Dutch Bros Inc. (Form: 8-K, Received: 04/02/2024 16:12:23)

0001866581FALSE04/01/202400018665812024-04-012024-04-01

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934

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

_______________________________________________________

(Exact name of registrant as specified in its charter)

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Delaware		001-40798	87-1041305
(State or other jurisdiction of incorporation)		(Commission File Number)	(IRS Employer Identification No.)
110 SW 4th Street			97526
Grants Pass,	Oregon
(Address of principal executive offices)			(Zip Code)

(Registrant’s telephone number, including area code)

(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 (see General Instruction A.2. below):


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

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


Title of Each Class	Trading Symbol	Name of Exchange on which Registered
Class A Common Stock, par value $0.00001 per share	BROS	The New York Stock Exchange

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.

Pursuant to the previously announced planned senior leadership changes, effective April 1, 2024, the Board of Directors of Dutch Bros Inc., a Delaware corporation (the “Company”), appointed Brian Maxwell to the newly created role of Vice Chair, and Sumitro Ghosh to the role of President of Operations, each to serve until his successor has been duly appointed, or until his earlier death, resignation, or removal. Mr. Maxwell will no longer be an executive officer following his appointment as Vice Chair.

Mr. Ghosh, age 56, has served as Incoming President of Operations of the Company and its subsidiaries since January 2024. Mr. Ghosh served as Global VP Nike Stores for NIKE, Inc. (NYSE: NKE), a multinational athletic footwear, apparel, equipment, and services corporation, from November 2021 to December 2023. Prior to that, he served as Chief Operating Officer of Foxtrot Ventures Inc., a food and drink convenience store and delivery service, from December 2020 to September 2021. He held various roles at Starbucks Corporation (Nasdaq: SBUX), a global coffee chain, from 2008 to December 2020, most recently as Senior Vice President of Siren Retail, Global Roastery and Reserve Stores from January 2019 to December 2020, and before that as Chief Executive Officer and Managing Director of TATA Starbucks Private Limited from January 2016 to January 2019. Mr. Ghosh serves on the Boards of Directors of the non-profit organizations India Initiative and New City Church, and on the Board of Advisors of VietFive Coffee. He holds a B.A. in Advertising from Michigan State University.

In connection with his appointment as Incoming President of Operations, on December 15, 2023, the Company entered into an offer letter with Mr. Ghosh (the “Agreement”). Pursuant to the Agreement, Mr. Ghosh will receive an annual base salary of $500,000, a signing bonus of $250,000, and is eligible to receive an annual cash bonus of 60% of his annual base salary. Mr. Ghosh received a one-time award of restricted stock units under the Company’s 2021 Equity Incentive Plan to acquire a number of shares of Class A common stock equal to $750,000, and he is also eligible for an annual award of restricted stock units under the Company’s 2021 Equity Incentive Plan to acquire a number of shares of Class A common stock equal to $550,000. Each award will vest and settle subject to the terms and conditions approved by the Board on the applicable grant date. He will receive reimbursement for relocation costs and expenses up to $200,000 and cell phone and internet stipends, and be eligible to participate in the Company’s standard benefits, subject to the terms and conditions of such plans and programs, including certain post-employment cash severance payments and other benefits pursuant to his Participation Agreement under the Company’s Amended and Restated Severance and change in Control Plan (the “Participation Agreement”). The foregoing description of the Agreement and the Participation Agreement is not complete, and is qualified in its entirety by reference to the Agreement and Participation Agreement, copies of which are attached as Exhibit 10.1 and 10.2 to this Current Report on Form 8-K, respectively.

There are no arrangements or understandings between Mr. Ghosh and any other persons pursuant to which he was selected as President of Operations and there are no family relationships between Mr. Ghosh and any of the Company’s directors or other executive officers. Additionally, there are no transactions involving the Company and Mr. Ghosh that the Company would be required to report pursuant to Item 404(a) of Regulation S-K.

In connection with Mr. Ghosh’s prior appointment as Incoming President of Operations, the Company entered into its standard indemnification agreement with Mr. Ghosh, which form indemnification agreement is filed as Exhibit 10.2 to the Company’s Registration Statement on Form S-1 filed with the SEC on September 13, 2021 (File No. 333-258988).

