AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this “Agreement”), dated as of September 13, 2021, is made by and between Katapult Holdings, Inc., a Delaware corporation (“Parent”), Katapult Group, Inc., a wholly-owned subsidiary of Parent and a Delaware corporation (the “Company”), and Tahmineh Maloney (“Executive”).
Whereas, the Parent and Executive previously wish to to memorialize in writing the
terms of Executive’s continued employment with the Company following the Effective Date; and
Whereas, the parties agree that this Agreement supersedes the Prior Agreement and any
other prior employment agreement and understandings between the parties.
Now, Therefore, in consideration of the premises, the respective covenants
and commitments of the parties hereto set forth in this Agreement and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1.At-Will Employment. The “Effective Date” of this Agreement will be the date
immediately prior to the closing of the Agreement and Plan of Merger, dated as of December 18,
2020 (“Merger Agreement”), by and among FinServ Acquisition Corp (“FinServ”), Keys Merger
Sub 1, Inc., a Delaware corporation and wholly owned subsidiary of FinServ, Keys Merger Sub 2,
LLC, a Delaware limited liability company and wholly owned subsidiary of FinServ, the
Company, and Orlando Zayas, in his capacity as the representative of all Pre-Closing Holders (as
defined in the Merger Agreement). As of the Effective Date, the Company offers employment,
and Executive accepts employment and agrees to perform services for the Company, upon the
terms set forth in this Agreement. Executive shall be employed by the Company on an “at will”
basis, meaning either the Company or Executive may terminate Executive’s employment at any
time, with or without cause or advance notice.
2.Title and Duties.
2.1Title. Executive shall serve as the Company’s General Counsel, Head of Compliance and Secretary during the term of this Agreement and agrees to perform duties
consistent therewith. Subject to the authority and supervision of the Chief Executive Officer of the
Company (“CEO”) or such other person as shall be designated by the CEO or the Board of Directors of the Company (“Board”), Executive shall have such management and control of the
business, affairs and property of the Company as are consistent with Executive’s position, with
such powers with respect to such management and control as may be reasonably incident to such responsibilities. Executive may also serve as an officer or director of Parent and one or more direct
or indirect subsidiaries of Parent; provided, however, that Executive shall not be entitled to any
additional compensation for serving in such additional capacities. Upon termination of
Executive’s employment with the Company, regardless of the reason, or upon the Company’s
request, Executive shall be deemed to have resigned from all positions with Parent, the Company
and their direct or indirect subsidiaries, including any directorships or similar positions. Executive will execute any documents reasonably requested by the Company or its subsidiaries to effectuate
the purposes of the foregoing sentence.
2.2Performance of Duties. This is a full-time, exempt position. Executive
agrees to serve the Company faithfully and to the best of Executive’s abilities. During Executive’s employment with the Company, Executive shall not engage in any outside activities that interferes
with Executive’s ability to perform Executive’s duties hereunder or violate or conflict with any
terms of the PRA (as defined below). Notwithstanding the foregoing, Executive may (i) engage
in charitable and civic activities, (ii) serve on the board of directors of not-for-profit organizations,
and (iii) subject to approval of the CEO or the Board, serve on the board of directors of for-profit organizations, but, in each case, only to the extent such service or engagement does not interfere
with Executive’s duties to the Company other than in an immaterial manner and does not breach
2.3Compliance with Company Policies. Executive agrees that in the rendering of all services to the Company and in all aspects of employment hereunder, Executive shall comply in all material respects with all written policies from time to time established by the Company, to the extent they are not in conflict with this Agreement.
3.Compensation and Benefits.
3.1Base Salary. The Company shall pay Executive a base salary of
$315,000.00 (three hundred and fifteen thousand dollars) on an annualized basis. Executive’s
annualized base salary shall be reviewed annually by the Company and may be increased (but not decreased) based upon the evaluation of Executive’s performance and the compensation policies
of the Company in effect at the time of each such review. The annualized base salary in effect at
any given time is referred to herein as “Base Salary.” Base Salary shall be payable in a manner
that is consistent with the Company’s usual payroll practices for senior executives. All amounts
payable to Executive pursuant to this Section 3.1 shall be subject to customary and proper payroll deductions.
3.2Cash Bonuses. Executive shall be eligible to earn a discretionary annual
cash bonus (an “Annual Bonus”) pursuant to a bonus program established by the Board in
consultation with Executive.
(a)For calendar year 2021, Executive’s target annual cash bonus will
be sixty percent (60%) of Base Salary (“Target Bonus”) up to a maximum of two hundred percent
(200%) of the Target Bonus (i.e., one hundred and twenty percent (120%) of Base Salary). The
actual amount of the Annual Bonus shall be determined by the Board based fifty percent (50%) on
the Company’s level of achievement of certain EBITDA targets set by the Board and fifty percent
(50%) on the Company’s level of achievement of certain revenue targets set by the Board, in each
case as determined by the Board.
(b)For calendar year 2022 and later calendar years, Executive’s target
annual cash bonus will be no less than sixty percent (60%) of Base Salary. The actual amount of
any Annual Bonus may be up to one hundred and twenty percent (120%) of the Base Salary and
will be determined by the Board pursuant to the terms and conditions of the bonus program.
(c)Except as expressly provided in Section 5 of this Agreement, in
order to receive any Annual Bonus, Executive must be employed through the end of the calendar
year which relates to the Annual Bonus. Any Annual Bonus, if earned, will be paid to Executive
within two and one-half (2.5) months following the end of the calendar year during which the
bonus is earned. All amounts payable to Executive hereunder will be subject to all required
withholding by the Company.
