Form S-4/A Ascendant Digital Acquis
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E-mailExhibit 2.3
PLAN OF DOMESTICATION
This PLAN OF DOMESTICATION (the “Plan of Domestication”) is made on [●], 2021 and sets forth the terms and conditions pursuant to which Ascendant Digital Acquisition Corp., a Cayman Islands exempted company (“ADAC”), shall effect a domestication into a Delaware corporation (the “Domestication”) to be known as MarketWise, Inc., pursuant to Sections 265 and 388 of the Delaware General Corporation Law (the “DGCL”).
RECITALS
WHEREAS, ADAC is a Cayman Islands exempted company duly formed and validly existing under the laws of the Cayman Islands;
WHEREAS, the Board of Directors of ADAC (the “Board”) has determined that it is advisable and in the best interests of ADAC that ADAC be converted into and thereafter become, and continue to exist as, a corporation in accordance with Sections 265 and 388 of the DGCL; and
WHEREAS, pursuant to Section 265(h) of the DGCL, the Board has duly approved, authorized, adopted, ratified and confirmed the Domestication pursuant to Sections 265 and 388 of the DGCL.
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, ADAC agrees as follows:
1. Domestication. Upon the Certificate of Domestication and the Certificate of Incorporation becoming effective under Section 103 of the DGCL (the “Effective Time”), ADAC will be converted into a Delaware corporation, pursuant to Sections 265 and 388 of the DGCL, under the name “MarketWise, Inc.” (the “Corporation”) and will, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as ADAC. ADAC will not be required to wind up its affairs or pay its liabilities and distribute its assets, and the Domestication will not be deemed to constitute a dissolution of ADAC and will constitute a continuation of the existence of ADAC in the form of a Delaware corporation.
2. Effective Time. ADAC shall file the Certificate of Domestication, in the form attached hereto as Exhibit A, and the Certificate of Incorporation, in the form attached hereto as Exhibit B (the “Certificate of Incorporation”), with the Secretary of State of the State of Delaware pursuant to Sections 103 and 265 of the DGCL.
3. Conversion of Securities. By virtue of the Domestication:
(a)each of the then issued and outstanding Class B ordinary shares of ADAC will convert automatically, on a one-for-one basis, into Class A ordinary shares of ADAC having the rights, powers and privileges, and the obligations, set forth in the Amended and Restated Memorandum and Articles of Association of ADAC, adopted by special resolution dated as of July 20, 2020 and effective as of July 23, 2020, as may be amended, modified or supplemented;
(b)immediately following the conversion described in clause (a), each of the then issued and outstanding Class A ordinary shares of ADAC will convert automatically, on a one-for-one basis, into a share of Class A common stock of the Corporation having the rights, powers and privileges, and the obligations, set forth in the Certificate of Incorporation;
(c)each of the then issued and outstanding redeemable warrants of ADAC will convert automatically into a warrant to acquire one share of the Corporation’s Class A common stock, pursuant to the Warrant Agreement, dated July 23, 2020, between ADAC and Continental Stock Transfer & Trust Company, as warrant agent (the “Warrant Agreement”);
(d)each of the then issued and outstanding units of ADAC that have not been previously separated into the underlying Class A ordinary shares and underlying warrants of ADAC upon the request of the holder thereof, will be cancelled and will entitle the holder thereof to one share of Class A
common stock of the Corporation and one-half of one redeemable warrant to acquire one share of Class A common stock of the Corporation; and
(e)each of the then issued and outstanding 10,280,000 private placement warrants of ADAC will convert automatically into a warrant to acquire one share of the Corporation’s Class A common stock, pursuant to the Warrant Agreement.
4. Tax Matters. For United States federal income tax purposes, the conversion contemplated by clause (a) of Section 3 is intended to qualify as a “reorganization” within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended (the “Code”), the Domestication is intended to qualify as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code, and this Plan of Domestication is intended to constitute a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a).
