SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): December 21, 2022
Spark Networks SE
(Exact name of registrant as specified in its charter)
|Germany|| ||001-38252|| ||N/A|
(State or other jurisdiction
Kohlfurter Straße 41/43
Berlin Germany 10999
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code: (+49) 30 868000
(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 each exchange on which registered|
|American Depository Shares each representing one-tenth of an ordinary share||LOV|
The Nasdaq Stock Market, LLC
Ordinary shares, €1.00 nominal value per share*
* Not for trading purposes, but only in connection with the registration of American Depository Shares pursuant to the requirements of the Securities and Exchange Commission.
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 December 21, 2022, Spark Networks SE (the “Company”) entered into a services agreement with Chelsea A. Grayson and Spark Networks, Inc. entered into an employment agreement with Ms. Grayson under which Ms. Grayson will be paid € 6,000 EUR per month for her role as Executive Director of the Company and $94,000 USD per month for her role as interim Chief Executive Officer of Spark Networks, Inc. Ms. Grayson will be eligible to receive additional incentive compensation in form and amounts to be determined by the Company’s Board of Directors and is entitled to participate in the Company’s standard benefits package offered to executive level employees. Ms. Grayson’s services agreement is attached as Exhibit 10.1 and employment agreement is attached as Exhibit 10.2.
Item 9.01 Financial Statements and Exhibits
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.
Spark Networks SE
Dated: December 23, 2022
|By:||/s/ Frederic Beckley|
| ||Frederic Beckley|
| ||General Counsel & Chief Administrative Officer|
EXHIBIT 10.1 EXECUTIVE DIRECTOR SERVICE AGREEMENT between Spark Network SE Kohlfurter Straße 41/43 10999 Berlin (hereinafter referred to as “Company“) and Chelsea A. Grayson 1116 South Ridgeley Drive Los Angeles, CA 90019 (hereinafter referred to as “Executive Director“) (hereinafter Company and Executive Director individually referred to as “Party” and jointly referred to as “Parties”) Chelsea Grayson was appointed by resolution of the Board of Directors of the Company with its consent as Executive Director (geschäftsführender Direktor) for a period of nine months beginning December 1, 2022 (thereafter renewable per consent of the Parties). Therefore, the parties conclude the following service agreement. Sec. 1 Management and representation 1. The administrative board (Verwaltungsrat) shall manage the Company and, within this framework, determine the basic guidelines of the Company's activities. 2. The Executive Director shall conduct the day-to-day business and the day-to-day administration of the Company, if necessary together with other appointed Executive Directors. In doing so, the Executive Director shall be responsible for the business of the Company to the extent permitted by law. 3. In managing the Company, the Executive Director shall comply with the law, in particular with the provisions of the SE Regulation, the SEAG and the German Stock Corporation Act, the Articles of Association, the resolutions and instructions of the administrative board, the resolutions of the General Meeting, rules of procedure and a schedule of responsibilities of the administrative board and this service agreement. 4. The Executive Director shall represent the Company jointly with another Executive Director or jointly with an authorized signatory (Prokurist) in accordance with the power of representation
EXHIBIT 10.1 granted by the administrative board. 5. The Company has the right to change the areas of responsibility for the Executive Director at any time. In particular, the Company may appoint additional Executive Directors and/or authorized signatories and determine and change the allocations of duties among the Executive Directors at any time. Sec. 2 Board Approval 1. The Executive Director shall require the express prior and written consent of the administrative board for all transactions and measures that go beyond the ordinary course of business. 