respect of which Company has or shall have during the term of this Agreement, an ownership interest of fifty percent (50%) or more; or (ii) which directly or indirectly through one or more intermediates, controls, is controlled by, or is in common control with Company.

 

(b) “Change in Control Event” shall mean the occurrence of any of the following:

 

(i) any sale, directly or indirectly, of more than 50% of the equity securities of the Company to any Person or group of Persons acting in concert excluding a sale to any Affiliate of the Company;

 

(ii) any merger or consolidation of the Company with or into any Person where those Persons who, directly or indirectly, own equity securities in the Company immediately prior to the effective date of the merger or consolidation and their Affiliates own, directly or indirectly, less than 50% of the equity securities in the entity surviving the merger or consolidation;

 

(iii) the meaning ascribed in the Company’s Operating Agreement, as amended and includes a transaction pursuant to which a special purpose acquisition company or other similar vehicle (or, in either case, a subsidiary thereof) acquires ownership of the Company or its operating subsidiaries, whether by merger, purchase or otherwise; or

 

(iv) a minority recapitalization of the business with an investor investing new capital into the Company and, upon such investment, then owning more than forty percent (40%) of the Company’s common stock.

 

For the avoidance of doubt, any transfer, directly or indirectly, of equity securities of the Company by gift or bequest shall not constitute a Change of Control. Notwithstanding the foregoing, a transaction shall not be deemed a Change of Control unless the transaction qualifies as a Change of Control event within the meaning of Code Section 409A, as it has been and may be amended from time to time, and any proposed or final Treasury Regulations and Internal Revenue Service guidance that has been promulgated or may be promulgated thereunder from time to time.

 

(c) “Person(s)” mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities, other than the Company or an Affiliate of the Company.

 

(d) “Sale of Assets Event” means a sale(s) of all or substantially all of the Company’s assets to any Person, excluding any Affiliate of the Company.

 

 

Exhibit 10.2

 

EMPLOYMENT AGREEMENT

 

THIS EMPLOYMENT AGREEMENT (this “Agreement”), dated as of June 27, 2024, is made by and between Rubicon Technologies, Inc., a Delaware corporation (the “Company”), and Osman H. Ahmed (“Executive”). This Agreement shall govern the relationship between Executive and the Company from and after June 28, 2024 (the “Start Date”).

 

WHEREAS, the Company desires to employ Executive pursuant to the terms and conditions set forth in this Agreement; and

 

WHEREAS, Executive is willing and able to be employed by the Company and desires to do so on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the above recitals incorporated herein and the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the parties agree as follows:

 

1. Retention and Duties.

 

(a) The Company hereby engages and employs Executive for the Term (as defined in Section 2) on the terms and conditions expressly set forth in this Agreement. Executive hereby accepts and agrees to such engagement and employment, on the terms and conditions expressly set forth in this Agreement.

 

(b) During the Term, Executive shall serve as the Interim Chief Executive Officer (the “Interim CEO”) of the Company, and shall perform such duties consistent with such position and as may from time to time be assigned to Executive by the Company’s Board of Directors (the “Board”) or the Board’s designee. As the Interim CEO Officer of the Company, Executive shall report to the Board or the Board’s designee. In addition, the Board may from time to time, in its sole discretion, assign to the Executive such other duties, authorities and responsibilities that are not inconsistent with the Executive’s position as the Interim CEO of the Company, including without limitation, service as an officer and/or on the boards of directors and committees of one or more of the Company’s subsidiaries, in each case, without additional compensation.

 

(c) Executive shall be located and perform his principal duties hereunder remotely at Executive’s principal residence located in the State of New York. Notwithstanding the foregoing, Executive agrees and acknowledges that significant travel may be part of the performance of his services hereunder.

 

(d) During the Term, Executive shall devote his entire working time, attention, and energies to the Company and shall not be engaged in any other business activity, whether or not such business activity is pursued for gain, profit or other pecuniary advantage, without the prior written consent of the Board. While Executive serves as Interim CEO of the Company, the foregoing is not intended to restrict Executive’s ability to serve on the boards of civic, for-profit or charitable organizations; provided, that the foregoing activities are not competitive with the business of the Company and do not interfere or conflict with Executive’s duties and obligations on behalf of the Company or create a potential business or fiduciary conflict of interest. Executive agrees to use best efforts to perform his duties and responsibilities within, and agrees to abide by, the Company’s written general employment policies and practices and such other reasonable policies, practices and restrictions as the Company shall from time to time establish and maintain for its executives.

 

 

2. Term. The “Term” shall be the period commencing on the Start Date and ending at the close of business on the date following six (6) months following the Start Date, unless Executive’s employment with the Company terminates earlier pursuant to Section 5. The Term shall be extended automatically by successive one (1) month periods unless either party provides the other party with written notice of an intention to terminate the Agreement at least thirty (30) days prior to such termination or renewal date. The “Term” shall include any such automatic one (1) month extensions. The Term may be modified only by a written agreement between the parties and in such case, the term “Term” shall be deemed to mean the Term as so modified. Notwithstanding anything to the contrary in this Agreement, Executive’s employment with the Company shall be “at will.”

 

3. Compensation and Reimbursement of Expenses.

 

(a) Base Salary. During the Term, Executive’s annual base salary (the “Base Salary”) shall be $500,000, payable in accordance with the Company’s regular payroll practices in effect from time to time and subject to all applicable taxes and withholdings, but no less frequently than in semi-monthly installments. The Base Salary may be adjusted upward by the Compensation Committee of the Board (the “Compensation Committee”) in its sole discretion. The parties acknowledge and agree that a portion of Executive’s Base Salary shall constitute consideration for Executive’s compliance with the restrictions and covenants set forth in Section 6 of this Agreement.

 

(b) Transaction Bonus. Executive will be entitled to a cash transaction bonus (the “Transaction Bonus”) equal to $500,000 upon a Change of Control that occurs during the Term or within six (6) months thereafter. For purposes of this Agreement, “Change of Control” shall mean the earliest of the following events: (i) a sale, lease, license, transfer, conveyance or disposition, in one transaction or a series of related transactions, of substantially all of the Company’s assets to any buyer(s) or (ii) a transaction or series of related transactions (including by way of merger, consolidation, recapitalization, reorganization or sale of securities) which requires shareholder consent under the Company’s Organizational Documents or Applicable Law and results in a third-party’s acquisition of the equity or assets of the Company that constitutes more than fifty percent (50%) of the total fair market value or total voting power of the equity of the Company. If earned, the Transaction Bonus shall be paid to Executive within 21 days following the consummation of the Change of Control. For the avoidance of doubt, a buyer or third-party acquiror may include a current investor in the Company.

 

(c) Reimbursement of Business Expenses. Executive is authorized to incur reasonable expenses in carrying out his duties hereunder and shall, upon receipt by the Company of proper documentation with respect thereto (setting forth the amount, business purpose and establishing payment) be reimbursed for all such reasonable business expenses incurred during the Term, subject to the Company’s written expense reimbursement policies and any written pre-approval policies in effect from time to time.

 

4. Employee Benefits.

 

(a) Company Employee Benefit Plans. During the Term, Executive shall be provided the opportunity to participate in all standard employee benefit programs made available by the Company to the Company’s senior executive employees generally, in accordance with the terms and conditions of such plans, including the eligibility and participation provisions of such plans and programs, as such plans or programs may be in effect from time to time. The Company reserves the right to amend any employee benefit plan, policy, program or arrangement from time to time, or to terminate such plan, policy, program or arrangement, consistent with the terms thereof at any time and for any reason without providing Executive with notice.

