Employment Agreement dated January 9, 2021, by and among Gavin Michael, Opco, and VIH
BAKKT HOLDINGS, LLC
VPC IMPACT ACQUISITION HOLDINGS
This is an Employment Agreement (the Employment Agreement), dated as of January 9, 2021, by and among Bakkt Holdings, LLC, a Delaware limited liability company (together with its direct and indirect subsidiaries, the Company), VPC Impact Acquisition Holdings, a Cayman Islands exempted company which, in connection with the Transaction (as defined below), shall be redomiciled in Delaware and re-named Bakkt Holdings, Inc. (PubCo and, together with the Company, Bakkt, it being understood that all payment obligations to Executive shall be solely the obligation of the Company), and Gavin Michael (Executive), the terms and conditions of which are as follows:
1. Term. Subject to the terms and conditions set forth in this Employment Agreement, the Company agrees to employ Executive and Executive agrees to be employed by the Company for an initial term of one (1) year, which shall start on the date of the public announcement of the transaction(s) described in the Agreement and Plan of Merger by and among Pylon Merger Company LLC, the Company, and PubCo (such agreement, the Merger Agreement and such transaction(s), the Transaction), and shall end on the first anniversary of such date. The initial term plus any extension shall be referred to in this Employment Agreement as the Term. On the last day of the initial term and each anniversary thereof, the Term of this Employment Agreement will automatically extend for one (1) year (unless either party delivers 90 days written notice to the other that there will be no such extension).
2. Title; Duties and Responsibilities; Powers. Executives title initially shall be Chief Executive Officer of the Company (Executive also shall be a Director of the Company) and, effective as of the consummation of the Transaction (the Closing), Chief Executive Officer of PubCo (Executive also shall be a Director of PubCo). Executive shall report to, and his duties and responsibilities and powers shall be those commensurate with Executives position that are set from time to time by, the Board of Directors of PubCo. Executive shall undertake to perform all of Executives duties and responsibilities and exercise all of Executives powers in good faith and on a full-time basis and shall at all times act in the course of Executives employment under this Employment Agreement in the best interests of Bakkt.
3. Primary Work Site. Executives primary work site for the Term shall be New York, New York. However, Executive shall undertake such travel away from Executives primary work site and shall work from such temporary work sites as necessary or appropriate to fulfill Executives duties and responsibilities and exercise Executives powers under the terms of this Employment Agreement.
4. Outside Activities. Executive shall not serve on any boards of directors of, or provide services (whether as an employee or independent contractor) to, any entity other than Bakkt (including, for example, any for-profit, civic, or charitable organization) on or after the date Bakkt signs this Employment Agreement without obtaining the consent required by Bakkts internal compliance reporting procedures then in effect.
5. Compensation and Related Matters.
(a) Base Salary. Executives initial base salary shall be $500,000 per year, which shall be payable in accordance with the Companys standard payroll practices and policies for senior executives. Executives base salary shall be subject to annual review and periodic increases as determined by PubCos Board of Directors (the Board) or the Compensation Committee of the Board (the Committee); provided, however, that to the extent Executive is also serving as a Director of the Board, he shall not participate in any Board or Committee deliberations or decisions relating to compensation and benefits specific to Executive (including without limitation the Base Salary or Target Bonus, as such terms are defined herein). The base salary, as may be in effect from time to time under this Employment Agreement, shall be referred to as the Base Salary.
(b) Annual Bonus/Signing Bonus. During the Term, Executive shall be eligible to receive an annual bonus each year. Executives target annual bonus during the Term shall be 100% of Executives Base Salary, subject to adjustment from time to time as determined by the Committee in its sole discretion (the Target Bonus). The actual amount of such bonus, if any, may be higher or lower than the Target Bonus and shall be determined in accordance with a plan adopted and approved by the Board, and shall be paid no later than two and one half (21⁄2) months after the end of the taxable year to which the bonus relates; provided, however, that the initial Target Bonus paid to Executive shall not be subject to pro-ration in the event that Executive is employed for less than the full performance year to which such initial Target Bonus relates. Additionally, on or about the commencement of Executives employment with Bakkt, a one-time bonus in the amount of $542,000 shall be paid to Executive (the Signing Bonus).
