SFT Shift Technologies Inc

 

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) August 7, 2023 (August 3, 2023)

 

SHIFT TECHNOLOGIES, INC.

(Exact name of registrant as specified in its charter)

 

Delaware		001-38839		82-5325852
(State or other jurisdiction of incorporation or organization)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

290 Division Street, Suite 400, San Francisco, CA		94103
(Address of principal executive offices)		(Zip Code)

 

Registrant’s telephone number, including area code: (855) 575-6739

 

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 240a-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 240.13a-4(c))

 

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

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Class A common stock, par value $0.0001 per share		SFT		Nasdaq Capital Market

 

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) if the Exchange Act. ☐

 

 

 

Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers.

 

Foy Separation and General Release Agreement

 

As previously announced on June 28, 2023, Shift Technologies, Inc. (the “Company”) announced that Sean Foy was no longer the Chief Operating Officer of the Company, effective June 23, 2023. In order to ensure an orderly transition of responsibilities, Mr. Foy continued to be employed in a non-executive capacity with the Company through July 1, 2023 (the “Separation Date”). Mr. Foy also resigned from all director, officer or other positions that he held on behalf of the Company or any of its subsidiaries or affiliates on the Separation Date.

 

In connection with his separation from employment from the Company, the Company and Mr. Foy entered into a Separation and General Release Agreement (the “Agreement”) on August 3, 2023 that reflects the terms of his separation and the benefits he is eligible to receive. The Agreement becomes effective and enforceable on August 11, 2023 (the “Effective Date”) unless revoked in writing by Mr. Foy prior to the Effective Date. Pursuant to the Agreement, and in lieu of all severance benefits otherwise provided for under Mr. Foy’s prior Offer Letter dated October 12, 2018, as amended on October 16, 2018, and any applicable Company plans or programs in which Mr. Foy participated (including the Shift Technologies, Inc. Severance Plan for Key Management Employees and that certain Amended and Restated Retention Bonus Agreement dated June 22, 2022) with the Company, Mr. Foy will be entitled to receive the following benefits: (i) a cash payment equal to $361,000, payable in a single lump sum within thirty (30) days following the Effective Date and (ii) payment of COBRA premiums for six (6) months following the Separation Date (to the extent Mr. Foy elects COBRA continuation coverage), less amounts equal to the amount active employees pay for such coverage during such time period, and subject to reduction or elimination if Mr. Foy becomes entitled to duplicative benefits through other employment.

 

In addition, the Agreement contains a general waiver and release of claims by Mr. Foy in favor of the Company. Mr. Foy will be subject to certain restrictive covenants following his termination of employment with the Company.

 

Mr. Foy’s transition is not the result of any disagreements over the Company’s business, operations, or strategic direction.

 

The foregoing description of the Agreement is not complete and is qualified in its entirety by reference to the full text of such Agreement, a copy of which is filed hereto as Exhibit 10.1 and is incorporated herein by reference.

Director Resignations

 

On August 4, 2022, each of George Arison and Kellyn Smith Kenny, members of the Board of Directors (the “Board”) of the Company, informed the Company of their decision to resign as a director of the Company, effective August 7, 2023. Mr. Arison served as a Class III director and a member of the Finance Committee of the Board. Ms. Smith Kenny served as a Class I director and a member of the Leadership Development, Compensation and Governance Committee of the Board. Each of Mr. Arison’s and Ms. Smith Kenny’s decision to resign from the Board was not the result of any disagreement relating to the Company’s operations, policies or practices. Shift thanks Mr. Arison and Ms. Smith Kenny for their commitment and service to the Company. After giving effect to the foregoing director resignations of Mr. Arison and Ms. Smith Kenny from the Board, the Board consists of seven (7) directors and three (3) vacancies.

 

In addition, following the effectiveness of Mr. Arison’s and Ms. Smith Kenny’s resignation from the Board, on August 7, 2023, the Board, by unanimous written consent, decreased the size of the Board to seven (7) directors, apportioned among the three classes as follows: two (2) in Class I, three (3) in Class II and two (2) in Class III, in accordance with and as permitted by the Company’s Second Amended and Restated Certificate of Incorporation, as amended, thereby eliminating the vacancies on the Board resulting from the resignations of Mr. Arison and Ms. Smith Kenny from the Board.