 

 

(b) Vacation and Other Leave. During the Term, Executive shall be entitled to take up to ten (10) business days of paid vacation time during the Term, or such greater amount as may be provided pursuant to the Company’s vacation policies in effect from time to time. Such paid vacation time will accrue on a monthly basis, but Executive may take the paid vacation time anytime in the Term, prior to or following accrual thereof (to the extent not previously used). Executive shall also be eligible for all other holiday and leave pay generally available to other executives of the Company.

 

5. Termination of Employment.

 

(a) Termination by the Company; Termination Due to Death. Executive’s employment with the Company, and the Term, may be terminated by the Company immediately upon notice to Executive for an involuntary termination of employment for Cause (as defined in Section 5(f)(ii)), without Cause or due to Executive’s Disability (as defined in Section 5(f)(iii)). Executive’s employment with the Company, and the Term, shall automatically terminate upon Executive’s death.

 

(b) Termination by Executive. Executive’s employment with the Company, and the Term, may be terminated by Executive for any reason with no less than thirty (30) calendar days’ advance written notice to the Company.

 

(c) Benefits Upon Termination. If Executive’s employment with the Company is terminated during the Term for any reason by the Company or by Executive, the Company shall have no further obligation to make or provide to Executive, and Executive shall have no further right to receive or obtain from the Company, any payments or benefits except as follows:

 

(i) Any Termination. The Company shall pay Executive (or, in the event of his death, Executive’s estate) any Accrued Obligations (as defined in Section 5(f)(i)) within the thirty (30) day period (or such earlier period as required by law) following the date Executive’s employment terminates (the “Separation Date”), and Executive shall receive any vested accrued benefits for which Executive remains eligible under the Company’s employee welfare benefit and defined contribution retirement plans, payable according to the terms of such plans.

 

(ii) Non-Renewal by the Company; Without Cause; For Good Reason. If Executive’s employment with the Company ends as a result of a non-renewal of the Term by the Company (and conditions for a Cause termination do not otherwise exist), an involuntary termination by the Company without Cause or due to Executive’s resignation for Good Reason, then, in addition to the amounts payable under Section 5(c)(i), subject to Executive’s timely execution, delivery, and non-revocation of the general release described in Section 5(e) (the “General Release”) and the other conditions and limitations herein, the Company shall pay or provide Executive with the cash severance equal to $300,000 (the “Severance Payment”), payable in substantially equal installments over the eight (8) months following the Separation Date in accordance with the Company’s regular payroll payment schedule; provided, that no installment or portion of the Severance Payment shall be payable or paid prior to the expiration of the applicable revocation period for the General Release; and provided further, that if the Severance Payment is subject to Section 409A (as defined in Section 5(f)(v)) and the timing of Executive’s execution and delivery of the General Release could affect the calendar year in which any amount of the Severance Payment is paid because the Separation Date occurred toward the end of a calendar year, then no portion of the Severance Payment shall be paid until the Company’s first payroll payment date in the year following the year in which the Separation Date occurs, and any amount that is not paid prior to such date due to such restriction shall be paid (subject to the applicable conditions) along with the installment scheduled to be paid on that date. The Board may, in its sole discretion, require executive to provide reasonable advisory services to the Company during the severance period and for no additional consideration beyond the severance payment.

 

 

(d) Cooperation Upon Termination. Upon the Executive’s termination of employment for any reason, Executive shall cooperate as reasonably requested by the Board to effect an orderly transition.

 

(e) Release; No Other Severance Benefits.

 

(i) This Section 5(e) shall apply notwithstanding anything else in this Agreement to the contrary. As a condition precedent to any Company obligation pursuant to Section 5(c)(ii) (collectively, the “Severance Benefits”), Executive shall provide the Company with a valid, executed General Release in substantially the form attached hereto as Exhibit A (as reasonably revised by the Company to comply with applicable law changes or interpretations or as otherwise necessary to ensure or bolster enforceability or tax effectiveness), and not revoke such General Release prior to the expiration of any revocation rights afforded under applicable law. The Company shall provide Executive with the General Release prior to the Separation Date, and Executive must deliver the executed General Release to the Company within twenty-one (21) calendar days (or, if greater, the minimum period required by applicable law) after the Separation Date, failing which Executive will forfeit all rights to the Severance Benefits.

 

(ii) Executive agrees that the Severance Benefits shall be in lieu of any other severance benefit or other right or remedy to which Executive would otherwise be entitled under the Company’s plans, policies or programs in effect on the Start Date or thereafter. Executive acknowledges and agrees that in the event Executive breaches any provision of Section 6 or the General Release, his right to receive the Severance Benefits shall automatically terminate and Executive shall repay, return and restore any and all Severance Benefits received.

 

(f) Certain Defined Terms. As used in this Agreement:

 

(i) “Accrued Obligations” means (A) any Base Salary that had accrued but had not been paid (including any amount for accrued and unused vacation time payable in accordance with Section 4(b) or applicable law) on or before the Separation Date, (B) any reimbursement due to Executive pursuant to Sections 3 for expenses incurred by Executive on or before the Separation Date and (C) any other vested benefits or vested amounts due and owed to Executive under the terms of any plan, program or arrangement of the Company.

 

(ii) “Applicable Law” means any statute, law, ordinance, rule, principle of common law, regulation or governmental order, in each case, of any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court or tribunal.

 

 

(iii) “Cause” means (A) Executive’s indictment for or plea of nolo contendere to a felony or commission of an act involving moral turpitude; (B) Executive’s commission of fraud, theft, embezzlement, self-dealing, misappropriation or other malfeasance against the business of the Company, its subsidiaries or affiliates (individually, a “Company Group Member” and collectively, the “Company Group”); (C) Executive’s indictment for or plea of nolo contendere to any serious offense that results in or would reasonably be expected to result in material financial harm, materially negative publicity or other material harm to any Company Group Member; (D) Executive’s failure to perform any material aspect of his lawful duties or responsibilities for the Company or the Company Group (other than by reason of Disability), and if curable, fails to cure, in all material aspects, within thirty (30) calendar days after receiving notice from the Company identifying such failure; (E) Executive’s failure to comply with any lawful written policy of the Company or reasonable directive of the Board or the Board’s designee, and in either case, if curable, fails to cure, in all material aspects, within thirty (30) calendar days after receiving notice from the Company identifying such failure; (F) Executive’s commission of acts or omissions constituting gross negligence or gross misconduct in the performance of any aspect of his lawful duties or responsibilities; (G) Executive’s breach of any fiduciary duty owed to the Company Group; (H) Executive’s violation or breach of any Restrictive Covenant (as defined in Section 7(a)) or any material term of the Agreement (including, without limitation, Section 7(b) hereof and the requirement that Executive relocate to the New York metropolitan area within six (6) months following the Start Date), and, if curable, fails to cure such violation or breach within thirty (30) calendar days after receiving notice from the Company identifying such violation or breach; or (I) Executive’s commission of any act or omission that damages or is reasonably likely to damage the financial condition or business of the Company or materially damages or is reasonably likely to materially damage the reputation, public image, goodwill, assets or prospects of the Company. In addition, Executive’s employment shall be deemed to have terminated for “Cause” if, on the date Executive’s employment terminates, facts and circumstances exist that would have justified a termination for Cause, even if such facts and circumstances are discovered following such termination.

 

(iv) “Disability” means a physical or mental impairment that renders Executive unable to perform the essential functions of his employment with the Company, even with reasonable accommodation that does not impose an undue hardship on the Company, for more than ninety (90) calendar days, whether consecutive or not consecutive, in any consecutive twelve (12) month period, unless a longer period is required by federal or state law, in which case that longer period would apply.