(c) Equity Compensation. Subject to the Closing and effective upon the date that a registration statement on Form S-8 has been filed by PubCo and become effective (which shall occur no later than the first business day following the date that PubCo first becomes eligible to use Form S-8), PubCo shall grant Executive 4,164,000 restricted stock units (the Initial Equity Award) under the equity incentive plan to be adopted by PubCo in connection with the transaction (together with any successor equity incentive plan adopted by PubCo, the Equity Plan). Fifty percent (50%) of the Initial Equity Award shall be in the form of time-based vesting restricted stock units (the Initial RSUs) and the remaining fifty percent (50%) of the Initial Equity Award shall be in the form of performance-based restricted stock units (the Initial PRSUs). The Initial RSUs shall vest, subject to Executives continued employment with Bakkt, in three installments on the first three anniversaries of the Closing Date. The Initial PRSUs shall vest, subject to Executives continued employment with Bakkt, on the third anniversary of the grant to the extent the applicable performance conditions have been satisfied, it being understood and agreed that such performance conditions shall be established prior to the Closing Date as proposed by Bakkt
and consented to by Executive, which consent shall not unreasonably be conditioned, delayed or withheld. Following the Initial Equity Award, Executive may from time to time receive awards under the Equity Plan as determined by the Committee. Except as otherwise provided in this Employment Agreement, the terms of any Bakkt equity awards granted to Executive shall be governed by the Equity Plan in effect at the time of any such grant(s) and the award agreement applicable to such grant(s).
(d) Employee Benefit Plans, Programs and Policies. Executive shall be eligible to participate in the employee benefit plans, programs and policies in effect from time to time and maintained by Bakkt for similarly situated senior executives, in accordance with the terms and conditions of such plans, programs and policies.
(e) Vacation and Other Similar Benefits. Executive shall accrue at least four (4) weeks of vacation during each calendar year period in the Term, which vacation time shall be taken subject to such terms and conditions as set forth in applicable policies as in effect from time to time. Executive shall also have such paid holidays, sick leave and personal and other time off as called for under Bakkts standard policies and practices for executives with respect to paid holidays, sick leave and personal and other time off as may be in effect from time to time.
(f) Business Expenses. Executive shall have the right to be reimbursed for reasonable and appropriate business expenses which Executive actually incurs in connection with the performance of Executives duties and responsibilities under this Employment Agreement in accordance with Bakkts expense reimbursement policies and procedures for its senior executives as may be in effect from time to time.
6. Reasons for Termination. The Company shall have the right to terminate Executives employment at any time, and Executive shall have the right to resign at any time, in each case for any reason or no reason, subject to the terms of this Employment Agreement. The date of termination of Executives employment will be the date specified in any notice of termination delivered from the Company to Executive (or, in the case of Executives resignation, from Executive to the Company), except as otherwise set forth below.
(a) Death. Executives employment shall terminate at Executives death.
(b) Disability. The Company shall have the right to terminate Executives employment on or after the date Executive has a Disability. The term Disability as used in this Employment Agreement means any physical or mental condition which renders Executive unable even with reasonable accommodation by the Company to perform the essential functions of Executives job for at least a one hundred and eighty (180) consecutive day period and which makes Executive eligible to receive benefits under the Companys long term disability plan as of the date Executives employment terminates.
(c) Termination by the Company. The Company may terminate Executives employment at any time, with or without Cause. The term Cause as used in this Employment Agreement will mean:
(i) Executive is convicted of, pleads guilty to, or confesses or otherwise admits to any felony or any act of fraud, misappropriation or embezzlement;
(ii) Executive knowingly engages in any act or course of conduct (a) which is reasonably likely to adversely affect the Companys right or qualification under applicable laws, rules or regulations to serve as an exchange or other form of a marketplace described in Section 9(g) or (b) which violates the rules of any exchange or market in which the Company conducts its Business (as defined in Section 9(g)) (or at such time is actively contemplating effecting trades);
(iii) there is any act or omission by Executive involving willful misconduct or gross negligence in the performance of Executives duties and responsibilities under Section 2 or the exercise of Executives powers under Section 2 to the material detriment of the Company; or
(iv) (a) Executive breaches any of the provisions of Section 9(b) through Section 9(g) or (b) Executive violates any provision of any code of conduct adopted by the Company or Bakkt which applies to Executive and any other Company employees if the consequence to such violation for any employee subject to such code of conduct ordinarily would be a termination of his or her employment by the Company.
(d) Resignation by Executive. Executive may terminate Executives employment with or without Good Reason. The term Good Reason as used in this Employment Agreement will mean, without Executives express written consent:
(i) a material reduction in Executives Base Salary under Section 5(a) or a material reduction in Executives Target Bonus as set forth in Section 5(b);
(ii) a material reduction in the scope, importance or prestige of Executives duties, responsibilities or powers or Executives reporting relationships with respect to who reports to Executive and whom Executive reports to at the Company, or a removal of Executive from the Board;
(iii) Executive is transferred to a new primary work site which is more than thirty (30) miles (measured along a straight line) from Executives primary work site immediately before the transfer unless such new primary work site is closer (measured along a straight line) to Executives primary residence than Executives primary work site immediately before the transfer;
(iv) Executives job title is materially diminished or there is a material reduction in Executives pension and welfare benefits as in effect immediately prior to such Change in Control;
(v) the failure of any successor to all or substantially all of the business and/or assets of the Company to expressly assume and agree to perform this Employment Agreement pursuant to Section 12;
(vi) a material breach of this Employment Agreement by the Company or its successor; or
(vii) solely in the event of a Merger Agreement Termination, (A) the Company does not exercise its right to terminate Executives employment without Cause within ninety (90) days following such Merger Agreement Termination, and (B) the Company does not make an incentive equity grant under its current incentive equity plan to Executive reasonably satisfactory to Executive within such ninety (90) day period; provided that in such instance, Executive must exercise such Good Reason termination based on such grounds within thirty (30) days after the expiration of the ninety (90) day period referenced in this sentence, and if not so exercised, Executives right to terminate for Good Reason pursuant to this clause (vii) shall permanently expire.