Item 9.01. Financial Statements and Exhibits


Exhibit No.						Description
1 0.1						Offer Letter, dated as of December 15, 2023, by and between Dutch Bros Inc. and Sumitro Ghosh
1 0.2						Participation Agreement, dated as of December 15, 2023, by and between Dutch Bros Inc. and Sumitro Ghosh
104						Cover Page with Interactive Data File (formatted as Inline XBRL with applicable taxonomy extension information contained in Exhibits 101)

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.

DUTCH BROS INC.

(Registrant)

Date:

April 2, 2024

By:

/s/ Charles L. Jemley

Charles L. Jemley

Chief Financial Officer

December 15, 2023 Sumitro Ghosh VIA EMAIL/DOCUSIGN Dear Sumi: We are pleased to offer you the full-time position of Incoming President of Operations at Dutch Bros Inc. and its direct and indirect subsidiaries (the “Company”) pursuant to the terms of this letter agreement (this “Agreement”). 1. Position; Duties. You will initially serve as Incoming President of Operations, reporting directly to the Company’s Chief Operating Officer, and it is contemplated that, after a transitional period of approximately 3-5 months, you would be transitioning into the role of President of Operations, reporting directly to the Company’s Chief Executive Officer. Your work location will be the Company’s Headquarters office located in Scottsdale, Arizona. You will have such duties and responsibilities as may be reasonably assigned by the Company from time to time consistent with your position. You agree to devote your best efforts and full business time, skill and attention to the performance of your duties. You are also required to adhere to the general employment policies and practices of the Company that may be in effect from time to time, except that when the terms of this Agreement conflict with the Company’s general employment policies or practices, this Agreement will control. The Company may change your position, duties, work location, compensation, and benefits from time to time, in its discretion. Your employment is scheduled to begin on January 15, 2024 (the “Start Date”). 2. Compensation. a. Salary. Your annual base salary will initially be $500,000, less applicable deductions and withholdings, payable in accordance with the Company’s payroll practices, as may be in effect from time to time. b. Signing Bonus. Within 30 days after the Start Date, the Company will pay you a one-time signing bonus equal to $250,000, less applicable deductions and withholdings (the “Signing Bonus”). If, within two years after the Start Date, you resign your employment with the Company without Good Reason (as defined in the Dutch Bros Inc. Amended and Restated Severance and Change in Control Plan (the “Severance Plan”)) or the Company terminates your employment for Cause (as defined in the Dutch Bros Inc. 2021 Equity Incentive Plan (the “Equity Plan”)), then you will be required to repay the entire Signing Bonus (on a pre-tax, gross basis) within 30 days after your final day of employment with the Company. c. Annual Bonus. You will be eligible to earn an annual bonus (“Annual Bonus”), which will initially be at a target of 60% of your annual base salary, less applicable deductions and withholdings, payable in accordance with the Company’s payroll practices, as may be in effect from time to time. Your Annual Bonus will be awarded based on metrics to be determined by the Company’s Board of Directors (the “Board”) or its Compensation Committee. You will first be eligible for an Annual Bonus in 2024. Exhibit 10.1

d. Annual Equity Award. You will be eligible to earn an annual award of restricted stock units (“RSUs”) under the Equity Plan with a grant date fair value of $550,000 (“LTIP Award”). Your initial LTIP Award will be granted on or about March 1, 2024, and will be prorated based on the Start Date. The subject RSUs will vest over three years, with 33% vesting on each anniversary of the grant date, provided all vesting conditions are met. Each LTIP Award is subject to Board approval and will be subject to the terms and conditions of the Plan and all related agreements. e. One-Time Equity Award. You will receive a one-time award of RSUs under the Equity Plan with a grant date fair value of $750,000 (the “One-Time Award”). The One-Time Award will be granted on or about March 1, 2024. The subject RSUs will vest over three years, with 33% vesting on each anniversary of the grant date, provided all vesting conditions are met. The One-Time Award is subject to Board approval and will be subject to the terms and conditions of the Plan and all related agreements. f. Cell Phone/Internet. The Company will pay you a monthly cell phone/internet allowance of $150. g. Relocation Expenses. The Company will reimburse you for the actual cost of expenses you reasonably incur in relocating to your work location, not to exceed $200,000, plus a gross-up amount to offset tax liability arising from such reimbursement. In addition, for the first six months following the Start Date, the Company will reimburse your reasonable travel expenses between your home and the Company’s headquarters offices in Grants Pass, Oregon and Scottsdale, Arizona. h. Benefits. You will be eligible to participate in the Company’s standard benefit programs, subject to the terms and conditions of such plans. The Company may, from time to time, change these benefits in its discretion. 3. At Will Employment; Severance. Your employment with the Company will be “at-will.” This means that either you or Company may terminate your employment at any time, with or without Cause (as defined in the Equity Plan), and with or without advance notice. You will be eligible for participation in the Severance Plan, and your Participation Agreement under the Severance Plan is attached hereto as Exhibit A. 4. Confidentiality Obligations. As a condition of your employment, you must enter into and abide by the Company’s standard form of employee confidentiality and inventions assignment agreement attached hereto as Exhibit B. 5. Contingencies. Your employment with the Company is contingent upon (i) approval of, and appointment by, the Board, and (ii) satisfactory results of a background check to be completed, as well as verification of your legal authorization to be employed in the United States. 6. Arbitration. To ensure the timely and economical resolution of disputes that may arise between you and the Company, both you and the Company mutually agree that

pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by applicable law, you will submit solely to final, binding and confidential arbitration any and all disputes, claims, or causes of action arising from or relating to: the negotiation, execution, interpretation, performance, breach or enforcement of this Agreement; or your employment with the Company (including but not limited to all statutory claims); or the termination of your employment with the Company (including but not limited to all statutory claims). BY AGREEING TO THIS ARBITRATION PROCEDURE, BOTH YOU AND THE COMPANY WAIVE THE RIGHT TO RESOLVE ANY SUCH DISPUTES THROUGH A TRIAL BY JURY OR JUDGE OR THROUGH AN ADMINISTRATIVE PROCEEDING. The Arbitrator will have the sole and exclusive authority to determine whether a dispute, claim or cause of action is subject to arbitration under this section and to determine any procedural questions which grow out of such disputes, claims or causes of action and bear on their final disposition. All claims, disputes, or causes of action under this section, whether by you or the Company, must be brought solely in an individual capacity, and will not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The Arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences in this paragraph are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class will proceed in a court of law rather than by arbitration. Any arbitration proceeding under this Arbitration section will be presided over by a single arbitrator and conducted by JAMS, Inc. (“JAMS”) under the then applicable JAMS rules for the resolution of employment disputes (available upon request and also currently available at http://www.jamsadr.com/rules-employment-arbitration/). You and the Company both have the right to be represented by legal counsel at any arbitration proceeding, at each party’s own expense. The Arbitrator will: (a) have the authority to compel adequate discovery for the resolution of the dispute; (b) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award; and (c) be authorized to award any or all remedies that you or the Company would be entitled to seek in a court of law. The Company will pay all JAMS arbitration fees in excess of the amount of court fees that would be required of you if the dispute were decided in a court of law. This section will not apply to any action or claim that cannot be subject to mandatory arbitration as a matter of law to the extent such claims are not permitted by applicable law to be submitted to mandatory arbitration and such applicable law is not preempted by the Federal Arbitration Act or otherwise invalid (collectively, the “Excluded Claims”). Nothing in this section is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any final award in any arbitration proceeding hereunder may be entered as a judgment in the federal and state courts of any competent jurisdiction and enforced accordingly. 7. Miscellaneous. This Agreement (including the agreements referenced herein) is the complete and exclusive statement of your agreement with the Company on the subject matters herein, and supersedes and replaces any and all prior agreements or representations with regard to the subject matter hereof, whether written or oral. It is entered into without reliance on any promise or representation other than those expressly contained herein, and it cannot be

modified, amended or extended except in a writing signed by you and a duly authorized officer of the Company or member of the Board. This Agreement is intended to bind and inure to the benefit of and be enforceable by you and the Company, and our respective successors, assigns, heirs, executors and administrators, except that you may not assign any of your duties or rights hereunder without the express written consent of the Company. Whenever possible, each provision of this Agreement will 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, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced as if such invalid, illegal or unenforceable provisions had never been contained herein. This Agreement and the terms of your employment with the Company will be governed in all aspects by the laws of the State of Arizona, without reference to its conflicts of laws principles. If you have any questions about this Agreement, please do not hesitate to call me. Best regards, Christine Barone President Exhibit A: Severance and Change in Control Plan and Participation Agreement Exhibit B: Employee Confidential Information and Inventions Assignment Agreement ACCEPTED AND AGREED: Sumitro Ghosh Date: _________________________ December 15, 2023 /s/ Sumitro Ghosh /s/ Christine Barone