 

Item 9.01 Financial Statements and Exhibits.

 

(d)

Exhibits

 

10.1		Separation and General Release Agreement, by and between Shift Technologies, Inc. and Sean Foy, dated August 3, 2023.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

SIGNATURE

 

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.

 

	SHIFT TECHNOLOGIES, INC.
Dated: August 7, 2023	/s/ Oded Shein
	Name:	Oded Shein
	Title:	Chief Financial Officer

 

 

2

 

Exhibit 10.1

 

SHIFT TECHNOLOGIES, INC.

 

SEPARATION AND GENERAL RELEASE AGREEMENT

 

This Separation and General Release Agreement (the “Agreement”) is entered into by and between Shift Technologies, Inc., a Delaware corporation (the “Company”) and Sean Foy (the “Employee”) (the Company and Employee collectively referred to herein as the “Parties”) as of the last date set forth on the signature page hereto.

 

1. Separation Date. The Parties hereby acknowledge and agree that Employee’s employment by the Company terminated effective July 1, 2023 (the “Separation Date”). The Separation Date shall be deemed to be the date of separation from service and the date that employment ends for purposes of that certain Offer Letter dated October 12, 2018, as amended on October 16, 2018 (inclusive of the Proprietary Information and Inventions Agreement and the Arbitration Agreement appended thereto) (collectively, the “Offer Letter”) and any applicable Company plans or programs in which Employee participated (including, for the avoidance of doubt, the Shift Technologies, Inc. Severance Plan for Key Management Employees (the “Severance Plan”) and that certain Amended and Restated Retention Bonus Agreement dated June 22, 2022 (the “Retention Bonus Agreement”)) (collectively, the Offer Letter, Severance Plan and Retention Bonus Agreement referred to as the “Employee Arrangements”).

 

Employee further acknowledges that Employee ceased being employed as the Chief Operating Officer of the Company effective on June 23, 2023, and continued to be employed in a non-executive capacity with the Company through the Separation Date. The Company continued to pay Employee’s base salary (at an annual rate of $422,000) through the Separation Date.

 

Effective as of Separation Date, Employee resigns from all director, officer or other positions he holds on behalf of the Company or any of its subsidiaries or affiliates. Employee agrees to sign all appropriate documentation, if any, prepared by the Company to facilitate these resignations; provided that Employee understands that such resignations are self-effectuating and are effective on the Separation Date.

 

2. Accrued Obligations and Vested Benefits. Employee is entitled to receive the following accrued obligations at his separation from service: (a) all base salary earned, accrued and owing, but not yet paid, (b) any vacation earned but not yet taken, (c) reimbursement for business expenses in accordance with Company policy, and (d) any benefits accrued and due in accordance with the terms of any applicable benefit plans or programs of the Company. For the avoidance of doubt, Employee agrees that as of the date of this Agreement, Employee has no entitlement to any travel expense reimbursement pursuant to any Company policy or otherwise.

 

 

3. Separation Payments and Benefits. Provided that Employee timely signs and does not timely revoke this Agreement (in accordance with Section 20 and 21 herein), and complies with the terms and conditions of this Agreement, the Company shall provide Employee with the following separation payments and benefits (less federal, state and local tax withholdings and any other deductions required by law or previously authorized by Employee), in full satisfaction of all termination obligations the Company may have to Employee under any agreement, plan or arrangement, including without limitation the Employee Arrangements (the “Separation Benefits”):

 

(a) In full satisfaction of the provisions of the Employee Arrangements:

 

(i) Lump Sum Severance Amount. The Company shall pay Employee an amount in cash equal to $361,000 to be paid to Employee in a single lump sum payment within thirty (30) days following the Effective Date (as defined below); and

 

