EMPLOYMENT
AGREEMENT
This
Employment Agreement, dated as of September 1, 2021 (this “Agreement”), is made and entered into by and between
Society Pass Incorporated, a Nevada corporation (the “Company”), and Xxxxxxxx Xxxxx, an adult individual (the
“Executive”). Terms used herein and not otherwise defined shall have the meanings set forth in Section 11.
RECITALS
WHEREAS,
subject to the terms and conditions hereinafter set forth, Company wishes to enter into an employment agreement with the Executive who
is currently employed by the Company as its Chief Operating Officer and Chief Financial Officer and Executive wishes to enter into an
employment contract with the Company for further employment by Company as its Chief Operating Officer and Chief Financial Officer.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual promises, terms, provisions, and conditions set forth in this
Agreement, the adequacy and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:
AGREEMENT
| 1. | Employment.
Subject to the terms and conditions set forth in this Agreement, Company hereby offers, and
Executive hereby accepts continued employment with Company, as of the date first above written (the
“Start Date”). |
| 2. | Term.
Subject to Section 5, Executive’s employment under the terms of this Agreement
be for a period (the “Term”) commencing on the Start Date and
continuing until the fifth (5th) anniversary of the Start Date (the “Term
End Date”), provided, however, that unless a party has given the
other party written notice at least ninety (90) days prior to the Term End Date (or
any anniversary of the Term End Date) that such party does not agree to renew this Agreement,
the term of this Agreement and the Term shall be deemed renewed for a term ending one (1) year
subsequent to the Term End Date (or anniversary of the Term End Date). The parties may
terminate this Agreement and Executive’s employment hereunder during the Term in accordance
with, and subject to the provisions of, Section 5. |
| 3. | Capacity
and Performance. |
| (a) | During
the Term, the Executive shall be employed by Company as its Chief Operating Officer and Chief
Financial Officer. Executive shall perform such duties and responsibilities as directed by
the Board of Directors of the Company (the “Board”) and the Company’s
Chief Executive Officer, consistent with Executive’s position on behalf of Company. |
| (b) | Executive
shall devote all of his necessary and required attention, skill, and best efforts to the
performance of his duties under this Agreement during the Term of Employment, and shall not
perform any activity that (x) conflicts with the interests of the Company or any
other member of the Company Group, (y) interferes with the proper and efficient
performance of Executive’s duties for the Company, or (z) interferes with
Executive’s exercise of judgment in the Company’s best interests. Notwithstanding
the foregoing, nothing herein shall preclude Executive from (i) serving, with the
prior written consent of the Board, as a member of the board of directors or advisory board (or
the equivalent in the case of a non-corporate entity) of a noncompeting for-profit business
and one or more charitable organizations, (ii) engaging in charitable activities
and community affairs, and (iii) managing Executive’s personal investments
and affairs; provided, however, that the activities set out in clauses (i), (ii),
and (iii) shall be limited by Executive so as not to materially interfere, individually
or in the aggregate, with the performance of his duties and responsibilities hereunder. |
| (c) | Executive’s
employment with Company shall be exclusive with respect to the Business of Company. Accordingly,
during the Term, Executive shall devote Executive’s necessary business time and Executive’s
best efforts, business judgment, skill and knowledge to the advancement of the business and
interests of Company and the discharge of Executive’s duties and responsibilities hereunder,
except for permitted vacation (and other paid time off) periods, reasonable periods
of illness or incapacity, and reasonable and customary time spent on civic, charitable and
religious activities, in each case such activities shall not interfere in any material respect
with Executive’s duties and responsibilities hereunder. |
| (d) | During
the Term, the Executive will report directly to the Board and the Company’s Chief Executive
Officer. |
| (e) | Executive
shall be employed to perform his duties under this Agreement at any location or locations
as may be mutually agreeable between the Executive and Company (including reasonable
provisions during the COVID-19 national public health emergency). |
| 4. | Compensation
and Benefits. |
| (a) | Base
Salary. For services performed by Executive under this Agreement, Company shall pay Executive
an annual base salary during the Term at the rate of $240,000 per year, minus applicable
withholdings and deductions, payable at the same times as salaries are payable to other executives
of Company (the “Base Salary”). During the Term, the Base Salary
shall be reviewed by the Remuneration Committee and/or the Board each year, and the Board
may, from time to time, increase such Base Salary and any reference to “Base Salary” herein
shall refer to such Base Salary, as increased. |
| (b) | Annual
Cash Bonus. For each fiscal year of the Company during the Term and at the discretion
of the Board and/or Remuneration Committee, the Company shall afford Executive the opportunity
to earn an incentive bonus (“Bonus”) as described in this Section 4(b).
The aggregate target Bonus payable to Executive under such program(s) shall equal a
minimum of twenty five percent (25%) of the Base Salary for such fiscal year and shall
be payable to the extent the applicable performance goals are achieved (which goals
and payment matrices shall be set by the Remuneration Committee of the Board in its discretion).