3.3Long-Term Incentive Compensation. Executive shall be eligible to
participate in the Parent’s 2021 Equity Incentive Plan, as may be amended from time to time (the
“Plan”) and in any other long-term and/or equity-based incentive compensation plan or program
approved by the Board from time to time. Any awards shall be subject to and governed in all
respects by the terms of the plan they were granted under and the award agreement between
Executive and the Company entered into with respect to each award.
(a)RSUs. Subject to the terms of the Plan and in accordance with the
terms of a separate award agreement to be provided by the Company, as soon as feasible after the
first Board meeting following the first day of trading of the Company under the ticker symbol
“KPLT” and any filing required by the Securities and Exchange Commission under the Securities
Exchange Act of 1933, whichever occurs later, Executive will be granted a certain number of
restricted share units equal to the quotient (rounded down to the nearest whole share) of $600,000
(six hundred thousand dollars) divided by the closing price as of the date the Company filed with
the U.S. Securities and Exchange Commission an effective registration statement on Form S-8,
vesting annually over a period of four (4) years commencing on the grant date (“Sign-On LTI”).
3.4Other Benefits. Executive shall have the right to participate in all benefit
plans which may be in effect for the Company’s senior executive employees from time to time, on
the same terms as such other senior executive employees, including, without limitation, group
health and dental insurance, group life insurance, disability insurance, and any retirement, 401(K),
profit-sharing or pension plans, in accordance with the terms and conditions thereof.
3.5Vacation, Holidays and Sick Time. Executive shall be entitled to paid time
off per year in accordance with the Company’s normal policies in effect from time to time.
3.6Expenses. During the term of this Agreement, the Company shall pay or reimburse Executive for all reasonable and necessary out-of-pocket expenses incurred by
Executive in the performance of Executive’s duties under this Agreement, subject to the
presentment by Executive of appropriate expense reports and receipts in accordance with the
Company’s normal policies for expense verification.
3.7Directors and Officers Liability Insurance; Indemnification Agreement. During the term of this Agreement, the Company will maintain directors’ and officers’ liability insurance on terms acceptable to the Board. In addition, no later than the Effective Date, Executive and Parent shall enter into an Indemnification Agreement, substantially in the form attached hereto as Exhibit A.
4.Proprietary Rights Agreement. The Executive has previously entered into a Confidentiality and Assignment Agreement, attached hereto as Exhibit B (the “PRA”). The
provisions of the PRA shall be deemed incorporated herein by reference as if set forth in full
herein. The obligations of Executive under the PRA shall survive the termination of Executive’s
employment with the Company for any reason whatsoever. In the event of any conflict or
inconsistency between this Agreement and the PRA, the terms of the PRA shall prevail.
5.Termination. The parties acknowledge that Executive’s employment relationship
with the Company is at-will. The provisions in this Section govern the amount of compensation,
if any, to be provided to Executive upon termination of employment and do not alter this at-will status.
5.1Termination with Cause. The Company may terminate Executive’s
employment for “Cause,” as defined below, at any time upon written notice to Executive.
(a)If Executive’s employment is terminated for Cause, except for the
Accrued Obligations, the Company may immediately cease payment of any further wages,
benefits, or other compensation under this Agreement. No severance or any other payments of
any kind, other than the Accrued Obligations, shall be payable to Executive upon termination of
employment with Cause, except as required by law.
(b)For purposes of this Agreement, “Cause” means: (i) Executive’s indictment or conviction of, or plea of nolo contendere to, a felony or any other crime involving
moral turpitude; (ii) Executive’s engaging in any act of fraud, misconduct, illegality, unlawful
harassment, embezzlement, or misappropriation; (iii) Executive’s failure to perform Executive’s
duties; (iv) Executive’s failure to follow the reasonable and lawful directives of the CEO, Board
or a committee thereof, or Executive’s supervisor; (v) Executive’s material breach of this
Agreement, the PRA, or any other written agreement between the Company (or any of its affiliates)
and Executive; (vi) Executive’s violation of the Company’s written policies or code of ethics or
standards of conduct policies, including written policies related to discrimination, harassment,
performance of illegal or unethical activities, and ethical misconduct; and (vii) Executive’s breach
of fiduciary obligation. With respect to those circumstances of Cause set forth in the preceding
clauses that are reasonably susceptible to cure, Cause shall only exist in cases in which the
Company has provided Executive with written notice of the alleged circumstances of Cause and
Executive has failed to cure such condition to the reasonable satisfaction of the Company within
thirty (30) days after such written notice.
5.2Termination without Cause. The Company may terminate Executive’s employment without Cause at any time upon written notice to Executive.
(a)If Executive’s employment is terminated by the Company without
Cause, the Company will pay severance on the terms and conditions set forth in Section 5.3(b). As a mandatory condition precedent to Executive’s right to receive and retain this severance pay,
Executive must first sign a separation agreement and general release of all claims against Parent,
the Company and their respective affiliates, in substantially the form attached hereto as Exhibit C
with any such changes as the Company deems, upon the advice of counsel, reasonably necessary
or appropriate to comply with applicable law or to reflect then-current corporate structure (the
“Release”), return such Release to the Company no later than forty-five (45) days following the
termination of Executive’s employment (or such shorter period of time specified in the Release),
and not revoke the Release, to the extent the Release is revocable, within seven (7) days following the execution date allowed by the Release for revocation.