(ii) Health Plan Continuation Coverage. If Employee timely and properly elects health continuation coverage pursuant to Employee’s benefit continuation rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company shall take appropriate steps so as to charge Employee his COBRA continuation premium at the amount paid by active employees for comparable coverage rather than the full permissible COBRA premium amount that may otherwise be charged for COBRA continuation coverage (and the Company shall pay the remaining amount of such COBRA premium amount). This reduced COBRA premium shall be applicable for a period that ends on the six month anniversary of the Separation Date, or the date Employee becomes entitled to duplicative benefits by virtue of Employee’s subsequent or other employment, whichever occurs first. Employee agrees to promptly advise the Company if Employee becomes eligible for such duplicative benefits. If the payment by the Company of any portion of the COBRA premium would violate the nondiscrimination rules or cause the reimbursement of claims to be taxable under the Patient Protection and Affordable Care Act of 2010, together with the Health Care and Education Reconciliation Act of 2010 (collectively, the “Act”) or Section 105(h) of the Code (as defined below), the Company-paid portion of the premium will be treated as taxable payments and be subject to imputed income tax treatment to the extent necessary to eliminate any discriminatory treatment or taxation under the Act or Section 105(h) of the Code.

 

(b) Unvested Equity Awards. For avoidance of doubt, and solely for purposes of clarity, as provided under the Shift Technologies, Inc. 2020 Omnibus Equity Compensation Plan (the “Plan”), Employee’s outstanding equity awards held by Employee under the Plan shall be forfeited and cancelled for no consideration as of the Separation Date.

 

(c) Employee acknowledges and agrees that, unless he executes this Agreement, he will not otherwise be entitled to receive the consideration set forth in this Section 3. Employee further acknowledges and agrees that the consideration set forth or referenced in Section 3 constitutes full satisfaction and accord for any and all compensation and benefits due and owing to him pursuant to any plan, agreement or other arrangements (including without limitation the Employee Arrangements) relating to his employment with the Company and termination thereof.

 

4. Post-Separation Covenants; Dispute Resolution. The Company and Employee acknowledge and agree that Employee’s post-separation covenants set forth in the Employee Arrangements and the dispute resolution provisions set forth in the Offer Letter are incorporated into this Agreement by reference and shall remain in full force and effect following the Separation Date in accordance with their respective terms. In the event of material breach by Employee of this Agreement, Employee acknowledges and agrees that: (a) the Company shall have the right to terminate any remaining unpaid Separation Benefits and file a lawsuit against Employee to recover ninety-five percent (95%) of the Separation Benefits, as such amount is not deemed earned absent Employee’s compliance with this Agreement; and (b) the remaining five percent (5%) of the Separation Benefits shall constitute full and complete consideration sufficient to support enforcement of this Agreement against Employee, including, but not limited to, enforcement of Employee’s release of claims set forth below.

 

 

5. Release. In consideration of the Separation Benefits and the Company’s promises in this Agreement:

 

(a) Employee hereby RELEASES the Company, its past and present parents, subsidiaries, affiliates, predecessors, successors, assigns, related companies, entities or divisions, its or their past and present employee benefit plans, trustees, fiduciaries and administrators, and any and all of its and their respective past and present officers, directors, partners, agents, representatives, attorneys and employees (all collectively included in the term “Company” for purposes of this release), from any and all claims, demands or causes of action which Employee, or Employee’s heirs, executors, administrators, agents, attorneys, representatives or assigns (all collectively included in the term “Employee” for purposes of this release), have, had or may have against the Company, based on any events or circumstances arising or occurring prior to and including the date of Employee’s execution of this Agreement to the fullest extent permitted by law, regardless of whether such claims are now known or are later discovered, including but not limited to any claims relating to Employee’s employment or termination of employment by the Company, any rights of continued employment, reinstatement or reemployment by the Company, and any costs or attorneys’ fees incurred by Employee, PROVIDED, HOWEVER, Employee is not waiving, releasing or giving up any rights Employee may have as a shareholder of the Company that may not be waived under applicable law, to vested benefits under any pension or savings plan, to continued benefits in accordance with COBRA, to unemployment insurance, to any claims or rights Employee may have to indemnification, to enforce the terms of this Agreement, or any other right which cannot be waived as a matter of law. In the event any claim or suit is filed on Employee’s behalf against the Company by any person or entity, Employee waives any and all rights to receive monetary damages or injunctive relief in favor of Employee from or against the Company.