The amount of the Bonus will be determined by certification by the Board that the applicable
goals have been achieved, and the Board shall promptly provide such certification following
achievement of the applicable goals. The amount payable under this Section 4(b) shall
be paid by the seventh (7th) day following the approval of the annual audited financial
statements by the Board or its audit committee, as applicable, for the calendar year in which
the Bonus is earned or if later, the fifteenth day of the third month following the end of
the Company’s fiscal year in which the Bonus is earned. |
| (c) | Equity
Award. The Executive shall be issued 2,037,375 shares of the Company’s common stock
as of the Start Date, of which 1,629,900 shares shall be subject to vesting (the “Vesting
Shares”). The Vesting Shares shall vest in accordance with the following vesting schedule:
407,475 Vesting Shares will vest every six-months for a two-year period from the Start Date,
with the first vesting date being March 1, 2022. The Executive hereby acknowledges that the
number of shares being issued pursuant to this Section 4(c) have been issued prior to the
Company’s expected 1:2.5 reverse stock split and the number of such shares shall be
subject to adjustment pursuant to any such completed reverse stock split. |
| (d) | Annual
Equity Awards. In addition to Section 4(c), for each fiscal year of the Company during
the Term, Executive shall be entitled to participate in all long-term incentive plans (including
any equity incentive plan) sponsored by the Company either now or in the future, on
terms and conditions similar to those applicable to other executive officers of the Company
generally. The amount and terms of the long-term incentive awards awarded to the Executive
shall be set by the Remuneration Committee in its discretion after consultation with a compensation
consultant, if any, retained by the Remuneration Committee. |
| (e) | Other
Executive Benefits. During the Term, the Executive shall be entitled to participate in
all Executive benefit plans, including health and 401(k) plans, from time to time generally
in effect for Company’s Executives (collectively, “Benefit Plans”).
Such participation and receipt of benefits under any such Benefit Plans shall be on the same
terms (including cost-sharing between Company and Executive) as are applicable
to other Company Executives and shall be subject to the terms of the applicable plan documents
and generally applicable Company policies. Company may alter, modify, add to or delete the
Benefit Plans in a manner nondiscriminatory to Executive at any time in accordance with applicable
plan rules |
| (f) | Vacation.
The Executive shall be entitled to an annual vacation of twenty (20) days plus ten (10) established
holiday days per full calendar year of his employment with the Company hereunder. |
| (g) | Business
and Travel Expenses. Company shall pay or reimburse Executive for all reasonable, customary
and necessary business expenses (including cell phone, travel, lodging, and entertainment
expenses) which are correctly documented and incurred or paid by Executive in the performance
of Executive’s duties and responsibilities hereunder, subject to the rules, regulations,
and procedures of Company and in effect from time to time. |
| (h) | Change
in Control Transaction Bonus. During Executive’s employment, if (i) a
Change in Control has occurred, and (ii) as of such Change in Control, the price
per share of Company’s common stock is two (2) times or more the price per
share of the common stock sold in the Offering under the Registration Statement, Executive
shall be paid a bonus (the “Change in Control Transaction Bonus”),
in cash, equal to three (3) times the Base Salary as in effect immediately before
such Change in Control. If applicable, the Change in Control Transaction Bonus shall be paid
in a lump sum within fifteen (15) days after the consummation of such Change in
Control and the following certification by the Board of the occurrence of clauses (i) and (ii) above. |
| 5. | Termination
of Employment; Severance Benefits. Notwithstanding the provisions of Section 2,
the Executive’s employment hereunder shall terminate under the following circumstances: |
| (a) | Death.
If Executive’s dies during the Term, Executive’s employment hereunder shall immediately
and automatically terminate. |
| (i) | Company
may terminate Executive’s employment hereunder due to Executive’s Disability
during the Term by giving Executive thirty (30) days’ written notice of its
intent to terminate, but in no event shall such termination be effective prior to the expiration
of the time periods in the definition of “Disability.” |
| (ii) | In
the event of such termination for Disability, Executive will receive Executive’s Final
Compensation. Company shall have no further obligation hereunder to Executive upon termination
of Executive’s employment under this Section 5(b), including, specifically, that
the provisions of Section 5(d) shall not apply. |
| (iii) | If
any question arises as to whether during any period Executive has a Disability as defined
herein, Executive may, and at the request of Company shall, submit to a medical examination
by a qualified, unbiased physician selected by Company and reasonably acceptable to Executive
or Executive’s duly appointed guardian, if any, to determine whether Executive has
a Disability, and such determination shall for the purposes of this Agreement be conclusive
of the issue. |
| (c) | By
Company for Cause. Company may terminate Executive’s employment hereunder for Cause,
as defined in Section 11, at any time upon notice to Executive setting forth in reasonable
detail the nature of such Cause. Upon the giving of notice of termination of Executive’s
employment hereunder for Cause, Executive will receive Executive’s Final Compensation.