Notwithstanding the foregoing, no such act or omission will be treated as Good Reason under this Employment Agreement unless:
(A) (i) Executive delivers to the Company a detailed, written statement of the basis for Executives belief that such act or omission constitutes Good Reason, (ii) Executive delivers such statement before the end of the ninety (90) day period which starts on the date there is an act or omission which forms the basis for Executives belief that Good Reason exists, (iii) Executive gives the Company a thirty (30) day period after the delivery of such statement to cure the basis for such belief and (iv) Executive actually submits Executives written resignation to the Company and terminates employment during the sixty (60) day period which begins immediately after the end of such thirty (30) day period if Executive reasonably and in good faith determines that Good Reason continues to exist after the end of such thirty (30) day period; or
(B) the Company states in writing to Executive that Executive has the right to treat any such act or omission as Good Reason under this Employment Agreement and Executive resigns during the sixty (60) day period which starts on the date such statement is actually delivered to Executive; provided, that if Executive consents in writing to any reduction described in Section 6(d)(i) or Section 6(d)(ii), to any transfer described in Section 6(d)(iii) or to any change described in Section 6(d)(iv) in lieu of exercising Executives right to resign for Good Reason and delivers such consent to the Company, the results of the actions consented to will thereafter be used under this definition for purposes of determining whether Executive subsequently has Good Reason under this Employment Agreement to resign as a result of any such subsequent reduction, transfer or change.
(e) Removal from any Boards and Position. Upon the termination of Executives employment with the Company for any reason, Executive will be deemed to automatically resign from (i) any position with PubCo, the Company or any subsidiary of the Company, including, but not limited to, as an officer, director or trustee of PubCo, the Company and any of its subsidiaries and (ii) any board to which Executive has been appointed or nominated on behalf of Bakkt.
(f) Merger Agreement Termination. Notwithstanding anything to the contrary, in the event the Merger Agreement is validly terminated as expressly provided thereby (such event, a Merger Agreement Termination), then PubCo shall no longer be a party to this Agreement effective as of such termination; however, this Agreement shall continue in accordance with its terms with respect to the Company and Executive.
7. Compensation upon Termination. This section provides the payments and benefits to be paid or provided to Executive as a result of Executives termination of employment. Except as provided in this Section 7, Executive will not be entitled to anything further from Bakkt pursuant to this Employment Agreement as a result of the termination of Executives employment, regardless of the reason for such termination. Upon any termination of Executives employment under this Employment Agreement, except as otherwise provided, Executive (or Executives beneficiary, legal representative or estate, as the case may be, in the event of Executives death) will be entitled to such rights in respect of any equity awards theretofore made to Executive (including the Initial Equity Award), and to only such rights, as are provided by the plan or the award agreement pursuant to which such equity awards have been granted to Executive or other written agreement or arrangement between Executive and the Company.
(a) Resignation without Good Reason or Termination for Cause. Following the termination of Executives employment by the Company for Cause or by Executive without Good Reason or upon expiration of the Term as a result of Executive providing notice that the Term of this Employment Agreement will not be renewed in accordance with Section 1, the Company will pay or provide to Executive (or Executives estate in the event of Executives death) the following (together, the Accrued Benefits) as soon as practicable following the date of termination:
(i) (A) any earned but unpaid Base Salary and (B) any accrued and unused vacation pay, through the date of termination;
(ii) reimbursement for any amounts due Executive pursuant to Section 5(f) (unless such termination occurred as a result of misappropriation of funds); and
(iii) any compensation and/or benefits as may be due or payable to Executive in accordance with the terms and provisions of any employee benefit plans or programs of the Company.
