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): March 16, 2018
Advanced Drainage Systems, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 001-36557 | 51-0105665 | ||
(State or other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
4640 Trueman Boulevard, Hilliard, Ohio 43026 |
43026 | |
(Address of Principal Executive Offices) | (Zip Code) |
Registrants telephone number, including area code: (614) 658-0050
(Former name or former address if changed since last report.)
Check the appropriate box below if the Form 8-K filing 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)) |
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. |
On March 16, 2018, Thomas M. Fussner submitted to the Board of Directors of Advanced Drainage Systems, Inc. (the Company) notice of his retirement as Executive Vice President and Co-Chief Operating Officer of the Company, effective as of March 31, 2018.
In connection therewith, the Company and Mr. Fussner entered into a First Amendment to Amended and Restated Executive Employment Agreement dated as of March 16, 2018 (the Amendment), amending that certain Amended and Restated Executive Employment Agreement dated as of June 20, 2014 by and between the Company and Mr. Fussner (the Executive Employment Agreement). The Amendment amends the Executive Employment Agreement to reflect the employment period continuing through and terminating as of the close of business on March 31, 2018 and to reflect Mr. Fussners retirement age. The Amendment also provides for the Companys payment of Mr. Fussners premiums for up to 18 months of COBRA continuation coverage and the execution by Mr. Fussner of the form of Release set forth as Exhibit A to the Amendment. The Company and Mr. Fussner also entered into a Consulting Agreement, to be effective April 1, 2018, pursuant to which Mr. Fussner has agreed to provide certain consulting services to the Company until March 31, 2019.
The foregoing descriptions of the Amendment and the Consulting Agreement are qualified in their entirety by reference to the full text of the Amendment and the Consulting Agreement, which are attached as Exhibit 10.1 and Exhibit 10.2 to this Current Report on Form 8-K and incorporated in this Item 5.02 by reference.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
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.
ADVANCED DRAINAGE SYSTEMS, INC. | ||||||
Date: March 21, 2018 | By: | /s/ Scott A. Cottrill | ||||
Name: | Scott A. Cottrill | |||||
Title: | EVP, CFO and Secretary |
Exhibit 10.1
ADVANCED DRAINAGE SYSTEMS, INC.
First Amendment to Amended and Restated Executive Employment Agreement
March 16, 2018
This First Amendment to Amended and Restated Executive Employment Agreement (this Amendment ) is entered into effective as of the date set forth above (the Effective Date ) by and between ADVANCED DRAINAGE SYSTEMS, INC., a Delaware corporation (the Company ), and THOMAS M. FUSSNER (the Executive ).
Background
A. Effective as of June 20, 2014, the Company and the Executive entered into that certain Amended and Restated Executive Employment Agreement (the Agreement ); and
B. The Company and the Executive desire to amend the Agreement to reflect the Executives retirement date and transition.
Statement of Agreement
In consideration of the promises and mutual covenants and agreements contained herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as set forth below.
Section 1. Definitions . Capitalized terms used herein without definition have the meanings ascribed to such terms in the Agreement. The term Agreement, as used in the Agreement, shall, unless otherwise specified or unless the context otherwise requires, mean the Agreement and this Amendment, together, it being the intent of the Company and the Executive that each of the foregoing be applied and construed as a single instrument.
Section 2. Amendment . The Agreement is hereby amended as follows:
(a) the Employment Period shall continue through and terminate as of the close of business on March 31, 2018;
(b) March 31, 2018 shall be the Employment Termination Date;
(c) the Executives employment with the Company and the Agreement shall be deemed to have terminated pursuant to Section 9(e), including for purposes of Section 10(a), Section 10(b) and Section 10(d);
(d) Section 10(a)(ii)(B) and Section 10(a)(iii) are hereby amended by deleting sixty-five (65) and replacing it with sixty-one (61);
(e) Section 10(b) is hereby amended by inserting or if the Executives employment with the Company has terminated pursuant to Section 9(e) and on or before the Employment Termination Date the Executive shall have attained the age of sixty-one (61) years immediately prior to (i);
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(f) provided that the Executive timely elects group health plan continuation coverage in compliance with COBRA, the Company shall pay the Executives COBRA premiums (the COBRA Payments ) for continued coverage of the Executive and the Executives eligible dependents under the Companys group health plan until the earlier of (i) eighteen (18) months following the Employment Termination Date and (ii) the date on which the Executive is eligible to be covered under a subsequent employers group health plan. The Company and the Executive acknowledge and agree that until the Internal Revenue Service issues regulatory or other guidance to the contrary, the COBRA Payments shall not constitute earnings or wages under the authority of Internal Revenue Code Section 106(a); and to the extent that the Company determines that it cannot provide the COBRA Payments without potentially violating or causing the Company to incur additional expense as a result of noncompliance with applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company instead shall provide to the Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that the Executive would be required to pay to continue COBRA coverage under the Companys group health plan for the applicable COBRA coverage period;
(g) for the avoidance of doubt, if the Executive is a specified employee for purposes of Section 409A(a)(2)(B)(i), any payment or provision of benefits that is nonqualified deferred compensation subject to Section 409A and that is made in connection with a separation from service payment event (as determined for purposes of Section 409A) shall not be paid prior to the earlier of (x) the expiration of the six-month period measured from the date of the Executives separation from service or (y) the date of the Executives death (the 409A Deferral Period ). In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled. In the event benefits are required to be deferred, any such benefit may be provided during the 409A Deferral Period at the Executives expense, with the Executive having a right to reimbursement from the Company once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled; and
(h) Exhibit A is hereby amended and restated to read in its entirety as set forth on Exhibit A attached hereto.