Except as provided herein, Company will have no further obligation to Executive upon termination
of Executive’s employment under this Section 5(c). Any notice of termination of
Executive’s employment hereunder for Cause, or any notice to Executive regarding any
event, condition or circumstance that, if not cured, if applicable, in accordance with the
above, could give rise to a termination of Executive’s employment hereunder for Cause,
shall set forth in detail the applicable event(s), condition(s) or circumstance(s) constituting
reason(s) or potential reason(s) for such termination hereunder. |
| (d) | By
Company Other than for Cause or by Executive for Good Reason. Company may terminate Executive’s
employment hereunder other than for Cause at any time upon thirty (30) days’
written notice to Executive and Executive may terminate Executive’s employment hereunder
for Good Reason at any time upon thirty (30) days’ written notice to Company. |
| (i) | In
the event of a termination of Executive’s employment under this Section 5(d),
in addition to the Final Compensation, Executive shall receive: |
| (1) | continuation
of Executive’s Base Salary, at the rate in effect as of the date immediately preceding
the date of termination, until the earlier of (x) the Term End Date and (y) the
first anniversary of the date of termination (provided, however
if the date of termination is after the first anniversary of the Start Date, the
period pursuant to this subsection (y) shall be eighteen (18) months
after the date of termination), payable in accordance with the Company’s regular payroll
practices, less applicable withholdings, commencing at the conclusion of the period set forth
in Section 5(d)(iii), provided that the first installment of such payments shall include
all amounts which would have been paid during the period between Executive’s date of
termination and the date of such first installment; and |
| (e) | By
Executive Other than for Good Reason. Executive may terminate Executive’s employment
hereunder other than for Good Reason upon thirty (30) days’ written notice
to Company; provided, that Company may, in its sole and absolute discretion,
by written notice accelerate such date of termination. In the event of a termination of Executive’s
employment under this Section 5(e), Executive will receive the Final Compensation. Company
shall have no further obligation hereunder to Executive upon termination of Executive’s
employment under this Section 5(e). |
| (a) | Upon
termination of Executive’s employment hereunder and subject to the provisions of Section 5
and Section 6(c), Company’s entire obligation to Executive shall be payment of
Final Compensation. |
| (b) | In
connection with cessation of Executive’s service as Chief Operating Officer and Chief
Financial Officer of Company for any reason, except as may otherwise be requested by the
Company in writing and agreed upon in writing by Executive, Executive shall be deemed to
have resigned from any and all directorships, committee memberships, and any other positions
Executive holds with the Company or any other member of the Group. Executive hereby agrees
that no further action is required by Executive or any of the preceding to make the transitions
and resignations provided for in this paragraph effective, but Executive nonetheless agrees
to execute any documentation Company reasonably requests at the time to confirm it and to
not reassume any such service or position without the written consent of Company. |
| (c) | Except
as otherwise required by Consolidated Omnibus Budget Reconciliation Act or any similar federal
or state law, benefits shall continue or terminate pursuant to the terms of the applicable
benefit plan or agreement, without regard to any continuation of Base Salary or other payment
to Executive following such date of termination. |
| (d) | The
provisions of this Section 6 shall apply to any termination of employment. Provisions
of this Agreement will survive any termination if so provided herein or if necessary or desirable
to accomplish the purposes of other surviving provisions, including, without limitation,
the obligations of Executive under Sections 7, 9 and 10. |
| (e) | Any
termination of Executive’s employment with Company under this Agreement shall automatically
be deemed to be simultaneous resignation of all other positions and titles (including
any director positions) that Executive holds with Company and any Affiliate or subsidiary
thereof. This Section 6(d) shall constitute a resignation notice for such purposes. |
| (f) | Upon
termination of the Executive’s employment or upon the Company’s request at any
other time, the Executive will deliver to the Company all of the Company’s property,
equipment, and documents, together with all copies thereof, and any other material containing
or disclosing any Intellectual Property or Confidential Information and certify in writing
that the Executive has fully complied with the foregoing obligation. The Executive agrees
that the Executive will not copy, delete, or alter any information contained upon any Company
computer or Company equipment before the Executive returns it to the Company. In addition,
if the Executive has used any personal computer, server, or email system to receive, store,
review, prepare or transmit any Company information, including but not limited to, Confidential
Information, the Executive agrees to provide the Company with a computer-usable copy of all
such Confidential Information and then permanently delete and expunge such Confidential Information
from those systems; and the Executive agrees to provide the Company access to the Executive’s
system as reasonably requested to verify that the necessary copying and/or deletion is completed. |
| 7. | Confidential
Information. |
| (a) | Executive
acknowledges that Company continually develops Confidential Information, that Executive may
develop Confidential Information for Company and that Executive may learn of Confidential
Information during the course of employment with Company. Executive will comply with the
policies and procedures of Company for protecting Confidential Information and shall not
disclose to any Person or use, other than as required by applicable law, regulation or process
or for the proper performance of Executive’s duties and responsibilities to Company,
any Confidential Information obtained by Executive incident to Executive’s employment
or other association with Company. Executive understands that this restriction shall continue
to apply after Executive’s employment terminates, regardless of the reason for such
termination. |
| (b) | Notwithstanding
anything contained in this Section 7 to the contrary, nothing contained herein shall
prevent Executive from disclosing any Confidential Information required by law, subpoena,
court order or other legal process to be disclosed; provided, that, Executive shall give
prompt written notice to Company of such requirement, disclose no more information than is
so required and cooperate, at Company’s cost and expense, with any attempt by Company
to obtain a protective order or similar treatment with respect to such information. |
| (c) | Pursuant
to the Defend Trade Secrets Act of 2016, Executive understands that: |
| (i) | 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 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 is made in a complaint
