Exhibit 10.1
TRANSITION AND CONSULTING AGREEMENT
This Transition and Consulting Agreement (this “Agreement”), dated as of August 10, 2023 but effective as of the Effective Date (as defined in Section 11 below), is entered into by and between Flowers Bakeries, LLC, a Georgia limited liability company (the “Company”), and Keith Wheeler (“Executive”). This Agreement must be returned to Cindy Cox, Chief Human Resources Officer, Flowers Bakeries, LLC, 1919 Flowers Circle, Thomasville, GA 31792, within 21 calendar days after it is provided to Executive; otherwise, this offer is withdrawn. Depositing the signed Agreement in the mail within this 21-day calendar day period is sufficient to meet this requirement. This Agreement may be revoked by Executive within seven calendar days after it was signed by filing a written revocation notice with Cindy Cox at the above address.
RECITALS
WHEREAS, Executive is currently employed by the Company as Chief Sales Officer; WHEREAS, Executive desires to retire from employment with the Company;
WHEREAS, the Company desires to retain Executive following his retirement to provide certain consulting services to the Company, and Executive desires to provide such consulting services to the Company, all subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of (a) the mutual covenants and agreements set forth in this Agreement, and (b) other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Status of Employment. Executive will cease serving as Chief Sales Officer of the Company, effective August 31, 2023 (the “Transition Date”), but will remain an employee of the Company and serve as a senior advisor to the Chief Executive Officer (the “CEO”) of Flowers Foods, Inc. (“Flowers”) until Executive’s termination of employment with the Company and its affiliates effective December 31, 2023 or such earlier date as determined by Executive or the Company hereunder (the “Separation Date,” and the period commencing on the Transition Date and ending on the Separation Date, the “Transition Period”). As of the Transition Date, Executive will terminate from all positions Executive holds as an officer or director of the Company and the Company’s subsidiaries and affiliates and promptly execute any documents and take any actions as may be necessary or reasonably requested by the Company to effectuate or memorialize Executive’s termination from all such positions with the Company and its subsidiaries and affiliates. Executive shall render services as may be requested by the CEO through the Separation Date and thereafter during the Consulting Term (as defined herein) from such location or locations as he determines in his sole discretion unless otherwise mutually agreed in writing.
2. Compensation During Transition Period. Notwithstanding Executive’s change in position on the Transition Date, during the Transition Period, Executive will continue to be eligible for the same compensation and benefits to which he would have been eligible as Chief Sales Officer of the Company, including a base salary at the rate in effect for Executive on the date hereof. For the avoidance of doubt, notwithstanding Executive’s termination of employment effective as of the Separation Date, Executive will be eligible to receive any payout earned with respect to 2023 under the annual cash incentive program in which Executive currently participates based on actual
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performance for the full performance period, subject to and in accordance with the terms of the applicable annual incentive program (the “Annual Incentive Payment”).
3. Termination of Employment.
4. Engagement as an Independent Consultant.
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5. Independent Contractor.
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6. Restrictive Covenants.
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7. General Release of Claims.
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8. Administrative Charges. Nothing in this Agreement limits Executive’s ability to file a charge or complaint with the Equal Employment Opportunity Commission (or a charge with a comparable state or local administrative agency), the National Labor Relations Board, the
Occupational Safety and Health Administration, the Securities and Exchange Commission or
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any other federal, state or local governmental agency or commission (“Government Agencies”).
Executive further understands that this Agreement does not 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. For purposes of clarity, nothing in this Agreement prohibits Executive from providing information voluntarily to the Securities and Exchange Commission pursuant to Section 21F of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company nonetheless asserts and does not waive its attorney-client privilege over any information appropriately protected by privilege. Executive is waiving, however, Executive’s right to any monetary recovery or relief (including but not limited to reinstatement to employment) should the EEOC or any other agency or commission pursue any claims on Executive’s behalf. Executive further agrees that if any person, organization, or other entity should bring a claim against the Company or any of the Released Parties, involving any matter covered by the release in Section 7 of this Agreement, Executive will not accept any personal relief in any such action, including damages, attorneys’ fees, costs, and all other legal or equitable relief. For the avoidance of doubt, however, nothing herein prevents Executive from receiving any whistleblower award, including any monetary recovery under the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Sarbanes-Oxley Act of 2002, or any monetary award offered by the Securities and Exchange Commission pursuant to Section 21F of the Exchange Act.
9. No Encouragement of Claims; No Disparagement. Executive shall not in any way encourage or assist any person or entity (including, but not limited to, any past, present, or future employee(s) of the Company and/or its affiliated companies and entities) to take or participate in any legal or administrative action against any of the Company or any of the Released Parties, except as otherwise protected by law. Neither shall Executive take any action which in any way disparages, or which could harm the reputation of and/or goodwill of, the Company and any of the Released Parties, including, but not limited to, making (directly or indirectly), or encouraging any other(s) to make, any public attack(s) against, or criticism(s) of, any of the Company or any of the Released Parties, and/or communicating with any newspaper or other news media concerning the Company or any of the Released Parties, the terms of this Agreement, or the claims settled pursuant to this Agreement.
10. Acknowledgements. By signing below, Executive represents and warrants that Executive has been offered a period of at least 21 calendar days to consider this Agreement. Executive acknowledges that if Executive signs this Agreement prior to the expiration of the 21- day period, that Executive did so voluntarily. Executive waives any right that Executive may have to additional time beyond this consideration period within which to consider this Agreement. By signing this Agreement, Executive further acknowledges and agrees that:
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11. Revocation. This Agreement may be revoked by Executive within seven calendar days after the date Executive signs this Agreement, by filing a written revocation notice with Cindy Cox, Chief Human Resources Officer, Flowers Bakeries, LLC., 1919 Flowers Circle, Thomasville, GA 31757, and will not become effective or enforceable until the day immediately following the last day of the Revocation Period, if this Agreement is not revoked within such Revocation Period (the “Effective Date”).
