Mr. Durall also acknowledged in his Consulting Agreement that his termination of employment will be treated as a voluntary termination without good reason for all purposes and that he will continue to comply with any restrictive covenant agreements with the Company.
The foregoing description of the Consulting Agreement is not complete and is qualified in its entirety by reference to the full text of the agreement, a copy of which is attached at Exhibit 10.1 to this Current Report on Form 8-K and is incorporated in this Item 5.02 by reference.
Retention & Incentive Payments
On June 12, 2023, upon the recommendation of the Compensation Committee and Board approval, the Company entered into a Senior Executive Retention and Incentive Letter Agreement (each, a “Retention Letter”), with each of Terry Rich (Chief Executive Officer) and Dave Lyle (Chief Financial Officer).
Pursuant to the Retention Letters, each of Messrs. Rich and Lyle is entitled to receive a cash retention bonus of $550,000 and $350,000, respectively, which the Company has paid. In the event the employment of each executive is terminated prior to the earlier of December 31, 2023 or the completion of the Company’s restructuring process as described in the Retention Letter (the “Retention Date”) for any reason other than a termination by the Company for “cause”, a resignation for “good reason”, or due to death or “disability” (in each case, as defined in the Retention Letter), the executive would be obligated to pay back the full after-tax amount of the retention bonus.
In addition, pursuant to the Retention Letters, each of Messrs. Rich and Lyle are eligible to receive a cash incentive bonus in an aggregate amount of up to $550,000 and $350,000, respectively, in one or more installments upon terms and conditions related to the successful completion of the Company’s restructuring process as determined in the sole discretion of the Board, subject to each executive’s continued employment. In the event the conditions for payment of any portion of the Incentive Bonus has not been satisfied as of the Retention Date, any unpaid portion would be forfeited.
The foregoing description of the Retention Letters is not complete and is qualified in its entirety by reference to the full text of the agreement, a copy of which is attached at Exhibit 10.2 to this Current Report on Form 8-K and is incorporated in this Item 5.02 by reference.
Forward-Looking Statements
Information contained in this filing contains “forward-looking statements” which can be identified by the use of forward-looking terminology such as “anticipates,” “expects,” “intends,” “plans,” “believes,” “projects,” “seeks,” “estimates,” “requires,” “hopes,” “assumes” or comparable terminology, or by discussions of strategy. These forward-looking statements are based on current expectations, estimates and projections about our industry, our management’s beliefs and certain assumptions made by our management. Do not unduly rely on forward-looking statements. These statements give our expectations about future performance, but there can be no assurance that the future results covered by these forward-looking statements will be achieved. Some of the matters described in the “Risk Factors” section of our Annual Report on Form 10-K for the year ended December 31, 2022, or in subsequent Quarterly Reports on Form 10-Q, constitute cautionary statements which identify some of the factors regarding these forward-looking statements, including certain risks and uncertainties, that could cause actual results to vary materially from the future results indicated in these forward-looking statements. Other factors could also cause actual results to vary materially from the future results indicated in such forward-looking statements.
Important factors that could cause actual results to differ materially from the anticipated results reflected in these forward-looking statements include risks and uncertainties relating to the following: (i) the Company’s access to adequate operating cash flow, trade credit, borrowed funds and equity capital to fund its operations and pay its obligations as they become due, and the terms on which external financing may