(b) Termination by Company without Cause or by Executive for Good Reason (Non-Change in Control). If (i) during the Term, the Company terminates Executives employment other than for Cause or a Disability, or Executive resigns for Good Reason, or (ii) the Company provides notice that the Term of this Employment Agreement will not be renewed in accordance with Section 1, in each case before (except as provided in Section 7(c)(4)) or more than two (2) years after a Change in Control, the Company (in lieu of any severance pay under any severance pay plans, programs or policies) will provide the Accrued Benefits and, subject to Section 8, will pay or provide to Executive:
(1) a lump sum cash payment equal to two (2) times Executives Base Salary, as in effect on the date Executives employment terminates;
(2) a lump sum cash payment equal to one (1) times the greater of (i) the average of the last three (3) annual bonuses received by Executive from Bakkt prior to the date Executives employment terminates and (ii) the last annual bonus received by Executive from Bakkt prior to the date Executives employment terminates;
(3) with respect to options to purchase PubCo common stock or other equity or equity based grants made to Executive under the Equity Plan (including the Initial Equity Awards) (A) for time-vested options or equity based grants (including the Initial RSUs and the Initial PRSUs and other performance based grants for which actual performance achievement has already been certified as of the date of employment termination), accelerate Executives right to exercise all such options and fully vest all such equity grants, (B) for performance based grants, including the Initial PRSUs, for which performance has not been certified as of the date of employment termination, determine and certify performance based on actual performance achieved after completion of the performance period in accordance with the terms of such grants, and vest the all tranches of such performance grants on the date of such performance certification, and (C) treat Executive as if Executive had remained employed by Bakkt for one (1) year following the date of termination so that the time period over which Executive has the right to exercise such options shall be the same as if there had been no termination of Executives employment until the end of such one-year period; and
(4) a lump sum cash payment in respect of Executives cost of one (1) years group health coverage under COBRA.
(c) Termination by Company without Cause or by Executive for Good Reason (Change in Control Related). If (i) during the Term, Bakkt terminates Executives employment other than for Cause or a Disability, or Executive resigns for Good Reason, or (ii) the Company provides notice that the Term of this Employment Agreement will not be renewed in accordance with Section 1, in each case within two (2) years after a Change in Control, or as set forth in Section 7(c)(4), Bakkt (in lieu of any severance pay under any severance pay plans, programs or policies) will provide the Accrued Benefits and, subject to Section 8, will pay or provide to Executive:
(1) the payments and benefits set forth in Section 7(b)(1) and (4);
(2) a lump sum cash payment equal to one (1) times the greatest of (i) the average of the last three (3) annual bonuses received by Executive from Bakkt or any of its affiliates prior to the date Executives employment terminates, (ii) the last annual bonus received by Executive from Bakkt or its affiliates prior to a Change in Control and (iii) the last annual bonus received by Executive from Bakkt or any of its affiliates prior to the date Executives employment terminates; and
(3) with respect to options to purchase PubCo common stock or other equity or equity based grants made to Executive under the Equity Plan (including the Initial Equity Award), (A) cause each award of such equity or equity based grants to become fully vested (including the lapsing of all restrictions and conditions) and, as applicable, exercisable as of the date of termination of Executives employment, and deliver promptly (but no later than 15 days) following termination of Executives employment any shares of common stock deliverable pursuant to restricted stock units; provided, that any outstanding performance-based awards shall be deemed earned at the greater of the target level or actual performance level through the Change in Control date (or if no target level is specified, the maximum level) with respect to all open performance periods and (B) treat Executive as if Executive had remained employed by Bakkt for one (1) year following the date of termination so that the time period over which Executive has the right to exercise such options shall be the same as if there had been no termination of Executives employment until the end of such one-year period; and
(4) notwithstanding the foregoing to the contrary, if during the one hundred eighty (180) day-period ending on a Change in Control, Executive experiences a termination of employment under Section 7(b), then Executive shall have the right to the benefits under Section 7(c)(3)(A) as if such termination of employment occurred under this Section 7(c) (without duplication for any payments or benefits provided under Section 7(b)(4)) as if the Change in Control date were the date of Executives termination of employment.
Change in Control means the occurrence of any of the following events:
(i) any person (as that term is used in Sections 13(d) and 14(d)(2) of the 1934 Act), is or becomes the beneficial owner (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of securities representing 30% or more of the combined voting power of the then outstanding securities of PubCo eligible to vote for the election of the members of the Board unless (1) such person is the Company or any subsidiary of the Company, (2) such person is ICE or a subsidiary of ICE, (3) such person is an employee benefit plan (or a trust which is a part of such a plan) which provides benefits exclusively to, or on behalf of, employees or former employees of the Company or a subsidiary of the Company, (4) such person is Executive, an entity controlled by Executive or a group which includes Executive or (5) such person acquired such securities in a Non-Qualifying Transaction (as defined in Section 7(c)(iii));
(ii) any dissolution or liquidation of PubCo or the Company or any sale or the disposition of 50% or more of the assets or business of the Company; or
(iii) the consummation of any reorganization, merger, consolidation or share exchange or similar form of corporate transaction involving PubCo unless (1) the persons who were the beneficial owners of the outstanding securities eligible to vote for the election of the members of the Board immediately before the consummation of such transaction hold more than 60% of the voting power of the securities eligible to vote for the members of the board of directors of the successor or survivor corporation in such transaction immediately following the consummation of such transaction and (2) the number of the securities of such successor or survivor corporation representing the voting power described in Section 7(c)(iii)(1) held by the persons described in Section 7(c)(iii)(1) immediately following the consummation of such transaction is beneficially owned by each such person in substantially the same proportion that each such person had beneficially owned the outstanding securities eligible to vote for the election of the members of the Board immediately before the consummation of such transaction, provided (3) the percentage described in Section 7(c)(iii)(1) of the voting power of the successor or survivor corporation and the number described in Section 7(c)(iii)(2) of the securities of the successor or survivor corporation will be determined exclusively by reference to the securities of the successor or survivor corporation which result from the beneficial ownership of shares of common stock of PubCo by the persons described in Section 7(c)(iii)(1) immediately before the consummation of such transaction. Any transaction which satisfies all of the criteria specified in (1), (2) and (3) above will be deemed to be a Non-Qualifying Transaction.