 

(v) “Good Reason” means, without Executive’s written consent, (A) a reduction in the Base Salary, other than a reduction of less than ten percent (10%) in connection with a comparable decrease applicable to all senior executives of the Company; (B) a requirement by the Company that Executive relocate his primary place of employment more than thirty-five (35) miles from its location as of the Start Date; or (C) a material diminution in Executive’s duties, authority or responsibilities of employment; provided, in each case, that Executive has given the Company written notice detailing the specific circumstances alleged to constitute Good Reason within sixty (60) calendar days after the first occurrence of such circumstances, and the Company shall have thirty (30) calendar days following receipt of such notice to cure such circumstances in all material respects; provided further, that no termination due to Good Reason shall occur after the one-hundred twentieth (120^th) calendar day following the first occurrence of any grounds for Good Reason.

 

(vi) “Organizational Documents” shall mean the Company’s Certificate of Incorporation and Bylaws as they may be amended from time to time.

 

(vii) “Section 409A” means Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations, rules and other guidance promulgated thereunder.

 

(g) Officer/Board/Committee Resignations. Upon the termination of Executive’s employment for any reason, Executive will be deemed to have resigned, without any further action by Executive, from any and all positions (including, but not limited to, any officer and/or director positions or positions as a fiduciary of any of the Company Group’s employee benefit plans) that Executive, immediately prior to such termination, (i) held within the Company Group and (ii) held with any other entities at the direction of, or as a result of Executive’s affiliation with, the Company Group. If, for any reason, this Section 5(g) is deemed to be insufficient to effectuate such resignations, then Executive will, upon the Company’s request, execute any documents or instruments that the Company may deem necessary or desirable to effectuate such resignations.

 

 

(h) Section 409A.

 

(i) It is intended that any amounts payable under this Agreement shall be exempt from and avoid the imputation of any tax, penalty or interest under Section 409A to the fullest extent permissible under applicable law; provided that if any such amount is or becomes subject to the requirements of Section 409A, it is intended that those amounts shall comply with such requirements. This Agreement shall be construed and interpreted consistent with that intent. In furtherance of that intent, if payment or provision of any amount or benefit hereunder that is subject to Section 409A at the time specified herein would subject such amount or benefit to any additional tax under Section 409A, the payment or provision of such amount or benefit shall be postponed to the earliest commencement date on which the payment or provision of such amount or benefit could be made without incurring such additional tax. In no event, however, shall the Company be liable for any tax, interest or penalty imposed on Executive under Section 409A or any damages for failing to comply with 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 upon or following a termination of employment that are considered “nonqualified deferred compensation” under Section 409A 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.” If Executive is a “specified employee” within the meaning of Treasury Regulation Section 1.409A-1(i) as of the Separation Date, Executive shall not be entitled to any payment or benefit pursuant to this Agreement that constitutes nonqualified deferred compensation for purposes of Section 409A and that is payable upon a separation from service (within the meaning of Section 409A) until the earlier of (A) the date which is six (6) months after his separation from service for any reason other than death, or (B) the date of Executive’s death; provided that this paragraph shall only apply if, and to the extent, required to avoid the imputation of any tax, penalty or interest pursuant to Section 409A. Any amounts otherwise payable to Executive upon or in the six (6) month period following Executive’s separation from service that are not so paid by reason of this Section 5(h)(ii) shall be paid (without interest) as soon as practicable (and in any event within thirty (30) calendar days) after the date that is six (6) months after Executive’s separation from service (provided that in the event of Executive’s death after such separation from service but prior to payment, then such payment shall be made as soon as practicable, and in all events within thirty (30) calendar days, after the date of Executive’s death).

 

(iii) Any reimbursement payment or in-kind benefit due to Executive pursuant to Sections 3 or 4, to the extent that such reimbursements or in-kind benefits are taxable to him, shall be paid on or before the last day of Executive’s taxable year following the taxable year in which the related expense was incurred. Executive agrees to provide prompt notice to the Company of any such expenses (and any other documentation that the Company may reasonably require to substantiate such expenses) in order to facilitate the Company’s timely reimbursement of the same. Reimbursements and in-kind benefits pursuant to Sections 3 or 4 are not subject to liquidation or exchange for another benefit and the amount of such benefits that Executive receives in one taxable year shall not affect the amount of such reimbursements or benefits that Executive receives in any other taxable year.

 

 

(iv) For purposes of Section 409A, Executive’s right to receive any installment payments hereunder 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) calendar days following the Separation Date), the actual date of payment within the specified period shall be within the sole discretion of the Company.

 

6. Restrictive Covenants.

 

(a) Non-Disclosure and Non-Use of Confidential Information.

 

(i) Executive shall not use or disclose to any individual or natural person, partnership (including a limited liability partnership), corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization or governmental authority (each, a “Person”), either during the Term or thereafter, any Confidential Information (as defined below) of which Executive is or becomes aware, whether or not such information is developed by him, for any reason or purpose whatsoever, nor shall he make use of any of the Confidential Information for his own purposes or for the benefit of any Person except for the Company Group, except (A) to the extent that such disclosure or use is directly related to and required by Executive’s performance in good faith of duties assigned to Executive by the Company or (B) to the extent required to do so by a law or legal process, including a court of competent jurisdiction. Executive shall not modify, reverse engineer, decompile, create other works from or disassemble any software programs contained in the Confidential Information of the Company unless permitted in writing by the Company. Executive will, at the sole expense of the Company, take all reasonable steps to safeguard Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft.

 

(ii) For purposes of this Agreement, “Confidential Information” means information that is not generally known to the public and that is used, developed or obtained by any Company Group Member in connection with its business, including, but not limited to, information, observations and data obtained by Executive during the Term concerning (A) the business or affairs of the Company Group (or any predecessor thereof) and (B) products, services, fees, costs, pricing structures, analyses, drawings, photographs and reports, computer software (including operating systems, applications and program listings), data bases, accounting and business methods, inventions, devices, new developments, methods and processes (whether patentable or unpatentable and whether or not reduced to practice), customers and clients and customer and client lists, information on current and prospective independent sales agents, software vendors or partners and sponsor banks, all technology and trade secrets, and all similar and related information in whatever form. Notwithstanding the foregoing, “Confidential Information” will not include any information that has been published in a form generally available to the public prior to the date Executive proposes to disclose or use such information (except where such public disclosure was made by Executive without authorization).

 

(iii) For the avoidance of doubt, this Section 6(a) does not prohibit or restrict Executive (or Executive’s attorney) from responding to any inquiry about this Agreement or its underlying facts and circumstances by the Securities and Exchange Commission, the Financial Industry Regulatory Authority, or any other self-regulatory organization or governmental entity, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. Executive understands and acknowledges that he does not need the prior authorization of the Company to make any such reports or disclosures and that he is not required to notify the Company that he has made such reports or disclosures.

 

 

(iv) Under the Defend Trade Secrets Act of 2016, Executive shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is (A) made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law; or (B) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer’s trade secrets to the attorney and use the trade secret information in the court proceeding if the individual: (x) files any document containing the trade secret under seal; and (y) does not disclose the trade secret, except pursuant to court order. Notwithstanding anything herein to the contrary and for the avoidance of doubt, nothing herein shall preclude the Company from disclosing the existence and/or terms and conditions of this Agreement, including without limitation, to the extent required by applicable law (including, without limitation, under applicable securities laws) or by judicial or administrative process.

 

(b) Intellectual Property Rights.

 

(i) Executive hereby assigns, transfers and conveys to the Company all of Executive’s right, title and interest in and to all Work Product (as defined below). Executive agrees that all Work Product belongs in all instances to the Company. Executive will promptly disclose such Work Product to the Company and perform all actions reasonably requested by the Company (whether during or after the Term) to establish and confirm the Company’s ownership of such Work Product (including, without limitation, the execution and delivery of assignments, consents, powers of attorney and other instruments) and to provide reasonable assistance to the Company (whether during or after the Term) in connection with the prosecution of any applications for patents, trademarks, trade names, service marks or reissues thereof or in the prosecution or defense of interferences relating to any Work Product. Executive recognizes and agrees that the Work Product, to the extent copyrightable, constitutes works for hire under the copyright laws of the United States.