2. The list of transactions requiring approval may be extended or restricted at any time by resolution of the administrative board. The administrative board may also make further transactions subject to its approval at any time. Sec. 3 Cooperation with the Administrative Board and Reporting 1. The Executive Director shall be obliged to inform the administrative board immediately and comprehensively for the attention of its chairman in accordance with Section 90 German Stock Corporation Act. 2. The reports shall be submitted at the intervals specified in Section 90 (2) of the German Stock Corporation Act. The administrative board may prescribe the way of reporting. Sec. 4 Duties, Hours of Service, Place of Work 1. The Executive Director shall conduct the business of the Company with the diligence of a prudent businesswoman and conscientiously perform the duties incumbent upon her. She shall safeguard and promote the interests and concerns of the Company at all times, observing the utmost care. 2. The Executive Director shall devote all of her labor and all of her business activities exclusively to the Company and affiliated companies; provided, however, Executive Director may continue to serve as a director or advisor to other companies so long as Executive Director manages such activities as to not interfere with her obligations to the Company. Upon the Company’s request, the Executive Director can be appointed as the representative of any company affiliated with the Company in the sense of Sec. 15 Stock Corporation Act (“Affiliates”). The Executive Director will resign at any time upon the Company’s request, and unsolicited, at the latest upon expiration of this service agreement from all the aforementioned offices. 3. The Executive Director shall not be bound by specific hours of service. She shall arrange the scope of her activities and her working hours in such a way as the welfare of the Company requires. For
EXHIBIT 10.1 this purpose, she shall also perform her duties on Saturdays, Sundays and public holidays if this is necessary in the interest of the Company. 4. The Executive Director’s place of service is at the Company’s registered place of business, currently located in Berlin. The Executive Director is allowed to work remotely but understands frequent travel to Berlin may be necessary. Sec. 5 Remuneration 1. The Executive Director shall receive a fixed salary per month in an amount equivalent to € 6,000 EUR gross, which shall be payable to the Executive Director’s account at the end of each calendar month, with all legal deductions, in particular income tax and, if applicable, social security contributions. Furthermore the Company shall bear 50% of the costs of the public social insurance contributions, including unemployment insurance, statutory health insurance and nursing care insurance, if and to the extent the Executive Director should be subject to German statutory social security contributions. 2. If the service relationship hereunder starts or ends during or before the end of a calendar year, the annual fixed remuneration according to paragraph 1 shall be paid on a pro rata basis. 3. With the payment of the remuneration in pursuant to paragraph (1) above, the Company has paid the Executive Director in full for all of her activities for the Company, including activity during other than the usual business or office hours. Furthermore work for any Affiliate shall be compensated hereby as well; provided; however, this does not affect or supersede the employment agreement with Spark Network, Inc. (the “US-Contract”) or any compensation or benefits provided to Executive Director thereunder. 4. For the avoidance of doubt, the Executive Director will receive no additional remuneration for her service as a member of the Board of Directors of the Company so long as she is serving as the Executive Director of the Company under this agreement and the Chief Executive Officer under the US-Contract. 5. The Executive Director does not have the right to assign or pledge her claims against the Company in whole or in part to third parties. Sec. 6 Inability to work In case the Executive Director is unable to work, she is obligated to immediately inform the Company about the probable duration and the reasons of her inability. In cases of illness, the Executive Director is obligated to submit a medical certificate stating the inability to work and the probable duration of the inability within the third calendar day following the beginning of the illness.