APPENDIX A PARTICIPATION AGREEMENT Section 1. ELIGIBILITY. You have been designated as eligible to participate in the Dutch Bros Inc. Amended and Restated Severance and Change in Control Plan (the “Plan”), a copy of which is attached to this Participation Agreement (the “Participation Agreement”). Capitalized terms not explicitly defined in this Participation Agreement but defined in the Plan shall have the same definitions as in the Plan. You will receive the benefits set forth below if you meet all the eligibility requirements set forth in the Plan, including, without limitation, executing the required Release within the applicable time period set forth therein and allowing such Release to become effective in accordance with its terms. Notwithstanding the schedule for provision of benefits as set forth below, the schedule and timing of payment of any benefits under this Participant Agreement is subject to any delay in payment that may be required under Section 5 of the Plan. Section 2. CHANGE IN CONTROL SEVERANCE BENEFITS. If you are terminated in a Covered Termination (other than as a result of your death or Disability) that occurs during the Change in Control Period, you will receive the severance benefits set forth in this Section 2. All severance benefits described herein are subject to standard deductions and withholdings. (a) Base Salary. You shall receive a cash payment in an amount equal to 12 months (the “Severance Period”) of payment of your Base Salary. The Base Salary payment will be paid to you in a lump sum cash payment no later than the second regular payroll date following the later of (i) the effective date of the Release or (ii) the Closing, but in any event not later than March 15 of the year following the year in which your Separation from Service occurs. (b) Annual Target Bonus Payment. You will be entitled to 100% of your Target Bonus for the year in which your Covered Termination occurs. The amount of the Target Bonus to which you are entitled under this Section 2(b) will be calculated (1) assuming all articulated performance goals for such bonus (including, but not limited to, corporate and individual performance, if applicable), for the year of the Covered Termination were achieved at target levels; (2) as if you had provided services for the entire year for which the bonus relates; and (3) ignoring any reduction in your Base Salary that would give rise to your right to resignation for Good Reason (such bonus to which you are entitled under this Section 2(b), the “Annual Target Bonus Severance Payment”). The Annual Target Bonus Severance Payment shall be paid in a lump sum cash payment no later than the second regular payroll date following the later of (i) the effective date of the Release or (ii) the Closing, but in any event not later than March 15 of the year following the year in which your Separation from Service occurs. (c) Pro-Rated Target Bonus Payment. You will also be entitled to an amount equal to a prorated portion of your Target Bonus for the year in which the Covered Termination occurs. The amount of the Target Bonus to which you are entitled under this Section 2(b) will be calculated (1) assuming all articulated performance goals for such bonus (including, but not limited to, corporate and individual performance, if applicable) for the year of the Covered Termination were achieved at target levels, (2) by Name: Sumitro Ghosh Exhibit 10.2