Section 3. Ratification and Reaffirmation of the Agreement . The Company and the Executive hereby ratify and reaffirm all of the terms and conditions of the Agreement, which, as amended and supplemented by this Amendment, shall remain in full force and effect.
[ Signature Page Follows ]
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IN WITNESS WHEREOF, the Company and the Executive have executed multiple counterparts of this Amendment effective as of the Effective Date.
ADVANCED DRAINAGE SYSTEMS, INC. | ||||||||
By: | /s/ D. Scott Barbour | /s/ Thomas M. Fussner | ||||||
D. Scott Barbour, President & CEO | Thomas M. Fussner |
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Exhibit A
Release
This Release (this Release ) is entered into by THOMAS M. FUSSNER (the Executive ) in favor of ADVANCED DRAINAGE SYSTEMS, INC., a Delaware corporation (the Company ) and the other Releasees set forth below.
Background
A. The Executive has been employed by the Company pursuant to the Amended and Restated Executive Employment Agreement between the Executive and the Company dated as of June 20, 2014 (as amended, the Employment Agreement );
B. The Executives employment with the Company and the Employment Agreement have terminated, or are being terminated in connection with the execution and delivery of this Release, pursuant to Section 9(e) of the Employment Agreement and the Executive has attained or will on or before the Employment Termination Date attain the age of sixty-one (61) years; and
C. Section 10(d) of the Employment Agreement conditions the right of the Executive to receive the applicable termination/severance payments provided for in subsections (I), (III) and (IV) of Section 10(a)(ii) of the Employment Agreement with respect to such termination (the Severance ) on the Executives execution and delivery to the Company of this Release.
Statement of Agreement
In consideration of, and as a condition to, the Executives right to receive the Severance, the Executive agrees as set forth below.
Section 1. Definitions . Capitalized terms used herein without definition have the meanings ascribed to such terms in the Employment Agreement.
Section 2. Release of Claims . The Executive, on behalf of himself and his heirs, executors, administrators, successors and assigns, forever releases (a) the Company, (b) each of the affiliates of the Company, (c) each of the current and former officers and directors (and individuals in other equivalent positions) of the Company and/or any affiliate of the Company and (d) each of the employees, attorneys, agents and insurers of the Company and/or any affiliate of the Company (collectively, Releasees ) from all claims relating to (i) the Executives employment with the Company and/or the termination of such employment, (ii) the Employment Agreement and/or the termination of the Employment Agreement and/or (iii) the Executives status as, or relationship or dealings with any Releasee in the Executives capacity as, a stockholder, officer or director (or in other equivalent positions) of the Company or any of its affiliates arising in whole or in part from events occurring prior to the Employment Termination Date that the Executive now has or may have or that the Executive may hereafter have of any nature whatsoever, be they common law or statutory, legal or equitable, in contract or tort (each such claim, a Released Claim ), including but not limited to claims under the internal policies and procedures of the Company or any of its affiliates, the Age Discrimination in Employment Act, as amended, and the Family Medical Leave Act, as amended. The Executive hereby waives all rights
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to assert a claim for relief available under the Age Discrimination in Employment Act, as amended, and other applicable laws, including but not limited to relief in the form of attorney fees, damages, reinstatement, back pay, or injunctive relief. The Executive further covenants not to bring suit or otherwise institute legal proceedings against any of the Releasees for any Released Claim. Notwithstanding the foregoing, the terms of this Release shall not extend to: (A) the Executives post-termination rights under Section 7, Section 10(a) or Section 10(b) of the Employment Agreement, (B) the Executives post-termination rights under the Benefit Plans and/or Equity Incentive Plans (or related award agreements) referenced in Section 10(b) of the Employment Agreement, (C) the Executives post-termination rights to participate in the Companys medical and dental plans pursuant to COBRA, or (D) the Executives rights to receive indemnification and advancement of expenses for actions or omissions occurring prior to the Employment Termination Date including under the Indemnification Agreement.