(b)If the Company terminates Executive’s employment without Cause,
in addition to the Accrued Obligations, in all cases subject to Executive’s execution and non-
revocation of the Release in the time frame provided, the Company will (i) continue to pay to
Executive, as severance, the Base Salary for a period of six (6) months from the date of termination
of employment (such period shall be referred to as the “Severance Period”), in equal installments
payable in accordance with the Company’s regular payroll schedule and subject to all applicable withholdings and deductions, commencing on the next regular pay date following the sixtieth
(60th) day after termination of employment; provided, however, the first payment shall include the cumulative amount of payments that would have otherwise been paid to Executive between the
termination date and the sixtieth (60th) day after termination date had such payments commenced
on the next regular pay date following the termination date; (ii) a pro-rated Annual Bonus for the
calendar year in which termination occurs (with such pro-ration based upon the number of days in
the calendar year which have elapsed as of the date of termination) determined in accordance with
Section 3 of this Agreement and paid when such Annual Bonus is paid generally, (iii) pay the cost
of Executive’s COBRA premiums to continue group health insurance coverage for the Severance
Period if Executive or Executive’s dependents participate in the Company’s group health benefits
plan and timely elect to continue participating in the group health plan under COBRA;
(iv) accelerate the vesting of the unvested portion of any and all long-term incentive awards held
by Executive that are subject to time-based vesting only and would have vested during the
Severance Period but for Executive’s separation from employment with the Company; and (v)
extend the exercise period for the vested portion of any and all stock options held by Executive as
of the termination date to the earliest to occur of the following: (A) the eighteenth (18th) month
anniversary of the date of Executive’s termination, (B) immediately prior to the Company’s
consummation of a Change in Control (as defined in the Plan), or (C) the expiration date of each
such option. Any provision contained in the agreement(s) under which such options were granted
that is inconsistent with the exercise period extension as set forth herein is hereby modified to the
extent necessary to provide for such extension.
5.3Termination by Executive with Good Reason. Executive may terminate Executive’s employment with Good Reason (defined below) upon thirty (30) days’ prior written
notice to the Company. No event or condition shall constitute “Good Reason” unless Executive
provides the Company with written notice of the event or condition Executive alleges to be Good
Reason within thirty (30) days after such event or condition first occurs. The resignation shall not
become effective unless the Company fails to cure such event or condition constituting Good
Reason within thirty (30) days following the Company’s receipt of such notice.
(a)If Executive’s employment is terminated by Executive with Good
Reason, the Company will provide Executive the severance benefits on the terms and conditions
set forth below. As a mandatory condition precedent to Executive’s right to receive and retain this
severance pay, Executive must first sign a Release, return such Release to the Company no later
than forty-five (45) days following the termination of Executive’s employment, and not revoke the
Release, to the extent the Release is revocable, within the time allowed by the Release for
(b)For purposes of this Agreement, “Good Reason” means absent Executive’s prior written consent, (i) the Company requiring Executive to be based at any office
or location more than fifty (50) miles from Executive’s principal place of employment immediately
prior to such relocation, (ii) a material adverse change in Executive’s job title or a material
reduction in Executive’s duties or responsibilities; (iii) material reduction in Executive’s Base
Salary, other than a general reduction in Base Salary affecting similarly situated senior executives
of the Company, or (iv) the Company’s breach of this Agreement in any material respect; provided, however, that there shall be no resignation for “Good Reason” after such time as the Company
delivers to Executive a notice of termination for one or more acts or omissions constituting Cause.
(c)Except as set forth below, if Executive terminates Executive’s
employment with Good Reason, in addition to the Accrued Obligations, in all cases subject to
Executive’s execution and non-revocation of the Release in the time frame provided, the Company
will provide Executive the severance benefits set forth in Section 5.3(b) at the same times specified
therein; provided, that if Executive’s Good Reason is a reduction in the Base Salary per clause (iii)
of Section 5.4(b), the rate of Base Salary for clause (i) of Section 5.3(b) shall be rate prior to
5.4Termination by Executive without Good Reason. Executive may terminate Executive’s employment without Good Reason at any time upon two (2) weeks’ prior notice to the Company (which the Company may, in its sole discretion, make effective earlier; provided that the Company pays Executive’s Base Salary for the balance of the two (2)-week notice period). If Executive terminates Executive’s employment without Good Reason, except for the Accrued Obligations, the Company may immediately cease payment of any further wages, benefits, or other compensation under this Agreement. No severance or any other payments of any kind, other than the Accrued Obligations, shall be payable to Executive upon termination of employment by Executive, except as required by law.
5.5Termination due to Executive’s Death or Total Disability. Executive’s employment shall automatically terminate upon Executive’s death and may be terminated by the
Company for Total Disability (as defined below) upon thirty (30) days’ prior written notice to
Executive, which notice, for the avoidance of doubt, may be given in advance of the expiration of
the one hundred and twenty (120) consecutive days or the one hundred and fifty days (150) during
any twelve (12) month period referenced in Section 5.6(b).
(a)If Executive employment is terminated due to Executive’s death or
Total Disability, the Company will pay all Accrued Obligations and will cease payment of any
further wages, benefits or other compensation, and shall have no further payment obligations under
this Agreement or otherwise, except as required by law.
(b)For purposes of this Agreement, “Total Disability” means Executive
is unable to perform the essential functions of Executive’s job, with or without a reasonable
accommodation, for a period of (i) one hundred and twenty (120) consecutive days or (ii) any one
hundred and fifty (150) days during any twelve (12) month period. Any question as to the existence
of Executive’s Total Disability as to which Executive and the Company cannot agree shall be
determined in writing by a qualified medical doctor mutually selected by the Company and
5.6Termination due to a Change in Control.