 

(ii) For purposes of this Agreement, “Work Product” means all inventions, innovations, improvements, technical information, systems, software developments, methods, designs, analyses, drawings, reports, service marks, trademarks, trade names, trade dress, logos and all similar or related information (whether patentable or unpatentable) which relates to the actual or anticipated business, operations, research and development of existing or future products or services of the Company Group and which are conceived, developed or made by Executive (whether or not during usual business hours and whether or not alone or in conjunction with any other Person) during the Term together with all patent applications, letters patent, trademark, trade name and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing. Notwithstanding the foregoing, “Work Product” shall not include the patents and other assets set forth on Exhibit B hereto. Executive hereby represents and warrants that the patents and other assets owned by Executive set forth on Exhibit B are not related in any way to the Company Group, except as stated therein.

 

 

(c) Non-Competition. During the Term and for three (3) months following the termination of Executive’s employment for any reason, whether or not Executive is entitled to severance (the “Restricted Period”), Executive shall not, and shall cause his controlled affiliates not to, directly or indirectly, through or in association with any third party, engage or be interested in any Competitive Business in the Restrictied Area as a shareholder, director, officer, employee, agent, broker, partner, individual proprietor, lender, consultant or in any other capacity (provided, that nothing herein contained will prevent Executive from owning less than one percent (1%) of any class of equity or debt securities of any publicly traded company). For purposes of this Agreement, “Competitive Business” means (i) any Person that competes with the Company in the activities, products, or services of the type conducted, authorized, offered, or provided by the Company or its affiliates in the waste and recycling industry, including, without limitation, Rock Tenn Corporation, SLM Waste and Recycling, Discovery Refuse Management, Inc. (d/b/a DRM Waste Management), Quest Recycling Services LLC, Resource Management Group, Inc., International Environmental Alliance (IEA), Environmental Waste Solutions, LLC (EWS), Ecova, Inc., New Market Waste Solutions, Waste Harmonics, LLC, Waste Management, Inc., Republic Services, Inc., Advanced Disposal, LLC, Clean HarborsStericycle, Inc., Progressive Waste Solutions Ltd., Waste Connections, Inc., Recology, Inc., Rumpke Consolidated Companies, Inc., Casella Waste Systems, Inc., Waste Industries USA, Inc., Waste Pro USA, Inc.; and (ii) any affiliate of or successor to any such entity; and/or (ii) any other material business or enterprise of the Company Group. For purposes of this Agreement, “Restricted Area” means United States of America and any other geographic territory (a) that Executive managed for a the Company Group during the Term, or (b) in which Executive provided services for a Company Group Member during the Term, or (c) in which Executive directly or indirectly supervised or managed employees or independent contractors of the Company Group during the Term.

 

(d) Non-Solicitation and Non-Interference. During the Term and for twelve (12) months thereafter, Executive shall not, and shall cause his controlled affiliates not to, directly or indirectly, through or in association with any third party, (i) call on, solicit or service, engage or contract with or take any action which may interfere with, impair, subvert, disrupt or alter the relationship, contractual or otherwise, between any Company Group Member and any current or prospective customer, supplier, distributor, developer, service provider, licensor or licensee, or other material business relation of such Company Group Member, (ii) solicit, induce, recruit or encourage any employees of or consultants to the Company Group to terminate their relationship with the Company Group or take away or hire such employees or consultants, (iii) divert or take away the business or patronage (with respect to products or services of the kind or type developed, produced, marketed, furnished or sold by the Company Group) of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company Group or (iv) attempt to do any of the foregoing, either for Executive’s own purposes or for any other third party.

 

(e) Non-Disparagement. Executive shall not, in any manner, directly or indirectly, make any oral or written statement to any Person that disparages or places any Company Group Member or any of their respective officers, shareholders, members or advisors, any member of the Board, or any agents or others with whom the Company has business relationships, in a false or negative light; provided, however, that Executive shall not be required to make any untruthful statement or to violate any law.

 

7. Acknowledgment and Enforcement of Covenants; Representations.

 

(a) Acknowledgment. Executive acknowledges that he has become familiar, or will become familiar with, the Company Group Members’ trade secrets and with other confidential and proprietary information concerning the Company Group Members and their respective predecessors, successors, customers and suppliers, and that his services are of special, unique and extraordinary value to the Company. Executive acknowledges and agrees that the Company would not enter into this Agreement, providing for compensation and other benefits to Executive on the terms and conditions set forth herein, but for Executive’s agreements herein (including those set forth in Section 6). Furthermore, Executive acknowledges and agrees that the Company will be providing Executive with additional special knowledge after the Start Date, with such special knowledge to include additional Confidential Information and trade secrets. Executive agrees that the covenants set forth in Section 6 (collectively, the “Restrictive Covenants”) are reasonable and necessary to protect the Company Group’s trade secrets and other Confidential Information, proprietary information, good will, stable workforce and customer relations.

 

 

(b) Representations.

 

(i) Without limiting the generality of Executive’s agreement with the provisions of Section 7(a), Executive (A) represents that he is familiar with and has carefully considered the Restrictive Covenants; (B) represents that he is fully aware of his obligations hereunder; (C) agrees to the reasonableness of the length of time, scope and geographic coverage, as applicable, of the Restrictive Covenants; and (D) agrees that the Restrictive Covenants will continue in effect for the applicable periods set forth above regardless of whether Executive is then entitled to receive severance pay or benefits from the Company. Executive understands that the Restrictive Covenants may limit his ability to earn a livelihood in a business similar to the business of the Company Group, but he nevertheless believes that he has received and will receive sufficient consideration and other benefits as an employee of the Company and as otherwise provided hereunder or as described in the recitals hereto to clearly justify such restrictions which, in any event (given his education, skills and ability), Executive does not believe would prevent him from otherwise earning a living. Executive agrees that the Restrictive Covenants do not confer a benefit upon the Company disproportionate to the detriment of Executive.

 

(ii) Executive hereby represents and warrants to the Company that: (A) the information that Executive provided to the Company regarding his background is truthful and accurate; the execution and delivery of this Agreement and the performance by Executive of his duties hereunder do not and shall not constitute a breach of, conflict with, or otherwise contravene or cause a default under, the terms of any other agreement or policy to which Executive is a party or otherwise bound or any judgment, order or decree to which Executive is subject; (B) Executive has no information (including, without limitation, confidential information and trade secrets) relating to any other person or entity that would prevent Executive under the terms of any other agreement or arrangement from entering into this Agreement or carrying out his duties hereunder, or would give rise to a violation of such other agreement or arrangement; (C) Executive is not bound by any employment, consulting, non-competition, confidentiality, trade secret or similar agreement (other than this Agreement) with any other person or entity that would prevent Executive under the terms of any other agreement or arrangement from entering into this Agreement or carrying out his duties hereunder, or would give rise to a violation of such other agreement or arrangement; (D) Executive is not currently and has never been the subject of any allegation or complaint of harassment, discrimination, retaliation, or sexual or other misconduct in connection with any prior employment or otherwise, and has never been a party to any settlement agreement or nondisclosure agreement relating to such matters; and (E) Executive understands the Company will rely upon the accuracy and truth of the representations and warranties of Executive set forth herein and Executive consents to such reliance.