EXHIBIT 10.1 Sec. 7 Obligation to Maintain Secrecy, Return of Documents 1. The Executive Director shall not, during the term of her service, as well as thereafter, disclose to any third party business or operational secrets or other confidential technical or business matters of the Company or companies affiliated with the Company which become known to her in the course of the performance of her work for the Company (especially processes, data, personnel performance evaluations, know-how, marketing plans, business plans, unpublished sheets, budgets, licenses, prices, costs, customer and supplier lists etc.), or which are designated as confidential by the Company and she shall not utilize directly or indirectly such information herself. 2. Business and operational records, data carriers and data or other objects which are owned by the Company and which the Executive Director has created or obtained within the context of her services to the Company are to be kept carefully and returned to the Company at any time upon request, at the latest upon termination of her services or on her being relieved of her duties. The Executive Director has no right of retention of such materials. Sec. 8 Transfer of Rights 1. The Executive Director transfers any copyrights, trademark rights, design rights, rights with respect to inventions and patents as well as any other IP-rights she obtains during her work for the Company exclusively, unrestricted in time, territory and content and sub-licensable to the Company as far as the rights: a) arise from the Executive Director’s obligatory work for the Company, or b) arise from other orders by the Company, or c) are predominantly based on the experience, know-how or works from the Company, or d) are developed mainly during the Executive Director’s usual working hours in or for the Company. If the rights can be transferred in their entirety the Executive Director transfers such entire rights to the Company. The Company accepts the transfer of rights. The Company is not obliged to register, use or exploit the rights. References to “the Company” in this Sec. 8 shall be deemed to include references to any of its Affiliates. 2. The granting of the rights of use and exploitation include, without limitation: a) the right to make any publication of the works for copyright, software or database rights purposes, to register claim under copyright and database rights, and the right to renew and extend such copyright, software and database rights, and the right to sue in the name of the Executive Director for past, present and future infringements of copyright and database rights;
EXHIBIT 10.1 b) all rights of any kind or nature, direct or indirect, to sell, distribute, sub distribute, lease, sublease, market, license, sublicense or otherwise exploit the works and any and all rights therein for any purposes that may go beyond the current business purpose of the Company, to the fullest extent of such rights in any manner whatsoever, including without limitation, by all scientific, digital, mechanical or electronic means, methods, processes or devices now known or hereafter conceived, devised or created; c) the right to publicly perform and publicly reproduce, exhibit, publicize, publish, disseminate, advertise and use in advertisements for any purposes or otherwise exploit the works in any manner and by any means, methods, processes or devices now known or hereafter conceived, devised or created and in any form, including, without limitation, print media, films, radio and/or digital media, databases and electronic carrier media, public and non-public networks, including the internet, intranet, extranet, mobile data networks or through any other (interactive) download or access systems, including the right to feed in and store in such systems; d) the right to save, download, run, reproduce, digitalize, duplicate, copy, translate and process the works or parts thereof, either permanently or temporarily and also repeatedly, by any means and in any form, including without limitation, by all scientific, digital, mechanical or electronic means, methods, processes or devices now known or hereafter conceived, devised or created, and to use and exploit the results achieved to the same extend as the works themselves; e) the right to combine the works or parts thereof with or add to it other works, parts of works or other information of any kind, the right to alter, modify and edit (under consideration of the Company’s moral or personal rights) the works and to use and exploit the results achieved to the same extend as the works themselves; f) the right to extract information of any kind from the works and to use such information and the obligatory works for any business purposes, including, but not limited to, for the purpose of creating and building new works, and to use and exploit the results achieved to the same extend as the works themselves. 3. Section 69b Copyright Act (Urheberrechtsgesetz) remains unaffected. The Company’s rights expressly also encompass an exploitation of the obligatory works which goes beyond the current field and purpose of business of the Company. 4. The Executive Director is obligated to collaborate with respect to any statements or legal actions that are necessary to secure and/or transfer the aforementioned rights. 5. The Executive Director approves of the publication of the works by the Company. The Executive Director expressly waives the right to be named as author/creator ( Sec. 13 UrhG) insofar as in the individual case this is uncustomary or impossible due to the nature of the work. The Executive Director approves of any alterations of the works under consideration of the Company’s moral or personal rights. The Company may refuse the Executive Director’s right to access to the works ( Sec. 25 UrhG) if this requires a disproportionately high effort.