(a)If the Company terminates Executive’s employment without Cause
or Executive terminates Executive’s employment with Good Reason and during the period
commencing three (3) months prior to a Change in Control and ending twelve months (12)
following a Change in Control, in addition to the Accrued Obligations, in all cases subject to
Executive’s execution and non-revocation of the Release in the time frame provided, the Company
will (i) pay to Executive, as severance, a lump sum equal to one (1) times the sum of the Base
Salary plus the Target Bonus for the year of termination, with payment on the next regular pay
date following the sixtieth (60th) day after termination of employment; (ii) pay the cost of
Executive’s COBRA premiums to continue group health insurance coverage for twelve (12)
months if Executive or Executive’s dependents participate in the Company’s group health benefits
plan and timely elect to continue participating in the group health plan under COBRA; (iii) cause
one hundred percent (100%) of the unvested portion of any and all long-term incentive awards
held by Executive as of the closing of such Change in Control (to the extent such awards are
assumed or continued (in accordance with its terms) by the surviving, continuing, successor, or
purchasing entity or parent thereof, as the case may be, in such Change in Control) to immediately
vest and, if applicable, become exercisable (in the case of a long-term incentive award with
performance-based vesting, all performance goals and other vesting criteria will be deemed
achieved at one hundred percent (100%) of target levels); and (iv) extend the exercise period for
the vested portion of any and all stock options held by Executive as of the termination date to the
earliest to occur of the following: (A) the eighteenth (18th) month anniversary of the date of
Executive’s termination, (B) immediately prior to the Company’s consummation of a Change in
Control, or (C) the expiration date of each such option. Any provision contained in the
agreement(s) under which such options were granted that is inconsistent with the exercise period
extension as set forth herein is hereby modified to the extent necessary to provide for such
extension. Notwithstanding anything herein to the contrary, the provisions of this Section are
subject to the terms of the Plan which will govern in all cases. If Executive is terminated
to this Section 5.7(a), the severance provisions of Section 5.3(b) and Section 5.4(c) will not apply;
provided, however, if after the Company terminates Executive without Cause per Section 5.3 or
Executive resigns for Good Reason per Section 5.4, it is determined such termination or
resignation occurred during the period commencing three (3) months prior to a Change in Control,
then the Company shall make a cash payment to Executive within sixty (60) days of the Change
in Control equal to the amount Executive would have received under this Section 5.7(a) less any
payment Executive already received by Executive under Section 5.3(b) or Section 5.4(c), and the
Executive shall receive severance payments and benefits in total that equate to the provisions of
this Section 5.7(a).
(b)For purposes of this Agreement, “Change in Control” shall have the
same meaning as in the Plan.
6.1Resolution of Disputes. The parties recognize that litigation in federal or
state courts or before federal or state administrative agencies of disputes arising out of Executive’s employment with the Company or out of this Agreement, or Executive’s termination of
employment or termination of this Agreement, may not be in the best interests of either Executive or the Company, and may result in unnecessary costs, delays, complexities, and uncertainty. The
parties agree that any dispute between the parties arising out of or relating to the negotiation,
execution, performance or termination of this Agreement or Executive’s employment, including,
but not limited to, any claim arising out of this Agreement, claims under Title VII of the Civil
Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age Discrimination in
Employment Act of 1967, the Americans with Disabilities Act of 1990, Section 1981 of the Civil
Rights Act of 1966, as amended, the Family Medical Leave Act, the Executive Retirement Income
Security Act, and any similar federal, state or local law, statute, regulation, or any common law
doctrine, whether that dispute arises during or after employment, shall be settled by binding
arbitration in accordance with the JAMS Employment Arbitration Rules; provided however, that
this dispute resolution provision shall not apply to any separate agreements between the parties
that do not themselves specify arbitration as an exclusive remedy. Issues of procedure,
arbitrability, or confirmation of award will be governed by the Federal Arbitration Act, 9 U.S.C.
§§ 1-16. The location for the arbitration shall be the Plano, TX area. Any award made by such
panel shall be final, binding and conclusive on the parties for all purposes, and judgment upon the
award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The
Company shall pay for all fees and costs of the Arbitrator, including any fees and costs that
not be incurred in a court proceeding. The parties acknowledge and agree that their obligations to
arbitrate under this Section survive the termination of this Agreement and continue after the
termination of the employment relationship between Executive and the Company. The parties
each further agree that the arbitration provisions of this Agreement shall provide each party with
its exclusive remedy, and each party expressly waives any right it might have to seek redress in
any other forum, except as otherwise expressly provided in this Agreement. By election arbitration
as the means for final settlement of all claims, the parties hereby waive their respective rights to,
and agree not to, sue each other in any action in a Federal, State or local court with respect to such
claims, but may seek to enforce in court an arbitration award rendered pursuant to this Agreement.
6.2Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without
regard to principles of conflict of laws.
6.3Entire Agreement. This Agreement, together with the exhibits attached
hereto (including but not limited to the PRA), which are hereby incorporated by reference contains
the entire agreement of the parties hereto relating to the employment of Executive by the Company
and the other matters discussed herein and supersedes all prior agreements and understandings
with respect to such subject matter, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement which are not set
forth herein. In the event of conflict between the terms of this Agreement and any equity or
compensation award agreement, the terms of this Agreement shall govern.
6.4Withholding Taxes. Parent and the Company may withhold from any compensation or other benefits payable under this Agreement all federal, state, city or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
6.5Supplements and Amendments. This Agreement may be supplemented or amended only upon the written consent of each of the parties hereto.