or other document that is filed under seal in a lawsuit or other proceeding; and |
| (ii) | if
Executive files a lawsuit for retaliation by Company for reporting a suspected violation
of law Executive may disclose the employer’s trade secrets to Executive’s attorney
and use the trade secret information in the court proceeding if Executive files any document
containing the trade secret under seal and does not disclose the trade secret, except pursuant
to court order. |
| 8. | Assignment
of Rights to Intellectual Property. Executive shall promptly and fully disclose to Company
all Intellectual Property developed for the benefit of Company in the course of Executive’s
employment by Company. Executive hereby assigns and agrees to assign to Company (or
as otherwise directed by Company) Executive’s full right, title and interest in
and to all such Intellectual Property. Executive agrees to execute any and all applications
for domestic and foreign patents, copyrights or other proprietary rights and to do such other
acts (including without limitation the execution and delivery of instruments of further
assurance or confirmation) requested by Company (at Company’s expense) to
assign to Company the Intellectual Property developed for the benefit of Company in the course
of Executive’s employment by Company and to permit Company to enforce any patents,
copyrights or other proprietary rights to the Intellectual Property. Executive will not charge
Company for time spent in complying with these obligations. All copyrightable works that
Executive creates developed for the benefit of Company in the course of Executive’s
employment by Company shall be considered “work made for hire.” |
| 9. | Restricted
Activities. Executive agrees that the restrictions on Executive’s activities during
and after Executive’s employment set forth below are necessary to protect the goodwill,
Confidential Information and other legitimate interests of Company and its successors and
assigns: |
| (a) | During
the term of this Agreement and during the Restricted Period following termination of employment,
Executive will not, without the prior written consent of Company, directly or indirectly,
and whether as principal or investor or as an Executive, officer, director, manager, partner,
consultant, agent, or otherwise, alone or in association with any other Person, firm, corporation,
or other business organization, engage or otherwise become involved in a Competing Business (as
defined below) in any country in which the Company conducted business during the Term;
provided, however, that the provisions of this Section 9 shall apply solely to those
activities of a Competing Business which are congruent with those activities with which Executive
was personally involved or for which Executive was responsible while employed by Company
or its subsidiaries during the twelve (12) month period preceding termination of
Executive’s employment. This Section 9 will not be violated, however, by Executive’s
investment of up to $100,000 in the aggregate in one or more publicly-traded companies that
engage in a Competing Business. “Competing Business” means a business
or enterprise (other than Company or its subsidiaries) engaged in enterprise software
development providing marketing business intelligence, plaintiff generation to participate
in mass tort legal cases and case load management solutions for law firms and any other business
directly competing with the business of the Company as currently conducted or otherwise conducted
by the Company during the Term. “Restricted Period” means twelve (12) months. |
| (b) | During
the Term of this Agreement and during the Restricted Period (as defined above), Executive
will not engage in any Wrongful Solicitation. A “Wrongful Solicitation” shall
be deemed to occur when Executive directly or indirectly (except in the course of Executive’s
employment with Company), for the purpose of conducting or engaging in a Competing Business,
calls upon, solicits, advises or otherwise does, or attempts to do, business with any Person
who is, or was, during the then most recent 12-month period, a customer of Company or any
of its subsidiaries, or takes away or interferes or attempts to take away or interfere with
any custom, trade, business, patronage or affairs of Company or any of its subsidiaries,
or hires or attempts to hire any Person who is, or was during the most recent 12-month period,
an Executive, officer, representative or agent of Company or any of its subsidiaries, or
solicits, induces, or attempts to solicit or induce any Person who is an Executive, officer,
representative or agent of Company or any of its subsidiaries to leave the employ of Company
or any of its subsidiaries, or violate the terms of their contract, or any employment agreement,
with it. |
| (c) | It
is expressly understood and agreed that although Executive and Company consider the restrictions
contained in this Section 9 to be reasonable, if a final judicial determination is made
by a court of competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive, the provisions
of this Agreement shall not be rendered void but shall be deemed amended to apply as to such
maximum time and territory and to such maximum extent as the court may judicially determine
or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds
that any restriction contained in this Agreement is unenforceable, and such restriction cannot
be amended so as to make it enforceable, such finding shall not affect the enforceability
of any of the other restrictions contained herein. |
| (d) | It
is expressly understood by Executive that in the event of a violation of any period specified
in this Section 9, such period shall be extended by a period of time equal to that period
beginning with the commencement of any such violation and ending when such violation shall
have been finally terminated in good faith. |
| (e) | Notwithstanding
anything contained in this Section 9, Executive’s service pursuant to Section 3(f) shall
not constitute a breach of this Section 9. |
| 10. | Enforcement
of Covenants. Executive acknowledges that Executive has carefully read and considered
all the terms and conditions of this Agreement, including the restraints imposed upon Executive
pursuant to Sections 7, 8 and 9. Executive agrees that these restraints are necessary for
the reasonable and proper protection of Company and its successors and assigns and that each
and every one of the restraints is reasonable in respect to subject matter, length of time
and geographic area. Executive further acknowledges that, were Executive to breach any of
the covenants contained in Sections 7, 8 and 9, the damage to Company would be irreparable.
Executive therefore agrees that Company, in addition to any other remedies available to it,
shall be entitled to preliminary and permanent injunctive relief against any breach or threatened
breach by Executive of any of the covenants herein, without any requirement to post a bond
or similar security. The parties further agree that, in the event that any provision of Sections
7, 8 or 9 shall be determined by any court of competent jurisdiction to be unenforceable
by reason of its being extended over too great a time, too large a geographic area or too
great a range of activities, such provision shall be deemed to be modified to permit its
enforcement to the maximum extent permitted by law. |
| 11. | Definitions.