EXHIBIT 10.1 6. The remuneration pursuant to Sec. 2 of this agreement is deemed also as a remuneration for the transfer of rights and any required actions the Executive Director has to undertake. The Executive Director is not entitled to claim further remuneration. This does not apply to any indispensable claims. 7. In respect of works that are not linked to the Executive Director’s work for the Company, but concern the Company’s line of business the Executive Director shall during the validity of this contract inform the Company without undue delay by way of a respective written notification. In the notification the Executive Director shall give all information about the work and its creation that is needed for the Company to assess if the work is a so called free work. Before the Executive Director exploits a free work in another way, she shall at first offer the Company the at least non-exclusive, unlimited as to territory, time and content, assignable and sub-licensable rights of use and exploitation in any way then known or in the future developed to such free Works against payment of an appropriate compensation. 8. If the Executive Director intends to integrate open source software into works, she must notify the Company by email regarding this precisely stating the open source components and the applicable licensed application hereto. It may only be implemented, if and after the Company approved by email. When implanting Open Source Software the Executive Director has to ensure to comply with the respective provider’s license terms. The Executive Director is obligated to summarize all open source components implemented in works in tabular form stating the name of the open source component, the license of the open source project as well as the respective license version; after implementation of the respective component and without undue delay the Executive Director must provide the Company with this tabular form. For each open source component the Executive Director must use a separate row in the respective tabular form. 9. This section also applies to rights the Executive Director obtained prior to the effective date of this agreement in the course of her work for the Company, regardless of the form of this previous work (e.g. employment, freelancing, internship, etc.). Sec. 9 Term of Employment & Termination 1. The term of this agreement shall end on August 31, 2023 after which time it may be extended per consent and agreement of the Parties. 2. The right to terminate with immediate effect for cause is not restricted by provision. For cause shall in particular be assumed, if: a) the Executive Director infringes internal restrictions regarding the management imposed on her by the Company and the Company suffers damage as a result of it, or if the Executive Director repeats such infringements despite a formal warning notice; b) the Executive Director seriously infringes special instructions issued by the shareholder’s meeting, unless the shareholder’s meeting demands an illegal act; c) The Executive Director executes transactions without having obtained the prescribed consent.
EXHIBIT 10.1 3. Termination has to be given in text form (Textform). 4. If the appointment has been revoked for compelling reasons pursuant to Sec. 626 German Civil Code, the revocation will be deemed to have terminated this agreement with immediate effect for compelling reason as well. If no compelling reasons pursuant to Sec. 626 German Civil Code exists, the revocation shall be deemed to have terminated with ordinary notice period pursuant to (2) of this provision and effective as of the next possible date. 5. The Company is entitled to release the Executive Director from her duties at any time permanently or temporarily while continuing payment of the Executive Director’s remuneration under this agreement through the remainder of the term of this agreement. Sec. 10 Miscellaneous 1. This agreement embodies the entire contractual understanding between the parties and supersedes all prior written or oral agreements, between the Executive Director and the Company; provided, however, this agreement does not supersede the US-Contract or the Indemnification Agreement, dated December 18, 2020, between the Executive Director and the Company. 2. The assertion of claims solely based on documentary evidence (Urkundsverfahren) shall be excluded. 3. Any amendments or additions to this agreement – including this clause – shall be in writing. Sec. 305b German Civil Code (Bürgerliches Gesetzbuch) shall remain unaffected. 4. Should any provision of this agreement be or become void, the validity of the other provisions shall not be affected thereby. In place of the invalid provision, a legally permissible provision shall be substituted that corresponds as closely as possible to the meaning and purpose of the invalid provision. 5. This agreement is governed by the law of the Federal Republic of Germany. Jurisdiction for all disputes in connection with this contract is the headquarters of the Company. [Signatures are located on the next page.]
EXHIBIT 10.1 Berlin/Date: 21 December 2022 SPARK NETWORKS SE /s/ David Clark _ David Clark Chief Financial Officer /s/ Frederic Beckley _ Frederic Beckley General Counsel & Chief Administrative Officer Berlin/Date: 21 December 2022 /s/ Chelsea A. Grayson _ Chelsea A. Grayson
This EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of December 21, 2022 between Spark Networks, Inc. a Delaware corporation (“Spark Networks”) and wholly owned subsidiary of Spark Networks SE (“SE”) (collectively, the “Company”), and Chelsea A. Grayson (“Executive”).