5. Governing Documents. (i) At the Effective Time, the Certificate of Incorporation of ADAC (initially filed in accordance with the Companies Law of the Cayman Islands) shall be canceled and the Amended and Restated Memorandum and Articles of Association of ADAC, adopted by special resolution dated as of July 20, 2020 and effective as of July 23, 2020, as may be amended, modified or supplemented, shall be terminated and be of no further force or effect and (ii) from and after the Effective Time, the Certificate of Incorporation, in the form attached hereto as Exhibit B, and the By-Laws of the Corporation, in the form attached hereto as Exhibit C (the “By-Laws”), will govern the affairs of the Corporation and the conduct of its business, until thereafter amended in accordance with the DGCL and their respective terms.
6. Board of Directors. Each member of the Board as of immediately prior to the Effective Time shall be a director of the Corporation from and after the Effective Time, each of whom shall serve as directors of the Corporation until such time as their respective successors have been duly elected and qualified, or until such director’s earlier removal, resignation, death or disability, in each case, in accordance with the DGCL, the Certificate of Incorporation and the By-Laws.
7. Officers. Each officer of ADAC as of immediately prior to the Effective Time shall be an officer of the Corporation from and after the Effective Time, and shall retain the same title with the Corporation from and after the Effective Time as he or she had with ADAC immediately prior to the Effective Time, each of whom shall serve until such time as their respective successors have been designated by the board of directors, or until such officer’s earlier removal, resignation, death or disability, in each case, in accordance with the DGCL, the Certificate of Incorporation and the By-Laws.
8. Effects of Domestication. Immediately upon the Effective Time, the Domestication shall have the effects set forth in Section 265(f) of the DGCL, including, without limitation, all of the rights, privileges and powers of ADAC, and all property, real, personal and mixed, and all debts due to ADAC, as well as all other things and causes of action belonging to ADAC, will remain vested in the Corporation and will be the property of the Corporation and the title to any real property vested by deed or otherwise in ADAC will not revert or be in any way impaired by reason of the DGCL. Following the Domestication, all rights of creditors and all liens upon any property of ADAC will be preserved unimpaired, and all debts, liabilities and duties of ADAC will remain attached to the Corporation, and may be enforced against the Corporation to the same extent as if said debts, liabilities and duties had originally been incurred or contracted by the Corporation. The rights, privileges, powers and interests in property of ADAC as well as the debts, liabilities and duties of ADAC, will not be deemed, as a consequence of the Domestication, to have been transferred to the Corporation for any purpose of the laws of the State of Delaware.
9. Further Assurances. If at any time the Corporation, or its successors or assigns, shall consider or be advised that any further assignments or assurances in law or any other acts are necessary or desirable to carry out the purposes of this Plan of Domestication, ADAC and its directors and authorized officers shall be deemed to have granted to the Corporation an irrevocable power of attorney to execute and deliver all such proper deeds, assignments and assurances in law and to do all acts necessary or proper to vest, perfect or confirm title to and possession of such rights, properties or assets in the Corporation and otherwise to carry out the purposes of this Plan of Domestication, and the directors and authorized officers of the Corporation are fully authorized in the name of ADAC or otherwise to take any and all such action.
10. Amendment or Termination. This Plan of Domestication may be amended or terminated at any time before the Effective Time by action of the Board.
11. Miscellaneous. The provisions of this Plan of Domestication shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Plan of Domestication shall be governed by and construed in accordance with the laws of the State of Delaware, including the DGCL, without giving effect to any choice of law or conflict of law provisions or rule (except to the extent that the laws of the Cayman Islands govern the Domestication) that would cause the application of the laws of any jurisdiction other than the State of Delaware. This Plan of Domestication may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Plan of Domestication has been duly executed and delivered by a duly authorized officer of ADAC as of the date first written above.