Words or phrases which are initially capitalized or are within quotation marks shall have
the meanings provided in this Section and as provided elsewhere herein. For purposes
of this Agreement, the following definitions apply: |
| (a) | “$”
refers to U.S. Dollars. |
| (b) | “Affiliate” means,
with respect to any specified Person, any other Person which directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under common control with,
such specified Person (for the purposes of this definition, “control” (including,
with correlative meanings, the terms “controlling,” “controlled
by” and “under common control with”), as used with respect
to any Person, means the possession, directly or indirectly, of the power to either (i) direct
or cause the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise or (ii) vote at least
fifty percent (50%) or more of the securities having voting power for the election
of a majority of the directors (or Persons performing similar functions) of such
Person. |
| (c) | “Cause” means
if Executive is discharged by Company on account of the occurrence of one or more of the
following events: |
| (i) | Executive’s
continued refusal or failure to perform (other than by reason of Disability) Executive’s
material duties and responsibilities to Company if such refusal or failure is not cured within
thirty (30) days following written notice of such refusal or failure by Company
to Executive, or Executive’s continued refusal or failure to follow any reasonable
lawful direction of the Board if such refusal or failure is not cured within thirty (30) days
following written notice of such refusal or failure by Company to Executive; |
| (ii) | a
material breach of this Agreement (other than Sections 7, 8 and 9) by Executive
that, if capable of being cured, is not cured within thirty (30) days following
written notice of such breach by Company to Executive; |
| (iii) | an
intentional and material breach of Sections 7, 8 and 9 hereof by Executive; |
| (iv) | willful,
grossly negligent or unlawful misconduct by Executive which causes material harm to Company
or its reputation; |
| (v) | any
conduct engaged in by Executive that is materially detrimental to the business or reputation
of Company as determined by the Board in good faith using its reasonable business judgment
that is not cured within thirty (30) days following written notice from Company
to Executive; |
| (vi) | Company
is directed in writing by regulatory or governmental authorities to terminate the employment
of Executive or Executive engages in activities that (i) are not approved or authorized
by the Board, and (ii) cause actions to be taken by regulatory or governmental
authorities that have a material adverse effect on Company; or |
| (vii) | a
conviction, plea of guilty, or plea of nolo contendere by Executive, of or with respect
to a criminal offense which is a felony or other crime involving dishonesty, disloyalty,
fraud, embezzlement, theft or similar action(s) (including, without limitation, acceptance
of bribes, kickbacks or self-dealing), or the material breach of Executive’s fiduciary
duties with respect to Company. |
| (d) | “Change
in Control” means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events: |
| (i) | A
transaction or series of transactions (other than an offering of Common Stock to the general
public through a registration statement filed with the Securities and Exchange Commission)
whereby any “Person” or related “group” of “persons” (as
such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company,
any of its subsidiaries, an Executive benefit plan maintained by the Company or any of its
subsidiaries or a “Person” that, prior to such transaction, directly or
indirectly controls, is controlled by, or is under common control with, the Company) directly
or indirectly acquires beneficial ownership (within the meaning of Rule 13(d)(3) under the
Exchange Act) of securities of the Company possessing more than fifty percent (50%) of the
total combined voting power of the Company’s securities outstanding immediately after
such acquisition; |
| (ii) | The
consummation by the Company (whether directly involving the Company or indirectly involving
the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization,
or business combination or (y) a sale or other disposition of all or substantially all of
the Company’s assets in any single transaction or series of related transactions: |
| (A) | which
results in the Company’s voting securities outstanding immediately before the transaction
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the Company or the Person that, as a result of the transaction, controls, directly
or indirectly, the Company or owns, directly or indirectly, all or substantially all of the
Company’s assets or otherwise succeeds to the business of the Company (the Company
or such Person, the “Successor Entity”) directly
or indirectly, at least a majority of the combined voting power of the Successor Entity’s
outstanding voting securities immediately after the transaction, and |
| (B) | after
which no Person or group beneficially owns voting securities representing fifty percent (50%)
or more of the combined voting power of the Successor Entity; provided, however, that
no Person or group shall be treated for purposes of this Section as beneficially owning
fifty percent (50%) or more of the combined voting power of the Successor Entity solely as
a result of the voting power held in the Company prior to the consummation of the transaction. |
A
transaction shall not constitute a Change in Control if its sole purpose is to change the province of the Company’s incorporation
or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities
immediately before such transaction.
| (e) | “Code” means
the Internal Revenue Code of 1986, as amended. |
| (f) | “Company” has
the meaning ascribed to it in the preamble of this Agreement. |
| (g) | “Company
Group” shall mean the Company together with any of its direct or indirect
subsidiaries. |
| (h) | “Confidential
Information” means any and all nonpublic information of Company. Confidential
Information includes, without limitation, such information relating to (i) the
development, research, testing, manufacturing, marketing and financial activities of Company, (ii) the
Services, (iii) the costs, sources of supply, financial performance and strategic
and/or business plans of Company, (iv) the identity and special needs of the customers
and prospective customers of Company, and (v) the people and organizations with
whom Company has business relationships and those relationships. Confidential Information
also includes any information that Company has received, or may receive hereafter, belonging
to customers or others with any understanding, express or implied, that the information would
not be disclosed. Notwithstanding the foregoing, “Confidential
Information” does not include (x) any information that
is or becomes generally known to the industry or the public through no wrongful act of Executive
or any representative of Executive and (y) any information that is made legitimately
available to Executive by a third party without breach of any confidentiality obligation. |
| (i) | “Disability” means
Executive’s inability, due to any illness, injury, accident or condition of either
a physical or psychological nature, to substantially perform Executive’s duties and
responsibilities hereunder for a period of one hundred twenty (120) consecutive
days, or for any one hundred and eighty (180) days during any period of three hundred
and sixty-five (365) consecutive calendar days, exclusive of any leave Executive
may take under the Family and Medical Xxxxx Xxx, 00 X.X.X. § 00000 et seq. (“FMLA”) or