(d) Termination by Company without Cause (Merger Agreement Termination Related). If, following a Merger Agreement Termination, the Company terminates Executives employment without Cause within ninety (90) days after such Merger Agreement Termination, Bakkt (in lieu of any severance pay under Section 7(c) or under any severance pay plans, programs or policies) will provide the Accrued Benefits and, subject to Section 8, will pay or provide to Executive, a lump sum cash payment of $5,000,000.
(e) Termination for Disability or Death. In the event Executives employment is terminated, during the Term, for Disability pursuant to Section 6(b) or due to Executives death, Executive (or Executives beneficiary, legal representative or estate) will be entitled to the Accrued Benefits.
8. Release. As a condition to Bakkts making any payments to Executive after Executives termination of employment under this Employment Agreement (other than the Accrued Benefits and the compensation earned before such termination and the benefits due under Bakkts employee benefit plans without regard to the terms of this Employment Agreement), Executive or, if Executive is deceased, Executives estate shall execute and not revoke, within fifty-five (55) days following Executives termination of employment, a release in a form provided by Bakkt and as may be in use from time to time, and Bakkt shall provide such payments or benefits, if applicable, promptly after Executive (or Executives estate) delivers such release to Bakkt, but no later than sixty (60) days after the date of Executives termination of employment.
9. Covenants by Executive.
(a) Compliance with Company Policies. Executive agrees to comply with any Company policies and codes of conduct as may be in effect from time to time and that may apply to Executive, including without limitation the Bakkt Global Code of Business Conduct.
(b) Bakkts and Affiliates Property. Upon the termination of Executives employment for any reason or, if earlier, upon Bakkts request, Executive shall promptly return all Property which had been entrusted or made available to Executive by Bakkt and each of its affiliates and, if any copy of any such Property was made by, or for, Executive, each and every copy of such Property. Property means records, files, memoranda, tapes, computer disks, reports, price lists, customer lists, drawings, plans, sketches, keys, computer hardware and software, cell phones, smart phones, credit cards, access cards, identification cards, company cars and other tangible personal property of any kind or description.
(c) Trade Secrets. Executive agrees that Executive will hold in a fiduciary capacity for the benefit of Bakkt and each of its affiliates, and will not directly or indirectly use or disclose to any person not authorized by Bakkt, any Trade Secret of Bakkt or its affiliates that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive is authorized to have access to such information) during the term of, and in the course of, or as a
result of Executives employment by Bakkt or its affiliates for so long as such information remains a Trade Secret. Trade Secret means information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers that (a) derives economic value, actual or potential, from not being generally known to, and not being generally readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (b) is the subject of efforts by Bakkt and its affiliates that are reasonable under the circumstances to maintain its secrecy. This Section 9(c) is intended to provide rights to Bakkt and its affiliates which are in addition to, not in lieu of, those rights Bakkt and its affiliates have under the common law or applicable statutes for the protection of trade secrets. Notwithstanding anything in this Employment Agreement, Executive may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a Trade Secret that is made: (a) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law, or (b) in a complaint or other document that is filed under seal in a lawsuit or other proceeding and does not disclose the trade secret, except pursuant to court order.
(d) Confidential Information. Executive, while employed under this Employment Agreement and thereafter, shall hold in a fiduciary capacity for the benefit of Bakkt and its affiliates, and shall not directly or indirectly use or disclose to any person not authorized by Bakkt, any Confidential Information of Bakkt or its affiliates that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive is authorized to have access to such information) during the term of, and in the course of, or as a result of Executives employment by Bakkt or its affiliates. Confidential Information means any secret, confidential or proprietary information possessed by Bakkt or its affiliates relating to their businesses (not otherwise included in the definition of a Trade Secret under this Employment Agreement), including, without limitation, customer lists, details of client or consultant contracts, current and anticipated customer requirements, pricing policies, price lists, market studies, business plans, policies, operational methods, marketing plans or strategies, contracts, products, product development techniques or flaws, computer software programs (including object codes and source codes), data and documentation, database technologies, systems, structures and architectures, know-how, inventions and ideas, past, current and planned research and development, compilations, devices, methods, techniques, processes, designs, reports, specifications, future business plans, business development, costs, licensing strategies, advertising campaigns, financial information and data, business acquisition plans and new personnel acquisition plans that has not become generally available to the public by the act of one who has the right to disclose such information without violating any right of Bakkt or its affiliates. This Section 9(d) is intended to provide rights to Bakkt and its affiliates which are in addition to, not in lieu of, those rights Bakkt and its affiliates have under the common law or applicable statutes for the protection of confidential information. For the avoidance of doubt, nothing in this Employment Agreement shall impair Executives right to make disclosures under the whistleblower provisions of any applicable law or regulation or require Executive to notify Bakkt or obtain its authorization prior to doing so, or prohibit Executive from responding truthfully to a valid subpoena.