 

(c) Enforcement. Executive agrees that a breach by Executive of any of the Restrictive Covenants may cause immediate and irreparable harm to the Company or another Company Group Member that would be difficult or impossible to measure, and that damages to the Company or the Company Group Member for any such injury may therefore be an inadequate remedy for any such breach. Therefore, Executive agrees that in the event of any breach or threatened breach of any provision of the Restrictive Covenants, the Company shall be entitled, in addition to and without limitation upon all other remedies the Company may have under this Agreement at law or otherwise, to seek to obtain from any court of competent jurisdiction specific performance, injunctive relief and/or other appropriate relief (without posting any bond or deposit) in order to enforce or prevent any violations of the Restrictive Covenants, or require Executive to account for and pay over to the Company all compensation, profits, moneys, accruals, increments or other benefits derived from or received as a result of any transactions constituting a breach of the Restrictive Covenants if and when final judgment of a court of competent jurisdiction is so entered against Executive.

 

 

(d) Severability. If, at the time of enforcement of the Restrictive Covenants, a court or arbitrator holds that the Restrictive Covenants are unreasonable under the circumstances then existing, the parties agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area determined to be reasonable under the circumstances by such court or arbitrator, as applicable. Executive covenants and agrees that Executive shall not assert as a defense to any action seeking enforcement of the Restrictive Covenants (including an action seeking injunctive relief) that such provisions are not enforceable due to lack of sufficient consideration received by Executive.

 

(e) Tolling. In the event of any violation of the provisions of Section 6, Executive acknowledges and agrees that the post-termination restrictions contained in Section 6 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.

 

(f) Survival of Provisions. The obligations contained in Sections 6, 7, 9, 10 and 11 hereof shall survive any termination of Executive’s employment with the Company and shall be fully enforceable thereafter.

 

8. Withholding Taxes/Authorized Deductions. Notwithstanding anything herein to the contrary, the Company may withhold (or cause to be withheld) from any amounts otherwise due or payable under or pursuant to this Agreement such federal, state and local income, social security, employment or other taxes as may be required to be withheld pursuant to any applicable law or regulation, and make such deductions as may be applicable pursuant to the Company’s policies and employee benefit plans.

 

9. Cooperation. During and after the Term, Executive shall cooperate fully with any investigation or inquiry by the Company, or any governmental or regulatory agency or body concerning the Company or any other member of the Company Group; provided, that the Company shall reimburse Executive’s reasonable expenses incurred in providing such cooperation subject to Executive’s delivery of written notice to the Company prior to the time such expenses are incurred.

 

10. Clawback. In consideration of entering into this Agreement and Executive’s eligibility to participate in Company cash and equity incentive plans (including the Transaction Bonus), Executive agrees that Executive, and any compensation or benefits offered under this Agreement or in connection with Executive’s employment or otherwise, now or in the future, will be subject to all Company policies (including the Company’s clawback policy), including with respect to insider trading and compensation recovery and/or recoupment, that are currently in place or that may be adopted by the Company to comply with applicable law, stock exchange rules or to comport with good corporate governance practices, as such policies may be amended from time to time. Forfeiture or recovery by the Company of any compensation in accordance with a compensation recovery and/or recoupment policy shall not constitute an event giving rise to a right by Executive to terminate Executive’s employment for [“Good Reason”] based on such recovery by the Company, nor shall it constitute “constructive termination”, or any similar term or circumstance under this Agreement or any other plan or agreement with the Company.

 

11. Miscellaneous.

 

(a) Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of Delaware, without regard to principles of conflicts of laws.

 

(b) Consent to Jurisdiction. All actions or proceedings arising out of or relating to this Agreement shall be tried and litigated only in the state of Delaware or Federal courts located in New Castle County, State of Delaware. The parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts for the purpose of any such action or proceeding. Notwithstanding the foregoing, either party may seek injunctive or equitable relief to enforce the terms of this Agreement in any court of competent jurisdiction.

 

 

(c) Waiver of Jury Trial. Each of the parties hereto hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement.

 

(d) Severability. It is the desire and intent of the parties hereto that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable under applicable law, such provision, as to such jurisdiction, shall be ineffective without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

 

(e) Entire Agreement; Amendment. This Agreement embodies the entire agreement of the parties hereto respecting the matters within its scope and supersedes all prior agreements (including, without limitation, any offer letters, term sheets and correspondence relating thereto), whether written or oral, that directly or indirectly bear upon the subject matter hereof. This Agreement may not be amended, modified or changed (in whole or in part), except by written agreement executed by both of the parties hereto.

 

(f) Offsets. To the extent not prohibited under applicable law, the Company, in its sole and absolute discretion, has the right to set off (or cause to be set off) any amounts otherwise due to Executive from the Company in satisfaction of any repayment obligation of Executive under this Agreement or otherwise, provided that any such amounts are exempt from, or set off in a manner intended to comply with, the requirements of Section 409A.

 

(g) Waiver. No waiver of any of any provision of this Agreement will constitute or be deemed to constitute a waiver of any other provision of this Agreement, nor will any such waiver constitute a continuing waiver unless otherwise expressly provided in a writing executed by the party against whom it is sought to be enforced.

 

(h) Successors and Assigns. Neither party hereto may assign its rights or delegate its duties hereunder, except that the Company may assign its rights hereunder to any person that (i) acquires substantially all of the business and assets of the Company (whether by merger, consolidation, purchase of assets or other acquisition transaction), and (ii) agrees in writing to assume the obligations of the Company hereunder. This Agreement shall be binding on the successors and assigns of the Company. Nothing in this Agreement shall create, or be deemed to create, any third party beneficiary rights in any Person, including, without limitation, any employee of the Company, other than Executive.

 

(i) Notices. Any notice or other communication required or permitted to be given hereunder shall be deemed to have been duly given when personally delivered or when sent by registered mail, return receipt requested, postage prepaid, as follows:

 

If to the Company, at:

 

Rubicon Technologies, Inc.

950 E. Paces Ferry Rd. NE Suite 810

Atlanta, GA 30326

Attn: Paula Dobriansky

paula_dobriansky@hks.harvard.edu

 

 

If to Executive, at:

 

Executive’s home address on file with the Company

 

Either party hereto may change its or his address for the purpose of this paragraph by written notice similarly given.

 

(j) Legal Counsel; Mutual Drafting. Each party recognizes that this is a legally binding contract and acknowledges and agrees that they have had the opportunity to consult with legal counsel of their choice. Each party has cooperated in the drafting, negotiation and preparation of this Agreement. Hence, in any construction to be made of this Agreement, the same shall not be construed against either party on the basis of that party being the drafter of such language. Executive agrees and acknowledges that he has read and understands this Agreement, is entering into it freely and voluntarily, and has been advised to seek counsel prior to entering into this Agreement and has had ample opportunity to do so.

 

(k) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which together shall constitute one and the same instrument. Signatures delivered as a “pdf” attachment to an email to the other party shall be sufficient for all purposes.

 

 

[Signatures on Following Page]

 

 

IN WITNESS WHEREOF, the Company and Executive have executed this Agreement as of the date first written above.

 

	COMPANY
	RUBICON TECHNOLOGIES, INC.
	By:	/s/ Grant Deans
	Name:	Grant Deans
	Title:	VP of Accounting
	EXECUTIVE
	/s/ Osman H. Ahmed
	Osman H. Ahmed

 

 

[Signature Page to Employment Agreement]

 

 

EXHIBIT A

 

FORM OF AGREEMENT AND GENERAL RELEASE

 

THIS AGREEMENT AND GENERAL RELEASE (the “Agreement and General Release”) is made and entered into on _____________, 2024 by and between Osman H Ahmed (“Executive”) and Rubicon Technologies, Inc., a Delaware corporation (the “Company”).

 

WHEREAS, Executive has been employed by the Company and the parties wish to resolve all outstanding claims and disputes between them relating to such employment;

 

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set forth in this Agreement and General Release, the sufficiency of which the parties acknowledge, it is agreed as follows:

 

1.