as a reasonable accommodation under the Americans with Disabilities Act, 29 U.S.C. § 2601
et seq. (“ADA”). |
| (j) | “Final
Compensation” means the amount equal to the sum of (i) the Base
Salary earned but not paid through the date of termination of employment, payable not later
than the next scheduled payroll date, (ii) any business and related expenses and
allowances incurred by Executive or to which Executive is entitled under Section 4(g) but
unreimbursed on the date of termination of employment; provided that with respect to business
expenses unreimbursed under Section 4(g), such expenses and required substantiation
and documentation are submitted within one hundred eighty (180) days of termination
in the case of termination on account of Executive’s death, or thirty (30) days
on account of termination for any reason other than death, and that such expenses are reimbursable
under Company’s applicable reimbursement policy, and (iii) any other supplemental
compensation, insurance, retirement or other benefits due and payable or otherwise required
to be provided under Section 4 in accordance with the terms and conditions of the applicable
plan or agreement. |
| (k) | “Good
Reason” means, without Executive’s express written consent, (i) a
material reduction in the Base Salary, then in effect, except a material diminution generally
affecting the members of the Company’s management, (ii) a material reduction
in job title, position or responsibility, (iii) a material breach of any term or
condition contained in this Agreement, or (iv) a relocation of Executive’s
principal worksite that is more than fifty (50) miles from Executive’s principal
worksite as of the Start Date. However, none of the foregoing events or conditions will constitute
“Good Reason” unless (i) Executive provides Company with
written notice of the existence of Good Reason within ninety (90) days following
the occurrence thereof, (ii) Company does not reverse or otherwise cure the event
or condition within thirty (30) days of receiving that written notice, and (iii) Executive
resigns Executive’s employment within thirty (30) days following the expiration
of that cure period. |
| (l) | “Intellectual
Property” means inventions, discoveries, developments, methods, processes,
compositions, works, concepts and ideas (whether or not patentable or copyrightable
or constituting trade secrets) conceived, made, created, developed or reduced to practice
by Executive (whether alone or with others, whether or not during normal business hours
or on or off Company premises) during Executive’s employment that relate to either
the Services or any prospective activity of Company or that make use of Confidential Information
or any of the equipment or facilities of Company. |
| (m) | “Person” means
an individual, a corporation, a limited liability company, an association, a partnership,
an estate, a trust and any other entity or organization, other than Company. |
| (n) | “Remuneration
Committee” shall mean the committee of the Board designated to make remuneration
decisions relating to senior executive officers of the Company. |
| (o) | “Sale
of Company” means the sale of Company to an independent third party or group
of independent third parties pursuant to which such party or parties acquire (i) equity
interests possessing the voting power under normal circumstances to elect a majority of the
Board of Directors or similar governing body of Company (whether by merger, consolidation
or sale or transfer of such equity interests), or (ii) all or substantially all
of Company’s assets determined on a consolidated basis. |
| (p) | “Services” means
all services planned, researched, developed, tested, manufactured, sold, licensed, leased
or otherwise distributed or put into use by Company, together with all products provided
or planned by Company, during Executive’s employment. |
| 12. | Withholding.
All payments made by Company under this Agreement may be reduced by any tax or other amounts
required to be withheld by Company under applicable law or by any amounts authorized in writing
by Executive. |
| 13. | Assignment.
Neither Company nor Executive may make any assignment of this Agreement or any interest herein,
by operation of law or otherwise, without the prior written consent of the other; provided,
however, that Company may assign its rights and obligations under this Agreement without
the consent of Executive in the event of a Sale of Company. This Agreement shall inure to
the benefit of and be binding upon Company and Executive, their respective successors, executors,
administrators, heirs and permitted assigns. |
| 14. | Compliance
with Code Section 409A. |
| (a) | Notwithstanding
any provision of this Agreement to the contrary, Executive’s employment will be deemed
to have terminated on the date of Executive “separation from service” (within
the meaning of Treas. Reg. Section 1.409A-1(h)) with Company. |
| (b) | It
is intended that this Agreement will comply with Section 409A of the Code, and any regulations
and guideline issued thereunder (“Section 409A”) to the
extent that any compensation and benefits provided hereunder constitute deferred compensation
subject to Section 409A. This Agreement shall be interpreted on a basis consistent with
this intent. The parties will negotiate in good faith to amend this Agreement as necessary
to comply with Section 409A in a manner that preserves the original intent of the parties
to the extent reasonably possible. No action or failure to act, pursuant to this Section 14
shall subject Company to any claim, liability, or expense, and Company shall not have any
obligation to indemnify or otherwise protect Executive from the obligation to pay any taxes
pursuant to Section 409A of the Code. |
| (c) | For
purposes of the application of Treas. Reg. § 1.409A-1(b)(4)(or any successor provision),
each payment in a series of payments will be deemed a separate payment. |
| (d) | Notwithstanding
anything in this Agreement to the contrary, if any amount or benefit that would constitute
non-exempt “deferred compensation” for
purposes of Section 409A of the Code would otherwise be payable or distributable under
this Agreement by reason of Executive’s separation from service during a period in
which Executive is a “specified Executive” (as
defined under Code Section 409A and the final regulations thereunder), then, subject
to any permissible acceleration of payment by Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic
relations order), (j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment
of employment taxes): |
| (i) | if
the payment or distribution is payable in a lump sum, Executive’s right to receive
payment or distribution of such non-exempt deferred compensation will be delayed until the
earlier of Executive’s death or the first day of the seventh month following Executive’s
separation from service; and |
| (ii) | if
the payment or distribution is payable over time, the amount of such non-exempt deferred
compensation that would otherwise be payable during the six-month period immediately following
Executive’s separation from service will be accumulated and Executive’s right
to receive payment or distribution of such accumulated amount will be delayed until the earlier
of Executive’s death or the first day of the seventh month following Executive’s
separation from service, whereupon the accumulated amount will be paid or distributed to
Executive and the normal payment or distribution schedule for any remaining payments or distributions
will resume. |
This
Section 14(d) should not be construed to prevent the application of Treas. Reg. § 1.409A-1(b)(9)(iii)(or any successor
provision) to amounts payable hereunder (or any portion thereof).