WHEREAS, Executive currently serves as the Vice Chair of the Board of Directors of SE (the “Board”);
WHEREAS, it has been determined to be in the parties’ interests for Executive to resign as Vice Chair of the Board, and any Board committee roles that require an independent director, and serve as the interim Chief Executive Officer of Spark Networks, interim Executive Director of SE and a member of the Board;
WHEREAS, the Board appointed Executive as interim Chief Executive Officer of the Company and interim Executive Director of SE, in each case effective December 1, 2022; and
WHEREAS, the Board has approved the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Employment. Spark Networks shall employ Executive, and Executive has accepted employment with Spark Networks effective December 1, 2022 (the “Effective Date”), upon the terms and conditions set forth in this Agreement for the period beginning on the Effective Date and ending as provided in Section 4 hereof (the applicable period of employment, the “Employment Period”).
2.Position and Duties.
(a)During the Employment Period, Executive shall serve as the interim Chief Executive Officer of the Company and shall have the normal duties, responsibilities and authority of an interim Chief Executive Officer of a publicly traded company of a similar size as the Company, subject to the power of the Board to expand or limit such duties, responsibilities and authority, either generally or in specific instances. Subsequent to the execution of this Agreement, the Board and Executive will agree on a specific set of objectives for Executive during the Employment Period.
(b)During the Employment Period, Executive shall report to the Board.
(c)During the Employment Period, Executive shall devote commercially reasonable efforts and Executive’s full business time and attention (except for permitted vacation periods and reasonable periods of illness or other incapacity) to the business and affairs of the Company, its subsidiaries and affiliates; provided, however, Executive may continue to serve as a director or advisor to other companies so long as Executive manages such activities as to not interfere with Executive’s obligations to the Company. Executive shall perform Executive’s duties and responsibilities to the best of Executive’s abilities in a diligent, trustworthy, businesslike and efficient manner.
3.Compensation and Benefits.
(a)Salary. Spark Networks agrees to pay Executive a salary of $94,000 USD per month during the Employment Period in installments based on Spark Networks’ practices as may be in effect from time to time. For the avoidance of doubt, such compensation is in addition to (and not in lieu of and will not be offset by) Executive’s compensation under the Executive Director Service Agreement entered between Executive and SE.
(b)Additional Incentives. The Board will consider appropriate additional incentive compensation opportunities in-line with market compensation for publicly traded companies of similar size to the Company, pending development and progression of the Company’s strategic initiatives during the Employment Period.
(c)Standard Benefits Package. Executive shall be entitled during the Employment Period to participate, on the same basis as other executive level employees of Spark Networks, in the Spark Networks’ standard employee benefits plans and programs.
(d)Vacation. During the Employment Period, Executive shall be entitled to vacation to be taken at Executive’s reasonable discretion.
(e)Travel Reimbursement. Executive may be required to travel frequently to Berlin (or other locations). Spark Networks will reimburse Executive for all reasonable travel expenses, including reasonable accommodations in Berlin.
(f)Business Expenses. Spark Networks shall reimburse Executive for all reasonable expenses incurred by Executive in the course of performing Executive’s duties under this Agreement that are consistent with the Company’s policies in effect from time to time with respect to travel, entertainment and other business expenses.
4.Employment Period. Except as hereinafter provided, the Employment Period shall commence on the Effective Date and continue until August 31, 2023 (or until such earlier date as may be requested by Executive and approved by the Board), with a strategic checkpoint with the Board occurring on or about June 1, 2023. This Agreement shall thereafter be subject to renewal by the Board. Executive will be committed to the position of interim Chief Executive Officer of the Company through at least August 31, 2023; provided, however, the Company hereby agrees that it will work expeditiously to engage a successor to succeed Executive as Chief Executive Officer upon the Board’s receipt of a written request to do so from Executive. The Board may terminate Executive’s employment for any reason or no reason at any time without notice. After August 31, 2023, Executive may terminate this Agreement and her employment upon 90 days’ prior written notice to the Board. Following the end of the Employment Period or a termination of employment, Executive may (and is expected to) remain a member of the Board.