| ASCENDANT DIGITAL ACQUISITION CORP. | ||||||||
| By: | ||||||||
Name: Mark Gerhard | ||||||||
| Title: Chief Executive Officer | ||||||||
[Signature Page to Plan of Domestication]
Exhibit A
Certificate of Domestication
[intentionally omitted]
Exhibit B
Certificate of Incorporation
[intentionally omitted]
Exhibit C
By-Laws
[intentionally omitted]
Exhibit 3.4
STATE OF DELAWARE
CERTIFICATE OF DOMESTICATION
FROM A NON-DELAWARE CORPORATION
TO A DELAWARE CORPORATION
PURSUANT TO SECTION 388 OF THE
DELAWARE GENERAL CORPORATION LAW
| Ascendant Digital Acquisition Corp., a Cayman Islands exempted company, organized and existing under the laws of the Cayman Islands (the “Non-Delaware Corporation”), does hereby certify: | ||||||||
| 1) | The Non-Delaware Corporation was first formed under the laws of the Cayman Islands on February 11, 2020. | |||||||
| 2) | The name of the Non-Delaware Corporation immediately prior to the filing of this certificate of domestication is Ascendant Digital Acquisition Corp. | |||||||
| 3) | The name of the Non-Delaware Corporation as set forth in its certificate of incorporation is MarketWise, Inc. | |||||||
| 4) | The jurisdiction that constituted the seat, siege social, or principal place of business or central administration of the Non-Delaware Corporation or any other equivalent thereto under applicable law, immediately prior to the filing of this certificate of domestication is the Cayman Islands. | |||||||
| 5) | The domestication has been approved in the manner provided for by the document, instrument, agreement or other writing, as the case may be, governing the internal affairs of the Non-Delaware Corporation and the conduct of its business or by applicable non-Delaware law, as appropriate. | |||||||
IN WITNESS WHEREOF, the undersigned being duly authorized to sign on behalf of the converting Non-Delaware Corporation has executed this certificate of domestication on the [●] day of [●], 2021.
ASCENDANT DIGITAL ACQUISITION CORP., a Cayman Islands company | |||||
| Name: | Mark Gerhard | ||||
| Title: | Chief Executive Officer | ||||
Exhibit 4.3
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NUMBER NUMBER C SHARES SEE REVERSE FOR CERTAIN DEFINITIONS CUSIP MARKETWISE, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE COMMON STOCK This Certifies that is the owner of FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, PAR VALUE OF $0.0001 PER SHARE, OF MARKETWISE, INC. (THE “COMPANY”) transferable on the books of the Company in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar. Witness the seal of the Company and the facsimile signatures of its duly authorized officers. Secretary [Corporate Seal] Delaware Chief Executive Officer
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MARKETWISE, INC. The Company will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares of common stock represented hereby are issued and shall be held subject to all the provisions of the Company’s certificate of incorporation and all amendments thereto and resolutions of the Board of Directors providing for the issue of securities (copies of which may be obtained from the secretary of the Company), to all of which the holder of this certificate by acceptance hereof assents. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM -- as tenants in common TEN ENT -- as tenants by the entireties JT TEN -- as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT -- Custodian (Cust) (Minor) Under Uniform Gifts to Minors Act (State) Additional abbreviations may also be used though not in the above list. For value received, hereby sells, assigns and transfers unto
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(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S)) (PLEASE PRINT OR TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S)) Shares of the capital stock represented by the within Certificate, and does hereby irrevocably constitute and appoint Attorney to transfer the said shares on the books of the within named Company with full power of substitution in the premises. Dated: NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. Signature(s) Guaranteed: By THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED).
