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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): November 2,
2021
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Via Renewables, Inc. |
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(Exact Name of Registrant as Specified in its Charter) |
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Delaware |
001-36559 |
46-5453215 |
(State or Other Jurisdiction
of Incorporation) |
(Commission
File Number) |
(IRS Employer
Identification Number) |
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12140
Wickchester Ln, Suite 100
Houston, Texas 77079
(Address of principal executive offices)
(713) 600-2600
(Registrant's telephone number, including area code)
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
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:
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Title of each class |
Trading Symbols(s) |
Name of exchange on which registered |
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Class A common stock, par value $0.01 per share
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VIA
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The NASDAQ Global Select Market
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8.75% Series A Fixed-to-Floating Rate
Cumulative Redeemable Perpetual Preferred Stock, par value $0.01
per share |
VIASP |
The NASDAQ Global Select 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) of the Exchange
Act.
Item 2.02 Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
On November 2, 2021, but effective November 4, 2021, Via
Renewables, Inc. (the “Company”) appointed Paul Konikowski as Chief
Operating Officer.
Mr. Konikowski, age 50, previously served as Senior Vice President
of National Gas and Electric (“NG&E”), an affiliated company,
which is owned and controlled by the Company’s Chief Executive
Officer and Chairman of the Board of Directors, a position he had
held since April 2015. Prior to NG&E, Mr. Konikowski served as
Chief Operating Officer of Glacial Energy. Prior to Glacial Energy,
Mr. Konikowski served as Senior Vice President and Chief
Information Officer of Via Renewables, Inc. (formerly Spark Energy,
Inc.). Mr. Konikowski holds a Bachelor of Business Administration
in Computer Information Systems and Marketing from Stephen F.
Austin State University. There are no understandings or
arrangements between Mr. Konikowski and any other person pursuant
to which Mr. Konikowski was selected to serve as Chief Operating
Officer. There are no existing relationships between Mr. Konikowski
and any person that would require disclosure pursuant to Item
404(a) of Regulation S-K or any familial relationships that would
require disclosure under Item 401(d) of Regulation
S-K.
In connection with his appointment, the Company entered into an
employment agreement, effective as of November 4, 2021 (the
“Employment Agreement”), with Mr. Konikowski. Pursuant to the
Employment Agreement, Mr. Konikowski will serve as Chief Operating
Officer, and will receive an annual base salary of $350,000, as
adjusted from time to time by the Company. The Employment Agreement
provides for an initial term ending on December 31, 2022, and
provides for subsequent one-year renewals unless either party gives
at least 30 days prior notice to the end of the then existing
term.
The Employment Agreement provides that, in the event Mr. Konikowski
is terminated by the Company other than for “Cause” or Mr.
Konikowski’s employment terminates due to either the Company’s
election not to renew the term of the Employment Agreement or Mr.
Konikowski’s resignation for “Good Reason,” Mr. Konikowski will,
subject to execution of a release of claims, be entitled to receive
the following payments and benefits:
•twelve
months’ base salary plus an additional amount equal to Mr.
Konikowski’s target annual bonus for the year of termination
pro-rated based upon the number of days Mr. Konikowski was employed
in the calendar year of termination and based upon the Company’s
relative performance through such date of termination, payable in
twelve substantially equal installments (the “Severance
Payment”);
•any
bonus earned for the calendar year prior to the year the
termination occurs that is unpaid as of the date of termination
(the “Post-Termination Bonus Payment”); and
•full
vesting of any outstanding unvested awards held by Mr. Konikowski
under the Company’s Long Term Incentive Plan.
“Cause” under the Employment Agreement is generally defined to
include: (a) a material uncured breach by Mr. Konikowski of the
Employment Agreement or any other material obligation owed to the
Company, (b) commission of an act of gross negligence, willful
misconduct, breach of fiduciary duty, fraud, theft or embezzlement,
which has or can reasonably be expected to have an adverse effect
on the Company, (c) any conviction, indictment or plea of nolo
contendere with respect to any felony or any crime involving moral
turpitude, (d) uncured willful failure or refusal to perform
obligations pursuant to the Employment Agreement or uncured willful
failure or refusal to follow the lawful instructions of the
Company’s Board of Directors, and (e) any conduct which is
materially injurious to the Company.