In consideration for Executive’s promises, covenants and agreements in this Agreement and General Release, the Company agrees to provide the Severance Benefits set forth in Section 5(c)(ii) of that certain employment agreement between Executive and the Company, dated as of [____], 2024 (the “Employment Agreement”), in accordance with the terms and subject to the conditions of such Employment Agreement. Executive would not otherwise be entitled to such payments but for his promises, covenants and agreements in this Agreement and General Release.

 

2.

The parties agree that the payments described in Section 1 of this Agreement and General Release are in full, final and complete settlement of all Claims (as defined below) Executive, and Executive’s heirs, beneficiaries, personal representatives, executors, administrators, successors and assigns (collectively, the “Releasors”) may have against the Company, its past and present affiliates, parents, subsidiaries, divisions, joint ventures and/or partnerships, their predecessors, successors and assigns, and all of their past and present respective officers, directors, owners, shareholders, members, managers, supervisors, employees, agents, advisors, consultants, insurers, attorneys, representatives, and employee benefit or pension plans or funds (and the trustees, administrators, fiduciaries and insurers of such programs) as well as any predecessors, successors and/or assigns of each of the foregoing (collectively, the “Releasees”), arising out of or in any way connected with Executive’s employment with the Company or any of its affiliates or the termination of such employment. Executive understands and acknowledges that except for the Accrued Obligations (as defined in the Employment Agreement) and except as otherwise specifically provided under this Agreement and General Release, Executive is entitled to no payments or any other benefits from Company. Executive acknowledges that Executive has received all wages for work performed, overtime compensation, bonuses, commissions, vacation pay and all other benefits and compensation due to Executive by virtue of Executive’s employment with and termination of employment with the Company up through the effective date of this Agreement and General Release.

 

3.

Nothing in this Agreement and General Release shall be construed as an admission of liability by the Company or any other Releasee, and the Company specifically disclaims liability to or wrongful treatment of Executive on the part of itself and all other Releasees. Executive expressly acknowledges and agrees that Executive has not asserted and does not have, the basis for asserting any claim, the factual foundation of which involves sexual harassment or sexual abuse, against the Company, and as such no portion of the consideration paid to Executive as part of this Agreement and General Release is attributable to any such claims; thus, Executive acknowledges and agrees that this Agreement and General Release does not constitute the settlement of a sexual harassment or sexual abuse claim.

 

 

4.

Executive hereby represents and warrants to Company that (a) Executive has not filed, caused or permitted to be filed any pending proceeding (nor has Executive lodged a complaint with any governmental or quasi-governmental authority) against Company, nor has Executive agreed to do any of the foregoing, (b) Executive has not assigned, transferred, sold, encumbered, pledged, hypothecated, mortgaged, distributed, or otherwise disposed of or conveyed to any third party any right or Claim against Company which has been released in this Agreement and General Release, and (c) Executive has not directly or indirectly encouraged or assisted any third party in filing, causing or assisting to be filed, any Claim against Company. In addition, Executive hereby represents and warrants to Company that Executive shall not encourage or solicit or voluntarily assist or participate in any way in the filing, reporting or prosecution by Executive or any third party of a proceeding or Claim against Company based upon or relating to any Claim released by Executive in this Agreement and General Release, unless expressly allowed by Section 7. If any court has or assumes jurisdiction of any action against the Company or any of its affiliates on behalf of Executive, Executive will request that court to withdraw from or dismiss the matter with prejudice.

 

5.

Executive represents that he has not filed any complaints or charges against the Company or any of its affiliates with the Equal Employment Opportunity Commission (“EEOC”), or with any other federal, state or local agency or court, and covenants that he will not seek to recover on any claim released in this Agreement and General Release. Executive further represents that he has reported to the Company in writing any and all work-related injuries that he has suffered or sustained during his employment with the Company or its affiliates.

 

6.

Executive, on his behalf and on behalf of each of the Releasors, hereby covenants not to sue, and fully and forever releases and discharges the Company and all other Releasees from any and all legally waivable Claims which Executive may have against any of the Releasees, arising on or prior to the date hereof, including those of which Executive is not aware and those not mentioned in this Agreement and General Release up to the effective date of this Agreement and General Release. “Claims” means any and all actions, controversies, demands, causes of action, suits, rights, and/or claims whatsoever for debts, sums of money, wages, salary, severance pay, vacation pay, sick pay, fees and costs, attorneys’ fees, losses, penalties, damages, including damages for pain and suffering and emotional harm, arising, directly or indirectly, out of Executive’s employment with the Company, the terms and conditions of such employment, the termination of such employment and/or any of the events relating directly or indirectly to or surrounding the termination of that employment, including, but not limited to, Claims arising directly, or indirectly, from any promise, agreement, offer letter, contract, understanding, common law, tort, the laws, statutes, and/or regulations of the State of New Jersey, or any other state, and the United States, including, but not limited to, federal, state and local wage and hour laws, federal, state and local whistleblower laws, federal, state and local fair employment laws, federal, state and local anti-discrimination laws, federal, state and local labor laws, Section 1981 of the Civil Rights Act of 1866, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal Pay Act, the Americans with Disabilities Act, the Employment Retirement Income Security Act of 1974 (“ERISA”), the Vietnam Era Veterans Readjustment Assistance Act, the Fair Credit Reporting Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act (“ADEA”), as amended by the Older Workers Benefit Protection Act, the Worker Adjustment and Retraining Notification Act of 1988, the Occupational Safety and Health Act, the Sarbanes-Oxley Act of 2002, the Family and Medical Leave Act, the Genetic Information Nondiscrimination Act of 2008, the New Jersey Law Against Discrimination, the New Jersey Family Leave Act, the New Jersey Civil Rights Act, the New Jersey Wage Payment Law, the New Jersey Conscientious Employee Protection Act, the New Jersey Millville Dallas Airmotive Plant Loss Job Notification Act, the New Jersey Paid Sick Leave Act, the New Jersey Equal Pay Act, and the New Jersey Workers’ Compensation Anti-Retaliation Law, as each has been or may be amended from time to time, and Claims premised on any other legal theory, whether arising directly or indirectly from any act or omission, whether intentional or unintentional. Executive acknowledges that he is releasing claims based on age, race, color, sex, sexual orientation or preference, marital status, religion, national origin, citizenship, veteran status, disability and other legally protected categories. This provision is intended to constitute a general release of all of each Releasor’s presently existing covered claims against the Releasees, to the maximum extent permitted by law.

 

 

7.

Nothing in this Agreement and General Release shall be construed to: (a) waive any rights or claims of Executive that arise after Executive signs this Agreement and General Release; (b) waive any rights or claims of Executive to enforce the terms of this Agreement and General Release; (c) waive any claim for worker’s compensation or unemployment benefits; (d) waive any rights or claims for the provision of accrued benefits conferred to Executive or his beneficiaries under the terms of the Company’s medical, dental, life insurance or defined contribution retirement benefit plans; (e) waive or affect any claim that cannot be released by an agreement voluntarily entered into between private parties; (f) limit Executive’s ability to file a charge or complaint with the EEOC, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”); (g) limit Executive’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company; (h) release claims challenging the validity of this Agreement under the ADEA; (i) disclose any allegations relating to a claim under the New Jersey Law against Discrimination; (j) release the Releasees or any of them from any claim that by law cannot be waived or released; (k) release any existing rights that Executive may have to indemnification pursuant to the Company’s or an affiliate’s governing documents and/or any directors’ and officers’ insurance policy of the Company for acts committed during the course of Executive’s employment; or (l) waive any rights of Executive with respect to vested equity held by him in the Company. Executive expressly waives and agrees to waive any right to recover monetary damages for personal injuries in any charge, complaint or lawsuit filed by Executive or anyone else on behalf of Executive for any released claims. This Agreement and General Release does not limit Executive’s right to receive an award for information provided to any Government Agencies.