6.6Assignment. Except as expressly provided below, this Agreement shall not
be assignable, in whole or in part, by either party without the prior written consent of the other
party. The Company may, without the prior written consent of Executive, assign its rights and
obligations under this Agreement to any other corporation, firm or other business entity with or
into which Parent or the Company may merge or consolidate, or to which Parent or the Company
may sell or transfer all or substantially all of its assets, or of which fifty percent (50%) or more of
the equity investment and of the voting control is owned, directly or indirectly, by, or is under
common ownership with, Parent or the Company; provided, however, that such assignment may
be made without Executive’s prior written consent only if (a) such assignment has a valid business
purpose and is not for the purpose of avoiding the Company’s obligations hereunder or Executive’s realization of the benefits of this Agreement and (b) the assignee expressly assumes in writing all obligations and liabilities to Executive hereunder. This Agreement shall be binding upon and inure
to the benefit of Parent and the Company and their successors and permitted assigns. This
Agreement and all rights of Executive hereunder shall inure to the benefit of and be enforceable
by Executive’s heirs, personal or legal representatives and beneficiaries.
6.7Beneficiary in Event of Death. In the event of Executive’s death, any
payment or benefit to be paid to Executive per the terms of this Agreement as of, or due to, such
death shall be paid to the Beneficiary. The “Beneficiary” will be the beneficiary or beneficiaries
named by Executive in a written instrument that must be received by the Company prior to
Executive’s death. In the event there is no such named beneficiary, or no surviving named
beneficiary, then the Beneficiary shall be the Executive’s surviving spouse, or, if none, the
Executive’s surviving children per stirpes, or, if none, the Executive’s estate.
6.8No Waiver. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel to enforce any provisions of this Agreement,
except by a statement in writing signed by the party against whom enforcement of the waiver or
estoppel is sought. Any written waiver shall not be deemed a continuing waiver unless specifically
stated, shall operate only as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other than that specifically waived.
6.9Severability. The provisions of this Agreement are severable, and if any
one or more provisions may be judicially unenforceable and/or found invalid by a court of
competent jurisdictions, in whole or in part, the remaining provisions shall nevertheless be binding, enforceable and in full force and effect.
6.10Survival. The provisions of this Agreement shall survive the termination of
this Agreement and/or the termination of Executive’s employment to the extent necessary to
effectuate the terms contained herein.
6.11Titles and Headings. The titles and headings of the various sections of
this Agreement are intended solely for convenience of reference and not intended for any purpose whatsoever to explain, modify or place any construction upon any of the provisions hereof.
6.12Attorney’s Fees. If any party finds it necessary to employ legal counsel or
to bring an action at law or to commence mediation or arbitration or other proceedings against the
other party to enforce any of the terms or conditions of this Agreement, the court, mediator, or arbitrator shall award to the prevailing party in any such proceeding, the costs, fees and expenses
(including attorneys’ fees) reasonably incurred by such party in connection with such proceeding.
6.13Notices. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when hand delivered (which shall include personal delivery and delivery by
courier, messenger or overnight delivery service) or mailed by certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Executive: At Executive’s home address in accordance with the
If to Parent or the Company: Katapult Holdings, Inc.
Katapult Group, Inc.
5204 Tennyson Pkwy, Suite 500
Plano, TX 75024
with a copy, which copy shall not constitute notice, to:
or to such other address of which either party gives notice to the other party in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
6.14Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same instrument. Counterpart
signature pages to this Agreement transmitted by facsimile transmission, by electronic mail in
portable document format (.pdf), or by any other electronic means intended to preserve the original
graphic and pictorial appearance of a document (such as DocuSign or AdobeSign), will have the
same effect as physical delivery of the paper document bearing an original signature.
(a)This Agreement shall be interpreted to avoid any penalty sanctions
under Section 409A of the Internal Revenue Code (the “Code”). If any payment or benefit cannot
be provided or made at the time specified herein without incurring sanctions under Section 409A
of the Code, then such benefit or payment shall be provided in full (to extent not paid in part at
earlier date) at the earliest time thereafter when such sanctions will not be imposed. For purposes
of Section 409A of the Code, all payments to be made upon a termination of employment under
this Agreement may only be made upon the Executive’s “separation from service” (within the
meaning of such term under Section 409A of the Code), each payment made under this Agreement
shall be treated as a separate payment, and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. In no event shall the
Executive, directly or indirectly, designate the calendar year of payment, except as permitted under
Section 409A of the Code. Notwithstanding any provision of this Agreement to the contrary, in
no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result
in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in
the later taxable year.
(b)Notwithstanding anything herein to the contrary, if, at the time of
the Executive’s termination of employment with the Company, Parent or the Company has
securities which are publicly traded on an established securities market and the Executive is a
“specified employee” (as such term is defined in Section 409A of the Code) and it is necessary to
postpone the commencement of any payments or benefits otherwise payable under this Agreement
as a result of such termination of employment to prevent any accelerated or additional tax under
Section 409A of the Code, then the Company will postpone the commencement of the payment of
any such payments or benefits hereunder (without any reduction in such payments or benefits
ultimately paid or provided to the Executive) that are not otherwise paid within the “short-term
deferral exception” under Treas. Reg. §1.409A-1(b)(4), and the “separation pay exception” under
Treas. Reg. §1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six
months following the Executive’s “separation of service” (as such term is defined under code
Section 409A of the Code) with the Company. If any payments are postponed due to such
requirements, such postponed amounts will be paid in a lump sum to the Executive on the first
payroll date that occurs after the date that is six months following Executive’s separation of service
with the Company. If the Executive dies during the postponement period prior to the payment of
postponed amount, the amounts withheld on account of Section 409A of the Code shall be paid to
the personal representative of the Executive’s estate within 60 days after the date of the Executive’s
(c)All reimbursements and in-kind benefits provided under this
Agreement shall be made or provided in accordance with the requirements of Section 409A of the
Code, including, where applicable, the requirement that (A) any reimbursement shall be for
expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in
this Agreement), (B) the amount of expenses eligible for reimbursement, or in kind benefits
provided, during a calendar year may not affect the expenses eligible for reimbursement, or in kind
benefits to be provided, in any other calendar year, (C) the reimbursement of an eligible expense
will be made on or before the last day of the calendar year following the year in which the expense
is incurred and (D) the right to reimbursement or in kind benefits is not subject to liquidation or
exchange for another benefit.
