CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE COMPANY TREATS AS PRIVATE OR CONFIDENTIAL. [***] INDICATES THAT INFORMATION HAS BEEN REDACTED. CONSULTING AGREEMENT
Exhibit 10.2
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE THAT THE COMPANY TREATS AS PRIVATE OR CONFIDENTIAL. [***] INDICATES THAT INFORMATION HAS BEEN REDACTED.
THIS CONSULTING AGREEMENT (the “Consulting Agreement”) is made and entered by and between Xxxxxxxxx Xxxxx (“Consultant”) and Forge Global Holdings, Inc. (the “Company”) (each a “Party” and collectively the “Parties”).
WHEREAS, reference is hereby made to that certain Separation and General Release Agreement executed by the Parties and dated May 31, 2024 (the “Separation Agreement”);
WHEREAS, this Consulting Agreement is conditioned upon the execution and non-revocation of the Separation Agreement pursuant to the terms and conditions of the Separation Agreement and execution of this Consultant Agreement before Separation Date, and if the Separation Agreement is not executed by Consultant or is revoked by Consultant in accordance with the terms and conditions of the Separation Agreement or this Consulting Agreement is executed after the Separation Date, this Consulting Agreement shall be void ab initio;
WHEREAS, capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Separation Agreement; and
WHEREAS, in consideration for Consultant executing the Separation Agreement, the Company has offered to engage Consultant as an independent consultant pursuant to this Consulting Agreement, and Consultant desires to accept the Company’s offer in regard to the same.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, Consultant and the Company agree as follows:
1.Term. The term of this Consulting Agreement and Consultant’s Services hereunder shall commence effective as of June 1, 2024 and shall end upon December 1, 2024, unless earlier terminated as provided in this Section 1 (the “Term”). The Term shall terminate prior to December 1, 2024 upon (a) Consultant’s death or Disability; (b) Consultant’s conviction of (A) a felony or (B) any misdemeanor involving moral turpitude, deceit, dishonesty or fraud; (c) Consultant’s willful failure to perform his duties as defined in Section 2 for a period of ten (10) days after written notice from the Company; (d) Executive’s material violation of the PICA that is not cured within ten (10) days of written notice to Consultant; (e) the thirtieth (30th) day after the Company’s receipt of Consultant’s written notice of termination for any or no reason; or (f) the Parties agree to a new consulting agreement or extend the terms of this Consulting Agreement. As used herein, “Disability” means any physical or mental illness, injury, or other incapacitating condition that results in Consultant being unable to perform essential functions of his required services, with or without a reasonable accommodation, for a period of sixty (60) consecutive calendar days in any consecutive 12-month period.
2.Services. In accordance with the terms and conditions of this Consulting Agreement, the Company hereby engages Consultant as an independent contractor to provide strategic advice as may be
requested during the Term from time to time by the Company (the “Services”). The Services may include, without limitation, (a) providing strategic guidance, consultation, and advice to Company’s executive leadership team, (b) providing strategic advice and strategic leadership on [***]. For the avoidance of doubt, the Services shall not include ongoing management of the Company’s legal or compliance functions, and no Services shall involve the provision of legal advice to the Company or be considered the practice of law by Consultant. The Company agrees to obtain legal advice on all matters from its internal or external counsel as opposed to obtaining legal advice from Consultant.
Consultant may perform the Services at a location other than the offices of the Company. Unless otherwise expressly authorized in writing by the Company, Consultant may not delegate, assign or sub-contract any of the Services to any other individual or entity, and it is further agreed that the Company may limit the Services at any time, provided that it may not terminate this Consulting Agreement other than as expressly provided elsewhere herein).
3.Consulting Fees. In consideration for Consultant providing the Services during the Term, the Company agrees to pay Consultant $200,000 in consulting fees during the Term (collectively, the “Consulting Fees,” and each installment thereof, a “Consulting Fee”). The Consulting Fees will be paid in six equal monthly installments. The Consulting Fees will be paid by direct deposit to Consultant’s bank account currently on file with the Company, or as applicable the Consultant’s estate in the event of Consultant’s death. The Company will issue Consultant an IRS Form 1099 for the Consulting Fees paid to Consultant. Consultant’s right to earn and be paid the Consulting Fees or any installment thereof is expressly contingent upon the Separation Agreement becoming effective and Consultant’s satisfaction of all conditions therein, including his compliance with the PICA, and is further subject to Consultant’s ongoing compliance therewith and, except in the case of Consultant’s death or Disability, with this Consulting Agreement.
4.Continued Vesting in Equity Awards. In consideration for Consultant providing the Services during the Term, the Consultant will be eligible to vest in up to 403,249 Unvested RSUs. Such Unvested RSUs shall vest during the Term on a monthly basis, subject to Consultant continuing to provide Services through each applicable date. For the avoidance of doubt, notwithstanding the terms of the Award Agreements, such Unvested RSUs shall vest solely on the basis of this Consulting Agreement.