12. Compensation Recovery Policy. Notwithstanding anything in this Agreement to the contrary, Executive acknowledges and agrees that any prior equity-based awards, annual incentive awards and/or other incentive-based compensation Executive received or may receive, are subject to the terms and conditions of the Company’s Clawback Policy, as it may be amended from time, or any other applicable recoupment, recapture, clawback, or recovery policy of the Company as adopted by the Company or its affiliates and in effect from time to time including specifically to implement Section 10D of the Exchange Act and any applicable rules or regulations promulgated thereunder (including applicable rules and regulations of any national securities exchange on which the Company or its affiliates’ common stock may be traded) (the “Compensation Recovery Policy”). A copy of the Compensation Recovery Policy is available upon request.
13. Other Limitations. Executive agrees that during the period commencing on the date hereof and ending on December 31, 2025, neither Executive nor anyone acting on Executive’s behalf, will, directly or indirectly, (a) attempt to facilitate (i) the acquisition of securities, assets or indebtedness of Flowers or any of its affiliates, (ii) any tender offer or business combination involving Flowers, its affiliates or any of their respective assets, (iii) any recapitalization, restructuring or other extraordinary transaction with respect to Flowers or its subsidiaries, or (iv) any solicitation of proxies or consents to vote any securities of Flowers or its subsidiaries; (b) form or participate in any group with respect to Flowers’ securities or act in concert with any person in respect of Flowers’ securities; (c) otherwise act, alone or in concert with others, to seek control over the management, Board of Directors or policies of Flowers or seek a position on the Board of Directors of Flowers; or (d) enter into any discussions or arrangements with any third party regarding any of the above. Notwithstanding the foregoing, the Company hereby agrees that this provision will not apply to the following: (w) Executive’s acquisition of any security, asset, or indebtedness of Flowers pursuant to the terms of his employment, Flowers’ benefit plans or this Agreement; (x) the purchase, sale or transfer in the ordinary course by Executive or anyone acting on his behalf after the Separation Date (and not pursuant to this Agreement or Flowers’ benefit plans) of voting securities of Flowers so long as, immediately after any such purchase, sale or transfer, Executive and everyone acting on his behalf do not collectively beneficially own more than one percent of any outstanding class of voting securities or securities convertible into voting securities of Flowers; (y) the exercise by Executive or anyone acting on his behalf of any voting rights available to Executive or anyone acting on his behalf that are also available to Flowers stockholders generally pursuant to any transaction described above, provided that Executive or anyone acting on his behalf has not then either directly, indirectly, or as a member of a group, made, effected, initiated, solicited proxies on behalf of, or caused such transaction to occur or otherwise violated these provisions; and (z) participating in any class action lawsuit involving securities of Flowers or any affiliate.
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14. Future Cooperation. Executive agree that Executive shall, without any additional compensation, respond to reasonable requests for information from the Company and its affiliates regarding matters that may arise in the Company’s and its affiliates’ business. Executive further agrees to fully and completely cooperate with the Company and its affiliates, their advisors and their legal counsel with respect to any litigation that is pending against the Company or its affiliates and any claim or action that may be filed against the Company or its affiliates in the future. Such cooperation shall include Executive making himself available at reasonable times and places for interviews, reviewing documents, testifying in a deposition or a legal or administrative proceeding, and providing advice to the Company and its affiliates in preparing defenses to any pending or potential future claims against the Company or its affiliates. The Company agrees to (or to cause one of its affiliates to) pay/reimburse Executive for any approved travel expenses reasonably incurred as a result of Executive’s cooperation with the Company, with any such payments/reimbursements to be made in accordance with the Company’s expense reimbursement policy as in effect from time to time.
15. Survival. Subject to any limits on applicability contained therein, Sections 6 through 21 hereof shall survive and continue in full force in accordance with their terms notwithstanding any termination of this Agreement.
16. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid or unenforceable in any respect under any applicable law, such invalidity or unenforceability shall not affect any other provision, but this Agreement shall be reformed, construed and enforced as if such invalid or unenforceable provision had never been contained herein.
17. Complete Agreement. This Agreement embodies the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of its date supersedes and preempts any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way.
18. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and both of which taken together shall constitute one and the same agreement.
19. Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable by Executive, the Company and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Executive hereby consents to the assignment by the Company of all of its rights and obligations hereunder to any successor to the Company by merger or consolidation or purchase of all or substantially all of the Company’s assets, provided such transferee or successor assumes the liabilities of the Company hereunder.
20. Choice of Law; Venue. This Agreement shall be governed by and enforced in accordance with the laws of the State of Georgia, United States of America, without regard to conflict of law principles. The parties agree that this Agreement may be enforced exclusively in any court of competent jurisdiction in the State of Georgia and the parties hereby subject themselves to the jurisdiction of such courts in any such enforcement action.
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21. Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of the Company and Executive, and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding effect or enforceability of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.
Flowers Bakeries, LLC | ||
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By: | /s/ Cindy Cox | |
| Name: Cindy Cox |
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| Title: CHRO |
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/s/ | D. Keith Wheeler |
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D. Keith Wheeler |
[Signature Page to Transition and Consulting Agreement]