6.16Government Agency Exception. Nothing in this Agreement or the PRA is intended to prohibit or restrict the Executive from: (i) making any disclosure of information
required by process of law; (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by, any federal or state regulatory or law enforcement agency
or legislative body, or any self-regulatory organization; or (iii) filing, testifying, participating in,
or otherwise assisting in a proceeding relating to an alleged violation of any federal, state, or
municipal law relating to fraud or any rule or regulation of the Securities and Exchange
Commission or any self-regulatory organization. In addition, this Agreement does not bar the
Executive’s right to file an administrative charge with the Equal Employment Opportunity
Commission (“EEOC”) and/or to participate in an investigation by the EEOC.
6.17Acknowledgement of Full Understanding. Executive acknowledges and
agrees that Executive has fully read, understands and voluntarily enters into this Agreement.
Executive acknowledges and agrees that Executive has had an opportunity to ask questions and consult with an attorney of Executive’s choice before signing this Agreement.
[Remainder of Page Intentionally Left Blank]
In Witness Whereof, the parties hereto have executed this Amended and Restated Employment Agreement on the day and year first written above.
Katapult Holdings, Inc.
By: /s/ Orlando Zayas
Orlando Zayas, Chief Executive Officer
Katapult Group, Inc.
By: /s/ Orlando Zayas
Orlando Zayas, Chief Executive Officer
/s/ Tahmineh Maloney
[Signature Page to Employment Agreement]
CONFIDENTIALITY AND ASSIGNMENT AGREEMENT
FORM OF SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS
This Separation Agreement and General Release Agreement (the “Agreement”) is made by and between Katapult Holdings, Inc., a Delaware corporation (“Parent”), Katapult Group, Inc., a wholly-owned subsidiary of Parent and a Delaware corporation (the “Company”), and Tahmineh Maloney (“you”). Capitalized terms not defined herein shall have the meanings ascribed to them in the Employment Agreement (as defined below).
Whereas, you and the Company entered into an Amended and Restated Employment
Agreement (this “Agreement”), dated September 13, 2021 (the “Employment Agreement”); and
Whereas, pursuant to the Employment Agreement, if either (i) the Company terminates
your employment without Cause pursuant to Section 5.3 of the Employment Agreement, or (ii) you resign for Good Reason pursuant to Section 5.4 of the Employment Agreement, then the Company shall provide to you certain benefits set forth in this Agreement in exchange for your execution, return and non-revocation of, and compliance with, this Agreement;
Now, Therefore, in consideration of the mutual promises and benefits set forth below
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, you and the Company agree as follows:
1.Separation. Your last day of work with the Company and your employment termination
date will be ______________ (the “Separation Date”).
2.Accrued Obligations. On the next regular payroll date following the Separation Date, the
Company shall provide you the Accrued Obligations (as defined in Section 5.1 of the
Employment Agreement). You are entitled to these payments regardless of whether or not
you sign this Agreement.
3.Separation Pay. If you sign this Agreement, return it by the deadline specified below, and
comply with its terms, the Company will provide you the severance benefits described in
Section 5.3(b) of the Employment Agreement in accordance with, and subject to, the
provisions of Section 5.3 and Section 6.14 of the Employment Agreement.
4.Health Insurance. Your group health insurance will cease on the last day of the month in
which your employment ends. At that time, you will be eligible to continue your group
health insurance benefits at your own expense, subject to Section 5.3(b) of the
Employment Agreement, the terms and conditions of the benefit plan, federal COBRA law,
and, as applicable, state insurance laws. You will receive additional information regarding
your right to elect continued coverage under COBRA in a separate communication.
5.Tax Matters. The Company will withhold required federal, state, and local taxes from
any and all payments contemplated by this Agreement. Other than the Company’s
obligation and right to withhold, you will be responsible for any and all taxes, interest, and
penalties that may be imposed with respect to the payments contemplated by this
Agreement (including, but not limited to, those imposed under Section 409A of the Code).
6.Other Compensation or Benefits. You acknowledge that, except as expressly provided
in this Agreement, you will not receive any additional compensation, benefits, or
separation pay after the Separation Date. Thus, for any employee benefits sponsored by
the Company not specifically referenced in this Agreement, you will be treated as a
terminated employee effective on your Separation Date. This includes but is not limited to
a 401(k) plan, life insurance, accidental death and dismemberment insurance, and short and
long-term disability insurance.
7.Expense Reimbursement. You agree that, within three (3) business days of the Separation
Date, you will submit your final documented expense reimbursement statement reflecting
all business expenses you incurred through the Separation Date, if any, for which you seek reimbursement. The Company will reimburse you for these expenses pursuant to its
regular business practice.
8.Return of Company Property. By the Separation Date or within seven (7) days, you
agree to return to the Company all hard copy and electronic documents (and all copies
thereof) and other Company property that you have had in your possession at any time,
including, but not limited to, files, notes, drawings, records, business plans and forecasts,
financial information, specifications, computer-recorded information (including email),
tangible property (laptop computer, cell phone, PDA, etc.), credit cards, entry cards,
identification badges and keys, and any materials of any kind that contain or embody any
proprietary or confidential information of the Company (and all reproductions thereof). If
you discover after the Separation Date that you have retained any Company proprietary or
confidential information, you agree immediately upon discovery to contact the Company
and make arrangements for returning the information.