5.Post-Employment Payments. At the end of Executive’s employment for any reason, Executive shall cease to have any rights to salary, expense reimbursements or other benefits, except that Executive (or her estate, if applicable) shall be entitled to (i) any base salary that has been earned but is unpaid and any reimbursable expenses that have been incurred but are unpaid; and (ii) any plan benefits (including without limitation continuation coverage under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (COBRA)) which by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any benefit plan in which Executive has participated as an employee of the Company). For the avoidance of doubt, because Executive will continue serving as an independent member of the Board following her termination of employment, she will receive compensation in connection therewith.
6.Confidentiality; Non-Solicitation of Employees.
(a)Non-Solicitation of Employees. During the Executive’s employment and service with the Company, and for a period of twelve (12) months thereafter, Executive will not, knowingly, separately or in association with others, materially and substantially, interfere with, impair, disrupt or damage the Company’s business by directly contacting any Company officers or key employees for the purpose of inducing or encouraging them to discontinue their employment with the Company; provided, however, that the foregoing provisions shall not (i) restrict Executive from directly or indirectly making any general solicitation for employees, making a public advertising or participating in any job fairs or recruiting workshops, or (ii) preclude Executive from soliciting and/or hiring any officer, key employee or other person at any time (A) in the case of voluntary terminations, later than six (6) months after such person’s termination of employment from the Company and (B) in the case of all other terminations, after such person’s termination of employment from the Company.
(b)Confidentiality Agreement. Executive shall execute and deliver a confidentiality agreement in the form attached (the “Confidentiality Agreement”) hereto as Exhibit A. The provisions of the Confidentiality Agreement are incorporated into this Agreement by reference as if such provisions were terms and conditions of this Agreement.
(c)Potential Future Restrictions. Executive agrees to be bound by any additional restrictive covenants that may be included in any transaction agreement involving the Company.
(d)Subject to any limits on applicability contained herein, this Section shall survive and continue in full force in accordance with its terms notwithstanding any termination of the Employment Period.
7.Taxes. The Company may withhold from any amounts payable under this Agreement (or any other agreement entered between the Company and Executive) all federal, state, city or other taxes as Spark Networks is required to withhold pursuant to any applicable law, regulation or ruling. Except as otherwise provided herein, the Company shall not be obligated to guarantee any particular tax result for Executive with respect to any payment provided to Executive hereunder, and Executive shall be responsible for any taxes imposed on Executive with respect to any such payment. To the extent that Executive incurs income tax obligations in Germany or the United States from income attributable to her services under this Agreement and the Executive Director Service Agreement entered between Executive and SE which in the aggregate exceed the total income tax she would have paid solely in the United States as a United States citizen if she had only: (a) been employed in the United States and (b) continued to serve as an independent (non-employee) member of the Board (the “Original Tax”), then the Company shall provide an additional cash payment to Executive so that her net income tax obligations to all taxing authorities (including any taxes relating to such equalization payment) are no more than her Original Tax. For the avoidance of doubt, the Company shall be entitled to take into account the provisions of the United States federal and state tax laws relating to foreign tax credits, foreign earned income exclusions and other relevant items affecting foreign income, as well as the provisions of any applicable tax treaty for purposes of calculating the amount(s) required to be reimbursed pursuant to this Section.
8.Notices. Notices and all other communications provided for in this Agreement will be in writing and will be delivered via email (preferable), physically in-person or sent by prepaid overnight courier to the parties at the addresses set forth below (or such other addresses as will be specified by the parties by like notice):
Notices to Executive:
Ms. Chelsea A. Grayson
1116 South Ridgeley Drive
Los Angeles, CA 90019
Notices to Spark Networks:
Spark Networks SE
Attn: Board of Directors
Kohlfurter Str. 41/43
or such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement will be deemed to have been given when so delivered (or, in the case of electronic mail, when electronic evidence of transmission is received).