5.Change in Control Benefits. In the event that a Change in Control occurs in the six-month period following the Term, and subject to Consultant’s compliance with the terms of this Consulting Agreement, the Separation Agreement, and the PICA, Consultant will receive (i) a lump sum payment equal to six (6) months of Consultant’s base salary as in effect on the Separation Date, (ii) 100% accelerated vesting with respect to the CIC RSUs (without duplication of any Unvested RSUs that vested under this Consulting Agreement or the Separation Agreement), and (iii) the Company will extend the COBRA premium provided in the Separation Agreement to the 18-month period following the Separation Date (without duplication of the COBRA benefits provided in the Separation Agreement, collectively, the “Enhanced Severance”); provided that Consultant executes a general release (the “Release”) in a form provided by the Company, which form shall be substantially similar to the release provided in the Separation Agreement. The Enhanced Severance payment shall be made within ten (10) days following the closing of the Change in Control; provided, that if the period during which the Release could become effective and irrevocable spans two calendar years, the Enhanced Severance shall not be paid prior to the first payroll date in the second year. For purposes herein, “Change in Control” shall mean the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events: (i) the sale of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity; (ii) a merger, reorganization, statutory share exchange, consolidation, or similar
transaction pursuant to which the holders of the Company’s outstanding voting power and outstanding stock immediately prior to such transaction do not own a majority of the outstanding voting power and outstanding stock or other equity interests of the resulting or successor entity (or its ultimate parent, if applicable) immediately upon completion of such transaction; (iii) the sale of all of the stock of the Company to an unrelated person, entity or group thereof acting in concert; (iv) any other transaction in which the owners of the Company’s outstanding voting power immediately prior to such transaction do not own at least a majority of the outstanding voting power of the Company or any successor entity immediately upon completion of the transaction other than as a result of the acquisition of securities directly from the Company; (v) the approval by the stockholders of the Company of a complete liquidation or dissolution of the Company; or (vi) during any period of 24 months, individuals who, at the beginning of such period, are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board; provided, however, that if the appointment or election (or nomination for election) of any new member of the Board subsequent to the date hereof was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member will, for purposes of this Consulting Agreement, be considered as a member of the Incumbent Board. Notwithstanding anything in the foregoing to the contrary, with respect to compensation (A) that is subject to Section 409A (as defined below) and (B) for which a Change in Control would accelerate the timing of payment thereunder, the term “Change in Control” shall mean an event that is both (I) a Change in Control (as defined above) and (II) a “change in control event” (within the meaning of Section 409A. [***].
6.Independent Contractor/Non-Employee Status.
(a) Consultant and the Company hereby acknowledge, understand and agree that Consultant is an independent contractor. Nothing herein, explicitly or implicitly, shall be deemed or construed to create a joint venture, joint employer, partnership, agency, affiliate or employee/employer relationship between Consultant and the Company (or any of its parents, subsidiaries, affiliates or related entities) for any purpose including, but not limited to, taxes, compensation, employee benefits, political contributions or other charitable contributions. Consultant understands and agrees that during the Term and in connection with the performance of the Services hereunder and the payment of any and all Consulting Fees, Consultant will be solely responsible for: (i) complying with all federal, state and local laws, ordinances, regulations and orders with respect to the performance of the Services under this Consulting Agreement; and (ii) paying all federal, state and local taxes (including income tax, FICA, FUTA and other taxes that may be due) as a result of any and all Consulting Fees Consultant receives or is deemed to receive pursuant to this Consulting Agreement.
(b) As an independent contractor, Consultant understands and agrees that Consultant will not accrue any benefits under, or in any way be covered by, benefit plans of the Company or any of its parents, subsidiaries, affiliates, or related entities.
7.Indemnification; Hold Harmless. The Consultant shall not be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Services, and the Consultant shall be entitled in all cases to indemnification and reimbursement by the Company in respect of any claim, loss, damage or expense (including, without limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by law and/or under the Company’s articles or bylaws or any directors’ and officers’ liability insurance coverage which may be in effect from time to time and/or any indemnification agreement between such individual and the Company.
8.No Authority to Bind the Company. Consultant is not a representative, agent or affiliate of the Company and Consultant does not have the right or authority to assume or create any obligation of any kind, express or implied, on behalf of the Company (or any of its affiliates or related entities) or to bind the Company (or any of its affiliates or related entities) in any respect whatsoever, unless the Company gives express written authorization in advance to Consultant to act with such agency and authority.
9.Miscellaneous.
(a) This Consulting Agreement together with the Separation Agreement and exhibits thereto, contains the entire understanding of the Parties with respect to the matters contained herein, and supersedes all proposals and agreements, written or oral, and all other communications between the Parties relating to the subject matter of this Consulting Agreement. Notwithstanding anything herein to the contrary, all confidentiality, non-disclosure, non-disparagement, return of Company property, and other similar obligations or covenants described in the Separation Agreement, the Plan, the Award Agreements, , or any documents incorporated by reference therein are hereby incorporated into this Consulting Agreement, are not superseded by this Consulting Agreement, and remain and shall remain in full force and effect through and following the Term hereof. In signing this Consulting Agreement, Consultant is not relying on any promise or representation of the Company except as expressly set forth herein.
(b) Neither this Consulting Agreement nor any right or obligation hereunder or interest herein may be assigned or transferred by Consultant without the express written consent of the Company. The Company may assign this Consulting Agreement to its affiliates, successors and assigns, and Consultant expressly consents to such assignment.
(c) This Consulting Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without regard to conflict of laws or choice of law rules.
(d) This Consulting Agreement may not be modified or amended except in writing signed or executed by Consultant and the Company.
(e) In case any provisions (or portions thereof) contained in this Consulting Agreement will, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the other provisions of this Consulting Agreement, and this Consulting Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If, moreover, any one or more of the provisions contained in this Consulting Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it will then appear.
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IN WITNESS WHEREOF, the Parties to this Consulting Agreement, intending to be legally bound, have caused this Consulting Agreement to be executed as of the date indicated below.
| Acknowledged, Accepted and Agreed to: | ||||||||
| Date: May 31, 2024 | By: /s/ Xxxxxxxxx Xxxxx | |||||||
| Name: Xxxxxxxxx Xxxxx | ||||||||
| Forge Global Holdings, Inc. | ||||||||
| Date: May 31, 2024 | By: /s/ Xxxxx Xxxxxxxxx | |||||||
| Name: Xxxxx Xxxxxxxxx Title: Chief Executive Officer | ||||||||