“Good Reason” under the Employment Agreement is generally defined
to include (a) a material diminution in base salary, (b) a material
diminution in title, duties, authority or responsibilities, (c)
relocation of corporate offices by more than fifty miles, or (d)
material and uncured breach of the Employment Agreement by the
Company.
A non-renewal of the term of the Employment Agreement by Mr.
Konikowski, a termination by reason of Mr. Konikowski’s death or
disability, a termination by the Company for “Cause,” a termination
of employment by Mr. Konikowski without “Good Reason,” or a
separation in connection with a “Change in Control” described
below, does not give rise to a right to the Severance Payment or
Post-Termination Bonus Payment.
If within 120 days prior to execution of a definitive agreement for
a “Change in Control” transaction and 365 days after consummation
or final closing of such transaction, Mr. Konikowski’s employment
is terminated by the Company other than for “Cause” or Mr.
Konikowski’s employment terminates due to either the Company’s
election not to renew the term of the Employment Agreement or Mr.
Konikowski’s resignation for “Good Reason,” subject to execution of
a release of claims and other conditions, Mr. Konikowski is
entitled to receive the following payments and
benefits:
•a
lump sum payment equal to 1.0 times Mr. Konikowski’s base salary
then in effect, and the full target annual bonus for the year the
termination occurs, and payable within 15 days following the date
the employment is terminated;
•any
bonus earned for the calendar year prior to the year the
termination occurs that is unpaid as of the date of termination,
payable within 15 days following the date the employment is
terminated;
•a
pro rata target annual bonus for the year of termination,
calculated based upon relative achievement through such date and
payable within 15 days following the date in which employment is
terminated;
•full
vesting of any outstanding awards held by Mr. Konikowski under the
Company’s Long Term Incentive Plan; and
•reimbursement
or payment of certain continuing health benefits, if elected by Mr.
Konikowski.
The Employment Agreement generally defines “Change in Control” to
mean:
•the
consummation of an agreement to acquire or a tender offer for
beneficial ownership by any person, of 50% or more of the combined
voting power of the Company’s
outstanding voting securities entitled to vote generally in the
election of directors, or by any person of 90% or more of the then
total outstanding shares of Class A common stock;
•individuals
who constitute the incumbent board cease for any reason to
constitute at least a majority of the Board;
•consummation
of certain reorganizations, mergers or consolidations or a sale or
other disposition of all or substantially all of the Company’s
assets;
•approval
by the Company’s shareholders of a complete liquidation or
dissolution;
•a
public offering or series of public offerings by Retailco and its
affiliates, as a selling shareholder group, in which their total
interest drops below 10 million of the Company’s total outstanding
voting securities;
•a
disposition by Retailco and its affiliates in which their total
interest drops below 10 million of the Company’s total outstanding
voting securities; or
•any
other business combination, liquidation event of Retailco and its
affiliates or restructuring of the Company that the Compensation
Committee deems in its discretion to achieve the principles of a
Change in Control.
•
The Employment Agreement also provides for noncompetition and
nonsolicitation covenants that are in effect during the period of
Mr. Konikowski’s employment and for a period of 12 months
thereafter, and customary provisions regarding the return of
property.
In connection with his appointment and pursuant to the Employment
Agreement, the Board approved a grant of 10,000 RSUs with dividend
equivalent rights to Mr. Konikowski. The RSUs vest as follows: (1)
25% on May 18, 2022, (2) 25% on May 18, 2023, (3) 25% on May 18,
2024 and (4) 25% on May 18, 2025. The grant of RSUs will be made
pursuant to the Company’s Form of Restricted Stock Unit Agreement
and Form of Notice of Grant of Restricted Stock Unit.
The foregoing description of the Employment Agreement does not
purport to be complete and is qualified in its entirety to the full
text of the Employment Agreement, which is filed herewith as
Exhibit 10.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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Exhibit No. |
Description |
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10.1† |
Employment Agreement, dated November 4, 2021, by and between Via
Renewables, Inc. and Paul Konikowski. |
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104 |
Cover Page Interactive Data File (embedded within the Inline XBRL
document). |
† Compensatory plan or arrangement
EXHIBIT INDEX
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Exhibit No. |
Description |
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10.1† |
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104 |
Cover Page Interactive Data File (embedded within the Inline XBRL
document). |
SIGNATURES
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.
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Dated: November 8, 2021 |
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Spark Energy, Inc. |
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By: |
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/s/ Mike Barajas |
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Name: |
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Mike Barajas |
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Title: |
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Chief Financial Officer |
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