9.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.
10.Complete Agreement. This Agreement, the Confidentiality Agreement and the Executive Director Service Agreement entered between Executive and SE embody the complete agreement and understanding between the parties with respect to the subject matter hereof and effective as of their date supersede and preempt 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; provided however, (i) this Agreement, the Confidentiality Agreement and the Executive Director Service Agreement between Executive and SE do not supersede the Indemnification Agreement, dated December 18, 2020, between Executive and SE; and (ii) the restrictive covenants herein, in the Confidentiality Agreement and in the Executive Director Service Agreement between Executive and SE do not supersede any restrictive covenants found in other types of agreements between the Company or its affiliates and Executive.
11.Counterparts. This Agreement may be executed in separate counterparts (including facsimile, email and other electronically transmitted counterparts), each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement.
12.Successors and Assigns. This Agreement shall bind and inure to the benefit of and be enforceable by Executive, Spark Networks 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 Spark Networks of all of its rights and obligations hereunder to any successor to Spark Networks by merger or consolidation or purchase of all or substantially all of Spark Networks’ assets, provided such transferee or successor assumes the liabilities of Spark Networks hereunder.
13.Choice of Law. This Agreement shall be governed by, and construed in accordance with, the internal, substantive laws of the State of California of the United States of America. Executive agrees that the state and federal courts located in the State of California shall have jurisdiction in any action, suit or proceeding against Executive based on or arising out of this Agreement and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to service of process in connection with any action, suit or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction, venue or service of process. Executive further agrees that Executive will not raise any defenses to, or otherwise challenge, the jurisdiction or venue as to any lawsuit filed in the State of California and will not challenge or raise any defenses to the choice of California law.
14.Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of Spark Networks 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.
15.Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), to the extent subject thereto, and accordingly, to the maximum extent permitted, this Agreement shall be interpreted and administered to be in compliance therewith. Notwithstanding anything contained herein to the contrary, Executive will not be considered to have terminated employment with the Company for purposes of any payments under this Agreement (or otherwise due to Executive) which are subject to Section 409A of the Code until Executive would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement or any other arrangement between Executive and the Company during the six-month period immediately following Executive’s separation from service shall instead be paid on the first business day after the date that is six months following Executive’s separation from service (or, if earlier, Executive’s date of death). To the extent required to avoid an accelerated or additional tax under Section 409A of the Code, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during one year may not affect amounts reimbursable or provided in any subsequent year. Any tax equalization reimbursement owed under Section 7 of this Agreement shall be payable within the timeframe required by Treasury Regulation Section 1.409A-1(b)(8)(iii).
16.Parachute Payments. In the event that any payment or benefit received or to be received by the Executive, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement (each a “Payment” and all such payments and benefits being hereinafter referred to as the “Total Payments”) would be subject, in whole or in part, to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), then the Total Payments will be reduced, but only to the extent that Executive would retain a greater amount on an after-tax basis than Executive would retain absent such reduction, such that the value of the Total Payments that Executive is entitled to receive will be $1 less than the maximum amount which Executive may receive without becoming subject to the Excise Tax. A nationally recognized accounting or consulting firm engaged by the Company shall perform the foregoing calculations, and, in connection therewith, shall perform customary parachute mitigation analysis and calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm shall provide its calculations to the Company and Executive within fifteen (15) days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the accounting or consulting firm made hereunder shall be final, binding and conclusive upon Spark Networks and Executive. Any reduction in payments and/or benefits pursuant to this Section will occur in the following order: (1) cash payments; (2) equity-based payments that are taxable; (3) equity-based payments that are not taxable; (4) equity-based acceleration, and (5) other non-cash benefits payable to Executive.
[Signatures on the following page.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
|SPARK NETWORKS, INC.|
/s/ David Clark
Name: David Clark
Title: Chief Financial Officer
/s/ Chelsea A. Grayson
|Chelsea A. Grayson|
Signature Page to Employment Agreement – Grayson