(e) Intellectual Property Rights. Executive hereby agrees that all Intellectual Property conceived, invented, developed and/or reduced to practice by Executive, alone or jointly with others, during Executives employment with Bakkt or its affiliates is the exclusive property of Bakkt, regardless of whether such Intellectual Property falls within the scope of Executives employment with Bakkt or its affiliates. Executive hereby agrees that all Intellectual Property shall be considered a Work Made For Hire pursuant to 17 U.S.C. § 101 and all rights, titles and interests therein shall vest exclusively with Bakkt, and to the extent that any Intellectual Property shall not qualify as a Work Made For Hire, Executive hereby assigns to Bakkt all of Executives right, title and interest in such Intellectual Property and agrees to assist Bakkt, at Bakkts expense, to obtain patents, copyright and trademark registrations for Intellectual Property, to execute and deliver all documents and do any and all things necessary and proper on Executives part to obtain such patents and copyright and trademark registrations and to execute specific assignments and other documents for such Intellectual Property as may be considered necessary or appropriate by Bakkt at any time during or after Executives employment with Bakkt or its affiliates. This Section 9(e) does not apply to any invention that Executive develops entirely on Executives own time without using Bakkts equipment, supplies, facilities, Confidential Information, Trade Secrets, know-how or proprietary information, unless the invention either (a) relates at the time of conception or reduction to practice of the invention to Bakkts business, or actual or demonstrably anticipated research or development of Bakkt, or (b) results from any work performed by Executive for Bakkt or its affiliates. Executive will not place Intellectual Property in the public domain or disclose any inventions to third parties without the prior written consent of Bakkt. Intellectual Property shall include without limitation all inventions, ideas, discoveries, patents, patent applications, registered and unregistered trademarks and service marks and all goodwill associated therewith and symbolized thereby, domain names, trademark applications and service mark applications, registered and unregistered copyrights (including without limitation databases and other compilations of information), Confidential Information, Trade Secrets and know-how, including processes, schematics, business methods, formulae and computer software programs, and all other intellectual property, property and proprietary rights that, in Bakkts sole discretion, could be used within the scope of Bakkts business.
(f) Nonsolicitation of Customers or Employees.
(i) Customers. Executive, while employed under this Employment Agreement and thereafter during the Restricted Period, shall not, on Executives own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise, call on or solicit for the purpose of competing with Bakkt or its affiliates any customers of Bakkt or its affiliates with whom Executive had contact during the one-year period preceding Executives date of termination of employment with Bakkt or its affiliates or about which Executive learned Confidential Information during Executives employment with Bakkt or its affiliates. Restricted Period means the one (1) year period after the termination of Executives employment without regard to the reason for Executives termination of employment.
(ii) Employees. Executive, while employed under this Employment Agreement and thereafter during the Restricted Period, shall not, either directly or indirectly, call on, solicit or attempt to induce any other officer, employee or independent contractor of Bakkt or its affiliates with whom Executive had contact at any time during Executives employment with Bakkt or its affiliates, to terminate his or her employment or business relationship with Bakkt or its affiliates and shall not assist any other person or entity in such a solicitation.
(g) Non-Compete. Executive and Bakkt agree that (a) Bakkt (which expressly includes, for purposes of this Section 9(g), its successors, assigns, and direct and indirect subsidiaries) is engaged in trading, custody and clearing services for digital assets (it being understood that digital assets includes without limitation crytocurrencies, fiat currencies, central bank digital currencies, loyalty and reward programs, in-game assets, and digital equities), loyalty and reward program management services (including redemption services), mobile wallet and payment services, person-to-person digital asset transaction services, and digital asset lending (such businesses, together with any other products or services that may in the future during the pendency of Employees employment be offered by Bakkt or any entity that is then an affiliate of Bakkt, herein being collectively and without limitation referred to as the Business), (b) Bakkt is one of a limited number of entities that have developed such a Business, (c) Executive is, and is expected to continue to be during the Term, intimately involved in the Business wherever it operates, and Executive will have access to certain confidential, proprietary information of Bakkt, (d) this Section 9(g) is intended to provide fair and reasonable protection to Bakkt in light of the unique circumstances of the Business and (e) Bakkt would not have entered into this Employment Agreement but for the covenants and agreements set forth in this Section 9(g). Executive therefore agrees that Executive shall not while employed with this Employment Agreement and thereafter during the Restricted Period, assume or perform, directly or indirectly, any responsibilities and duties that are substantially similar to those Executive performs for Bakkt on the date Executive executes this Employment Agreement for or on behalf of, or act as a management consultant or strategic consultant for or on behalf of, or own, control or loan money to, any other corporation, partnership, venture, or other business entity that engages in the Business; provided, however, that Executive may own up to five percent (5%) of the stock of a publicly traded company that engages in such competitive business so long as Executive is only a passive investor and is not actively involved in such company in any way that is inconsistent with this Section 9(g).