9.Post Employment Restrictions. You acknowledge your continuing obligations under
your Confidentiality and Assignment Agreement (the “Proprietary Agreement”), which
prohibits disclosure of any confidential or proprietary information of the Company and
solicitation of Company employees and customers. A copy of your Proprietary Agreement
is attached hereto as Schedule 2.
10.Confidentiality. The existence of this Agreement and its provisions will be held in strictest
confidence by you and will not be publicized or disclosed in any manner whatsoever;
provided, however, that you may disclose this Agreement in confidence: (a) to your
or partner; (b) to your attorney, accountant, auditor, tax preparer, and financial advisor,
provided that such individuals first agree that they will treat such information as strictly
confidential and that you agree to be responsible for any disclosure by any such individual
as if you had made the disclosure; and (c) as necessary to enforce its terms or as otherwise
required by law. You agree not to disclose the terms of this Agreement to any current or
former Company employee.
11.Non-disparagement. You agree not to disparage the Parent, the Company, and their
officers, directors, employees, or agents, in any manner likely to be harmful to them or
their business, business reputation or personal reputation. The Company agrees not to
disparage you in any manner likely to be harmful to you or your business or personal
reputation; provided, however, that the Company’s obligation only applies to its officers
and its members of the Board of Directors at the time of the Separation Date for the period
such individuals are serving in such roles. Notwithstanding the foregoing, that statements
which are made in good faith in response to any question, inquiry, or request for
information required by legal process shall not violate this paragraph. Nothing in this
restriction is intended to limit you or the Company from giving honest statements before
an administrative agency investigating an alleged violation of discrimination laws.
12.Release of All Claims. Except as otherwise set forth in this Agreement, you hereby
release, acquit and forever discharge the Parent, the Company and their affiliates, officers,
agents, administrators, servants, employees, attorneys, successors, parent, subsidiaries,
assigns, and affiliates (the “Released Party” or “Released Parties”), of and from any and
all claims, liabilities, demands, causes of action, costs, expenses, attorneys’ fees, damages,
indemnities, and obligations of every kind and nature, in law, equity, or otherwise, known
and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in
any way related to agreements, events, acts, omissions, or conduct at any time prior to and
including the date you sign this Agreement. This general release includes, but is not limited
to: (i) claims and demands arising out of or in any way connected with your employment
with the Company, or the termination of that employment; (ii) claims or demands related
to your compensation or benefits with the Company, including but not limited to, wages,
salary, bonuses, commissions, vacation pay, fringe benefits, expense reimbursements,
incentive pay, severance pay, or any other form of compensation; (iii) claims pursuant to
any federal, state or local law, statute, or cause of action including, but not limited to,
claims for discrimination, harassment, retaliation, attorneys’ fees or other claim arising
under the federal Civil Rights Act of 1964, as amended; the federal Americans with
Disabilities Act of 1990, as amended; the federal Age Discrimination in Employment Act
of 1967, as amended (the “ADEA”); the federal Family Medical Leave Act, as amended;
the federal Worker Adjustment and Retraining Notification Act, as amended; the Employee
Retirement Income Security Act of 1974, as amended; and New York Labor Law, New
York City Human Rights Law, and the New York Human Rights Law; (iv) all tort claims,
including without limitation, claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; and (v) all claims for breach of contract, wrongful
termination, and breach of the implied covenant of good faith and fair dealing, including
claims arising out of an Employment Agreement, sales commission plan or incentive
compensation plan applicable to your employment with the Company.
Excluded from this Agreement are any claims (a) which by law cannot be waived in a
private agreement between an employer and employee, and (b) arising out of rights under
the Indemnification Agreement attached hereto as Schedule 3. Moreover, this Release does
not prohibit you from engaging in the activities protected pursuant to Section 6.15 of the
Employment Agreement. You do agree to waive your right to monetary or other recovery should any claim be pursued with the EEOC, state agency, or any other federal, state or local administrative agency your behalf arising out of or related to your employment with
and/or separation from the Company.
13.ADEA Waiver. You acknowledge that you are knowingly and voluntarily waiving and
releasing any rights you may have under the ADEA, as amended. You also acknowledge
that the consideration given for the waiver and release herein is in addition to anything of
value to which you were already entitled. You further acknowledge that you have been
advised by this writing, as required by the ADEA, that: (a) your waiver and release do not
apply to any rights or claims that may arise after the execution date of this Agreement; (b)
you have been advised hereby that you have the right to consult with an attorney prior to
executing this Agreement; (c) you have up to twenty-one (21) days from the date of this
Agreement to execute this Agreement (although you may choose to voluntarily execute
this Agreement earlier); (d) you have seven (7) days following the execution of this
Agreement by the parties to revoke the Agreement; and (e) this Agreement will not be
effective until the date upon which the revocation period has expired, which will be the
eighth day after this Agreement is executed by you, provided that the Company has also
executed this Agreement by that date (“Effective Date”); and (f) this Agreement does not
affect your ability to test the knowing and voluntary nature of this Agreement.
14.No Actions or Claims. You represent that you have not filed any charges, complaints,
grievances, arbitrations, lawsuits, or claims against the Company, with any local, state or
federal agency, union or court from the beginning of time to the date of execution of this
Agreement and that you will not do so at any time hereafter, based upon events occurring
prior to the date of execution of this Agreement. In the event any agency, union, or court
ever assumes jurisdiction of any lawsuit, claim, charge, grievance, arbitration, or
complaint, or purports to bring any legal proceeding on your behalf, you will ask any such
agency, union, or court to withdraw from and/or dismiss any such action, grievance, or
arbitration, with prejudice.