The Executive understands that nothing in this Release limits the Executives ability to (1) file a charge or complaint with the Equal Employment Opportunity Commission, 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 Agency ) or (2) communicate with any Government Agency 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. However, the Executive does forever release the Executives right to recover or receive from any Releasee any personal relief, monetary damages, attorneys fees, back pay, reinstatement or injunctive relief, with the exception of any whistleblower awards or incentives that may be available for information provided to the Department of Justice, the Securities and Exchange Commission, Congress, or any federal Inspector General.
Section 3. Review of Release by Executive .
(a) The Executive has been advised to consult with an attorney before executing this Release.
(b) The Executive has been given at least 21 calendar days after receipt of this Release (the Consideration Period ), if he so desires, to consider this Release before signing it. If the Executive signs this Release, the date on which he signs this Release will be the Execution Date . If not signed by the Executive and returned to the Company so that it is received no later than the end of the Consideration Period, this Release will not be valid. In the event the Executive executes and returns this Release prior to the end of the Consideration Period, he acknowledges that his decision to do so was voluntary and that he had the opportunity to consider this Release for the entire Consideration Period.
(c) The Company and the Executive agree that this Release will not become effective until 7 calendar days after the Execution Date and that the Executive may, within 7 calendar days after the Execution Date, revoke this Release in its entirety by written notice to the Company. If written notice of revocation is not received by the Company by the 8th calendar day after the execution of this Release by the Executive, this Release will become effective and enforceable on that day.
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Section 4. Miscellaneous . This Release shall be governed and construed in accordance with the laws of the State of Ohio, without regard to conflict of law provisions. This Agreement shall bind the respective heirs, executors, administrators, successors and assigns of the Executive.
The Executive represents and agrees that he has fully read and understands the meaning of this Release, has had the opportunity to consult with legal counsel of his choosing, and is voluntarily entering into this Release with the intention of giving up all claims against the Company and other Releasees.
IN WITNESS WHEREOF, the Executive has executed this Release on the Execution Date set forth below.
Executive : | ||
Name: | Thomas M. Fussner |
Execution Date: |
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Exhibit 10.2
CONSULTING AGREEMENT
This Consulting Agreement (this Agreement ) is made and entered into as of April 1, 2018 by and between Advanced Drainage Systems, Inc., a Delaware corporation (the Company ), and Thomas M. Fussner, an individual (the Consultant ).
Background
Prior to the Consultants voluntary retirement on March 31, 2018 (the Retirement Date ), the Consultant served as an Executive Vice President and Co-Chief Operating Officer of the Company. Subject to the terms and conditions of this Agreement, the Company desires to engage the Consultant, and the Consultant desires to serve, as a consultant of the Company.
Agreement
In consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
§1. Consulting Services . During the Term, the Consultant shall be available to provide, and shall provide, to the Company such consulting services as any of the Companys executive officers (or a designee) may, with reasonable notice, reasonably request in connection with the Companys business or affairs (the Consulting Services ), not to exceed twenty (20) hours per month. The Consultant shall provide the Consulting Services in such manner and at such dates, times and locations (including telephonic and in-person meetings) as any of the Companys executive officers (or a designee) may, with reasonable notice, reasonably request.
§2. Term . This Agreement shall commence on the date hereof and, except as set forth in §8, shall continue in effect until the close of business on March 31, 2019 (the Term ).
§3. Retainer/Consulting Fee . The Company shall pay to the Consultant, as compensation in full for the performance by the Consultant of the obligations set forth in §1, (a) a one-time, lump-sum retainer/consulting fee of $25,000 on or before April 30, 2018 and (b) a retainer/consulting fee equal to $31,250 per month during the Term. All such retainer/consulting fees shall be (i) payable on the last day of each month, (ii) subject to all applicable laws, including any required tax withholding and/or reporting and (iii) prorated in the event of the termination of this Agreement prior to the end of a month. It is intended that each installment of the payments provided under this §3 shall be treated as a separate payment for purposes of Section 409A of the Internal Revenue Code ( Section 409A ), and that neither the Company nor the Consultant shall have the right to accelerate or defer the delivery of any such payments except to the extent specifically permitted or required by Section 409A.
§4. Expenses . Provided that the Consultant submits to the Company a written invoice, together with underlying documentation, for reasonable, out-of-pocket, pre-approved travel expenses incurred by the Consultant during the Term in connection with providing the Consulting Services, the Company shall promptly reimburse the Consultant for such expenses; provided , however , that no such expenses shall be reimbursable after the end of the calendar year following the calendar year in which such expenses were incurred.