(h) Reasonable and Continuing Obligations. Executive agrees that Executives obligations under this Section 9 are obligations which will continue beyond the date Executives employment terminates and that such obligations are reasonable and necessary to protect Bakkts and its affiliates legitimate business interests. Bakkt in addition shall have the right to take such other action as Bakkt deems necessary or appropriate to compel compliance with the provisions of this Section 9.
(i) Remedy for Breach. Executive agrees that the remedies at law for Bakkt for any actual or threatened breach by Executive of the covenants in this Section 9 would be inadequate and that Bakkt shall be entitled to specific performance of the covenants in this Section 9, including entry of an ex parte, temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 9, or both, or other appropriate judicial remedy, writ or order, without requirement of posting a bond or other security, in addition to any damages and legal expenses which Bakkt may be legally entitled to recover. Executive acknowledges and agrees that the covenants in this Section 9 shall be construed as agreements independent of any other provision of this or any other agreement between Bakkt and Executive, and that the existence of any claim or cause of action by Executive against Bakkt, whether predicated upon this Employment Agreement or any other agreement, shall not constitute a defense to the enforcement by Bakkt of such covenants.
10. No Waiver. Except for the notice described in Section 19(a), no failure by either Bakkt or Executive at any time to give notice of any breach by the other of, or to require compliance with, any condition or provision of this Employment Agreement shall be deemed a waiver of any provisions or conditions of this Employment
11. Choice of Law and Courts. This Employment Agreement shall be governed by Georgia law, and (subject to Section 16) any action that may be brought by either Bakkt or Executive involving the enforcement of this Employment Agreement or any rights, duties, or obligations under this Employment Agreement, shall be brought exclusively in the state or federal courts sitting in Atlanta, Georgia, and Executive consents and waives any objection to personal jurisdiction and venue in these courts for any such action.
12. Assignment and Binding Effect. This Employment Agreement shall be binding upon and inure to the benefit of Bakkt and any successor to all or substantially all of the business or assets of Bakkt. Bakkt may assign this Employment Agreement to any affiliate or successor, and no such assignment shall be treated as a termination of Executives employment under this Employment Agreement, and references to Bakkt shall also be deemed to refer to any such affiliate or successor. Executives rights and obligations under this Employment Agreement are personal and shall not be assigned or transferred. Any such assignment or attempted assignment by Executive shall be null, void, and of no legal effect.
13. Entire Agreement. This Employment Agreement replaces and supersedes any and all previous agreements and understandings regarding all the terms and conditions of Executives employment relationship with Bakkt, and this Employment Agreement constitutes the entire agreement of Bakkt and Executive with respect to such terms and conditions.
14. Amendment. Except as provided in Section 15, no amendment or modification to this Employment Agreement shall be effective unless it is in writing and signed by an authorized representative of Bakkt and by Executive.
15. Severability. If any provision of this Employment Agreement (including but not limited to any covenant contained in Section 9) shall be found invalid or unenforceable, in whole or in part, then such provision shall be deemed to be modified or restricted to the extent and in the manner necessary to render such provision valid and enforceable, or shall be deemed excised from this Employment Agreement, as may be required under applicable law, and this Employment Agreement shall be construed and enforced to the maximum extent permitted by applicable law, as if such provision had been originally incorporated in this Employment Agreement as so modified or restricted, or as if such provision had not been originally incorporated in this Employment Agreement, as the case may be.
16. Arbitration. Bakkt shall have the right to obtain an injunction or other equitable relief arising out of Executives breach of the provisions of Section 9 of this Employment Agreement. However, any other controversy or claim arising out of or relating to this Employment Agreement or any alleged breach of this Employment Agreement, or any other claim arising out
of or relating to Executives employment by Bakkt, shall be settled by binding arbitration in Atlanta, Georgia in accordance with the rules of the American Arbitration Association then applicable to employment-related disputes, and a judgment upon the arbitration award may be entered by any court of competent jurisdiction. The arbitration shall be conducted by a single arbitrator selected in accordance with the applicable rules of the American Arbitration Association. The arbitrator shall be empowered to award any category of damages that would be available to the parties under applicable law. Bakkt shall be responsible for paying the reasonable fees of the arbitrator, unless the fees are otherwise allocated by the arbitrator consistent with applicable law.
|Initials of the parties expressly assenting to the arbitration provision in Section 16:|
Initials of Bakkt representative
17. Executives Legal Fees and Expenses. Bakkt shall have no obligation under the terms of this Employment Agreement to reimburse Executive for any of Executives legal fees and expenses for any claims under this Employment Agreement that are unrelated to a Change in Control. Bakkt shall reimburse Executive for Executives reasonable legal fees and expenses incurred in connection with any claim made with respect to Executives rights under Section 7(c); provided, that such reimbursement shall be subject to recoupment by Bakkt if Executives claim is found to have been brought in bad faith.