reference to the number of days that elapsed in the year of your termination of employment between the first day of such year and the date of your termination of employment (inclusive of the first and last day) divided by 365, and (3) ignoring any reduction in your Base Salary that would give rise to your resignation for Good Reason (such bonus to which you are entitled under this Section 2(c), the “Pro-Rated Target Bonus Severance Payment”). The Pro-Rated Target Bonus Severance Payment shall be paid in a lump sum cash payment no later than the second regular payroll date following the later of (i) the effective date of the Release or (ii) the Closing, but in any event not later than March 15 of the year following the year in which your Separation from Service occurs. (d) Payment of Continued Group Health Plan Benefits. If you timely elect continued group health plan continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) following your Covered Termination date, the Company Group shall pay directly to the carrier the full amount of your COBRA premiums on behalf of you for your continued coverage under the Company Group’s health plans, including coverage for your eligible dependents, until the earliest of (i) the end of the Severance Period following the date of your Covered Termination, (ii) the expiration of your eligibility for the continuation coverage under COBRA, or (iii) the date when you become eligible for substantially equivalent health insurance coverage in connection with new employment (such period from your termination date through the earliest of (i) through (iii), the “COBRA Payment Period”). Upon the conclusion of such period of insurance premium payments made by the Company Group, you will be responsible for the entire payment of premiums (or payment for the cost of coverage) required under COBRA for the duration of your eligible COBRA coverage period, if any. For purposes of this Section, (1) references to COBRA shall be deemed to refer also to analogous provisions of state law and (2) any applicable insurance premiums that are paid by the Company Group shall not include any amounts payable by you under an Internal Revenue Code Section 125 health care reimbursement plan, which amounts, if any, are your sole responsibility. You agree to promptly notify the Company Group as soon as you become eligible for health insurance coverage in connection with new employment or self-employment. Notwithstanding the foregoing, if at any time the Company Group determines, in its sole discretion, that it cannot provide the COBRA premium benefits without potentially incurring financial costs or penalties under applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then in lieu of paying COBRA premiums directly to the carrier on your behalf, the Company Group will instead pay you on the last day of each remaining month of the COBRA Payment Period a fully taxable cash payment equal to the value of your monthly COBRA premium for the first month of COBRA coverage, subject to applicable tax withholding (such amount, the “Special Severance Payment”), such Special Severance Payment to be made without regard to your election of COBRA coverage or payment of COBRA premiums and without regard to your continued eligibility for COBRA coverage during the COBRA Payment Period. Such Special Severance Payment shall end upon expiration of the COBRA Payment Period. (e) Equity Acceleration. The vesting and exercisability of each outstanding unvested stock option and other stock award, as applicable, that you hold covering the Company Group’s equity securities (including any equity securities assumed, substituted or continued by the Company’s successor in connection with the Change in Control) as of the date of your Covered Termination (each, an “Equity Award”) shall be accelerated in full and any reacquisition or repurchase rights held by the Company Group (or its successor) in respect of the equity securities issued pursuant to any Equity Award granted to you shall lapse in full. For purposes of determining the number of shares that will vest pursuant to the foregoing provision with respect to any performance-based vesting Equity Award that has multiple vesting levels depending upon the level of performance, vesting acceleration shall occur with respect to the number of shares subject to the award as if the applicable performance criteria had been attained at 100% of the target level. To the extent your Covered Termination occurs prior to the Change in Control, the acceleration set forth in this Section 2(e) shall be contingent and effective upon the Change in Control, and your Equity

Awards will remain outstanding following your Covered Termination to give effect to such acceleration as necessary. Such equity acceleration described in this Section 2(e), the “Equity Award Acceleration”. Section 3. NON-CHANGE IN CONTROL SEVERANCE BENEFITS. If you are terminated in a Covered Termination (other than as a result of your death or Disability) that occurs at a time that is not during the Change in Control Period, you will receive: (a) the base salary cash payment described in Section 2(a) above, but the payment shall be made in accordance with the Company Group’s regular payroll practices over the length of the Severance Period rather than in a single lump sum; (b) the Pro-Rated Target Bonus Severance Payment described in Section 2(c) above; and (c) the COBRA benefits described in Section 2(d) above. In no event shall you be entitled to benefits under both Section 2 and this Section 3. If you are eligible for severance benefits under both Section 2 and this Section 3, you shall receive the benefits set forth in Section 2 and such benefits shall be reduced by any benefits previously provided to you under Section 3. Section 4. DEATH OR DISABILITY SEVERANCE BENEFITS. If you are terminated in a Covered Termination as a result of your death or Disability at any time, you will receive: (a) The Pro-Rated Target Bonus Severance Payment described in Section 2(c) above; and (b) The Equity Award Acceleration described in Section 2(e) above. Section 5. ACKNOWLEDGEMENTS; INTERACTION WITH PRIOR BENEFITS. As a condition to participation in the Plan, you hereby acknowledge each of the following: (a) The benefits that may be provided to you under this Participation Agreement are subject to certain reductions and termination under Section 2 and Section 3 of the Plan. (b) Your eligibility for and receipt of any severance benefits to which you may become entitled as described in Section 2, Section 3 or Section 4 above is expressly contingent upon your execution of and compliance with the terms and conditions of the Plan, the Release and the Confidentiality Agreement. Severance benefits under this Participation Agreement shall immediately cease in the event of your violation of the provisions of Confidentiality Agreement or any other written agreement with the Company Group. (c) As further described in Section 2(c) of the Plan, this Participation Agreement and the Plan supersede and replace any change in control or severance benefits previously provided to you, and by executing below you expressly agree to such treatment.

To accept the terms of this Participation Agreement and participate in the Plan, please sign and date this Participation Agreement in the space provided below and return it to Victoria Tullett no later than January 15, 2024. Dutch Bros Inc. By: Christine Barone, President Eligible Employee Date: Sumitro Ghosh December 15, 2023 /s/ Christine Barone /s/ Sumitro Ghosh