Exhibit 5.1
May 28, 2021 | ||||||||
Ascendant Digital Acquisition Corp. | ||||||||
667 Madison Avenue | White & Case LLP | |||||||
5th Floor | 1221 Avenue of the Americas | |||||||
New York, New York 10065 | New York, NY 10020-1095 | |||||||
T +1 212 819 8200 | ||||||||
Re: Registration Statement on Form S-4 (File No. 333-254720) | whitecase.com | |||||||
Ladies and Gentlemen: | ||||||||
We have acted as New York counsel to Ascendant Digital Acquisition Corp., a Cayman Islands exempted company (“ADAC” or the “Company”), in connection with the preparation and filing of ADAC’s Registration Statement on Form S-4 (the “Registration Statement,” which term does not include any other document or agreement whether or not specifically referred to or incorporated by reference therein or attached as an exhibit or schedule thereto), pursuant to the terms of the Business Combination Agreement, dated as of March 1, 2021, by and among ADAC, MarketWise, LLC (formerly known as Beacon Street Group, LLC), all of the members of MarketWise, LLC party thereto (collectively, the “Sellers” and each a “Seller”) and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the representative of the Sellers thereunder (in such capacity, the “Seller Representative”) (as amended, the “Business Combination Agreement”), including the Registration Statement forming a part thereof, relating to, among other things, (1) the domestication of ADAC as a Delaware corporation (in connection with which, ADAC will change its name to “MarketWise, Inc.”) (the “Domestication”); (2) the purchase by ADAC of certain units of MarketWise, LLC from the Sellers; (3) ADAC’s capital contribution to MarketWise, LLC in exchange for certain units and warrants in MarketWise, LLC; (4) the issuance of shares of Class B common stock, par value $0.0001 per share, of MarketWise PubCo (the “MarketWise PubCo Class B common stock”) to the Sellers; and (5) the other transactions contemplated therein (the Domestication, together with the foregoing transactions, the “Business Combination”). Upon the closing of the Business Combination (the “Closing”), MarketWise PubCo will become the sole manager of MarketWise, LLC. MarketWise PubCo’s only direct assets will consist of units and warrants of MarketWise, LLC, and substantially all of the assets and the business of MarketWise PubCo will be held by MarketWise, LLC and its subsidiaries.
Immediately prior to the consummation of the Business Combination, ADAC intends to effect a deregistration under the Cayman Islands Companies Act (2020 Revision) and a domestication under Section 388 of the Delaware General Corporation Law (“DGCL”), pursuant to which ADAC’s jurisdiction of incorporation will be changed from the Cayman Islands to the State of Delaware (the “Domestication”) and, in connection therewith, the Company will file the Certificate of Domestication (as defined below) simultaneously with the Certificate of Incorporation (as defined below), in each case, in respect of the Company with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”). In this opinion, we refer to the Company following effectiveness of the Domestication as “MarketWise PubCo.”
Upon the Certificate of Domestication and the Certificate of Incorporation becoming effective under Section 103 of the DGCL (the “Effective Time”), among other things, pursuant to the Plan of Domestication (as defined below): (1) each of the then-issued and outstanding 10,350,000 Class B
ordinary shares, par value $0.0001 per share, of ADAC (the “ADAC Class B ordinary shares”) will convert automatically, on a one-for-one basis, into ADAC Class A ordinary shares (as defined below); (2) immediately following the conversion described in clause (1), each of the then-issued and outstanding 51,750,000 Class A ordinary shares, par value $0.0001 per share, of ADAC (the “ADAC Class A ordinary shares”), will convert automatically, on a one-for-one basis, into shares of Class A common stock, par value $0.0001 per share, of MarketWise PubCo (the “MarketWise PubCo Class A common stock”); (3) each of the then-issued and outstanding 20,700,000 redeemable warrants of ADAC (the “ADAC warrants”) will convert automatically into a redeemable warrant to purchase one share of MarketWise PubCo Class A common stock (the “MarketWise PubCo warrants”) pursuant to the Warrant Agreement, dated July 23, 2020 (the “Warrant Agreement”), between ADAC and Continental Stock Transfer & Trust Company (“Continental”), as warrant agent; (4) each of the then-issued and outstanding units of ADAC that have not been previously separated into the underlying ADAC Class A ordinary share and underlying portion of an ADAC warrant upon the request of the holder thereof (the “ADAC units”), will be automatically separated into its component parts and will entitle the holder thereof to one share of MarketWise PubCo Class A common stock and one-half of one MarketWise PubCo warrant; and (5) each of the then-issued and outstanding 10,280,000 private placement warrants of ADAC will convert automatically into a MarketWise PubCo warrant pursuant to the Warrant Agreement. No fractional MarketWise PubCo warrants will be issued upon separation of the ADAC units.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S–K of the General Rules and Regulations under the Securities Act of 1933 (the “Securities Act”).