 

(b) Employee agrees and acknowledges: that this Agreement is intended to be a general release that extinguishes all claims by Employee against the Company; that Employee is waiving any claims arising under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, 42 U.S.C. §1981, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Older Worker Benefit Protection Act, the Employee Retirement Income Security Act of 1974, the Family and Medical Leave Act, the Equal Pay Act, the Worker Adjustment and Retraining Notification Act, the Uniformed Services Employment and Reemployment Rights Act, the Genetic Information Nondiscrimination Act, the Fair Credit Reporting Act, the California Fair Employment and Housing Act, the Unruh Civil Rights Act, the California Government Code, the California Business and Professions Code, the California Family Rights Act, the California Pregnancy Disability Leave Law, the California Equal Pay Law, the California Crime Victim Leave Law, the California Healthy Family Act, the California Plant Closing Law, and all other federal, state and local statutes, ordinances and common law, including but not limited to any claims based on public policy, breach of contract, either expressed or implied, equitable claims, defamation, retaliation, whistleblowing, negligence, invasion of privacy, infliction of emotional distress, slander, libel, estoppel, fraud, misrepresentation, and other torts (including intentional torts) and wrongful discharge, and claims for discretionary bonuses and other discretionary payments to the fullest extent permitted by law; that Employee is waiving all claims against the Company, known or unknown, arising or occurring prior to and including the date of Employee’s execution of this Agreement; that the consideration that Employee will receive in exchange for Employee’s waiver of the claims specified herein exceeds anything of value to which Employee is already entitled; that Employee was hereby advised in writing to consult with an attorney and that Employee had at least twenty-one (21) calendar days to consider this Agreement; that Employee has entered into this Agreement knowingly and voluntarily with full understanding of its terms and after having had the opportunity to seek and receive advice from counsel of Employee’s choosing; and that Employee has had a reasonable period of time within which to consider this Agreement. Employee represents that Employee has not assigned any claim against the Company to any person or entity; that Employee has no right to any future employment by the Company; that Employee has received all compensation, benefits, remuneration, accruals, contributions, reimbursements, bonuses, vacation pay, and other payments, leave and time off due; and that Employee has not suffered any injury that resulted, in whole or in part, from Employee’s work at the Company that would entitle Employee to payments or benefits under any state worker’s compensation law and the termination of Employee’s employment by the Company is not related to any such injury.

 

 

(c) Employee expressly waives the benefit of any statute or rule of law which, if applied to this Agreement, would otherwise preclude from its binding effect any claim against the Company (as defined in Paragraph 6(a) above) not now known by Employee to exist, including any benefit under Section 1542 of the California Civil Code which states as follows:

 

A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

 

6. Permitted Conduct. Employee understands that nothing contained in this Agreement limits: (a) Employee’s ability to 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, law enforcement, or any other federal, state or local governmental agency or commission (“Government Agencies”); (b) Employee’s right to disclose information about or testify regarding alleged criminal conduct or unlawful acts in the workplace, including but not limited to discrimination, harassment, retaliation or any other unlawful or potentially unlawful conduct; or (c) Employee’s ability to file or disclose any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which Employee is entitled.  Employee further understands that this Agreement does not limit Employee’s ability to initiate, testify, assist, comply with a subpoena from, or communicate with any Government Agencies 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 and that nothing herein precludes Employee from requesting or receiving confidential legal advice; provided, however, that Employee may not disclose Company information that is protected by the attorney-client privilege, except as expressly authorized by law. This Agreement does not limit Employee’s right to receive an award for information provided to any Government Agencies.

 

7. Defend Trade Secrets Act of 2016. The Company provides notice to Employee pursuant to the Defend Trade Secrets Act of 2016 that:

 

(a) An individual will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (1) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (2) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and

 

(b) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (1) files any document containing the trade secret under seal; and (2) does not disclose the trade secret, except pursuant to court order.

 

 

8. Cooperation. Following the Separation Date, Employee agrees to cooperate fully with the Company in the defense, prosecution or conduct of any claims, actions, investigations, or reviews now in existence or which may be initiated in the future against, involving or on behalf of the Company which relate to events or occurrences that transpired while Employee was employed by the Company (“Matters”). For the avoidance of doubt, this includes Employee’s cooperation in connection with such Matters, which will include, but not be limited to, being available for telephone conferences with outside counsel and/or personnel of the Company, and being available for interviews as reasonably requested. The Company will reimburse Employee for all reasonable out-of-pocket expenses incurred by Employee in connection with such cooperation.