 

8.

Executive acknowledges that (a) he has been given at least twenty-one (21)1 calendar days to consider this Agreement and General Release and that modifications hereof which are mutually agreed upon by the parties hereto, whether material or immaterial, do not restart the twenty-one (21) day period; (b) he has been advised to, and has had the opportunity to, consult Executive’s independent counsel with respect to this Agreement and General Release; (c) he has seven (7) calendar days from the date he executes this Agreement and General Release in which to revoke it; (d) he executes this Agreement and General Release freely and voluntarily and that he understands the significance of this Agreement and General Release; and (e) this Agreement and General Release will not be effective or enforceable, nor the Severance Benefits paid, unless the seven-day revocation period ends without revocation by Executive. Revocation can be made by delivery and receipt of a written notice of revocation to Rubicon Technologies, Inc., 950 E. Paces Ferry Rd. NE Suite 810, Atlanta, GA 30326, Attention: [INSERT NAME/TITLE], by midnight on or before the seventh calendar day after Executive signs this Agreement and General Release.

 

 

1

To be extended to 45 days in the event of a group termination under the ADEA.

 

 

9.

This Agreement and General Release shall be binding on the Company and Executive and upon their respective heirs, representatives, successors and assigns, and shall run to the benefit of the Releasees and each of them and to their respective heirs, representatives, successors and assigns.

 

10.

This Agreement and General Release (and, to the extent explicitly provided herein, the Employment Agreement) sets forth the entire agreement between Executive and the Company, and fully supersede any and all prior agreements or understandings among them regarding its subject matter; provided, however, that nothing in this Agreement and General Release is intended to or shall be construed to limit, impair or terminate any obligation of Executive pursuant to any non-competition, non-solicitation, confidentiality or intellectual property agreements that have been signed by Executive where such agreements by their terms continue after Executive’s employment with the Company terminates (including, but not limited to, the Restrictive Covenants in the Employment Agreement). This Agreement and General Release may only be modified by written agreement signed by both parties.

 

11.

The Company and Executive agree that in the event any provision of this Agreement and General Release is deemed to be invalid or unenforceable by any court or administrative agency of competent jurisdiction, or in the event that any provision cannot be modified so as to be valid and enforceable, then that provision shall be deemed severed from the Agreement and General Release and the remainder of the Agreement and General Release shall remain in full force and effect.

 

12.

This Agreement and General Release shall be construed and enforced in accordance with the internal laws of the State of Delaware, without regard to principles of conflicts of laws.

 

13.

All actions or proceedings arising out of or relating to this Agreement and General Release shall be tried and litigated only in the State of Delaware or Federal courts located in the New Castle County, State of Delaware. The parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts for the purpose of any such action or proceeding. Notwithstanding the foregoing, either party may seek injunctive or equitable relief to enforce the terms of this Agreement and General Release in any court of competent jurisdiction.

 

14.

Each of the parties hereto hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement and General Release.

 

15.

The language of all parts of this Agreement and General Release in all cases shall be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties.

 

 

[Signature Page Follows]

 

 

PLEASE READ CAREFULLY. THIS
AGREEMENT AND GENERAL RELEASE INCLUDES A
RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.

 

	COMPANY
	Rubicon Technologies, Inc.
	By:
	Name:
	Title:
	EXECUTIVE
	Osman H. Ahmed
	Date:

 

 

EXHIBIT B

 

EXCLUDED WORK PRODUCT

 

___________________		I have no inventions.
___________________		The following is a complete list of all Work Product relative to the subject matter of my employment with the Company that have been created by me, alone or jointly with others, prior to the Start Date, which might relate to the Company Group’s present business:
___________________		Additional sheets attached.

 

Executive Signature:

Date:

 

 

Exhibit 10.3

 

 

July 1, 2024

 

Dear Shareholders,

 

Today, we announce that Phil Rodoni will be stepping down as CEO of Rubicon, and as a member of the company’s Board of Directors, effective immediately. I would like to thank Phil for his contributions to Rubicon as CEO and previously as CTO.

 

As part of this leadership transition, the Board has appointed me, Osman Ahmed, as interim CEO. Having served on Rubicon’s Board since its public listing—with the majority of that time as the company’s lead independent director—I am enthusiastic about the value creation opportunity that stands in front of us.

 

Before I get into where we go from here, let’s recap where we’ve been.

 

From our first quarter as a public company in Q3 of 2022, to our latest reported quarter in Q1 of this year, Rubicon has made tremendous strides in multiple areas of the business:

 

	●	Grew Adjusted Gross Profit (AGP) by ~21%.
	●	Increased Adjusted EBITDA by ~48%.
	●	Improved operating cash burn by ~64% (adjusted for de-SPAC transaction expenses).
	●	Signed significant multi-year commercial agreements with marquee customers including Whole Foods Market, Neiman Marcus, Vail Properties, Atlantis Management Group, True Food Kitchen, GoldOller Real Estate Investments, and Acuity Brands.
	●	Signed significant multi-year commercial extension agreements with Walmart, Sweetgreen, Goodyear Tires, Americold, and Gap, Inc. including all of Gap’s lifestyle brands (Old Navy, Gap, Banana Republic, and Athleta) and Gap Outlet and Banana Republic Factory locations.
	●	Continued to support our network of more than 8,000 vendor and hauler partners across 13 million unique service locations in all 50 states and in 20 countries.
	●	Completed a $94.2 million strategic transaction with Rodina Capital, which included the sale of our fleet technology business and a $20 million preferred capital raise.

 

●

Diverted more than 800 thousand tons of waste from landfill equating to approximately 1.6 million MTCO2e emissions avoided in the first half of 2023.

 

Unfortunately, Rubicon’s share price has not been reflective of the significant operational progress enabled by these initiatives, nor what I believe to be the near-term potential of our business. But, as we have shown over the past 18 months, our team is ever resilient and will continue to execute and grow profitably. In other words, Rubicon is here to stay, and we are energized for the future of our company.

 

 

 

Looking forward, Rubicon’s management team is conducting an active review of opportunities within the company to operate more efficiently and to redirect resources towards programs that drive near-term impact for our waste brokerage customers and our invaluable hauler partners. Rubicon is doubling down on being a partner-centric company, and we look forward to sharing more details on this in the coming months.

 

Our recent transaction with Rodina Capital sets our partner-centric stage. By selling the company’s fleet SaaS business, Rubicon management has been able to focus on our core competency—being the premier technology-based waste brokerage platform that reliably serves the sustainability needs of our waste generator customers and fuels high margin growth for our haulers. The debt paydown and cash infusion from the Rodina transaction allows us to move forward with operational flexibility and a nimble balance sheet.

 

Our commercial team, led by Chief Commercial Officer Tom Owston, has been hard at work with our partners in 2024. With a portfolio of commercial waste generators from small to medium-sized businesses to Fortune 500 companies, Tom and his team are among the best in the industry.

 

“I’m very excited to work with Osman—we share the same conviction that Rubicon’s competitive advantage is our ability to provide hands-on account management to both our hauler partners and our customers,” said Tom Owston, Chief Commercial Officer at Rubicon. “We are leaning heavily into this from an operational standpoint, and we are keeping our partners at the heart of everything we do.”

 

In closing, I’d like to recognize Rubicon’s key stakeholders: our dedicated employees who remain focused on our mission to end waste, our board members who have been a source of valuable guidance, and importantly, our investors whose conviction in Rubicon has enabled our market leadership. I look forward to engaging with all of you in the coming weeks.

 

Onward!

