0001288847 false 0001288847 2024-03-29 2024-03-29
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): March 29, 2024
FIVE9, INC.
(Exact name of Registrant as specified in its charter)

Delaware | 001-36383 | 94-3394123
(State or other jurisdiction of incorporation) | (Commission File No.) | (I.R.S. Employer Identification No.)

3001 Bishop Drive, Suite 350
San Ramon, CA 94583
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code: (925) 201-2000
Not Applicable
(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:

☐ | 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(s) | Name of Each Exchange on Which Registered
Common stock, par value $0.001 per share | FIVN | The NASDAQ Global Market

Indicated 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.
Extension of 2019 Key Employee Severance Benefit Plan
In April 2019, the Compensation Committee of the Board of Directors (the “Committee”) of Five9, Inc. (the “Company”, “us” or “we”) adopted the Five9, Inc. 2019 Key Employee Severance Benefit Plan (the “KESP”), which became effective on April 4, 2019. The KESP was set to expire by its terms on April 4, 2024. On March 29, 2024, the Committee (after consultation with its compensation consultant) approved a one-year extension of the term of the KESP. The KESP, as extended, provides the same level of benefits for participating senior executives, including the Company’s named executive officers, as was provided under the KESP prior to such extension. The key terms of the KESP, which have been previously disclosed, are set forth below:
If a participant’s employment is terminated by us without “cause” (as defined in the KESP) (other than due to death or disability), and such termination is not in connection with a “change in control” (as defined in the KESP), then the participant is eligible to receive:
•a lump sum cash payment equal to 12 months (in the case of a Tier 1 Participant), 9 months (in the case of a Tier 2 Participant), 6 months (in the case of a Tier 3 Participant) or 4 months (in the case of a Tier 4 Participant) of the participant’s then-current base salary, and
•either payment of the premiums for the participant’s continued post-termination health insurance coverage, or continued coverage under our health insurance plans for up to 12 months (in the case of a Tier 1 Participant), 9 months (in the case of a Tier 2 Participant), 6 months (in the case of a Tier 3 Participant) or 4 months (in the case of a Tier 4 Participant).
If a participant’s employment is terminated by us without cause (other than due to death or disability) or by the participant pursuant to a “constructive termination” (as defined in the KESP), and in each case, such qualifying termination occurs within 3 months prior to, on or within 12 months after a change in control, then the participant is instead eligible to receive:
•a lump sum cash payment equal to 18 months (in the case of a Tier 1 Participant), 15 months (in the case of a Tier 2 Participant), 12 months (in the case of a Tier 3 Participant) or 6 months (in the case of a Tier 4 Participant) of the participant’s then-current base salary and target annual bonus opportunity (pro rated for partial years in the severance period),
•either payment of the premiums for the participant’s continued post-termination health insurance coverage or continued coverage under our health insurance plans for up to 18 months (in the case of a Tier 1 Participant), 15 months (in the case of a Tier 2 Participant), 12 months (in the case of a Tier 3 Participant) or 6 months (in the case of a Tier 4 Participant), and
•full accelerated vesting of the participant’s then-outstanding and unvested equity awards.
If the payments or benefits payable under the KESP would be subject to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended, then those payments or benefits will be reduced if such reduction would result in a higher net after tax benefit to the participant. Each participant must execute and deliver an effective release of claims and continue to comply with any applicable restrictive covenants in order to receive the payments and benefits provided for under the KESP.
The participating named executive officers and their respective Tiers under the KESP are as follows:

Name | Position | Tier
Michael Burkland | Chief Executive Officer | 1
Barry Zwarenstein | Chief Financial Officer | 2
Daniel Burkland | President and Chief Revenue Officer | 3
Andy Dignan | Chief Operating Officer | 3
Panos Kozanian | Executive Vice President, Product Engineering | 3

Item 9.01 Financial Statements and Exhibits.
(d) Exhibits

Exhibit No. |  | Description
10.1 |  | Five9, Inc. 2019 Key Employee Severance Benefit Plan, as Amended

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.

|  |  |  |  |  | FIVE9, INC.
Date: April 1, 2024 |  |  |  |  |  | By: |  | /s/ Barry Zwarenstein
|  |  |  |  |  |  |  | Barry Zwarenstein
|  |  |  |  |  |  |  | Chief Financial Officer