18. Representations. Executive represents and warrants to the Company that Executive is under no contractual or other binding legal restriction which would prohibit Executive from entering into and performing under this Employment Agreement or that would limit the performance Executives duties under this Employment Agreement.
(a) Notices. Notices and all other communications shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by United States registered or certified mail or overnight courier. Notices to Bakkt shall be sent to 5900 Windward Parkway, #450, Alpharetta, Georgia 30005, Attention: Corporate Secretary. Notices and communications to Executive shall be sent to the address Executive most recently provided to Bakkt.
(b) Counterparts. This Employment Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same Employment Agreement. An electronic signature is a permissible means of executing this Employment Agreement.
(c) Headings; References. The headings and captions used in this Employment Agreement are used for convenience only and are not to be considered in construing or interpreting this Employment Agreement. Any reference to a section shall be to a section of this Employment Agreement absent an express statement to the contrary.
(d) Section 409A of the Code. This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (Section 409A). To the extent that any provision in this Agreement is ambiguous as to its compliance with Section 409A or to the extent any provision in this Agreement must be modified to comply with Section 409A (including, without limitation, Treasury Regulation 1.409A-3(c)), such provision shall be read, or shall be modified (with the mutual consent of the parties, which consent shall not be unreasonably withheld), as the case may be, in such a manner so that all payments due under this Agreement shall comply with Section 409A. In no event may Executive, directly or indirectly, designate the calendar year of payment. To the extent Executive would otherwise be entitled to any payment or benefit under this Employment Agreement or any plan or arrangement of Bakkt or its affiliates, that constitutes deferred compensation subject to Section 409A and that if paid during the six (6) months beginning on the date of termination of Executives employment would be subject to the Section 409A additional tax because Executive is a specified employee (within the meaning of Section 409A and as determined by Bakkt), the payment will be paid to Executive on the earlier of the first day of the seventh month following Executives date of termination, a change in ownership or effective control of PubCo or the Company (within the meaning of Section 409A) or Executives death. In addition, any payment or benefit due upon a termination of Executives employment that represents a deferral of compensation within the meaning of Section 409A shall be paid or provided to Executive only upon a separation from service as defined in Treas. Reg. Section 1.409A-1(h). To the extent applicable, each payment made under this Employment Agreement shall be deemed to be a separate payment, amounts payable under Section 7 of this Employment Agreement shall be deemed not to be a deferral of compensation subject to Section 409A to the extent provided in the exceptions in Treas. Reg. Sections 1.409A-1(b)(4) (short-term deferrals) and (b)(9) (separation pay plans, including the exception under subparagraph (iii)) and other applicable provisions of Treas. Reg. Section 1.409A-1 through 1.409A-6. Notwithstanding anything to the contrary in this Employment Agreement or elsewhere, any payment or benefit under this Employment Agreement or otherwise that is exempt from Section 409A pursuant to Treas. Reg. Section 1.409A-1(b)(9)(v)(A) or (C) shall be paid or provided to Executive only to the extent that the expenses are not incurred, or the benefits are not provided, beyond the last day of Executives second taxable year following Executives taxable year in which the separation from service occurs; and provided further that such expenses shall be reimbursed no later than the last day of Executives third taxable year following the taxable year in which Executives separation from service occurs. To the extent any expense reimbursement or the provision of any in-kind benefit under this Employment Agreement is determined to be subject to Section 409A, the amount of any such expenses eligible for reimbursement, or the provision of any in-kind benefit, in one calendar year shall not affect the expenses eligible for reimbursement in any other calendar year (except for any life-time or other aggregate limitation applicable to medical expenses), in no event shall any expenses be reimbursed after the last day of the calendar year following the calendar year in which Executive incurred such expenses, and in no event shall any right to reimbursement or the provision of any in-kind benefit be subject to liquidation or exchange for another benefit.
(e) Withholding Taxes. The Company may withhold from any amounts or benefits payable under this Employment Agreement income taxes and payroll taxes that are required to be withheld pursuant to any applicable law or regulation or as permissible under the Companys standard payroll practices and policies for senior executives.
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement on the date first above written.
|BAKKT HOLDINGS, LLC||EXECUTIVE|
|By:||/s/ David Clifton||/s/ Gavin Michael|
|David Clifton||Gavin Michael|
VPC ACQUISITION HOLDINGS
(to be renamed BAKKT HOLDINGS, INC.)
|By:||/s/ Gordon Watson|