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§5. Confidentiality . The Consultant recognizes and acknowledges that he has and may, in the future, have access to confidential and proprietary information of the Company through his position as a consultant of the Company, which constitutes valuable, special and unique assets of the Company. As used herein, the term Confidential Information means all information (a) relating to the Company and/or its affiliates of a confidential or non-public nature, including without limitation all data, technology, inventions, discoveries, processes, techniques, trade secrets, formulae, results of investigations and experiments, marketing, production, pricing, buying and sales information, customer lists and other customer information relating to the Company and/or its affiliates, which have been disclosed to the Consultant or developed or otherwise obtained by the Consultant during his service as a consultant of the Company or (b) relating to third parties of a confidential or non-public nature disclosed to the Consultant during his service as a consultant of the Company to the extent the Company or any of its affiliates remains subject to confidentiality or use restrictions in favor of a third party with respect to such information, other than any information that is or becomes within the public domain, other than through a breach of this Agreement.
The Consultant acknowledges that Confidential Information is and shall remain the property of the Company. The Consultant shall not, either during or after his service as a consultant of the Company, except in connection with his service as a consultant of the Company, directly or indirectly use or disclose to any individual, legal entity, partnership, estate, trust, association, organization or governmental body any Confidential Information unless required to do so by applicable law or any governmental authority, or otherwise use all or any part of the Confidential Information for personal gain or in detriment to the Company. Upon request of the Company, at any time during the course of his service as a consultant of the Company, upon termination of his service as a consultant of the Company or thereafter, the Consultant shall promptly return to the Company all records relating to Confidential Information in whatever form they exist, and by whomever prepared, which are then in his custody, possession and/or control.
The federal Defend Trade Secrets Act of 2016 immunizes the Consultant against criminal and civil liability under federal or state trade secret laws (under certain circumstances) if the Consultant discloses a trade secret for the purpose of reporting a suspected violation of law. Immunity is available if the Consultant discloses a trade secret in either of the following two circumstances: (i) the Consultant discloses the trade secret (A) in confidence, (B) directly or indirectly to a government official (federal, state or local) or to a lawyer, and (C) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a legal proceeding, the Consultant discloses the trade secret in the complaint or other documents filed in the case, so long as the document is filed under seal (meaning that it is not accessible to the public).
§6. Termination of Employment; Separation from Service . The parties acknowledge and agree that (a) the Consultants employment was terminated by the Consultant, by voluntary retirement, on the Retirement Date, and (b) such termination of employment, this Agreement and the transactions contemplated are intended to qualify as a separation from service with the Company (as such term is defined for purposes of Section 409A).
§7. Independent Contractor . The parties agree that, from and after the date hereof, the Consultants relationship with the Company shall be that of an independent contractor of the
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Company and not that of an employee of the Company. The Consultant shall have no authority as agent or otherwise to act in the name or on behalf of the Company or to bind the Company to any contract, agreement or other arrangement whatsoever. The Company shall not be obligated to make any payments, withhold any portion of the Consultants retainer/consulting fee, or take any other action pursuant to any federal, state or local laws dealing with income or Social Security tax withholding, or unemployment or workers compensation insurance, or any other laws dealing with the obligations of an employer to its employees. The Consultant shall obey all applicable rules and regulations and meet all applicable requirements regarding employment-related taxes which are now, or hereafter, may be issued or promulgated under any such laws by any authorized non-U.S., U.S. federal or U.S. state official; and the Consultant shall indemnify and hold harmless the Company from any, contributions, taxes or liability therefor.
§8. Termination . This Agreement may be terminated by either party at any time, by giving written notice of such termination to the other party, if such other party has breached, or has indicated that it is unable or unwilling to comply with, any of the terms or conditions of this Agreement or of that certain Amended and Restated Executive Employment Agreement dated as of June 20, 2014. This Agreement shall terminate immediately upon (a) the expiration of the Term or (b) the Consultants death. Notwithstanding any provision of this Agreement to the contrary, except for the Companys obligation to reimburse certain expenses in accordance with §4, all of the Companys obligations and all of the Consultants obligations under this Agreement shall terminate upon the termination of this Agreement, except that any retainer/consulting fee accrued but not paid on the date of termination of this Agreement shall be paid to the Consultant (or to the Consultants estate in the event of death) on the last day of the month in which this Agreement terminates.
§9. Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio, without regard to conflicts of law principles that would cause the application of the laws of any other jurisdiction.
§10. Successors and Assigns . This Agreement shall be binding upon, and inure to the benefit of, the Company (and its successors and assigns) and the Consultant (and the Consultants heirs and personal representatives). The Consultant shall not assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the Company; any such assignment or attempted assignment shall be null and void.
IN WITNESS WHEREOF, the parties have executed this Agreement, which may be executed in counterparts, all of which shall constitute one and the same instrument, effective as of the date first set forth above.
ADVANCED DRAINAGE SYSTEMS, INC. | ||||||
By: | /s/ D. Scott Barbour | /s/ Thomas M. Fussner | ||||
D. Scott Barbour, President & CEO | Thomas M. Fussner |
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