| 15. | Golden
Parachute Limitation. Notwithstanding anything in this Section or elsewhere in this
Agreement to the contrary, in the event the payments and benefits payable hereunder to or
on behalf of Executive (which the parties agree will not include any portion of payments
allocated to the non-competition and non-solicitation provisions of Sections 7) that
are classified as payments of reasonable compensation for purposes of Section 280G of
the Code, when added to all other amounts and benefits payable to or on behalf of Executive,
would result in the loss of a deduction under Code Section 280G, or the imposition of
an excise tax under Code Section 4999, the amounts and benefits payable hereunder shall
be reduced to such extent as may be necessary to avoid such loss of deduction or imposition
of excise tax. In applying this principle, the reduction shall be made in a manner consistent
with the requirements of Code Section 409A and where two or more economically equivalent
amounts are subject to reduction, but payable at different times, such amounts shall be reduced
on a pro-rata basis. All calculations required to be made under this subsection will
be made by the Company’s independent public accountants, subject to the right of Executive’s
professional advisors to review the same. The parties recognize that the actual implementation
of the provisions of this subsection are complex and agree to deal with each other in
good faith to resolve any questions or disagreements arising hereunder. |
| (a) | Company’s
Successors. Any successor to the Company (whether direct or indirect and whether
by purchase, merger, consolidation, liquidation or otherwise) to all or substantially all
of the Company’s business and/or assets shall assume the obligations under this Agreement
and agree expressly to perform the obligations under this Agreement in the same manner and
to the same extent as the Company would be required to perform such obligations in the absence
of a succession. For all purposes under this Agreement, the term “Company” shall
include any successor• to the Company’s business and/or assets which executes
and delivers the assumption agreement described in this Section or which becomes bound
by the terms of this Agreement by operation of law. |
| (b) | Executive’s
Successors. The terms of this Agreement and all rights of Executive hereunder shall
inure to the benefit of, and be enforceable by, Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and legatees. |
| 17. | Indemnification.
Company will indemnify Executive to the fullest extent permitted by law, for all amounts (including,
without limitation, judgments, fines, settlement payments, expenses and reasonable out-of-pocket
attorneys’ fees) incurred or paid by Executive in connection with any action,
suit, investigation or proceeding, or threatened action, suit, investigation or proceeding,
arising out of or relating to the performance by Executive of services for, or the acting
by Executive as a director, officer or Executive of, Company, or any subsidiary of Company.
Any fees or other necessary expenses incurred by Executive in defending any such action,
suit, investigation or proceeding shall be paid by Company in advance, subject to Company’s
right to seek repayment from Executive if a determination is made that Executive was not
entitled to indemnification. |
| 18. | Severability.
If any portion or provision of this Agreement shall to any extent be declared illegal or
unenforceable by a court of competent jurisdiction, then the remainder of this Agreement,
or the application of such portion or provision in circumstances other than those as to which
it is so declared illegal or unenforceable, shall not be affected thereby, and each portion
and provision of this Agreement shall be valid and enforceable to the fullest extent permitted
by law. |
| 19. | Waiver.
No waiver of any provision hereof shall be effective unless made in writing and signed by
the waiving party. The failure of either party to require the performance of any term or
obligation of this Agreement, or the waiver by either party of any breach of this Agreement,
shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver
of any subsequent breach. |
| 20. | Survival.
Sections 7 through 30 shall survive and continue in full force in accordance with their terms
notwithstanding the termination of Executive’s employment (and hence the Term
of this Agreement) for any reason. |
| 21. | Notices.
Any and all notices, requests, demands and other communications provided for by this Agreement
shall be in writing and shall be effective when delivered in Person, with respect to notices
delivered personally, or upon confirmed receipt when delivered by facsimile or deposited
with a reputable, nationally recognized overnight courier service and addressed or faxed
to Executive at Executive’s last known address on the books of Company or, in the case
of Company, at its principal place of business, attention: Secretary, Board of Directors. |
| 22. | Entire
Agreement. This Agreement constitutes the entire agreement between the parties (including
with respect to Company, its successors and assigns) with respect to Executive’s
employment and supersedes all prior communications, agreements and understandings, written
or oral, with respect to the terms and conditions of Executive’s employment. |
| 23. | Amendment.
This Agreement may be amended or modified only by a written instrument signed by Executive
and by an expressly authorized representative of Company. |
| 24. | Headings.
The headings and captions in this Agreement are for convenience only and in no way define
or describe the scope or content of any provision of this Agreement. |
| 25. | Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be an original
and all of which together shall constitute one and the same instrument. Furthermore, the
delivery of a copy of such signature by facsimile transmission or other electronic exchange
methodology shall constitute a valid and binding execution and delivery of this Agreement
by such party, and such electronic copy shall constitute an enforceable original document.
Counterpart signatures need not be on the same page and shall be deemed effective upon receipt. |
| 26. | Additional
Obligations. Without implication that the contrary would otherwise be true, Executive’s
obligations under Sections 7 through 10 are in addition to, and not in limitation of, any
obligations that Executive may have under applicable law (including any law regarding
trade secrets, duty of loyalty, fiduciary duty, unfair competition, unjust enrichment, slander,
libel, conversion, misappropriation and fraud). |
| 27. | Confidentiality.
The parties acknowledge and agree that this Agreement and each of its provisions are and
shall be treated strictly confidential. During the Term and thereafter, Executive shall not
disclose any terms of this Agreement to any Person or entity without the prior written consent
of Company, with the exception of Executive’s tax, legal or accounting advisors or
for legitimate business purposes of Executive, or as otherwise required by law. |
| 28. | No
Rule of Construction. This Agreement shall be construed to be neither against nor in
favor of any party hereto based upon any party’s role in drafting this Agreement, but
rather in accordance with the fair meaning hereof. |
| 29. | Governing
Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the Nevada. |
| 30. | WAIVER
OF JURY TRIAL. EXECUTIVE AND COMPANY EXPRESSLY WAIVE ANY RIGHT EITHER MAY HAVE TO A JURY
TRIAL CONCERNING ANY CIVIL ACTION THAT MAY ARISE FROM THIS AGREEMENT, OR THE RELATIONSHIP
OF THE PARTIES HERETO. |
| 31. | Conditions.
This Agreement and the Executive’s continued employment hereunder is conditional on
the Company’s satisfaction (determined in the Company’s sole discretion) that
the Executive has met the legal requirements to perform the Executive’s role, including
but not limited to satisfactory results of Health Canada or any other applicable security
clearance checks and criminal record checks and other reference checks that the Company performs.