 

9. No Unlawful Conduct. Employee represents and warrants that Employee has not engaged in any unlawful or fraudulent conduct in connection with Employee’s employment or duties with the Company; that Employee is not aware of the Company’s violation of any applicable law, rule, regulation and/or binding legal guidance; and that Employee is not aware of the Company’s material non-compliance with any applicable accounting or professional responsibility rule, practice and/or principle.

 

10. Confidentiality; Non-Disparagement.

 

(a) Employee agrees to keep the terms of this Agreement confidential and not to disclose the terms of this Agreement to anyone other than Employee’s immediate family or legal, tax or financial advisors or as otherwise required by law, and agrees to take all steps necessary to assure confidentiality by those recipients of this information. With reference to Section 162(q) of the Internal Revenue Code of 1986, as amended, and the corresponding regulations and guidance promulgated thereunder (the “Code”), nothing contained in this Agreement shall be interpreted or construed as requiring non-disclosure with respect to factual information relating to allegations of sexual harassment or sexual abuse.

 

(b) Employee agrees not to make, or cause or attempt to cause any other person to make any statement, written or oral, or convey any information about the Company (directly or indirectly) or attempt to cause any other person or entity to make any statement, written or oral (including, but not limited to, statements made in person, by phone, email, text message, online, on social media, or otherwise) which is false, disparaging, or defamatory towards the Company, as the Company is defined in Section 5(a) of this Agreement.

 

(c) Employee specifically acknowledges and reaffirms Employee’s ongoing obligations to the Company (1) not to use for any purpose or disclose any confidential or proprietary information of the Company or a third party to which Employee had access or created during the period of Employee’s employment with the Company, (2) to return after the cessation of his services to the Company any and all materials containing such confidential or proprietary information to the Company, and (3) to comply with the obligations set forth in this Agreement.

 

 

11. No Admission of Liability. This Agreement does not constitute and will not be construed as an admission by the Company that it has violated any law, interfered with any rights, breached any obligation or otherwise engaged in any improper or illegal conduct with respect to Employee, and the Company expressly denies that it has engaged in any such conduct.

 

12. Amendment; Entire Agreement. This Agreement constitutes the entire agreement between the Parties on the subject matter hereof, and, other than as specifically set forth in this Agreement, supersedes and replaces all prior negotiations and agreements, whether written or oral. This Agreement may be modified only by a written instrument signed by the Parties hereto. Employee acknowledges and agrees that Employee remain subject to all post-employment obligations set forth in the Employee Arrangements.

 

13. Execution. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which constitute one and the same Agreement, and the Parties agree that signatures delivered by hand delivery, U.S. mail, fax, and e-mail/pdf are valid.

 

14. Withholding. The Company may withhold from any and all amounts payable under this Agreement or otherwise such federal, state, and local taxes as may be required to be withheld pursuant to any applicable law or regulation.

 

15. Section 409A of the Internal Revenue Code. Although the Company does not guarantee the tax treatment of any payment under this Agreement, this Agreement and any payments made hereunder are intended to comply with or be exempt from Section 409A of the Code, and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted in a manner consistent therewith. Any payment under this Agreement may only be made upon an event and in a manner permitted by Section 409A of the Code, and such payments are intended to be exempt from Section 409A of the Code under the “short-term deferral” exception, to the maximum extent applicable. Notwithstanding anything herein to the contrary, if, at the time of Employee’s termination of employment with the Company, Employee is a “specified employee” (as such term is defined in Section 409A of the Code) and it is necessary to postpone the commencement of any payments or benefits otherwise payable under this Agreement as a result of such termination of employment to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will postpone the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise paid within the “short-term deferral exception” under Treas. Reg. §1.409A-1(b)(4), and the “separation pay exception” under Treas. Reg. §1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Employee’s “separation of service” (as such term is defined in Section 409A of the Code) with the Company. If any payments are postponed due to such requirements, such postponed amounts will be paid in a lump sum to Employee on the first payroll date that occurs after the date that is six months following Employee’s separation of service with the Company. If Employee dies during the postponement period prior to the payment of postponed amount, the amounts withheld on account of Section 409A of the Code shall be paid to the personal representative of Employee’s estate within sixty (60) days after the date of Employee’s death.

 

 

For purposes of Section 409A of the Code, Employee’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments. In no event may Employee, directly or indirectly, designate the calendar year of a payment. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A of the Code.