15.Employment Rights. You hereby waive any and all rights to employment or re-
employment with the Company or any successor or affiliated organization (“Related
Entity”). You agree that the Company and the Related Entities have no obligation,
contractual or otherwise, to employ or re-employ you, now or in the future, either directly
or indirectly, on a full-time, part-time, or temporary basis, including, but not limited to,
utilizing your services as a temporary employee, worker, or contractor through any
temporary service providers, vendors, or agencies.
16.Acknowledgements and Representations. You acknowledge and represent that you have
not suffered any discrimination or harassment by any of the Released Parties on account of
your race, gender, national origin, religion, marital or registered domestic partner status,
sexual orientation, age, disability, medical condition, or any other characteristic protected
by law. You acknowledge and represent that you have not been denied any leave, benefits
or rights to which you may have been entitled under the FMLA or any other federal or state
law, and that you have not suffered any job-related wrongs or injuries for which you might
still be entitled to compensation or relief. You further acknowledge and represent that,
except as expressly provided in this Agreement, you have been paid all wages, bonuses,
compensation, benefits and other amounts that any of the Released Parties have ever owed
to you, and you understand that you will not receive any additional compensation,
severance, or benefits after the Separation Date, with the exception of any vested right you
may have under the terms of a written ERISA-qualified benefit plan.
17.Medical Bills, Liens, and Other Potential Rights for Reimbursement
(a)Responsibility for Satisfaction of All Liens. You represent and warrant that all bills,
costs, or liens resulting from or arising out of any injuries and claims are your
responsibility to pay. You agree to assume responsibility for satisfaction of any
and all demands for payment, claims or liens of any kinds, that arise from or are
related to payments made or services provided to you or on your behalf. You agree
to assume responsibility for all expenses, costs, or fees incurred by you related to
your alleged injuries and claims including without limitation, all Medicare
conditional payments, subrogation claims, liens, or other rights to payment, relating
to medical treatment or lost wages that have been or may be asserted by any health
care provider, insurer, governmental entity, employer, or other person or entity.
Further, you and your attorney (if any) will indemnify, defend and hold Released
Parties harmless from any and all damages, claims, and rights to payment, including
any attorneys’ fees, brought by any person, entity, or governmental agency to
recover any of these amounts. If any governmental entity, or anyone acting on
behalf of any governmental entity, seeks damages including multiple damages from
Released Parties relating to payment by such governmental entity, or anyone acting
on behalf of such governmental entity, relating to your alleged injuries and claims,
you will defend and indemnify Released Parties and hold Released Parties harmless
from any and all such damages, claims, liens, Medicare conditional payments,
and rights to payment, including any attorneys’ fees sought by such entities.
(b)Good Faith Resolution. This settlement is based upon a good faith determination
of you and the Company to resolve any potential claims. You and the Company
have not shifted responsibility of medical treatment to Medicare in contravention
of 42 U.S.C. Section 1395y(b). You and the Company have made every effort to
adequately protect Medicare’s interest and incorporate such in the settlement terms.
(c)Representation that Employee is Not a Medicare Beneficiary. You and your
counsel (if any) warrant that you are not a Medicare beneficiary as of the date of
(d)Representation that No Medicare Conditional Payments Exist. You and your
counsel (if any) further represent and warrant that you are aware of no Medicare
conditional payments that have been made on your behalf.
18.No Admissions. By entering into this Agreement, the Parent and the Company make no
admission that they have engaged, or are now engaging, in any unlawful conduct. The
Parties understand and acknowledge that this Agreement is not an admission of liability
and shall not be used or construed as such in any legal or administrative proceeding.
19.Code Section 409A Compliance. Notwithstanding anything to the contrary in this
Agreement, no portion of the severance to be made under Section 3 hereof will be payable
until you has a “separation from service” from the Company within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”). The severance is
otherwise subject to Section 6.14 of the Employment Agreement. This provision shall not
be construed as a guarantee by the Company of any particular tax effect to you under this
Agreement. The Company shall not be liable to Executive for any payment made under
this Agreement or the Employment Agreement which is determined to result in an
additional tax, penalty or interest under Section 409A, nor for reporting in good faith any
payment as an amount includible in gross income under Section 409A.
20.Arbitration. The arbitration provisions of Section 6.1 of the Employment Agreement shall
apply to this Agreement. You and the Company agree that nothing in this Agreement is
intended to prevent either the Company or you from obtaining injunctive relief in court to
prevent irreparable harm pending the conclusion of any such arbitration pursuant to
21.Miscellaneous. This Agreement, including Schedule 1, Schedule 2, and Schedule 3,
constitutes the complete, final, and exclusive embodiment of the entire agreement between
you and the Company with regard to this subject matter. It is entered into without reliance
on any promise or representation, written or oral, other than those expressly contained
herein, and it supersedes any other such promises, warranties, or representations. You have
entered into separate agreements with the Parent related to equity that will survive
termination of your employment under this Agreement. This Agreement may not be
modified or amended except in a writing signed by both you and a duly authorized officer
of the Company. This Agreement will bind the heirs, personal representatives, successors,
and assigns of both you and the Company, and inure to the benefit of both you and the
Company, their heirs, successors, and assigns. If any provision of this Agreement is
determined to be invalid or unenforceable, in whole or in part, this determination will not
affect any other provision of this Agreement and the provision in question will be modified
by the court so as to be rendered enforceable. This Agreement will be deemed to have
been entered into and will be construed and enforced in accordance with the laws of the
State of New York.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
KATAPULT HOLDINGS, INC.
Orlando Zayas, Chief Executive Officer
KATAPULT GROUP, INC.
Orlando Zayas, Chief Executive Officer
[Signature Page to Separation Agreement and General Release of Claims]