The Executive acknowledges and agrees that in signing this Agreement, and providing the Company
with the necessary documentation to perform the checks required for the Executive’s
role and with references, the Executive is providing consent to the Company or its agent,
to performs such checks and contact the references the Executive provided to the Company. |
| 32. | Prior
Restrictions. By signing below, the Executive represents that the Executive is not bound
by the terms of any agreement with any Person which restricts in any way the Executive’s
hiring by the Company and the performance of the Executive’s expected job duties; the
Executive also represents that, during the Executive’s employment with the Company,
the Executive shall not disclose or make use of any confidential information of any other
persons or entities in violation of any of their applicable policies or agreements and/or
applicable law. |
| 33. | Independent
Legal Counsel. By signing below, the Executive hereby acknowledges that the Executive
has been encouraged to obtain independent legal advice regarding the execution of this Agreement,
and that the Executive has either obtained such advice or voluntarily chosen not to do so,
and hereby waives any objections or claims the Executive may make resulting from any failure
on the Executive’s part to obtain such advice. |
| 34. | Counterparts. This
Agreement may be executed in one or more counterparts, each of which when executed shall
be deemed to be an original but all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by electronic transmission, including in portable document format (.pdf), shall be deemed
as effective as delivery of an original executed counterpart of this Agreement. |
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, this Agreement has been executed by Company (by its duly authorized representative) and by Executive,
as of the date first above written.
| |
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| SOCIETY
PASS INCORPORATED |
| |
|
| By: |
|
|
| |
|
Name:
Xxxxxx Xxxxxx |
| |
|
Title:
CEO |
| |
| EXECUTIVE: |
| |
| |
| Xxxxxxxx
Xxxxx |
EXHIBIT
A
Release
of Claims
FOR
AND IN CONSIDERATION OF the benefits to be provided me in connection with the termination of my employment, as set forth in that certain
Employment Agreement, dated as of September 1, 2021 (the “Agreement”), between me and Society Pass Incorporated (the
“Company”), or under any severance pay plan applicable to me, which benefits are conditioned on my signing this Release
of Claims and to which I am not otherwise entitled, and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, I, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives and
assigns, and all others connected with me, hereby release and forever discharge Company and any of its subsidiaries and Affiliates (as
that term is defined in Section 11 of the Agreement) and all of their respective past, present and future officers, directors,
trustees, equity holders, Executives, agents, managers, joint venturers, representatives, successors and assigns, and all others connected
with any of them (collectively, the “Released Parties”), both individually and in their official capacities,
from any and all causes of action, rights and claims of any type or description, known or unknown, which I have had in the past, now
have, or might now have, through the date of my signing of this Release of Claims, in any way resulting from, arising out of or connected
with my employment by Company or any of its Affiliates or the termination of that employment, including, but not limited to, any allegation,
claim or violation arising under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination
in Employment Act of 1967, as amended (including the Older Worker Benefit Protection Act); the Equal Pay Act of 1963, as amended;
the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification
Act; Executive Retirement Income Security Act of 1974; the Fair Labor Standards Act; any applicable Executive Orders; or their state
or local counterparts; or under any other federal, state or local civil or human rights law, or under any other federal, state or local
law, regulation or ordinance; or under any public policy, contract or tort, or under common law; or arising under any policies, practices
or procedures of Company; or any claim for wrongful discharge, breach of contract, intentional infliction of emotional distress or defamation;
or any claim for costs, fees or other expenses, including attorneys’ fees incurred in these matters (all of the foregoing
collectively referred to herein as “Claims”), other than (i) the right to payment of any vested or accrued
benefits under any supplemental compensation, insurance, retirement and/or other benefit plan or agreement applicable to Executive, (ii) the
right to payment of any amounts owed to me by Company pursuant to Section 5 of the Agreement, (iii) any rights under applicable
workers compensation or unemployment compensation laws, (iv) any rights that survive termination of my employment pursuant
to an option grant agreement or certificate to purchase Company’s (or an Affiliate’s) capital stock, (v) any
rights with respect to Company’s (or an Affiliate’s) capital stock owned by Executive or (vi) any rights
to indemnification under the Agreement, Company’s by-laws or any other applicable law.
In
signing this Release of Claims, I acknowledge my understanding that I may not sign it prior to the termination of my employment, but
that I may consider the terms of this Release of Claims for up to twenty-one (21) days (or such longer period as Company
may specify) from the later of the date my employment with Company terminates or the date I receive this Release of Claims. I also
acknowledge that I am advised by Company and its Affiliates to seek the advice of an attorney prior to signing this Release of Claims;
that I have had sufficient time to consider this Release of Claims and to consult with an attorney, if I wished to do so, or to consult
with any other Person of my choosing before signing; and that I am signing this Release of Claims voluntarily and with a full understanding
of its terms.
I
represent that I have not filed against the Released Parties any complaints, charges, or lawsuits arising out of my employment, or any
other matter arising on or prior to the date of this Release of Claims, and covenant and agree that I will never individually or with
any Person file, or commence the filing of, any charges, lawsuits, complaints or proceedings with any governmental agency, or against
the Released Parties with respect to any of the matters released by me pursuant to this Release of Claims.
I
further acknowledge that, in signing this Release of Claims, I have not relied on any promises or representations, express or implied,
that are not set forth expressly in the Agreement. I understand that I may revoke this Release of Claims at any time within seven (7) days
of the date of my signing by written notice to the Secretary, Board of Directors of Company (or such other Person as Company may
specify by notice to me given in accordance with the Agreement) and that this Release of Claims will take effect only upon the expiration
of such seven-day revocation period and only if I have not timely revoked it.
Intending
to be legally bound, I have signed this Release of Claims as of the date written below.
| |
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| Signature: |
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| Name: |
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Xxxxxxxx
Xxxxx |
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| Date |
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