Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Resignation of Chief Executive Officer and President
On September 21, 2021 (the "Resignation Date"), Rodney C. Keller, Jr., who
served as the President and Chief Executive Officer of AYRO, Inc. (the
"Company") and as a member of the Company's board of directors (the "Board"),
tendered his resignation from his roles as an officer, employee and director of
the Company, effective immediately. Mr. Keller's resignation from the Board was
not in connection with any disagreement between Mr. Keller and the Company, its
management, the Board or any committee of the Board on any matter relating to
the Company's operations, policies or practices, or any other matter.
Voluntary Separation Agreement, Release and Consulting Agreement
On September 21, 2021, in connection with Mr. Keller's resignation, the Company
and Mr. Keller entered into a Voluntary Separation Agreement, Release and
Consulting Agreement, dated September 20, 2021 (the "Separation Agreement").
Pursuant to the Separation Agreement, Mr. Keller will perform certain consultant
services for the Company pertaining to matters and business of the Company for a
period of not less than one month and not more than three months, depending on
the employment status of Mr. Keller during such period (the "Consultancy
Period"). During the Consultancy Period, Mr. Keller will be entitled to receive
(i) a base salary of $20,833.30 per month, representing Mr. Keller's base salary
prior to the Resignation Date, (ii) a cash separation payment in the amount of
$650,000.00, less applicable tax deductions and withholdings (the "Separation
Payment"), with $312,500.00 of the Separation Payment payable within 14 days of
the Resignation Date, subject to certain conditions being met, and the remainder
being payable within 30 days of the last day of the Consultancy Period, and
(iii) reimbursement for continuation coverage under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA"), for Mr. Keller, his
spouse and dependents for a period of up to 18 months following the Resignation
Date, provided that Mr. Keller has not obtained subsequent employment with
comparable or better medical, vision and dental coverage. The Separation
Agreement provides Mr. Keller the opportunity to revoke his acceptance of the
Separation Agreement within eight calendar days of the Resignation Date, in
which case the Separation Agreement shall not be effective and shall be deemed
void.
In exchange for the consideration provided to Mr. Keller in the Separation
Agreement, Mr. Keller and the Company have agreed to mutually waive and release
any claims in connection with Mr. Keller's employment, separation and
resignation from the Company.
In connection with the execution of the Separation Agreement, Mr. Keller's
existing executive employment agreement, as amended (the "Prior Employment
Agreement"), was terminated; provided, however, that certain surviving customary
confidentiality provisions and restrictive covenants remain in full force and
effect. The Separation Agreement also provides for certain customary covenants
regarding confidentiality and non-disparagement.
Pursuant to Mr. Keller's Prior Employment Agreement, all of his outstanding
stock options and awarded shares will be delivered by the Company within ten
days of the Resignation Date, to the extent such awards have not previously
vested; provided, however that Mr. Keller has not exercised any revocation
rights prior to the payment being due.
The description of the Separation Agreement contained in this Item 5.02 is
qualified in its entirety by reference to the full text of the Separation
Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated
herein by reference.
Appointment of Chief Executive Officer
On September 22, 2021, the Board appointed Thomas M. Wittenschlaeger as Chief
Executive Officer of the Company, effective as of September 23, 2021, to serve
until a successor is chosen and qualified, or until his earlier resignation or
removal. Mr. Wittenschlaeger, age 64, is an experienced executive with a
background in the electric vehicle ("EV") industry and vehicle technologies
businesses. From August 2019 to September 2021, Mr. Wittenschlaeger served as
chief executive officer of Nantmobility, Inc., an EV company in the
micromobility segment. From February 2015 to July 2019, he served as an
executive at FOX Factory, Inc., a developer of off-road and performance vehicle
components, serving as President of its Powered Vehicles Group from February
2015 to June 2018, and as Chief Strategy Officer from June 2018 to July 2019.
Prior to joining FOX Factory, Inc., Mr. Wittenschlaeger served as President of
NantTronics, Inc., a wireless infrastructure and enabling technologies company,
from November 2012 to January 2015. From December 2011 to November 2012 he
served as chairman and chief executive officer of KeyOn Communications Holdings,
Inc., during which time he guided the company through a business
rationalization, comprehensive financial restructuring, asset divestiture and
controlled wind-down and restored two businesses to operations from a shutdown
state. During a 16-year stint at the Hughes Aircraft Company, he researched
advanced technology products for the automotive market as well as for the
military transport market decades in advance of their ultimate adoption. Mr.
Wittenschlaeger holds a B.S. in electrical engineering from the United States
Naval Academy and is a graduate of the Executive Program in Management, Business
Administration, and Operations at the Anderson School of Management, University
of California at Los Angeles. His portfolio of patents includes IP in vehicle
damper tuning, wireless infrastructure, cyber resiliency and supercomputing.