 

The Company reserves the right to amend the provisions of this Agreement at any time and in any manner without Employee’s consent but with notice to Employee solely to comply with the requirements of Section 409A of the Code and to avoid the imposition of additional tax, interest or income inclusion under Section 409A of the Code on any payment to be made hereunder. Notwithstanding the foregoing, in no event shall the Company be liable for any additional tax, interest, income inclusion or other penalty that may be imposed on Employee by Section 409A of the Code or for damages for failing to comply with Section 409A of the Code.

 

16. Severability. If any provision, section, subsection or other portion of this Agreement is determined by any court of competent jurisdiction to be invalid, illegal or unenforceable in whole or in part, and such determination becomes final, such provision or portion will be deemed to be severed or limited, but only to the extent required to render the remaining provisions and portion of this Agreement enforceable. This Agreement as thus amended will be enforced so as to give effect to the intention of the Parties insofar as that is possible. In addition, the Parties hereby expressly empower a court of competent jurisdiction to modify any term or provision of this Agreement to the extent necessary to comply with existing law and to enforce this Agreement as modified.

 

17. Voluntary Agreement. Employee hereby agrees and acknowledges that Employee has carefully read this Agreement, fully understands what this Agreement means, and is signing this Agreement knowingly and voluntarily, that no other promises or agreements have been made to Employee other than those set forth in this Agreement, and that Employee has not relied on any statement by anyone associated with the Company that is not contained in this Agreement in deciding to sign this Agreement.

 

18. Governing Law. This Agreement will be governed by the laws of the State of California.

 

19. Return of Company Property. Employee must return to the Company within 10 days after Employee’s termination of employment all Company property previously provided to Employee, including, but not limited to, any Company owned computer, personal digital assistant, mobile phone, credit cards, keys, key fobs, computer accessories, and Company documents and materials (however stored). Notwithstanding the foregoing, Employee will be permitted to keep his Company-provided mac computer following his termination of employment (which computer shall be cleared of all confidential or proprietary information of the Company upon the termination of Employee’s employment). For the avoidance of doubt, subject to the provisions of this Section 19, Company property remain subject to applicable Company policies, as may be amended from time to time.

 

20. Acceptance. Employee may accept this Agreement by delivering an executed copy of the Agreement to the Company within twenty-one (21) calendar days after Employee’s receipt of this Agreement. The Parties agree that any changes to the Agreement, whether material or non-material, will not extend the 21-day consideration period.

 

21. Revocation. Employee may revoke this Agreement within seven (7) calendar days after it is executed and delivered by Employee to the Company by delivering a written notice of revocation to the Company no later than the close of business on the 7th calendar day after this Agreement was signed by Employee. This Agreement will become effective and enforceable on the 8th calendar day after Employee signs and delivers the Agreement to the Company (the “Effective Date”), provided Employee has not timely revoked this Agreement. If Employee fails to timely accept the Agreement or timely revokes this Agreement, the Parties will have no obligations under this Agreement.

 

22. Attorneys’ Fees. The Company shall reimburse Employee for his reasonable legal fees incurred in connection with review of and revisions to this Agreement, in an amount not to exceed Seven Thousand Five Hundred dollars ($7,500).

 

[Signature Page Follows]

 

 

WHEREFORE, the Parties have executed this Agreement on the date or dates set forth below.

 

	SEAN FOY:
	Name:	/s/ Sean Foy
	Date:	8/3/2023
	SHIFT TECHNOLOGIES, INC.
	By:	/s/ Ayman Moussa
	Name:	Ayman Moussa
	Title:	CEO
	Date:	8/3/2023

 

 

v3.23.2

Cover	Aug. 03, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Aug. 03, 2023
Entity File Number	001-38839
Entity Registrant Name	SHIFT TECHNOLOGIES, INC.
Entity Central Index Key	0001762322
Entity Tax Identification Number	82-5325852
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	290 Division Street
Entity Address, Address Line Two	Suite 400
Entity Address, City or Town	San Francisco
Entity Address, State or Province	CA
Entity Address, Postal Zip Code	94103
City Area Code	855
Local Phone Number	575-6739
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Class A common stock, par value $0.0001 per share
Trading Symbol	SFT
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false

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