 

Osman H. Ahmed
Interim CEO and Board Director

 

 

Non-GAAP Financial Measures

 

This shareholder letter contains “non-GAAP financial measures,” including Adjusted Gross Profit and Adjusted EBITDA, which are supplemental financial measures that are not calculated or presented in accordance with generally accepted accounting principles (GAAP). Such non-GAAP financial measures should not be considered superior to, as a substitute for or alternative to, and should be considered in conjunction with, the GAAP financial measures presented in our financial statements. The non-GAAP financial measures in this shareholder letter may differ from similarly titled measures used by other companies. Definitions of these non-GAAP financial measures, including explanations of the ways in which Rubicon’s management uses these non-GAAP measures to evaluate its business, the substantive reasons why Rubicon’s management believes that these non-GAAP measures provide useful information to investors and limitations associated with the use of these non-GAAP measures, and reconciliations of these non-GAAP financial measures to the most directly comparable GAAP financial measures are included under “Key Metrics and Non-GAAP Financial Measures” in the Quarterly Reports filed on Form 10-Q filed on May 20, 2024 and November 21, 2022.

 

 

 

Forward-Looking Statements

 

This shareholder letter includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995 and within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements, other than statements of present or historical fact included in this shareholder letter, are forward-looking statements. When used in this shareholder letter, the words “could,” “should,” “will,” “may,” “believe,” “anticipate,” “intend,” “estimate,” “expect,” “project,” the negative of such terms and other similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. Such forward-looking statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed or implied by such forward-looking statements. These forward-looking statements are based upon current expectations, estimates, projections, and assumptions that, while considered reasonable by Rubicon and its management, are inherently uncertain; factors that may cause actual results to differ materially from current expectations include, but are not limited to: 1) the outcome of any legal proceedings that may be instituted against Rubicon or others following the closing of the business combination; 2) changes in applicable laws or regulations; 3) the possibility that Rubicon may be adversely affected by other economic, business and/or competitive factors; 4) Rubicon’s execution of anticipated operational efficiency initiatives, cost reduction measures and financing arrangements; and 5) other risks and uncertainties set forth in the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023 (filed March 28, 2024 with the Securities and Exchange Commission (the “SEC”)), Registration Statement on Form S-3, as amended, filed with the SEC, and other documents Rubicon has filed with the SEC. Although Rubicon believes the expectations reflected in the forward-looking statements are reasonable, nothing in this shareholder letter should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward looking statements will be achieved. There may be additional risks that Rubicon presently does not know of or that Rubicon currently believes are immaterial that could also cause actual results to differ from those contained in the forward-looking statements, many of which are beyond Rubicon’s control. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Rubicon does not undertake, and expressly disclaims, any duty to update these forward-looking statements, except as otherwise required by applicable law.

 

 

Exhibit 99.1

 

Rubicon Technologies Announces CEO Transition

 

Phil Rodoni steps down; Osman Ahmed appointed interim CEO

 

New York, NY – July 1, 2024 – Rubicon Technologies, Inc. (“Rubicon” or the “Company”) (OTC: RBTC), a leading provider of technology-based waste and recycling solutions, today announced that Phil Rodoni will be stepping down as CEO of Rubicon and as a member of the Company’s Board of Directors (the “Board”), effective immediately. Osman Ahmed, formerly lead independent director on Rubicon’s Board, has been appointed interim CEO.

 

Ahmed served as lead independent director on Rubicon’s Board of Directors since the fall of 2022. He is Co-Founder of New Circle Capital, a structured capital provider to small and mid-cap companies, and Senior Advisor at 10X Capital, a multi-strategy technology investment firm.

 

“On behalf of the Board, I want to thank Phil for his valuable contributions to Rubicon over the last nine years,” said Ahmed. “Rubicon has made tremendous strides in multiple areas of the business since our public listing, and I am enthusiastic about the value creation opportunity that stands in front of us. I am grateful to the Board for putting its trust in me during this period of transition.”

 

In conjunction with his appointment, Ahmed has stepped down from the Board’s Audit Committee and as lead independent director but will remain as a member of the Board.

 

Rodoni has served as Rubicon’s CEO since 2022. Prior to that, he served as the Company’s chief technology officer between 2015-2022. He came to Rubicon from Esurance, where he held the role of vice president of software development.

 

“It has been a pleasure leading Rubicon,” said Rodoni. “We have come a long way as an organization and I remain excited for the Company’s future under its new leadership.”

 

In May, Rubicon announced the sale of its fleet technology business unit in a deal that includes up-front cash of $61.7 million and an earnout consideration of $12.5 million that could become payable in 2024. This strategic move underscores Rubicon’s dedication to the RUBICONConnect™ product, which serves commercial waste generators from small to medium-sized businesses to Fortune 500 companies. Many of the Company’s commercial customers are looking to Rubicon to help them achieve sustainability goals with tailored zero waste and circular economy solutions, including through the Company’s Technical Advisory Services (TAS).

 

For more information about the CEO transition, please see the Company’s shareholder letter dated July 1, 2024.

 

About Rubicon

 

Rubicon builds AI-enabled technology products and provides expert sustainability solutions to waste generators and material processors to help them understand, manage, and reduce waste. As a mission-driven company, Rubicon helps its customers improve operational efficiency, unlock economic value, and deliver better environmental outcomes. To learn more, visit rubicon.com.

 

 

Forward-Looking Statements

 

This press release includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995 and within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements, other than statements of present or historical fact included in this press release, are forward-looking statements. When used in this press release, the words “could,” “should,” “will,” “may,” “believe,” “anticipate,” “intend,” “estimate,” “expect,” “project,” the negative of such terms and other similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. Such forward-looking statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed or implied by such forward-looking statements. These forward-looking statements are based upon current expectations, estimates, projections, and assumptions that, while considered reasonable by Rubicon and its management, are inherently uncertain; factors that may cause actual results to differ materially from current expectations include, but are not limited to: 1) the outcome of any legal proceedings that may be instituted against Rubicon or others following the closing of the business combination; 2) changes in applicable laws or regulations; 3) the possibility that Rubicon may be adversely affected by other economic, business and/or competitive factors; 4) Rubicon’s execution of anticipated operational efficiency initiatives, cost reduction measures and financing arrangements; and 5) other risks and uncertainties set forth in the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023 (filed March 28, 2024 with the Securities and Exchange Commission (the “SEC”)), Registration Statement on Form S-3, as amended, filed with the SEC, and other documents Rubicon has filed with the SEC. Although Rubicon believes the expectations reflected in the forward-looking statements are reasonable, nothing in this press release should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward looking statements will be achieved. There may be additional risks that Rubicon presently does not know of or that Rubicon currently believes are immaterial that could also cause actual results to differ from those contained in the forward-looking statements, many of which are beyond Rubicon’s control. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Rubicon does not undertake, and expressly disclaims, any duty to update these forward-looking statements, except as otherwise required by applicable law.

 

Investor Contact:

Alexandra Clark

Director of Finance & Investor Relations

alexandra.clark@rubicon.com

 

Media Contact:

Benjamin Spall

Director of Communications

benjamin.spall@rubicon.com

 

v3.24.2

Cover	Jul. 01, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jul. 01, 2024
Entity File Number	001-40910
Entity Registrant Name	Rubicon Technologies, Inc.
Entity Central Index Key	0001862068
Entity Tax Identification Number	88-3703651
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	950 E Paces Ferry Rd NE
Entity Address, Address Line Two	Suite 810
Entity Address, City or Town	Atlanta
Entity Address, State or Province	GA
Entity Address, Postal Zip Code	30326
City Area Code	(844)
Local Phone Number	479-1507
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Class A common stock, par value $0.0001 per share
Trading Symbol	RBTC
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false

---