There is no family relationship between Mr. Wittenschlaeger and any director or
executive officer of the Company. There are no transactions between Mr.
Wittenschlaeger and the Company that would be required to be reported under Item
404(a) of Regulation S-K of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
Executive Employment Agreement
In connection with Mr. Wittenschlaeger's appointment, on September 23, 2021, the
Company entered into an executive employment agreement (the "Employment
Agreement") with Mr. Wittenschlaeger setting forth the terms and conditions of
Mr. Wittenschlaeger's employment as the Company's Chief Executive Officer,
effective September 23, 2021. Pursuant to the Employment Agreement, Mr.
Wittenschlaeger will serve as the Chief Executive Officer of the Company for a
two-year initial term commencing on September 23, 2021, which term may be
renewed for up to three successive one-year terms, unless earlier terminated by
either party in accordance with the terms of the Employment Agreement. Subject
to approval of the Company's stockholders, Mr. Wittenschlaeger shall also serve
as a member of the Board.
The Employment Agreement provides that Mr. Wittenschlaeger will be entitled to
receive an annual base salary of two hundred-eighty thousand dollars ($280,000),
payable in equal installments semi-monthly pursuant to the Company's normal
payroll practices. For the 2021 fiscal year, Mr. Wittenschlaeger is eligible to
receive a partial bonus as determined by the Board, based upon the achievement
of short-term target objectives and performance criteria as agreed upon by Mr.
Wittenschlaeger and the Board, with such partial bonus payable no later than
March 15, 2022. Mr. Wittenschlaeger is also eligible to receive, for subsequent
fiscal years during the term of his employment, periodic bonuses up to 50% of
his annual base salary upon achievement of target objectives and performance
criteria, payable on or before March 15 of the fiscal year following the fiscal
year to which the bonus relates. Targets and performance criteria shall be
established by the Board after consultation with Mr. Wittenschlaeger, but the
evaluation of Mr. Wittenschlaeger's performance shall be at the Board's sole
discretion. The Employment Agreement also entitles Mr. Wittenschlaeger to
receive customary benefits and reimbursement for ordinary business expenses and
relocation expenses of $15,000.
In connection with Wittenschlaeger's appointment and as an inducement to enter
into the Employment Agreement, the Company granted Mr. Wittenschlaeger 450,000
shares of the Company's restricted common stock, pursuant to a restricted stock
award agreement entered into by the Company with Mr. Wittenschlaeger on
September 23, 2021 (the "Restricted Stock Award Agreement"), which shares shall
vest in tranches of 90,000 shares upon the achievement of certain stock price,
market capitalization and business milestones. The description of the Restricted
Stock Award Agreement contained in this Item 5.02 is qualified in its entirety
by reference to the full text of the Restricted Stock Award Agreement, a copy of
which is attached hereto as Exhibit 10.2 and incorporated herein by reference.
The Company may terminate Mr. Wittenschlaeger's employment due to death or
disability, for cause (as defined in the Employment Agreement) at any time after
providing written notice to Mr. Wittenschlaeger, and without cause at any time
upon thirty days' written notice. Mr. Wittenschlaeger may terminate his
employment without good reason (as defined in the Employment Agreement) at any
time upon thirty days' written notice or with good reason, which requires
delivery of a notice of termination within ninety days after Mr. Wittenschlaeger
. . .
Item 7.01. Regulation FD Disclosure.
On September 24, 2021, the Company issued a press release announcing the
resignation of Mr. Keller and the appointment of Mr. Wittenschlaeger as the
Company's Chief Executive Officer. A copy of the press release is furnished as
Exhibit 99.1 and is incorporated by reference herein.
The information included under Item 7.01 (including Exhibit 99.1) is furnished
pursuant to Item 7.01 and shall not be deemed "filed" for purposes of Section 18
of the Exchange Act, or otherwise be subject to the liabilities of that section,
nor shall it be deemed to be incorporated by reference in any filing under the
Securities Act of 1933, as amended, or the Exchange Act, whether made before or
after the date hereof and regardless of any general incorporation language in
such filing.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
10.1 Voluntary Separation Agreement, Release and Consulting Agreement,
by and between the Company and Rodney Keller, Jr., dated as of
September 20, 2021 .
10.2 Restricted Stock Award Agreement, by and between the Company and
Thomas M. Wittenschlaeger, dated as of September 23, 2021.
10.3 Employment Agreement, by and between the Company and Thomas M.
Wittenschlaeger, effective as of September 23, 2021.
99.1 Press Release, dated September 24, 2021 (furnished pursuant to
Item 7.01).
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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