In connection with our opinions expressed below, we have examined originals or copies certified or otherwise identified to our satisfaction of the following documents and such other documents, corporate records, certificates and other statements of government officials and corporate officers of the Company as we deemed necessary for the purposes of the opinion set forth in this opinion letter:
(a) the Registration Statement;
(b) the Business Combination Agreement, filed as Exhibit 2.1 to the Registration Statement;
(c) the first amendment to the Business Combination Agreement, filed as Exhibit 2.2 to the Registration Statement (the “First Amendment”);
(d) the form of certificate of incorporation of the Company to become effective upon consummation of the Business Combination, filed as Exhibit 3.2 (the “Certificate of Incorporation”);
(e) the form of bylaws of the Company to become effective upon consummation of the Business Combination, filed as Exhibit 3.3 (the “Bylaws”);
(f) the form of Certificate of Domestication, filed as Exhibit 3.4 to the Registration Statement (the “Certificate of Domestication”);
(g) the plan of Domestication, filed as Exhibit 2.3 to the Registration Statement (the “Plan of Domestication”);
(h) the form of Warrant certificate, filed as Exhibit 4.2 to the Registration Statement;
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(i) an executed copy of the Warrant Agreement, dated July 23, 2020, between the Company and Continental, as warrant agent; and
(j) resolutions of the Board of Directors of the Company, dated February 23, 2021, relating to, among other things, the Registration Statement, the Business Combination and the Domestication.
We have relied, to the extent we deem such reliance proper, upon such certificates or comparable documents of officers and representatives of the Company and of public officials and upon statements and information furnished by officers and representatives of the Company with respect to the accuracy of material factual matters contained therein which were not independently established by us. In rendering the opinions expressed below, we have assumed, without independent investigation or verification of any kind, the genuineness of all signatures on documents we have reviewed, the legal capacity and competency of all natural persons signing all such documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to authentic, complete original documents of all documents submitted to us as copies, the truthfulness, completeness and correctness of all factual representations and statements contained in all documents we have reviewed, the accuracy and completeness of all public records examined by us, and the accuracy of all statements in certificates of officers of the Company that we reviewed. We have also assumed that the shareholders of the Company have approved or will have approved, among other things, the Business Combination Agreement, the First Amendment and the Business Combination and that all conditions precedent to the closing of the Business Combination have been satisfied or will have been satisfied or otherwise waived.
In addition to the foregoing, for the purpose of rendering the opinions expressed below, we have assumed that:
1. Prior to effecting the Domestication: (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), will have become effective under the Securities Act; (ii) the shareholders of the Company will have approved, among other things, the Business Combination Agreement and the Domestication, including the Certificate of Incorporation and Bylaws; and (iii) all other necessary action will have been taken under the applicable laws of the Cayman Islands to authorize, approve and permit the Domestication, and any and all consents, approvals and authorizations from applicable Cayman Islands and other governmental and regulatory authorities required to authorize and permit the Domestication will have been obtained;
2. The Certificate of Domestication, in the form attached as Exhibit 3.4 to the Registration Statement, without alteration or amendment (other than identifying the appropriate date), will be duly authorized and executed and thereafter be duly filed with the Delaware Secretary of State in accordance with Sections 103 and 388 of the DGCL, that no other certificate or document, other than the Certificate of Incorporation, has been, or prior to the filing of the Certificate of Domestication will be, filed by or in respect of the Company with the Delaware Secretary of State and that the Company will pay any fees and other charges required to be paid in connection with the filing of the Certificate of Domestication;
3. The Certificate of Incorporation, in the form filed as Exhibit 3.2 to the Registration Statement, without alteration or amendment (other than identifying the appropriate date), will be duly authorized and executed and thereafter be duly filed with the Delaware Secretary of State and have become effective in accordance with Sections 103 and 388 of the
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DGCL, that no other certificate or document, other than the Certificate of Domestication, has been, or prior to the filing of the Certificate of Incorporation will be, filed by or in respect of the Company with the Delaware Secretary of State and that the Company will pay any fees and other charges required to be paid in connection with the filing of the Certificate of Incorporation;
4. The Bylaws, in the form attached as Exhibit 3.3 to the Registration Statement, without alteration or amendment (other than identifying the appropriate date), will become effective upon the Effective Time; and
5. Prior to the issuance of the MarketWise PubCo Class A common stock: (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), will have become effective under the Securities Act; (ii) the shareholders of the Company will have approved, among other things, the Business Combination Agreement and the Domestication, including the Certificate of Incorporation and Bylaws; and (iii) the Domestication and the other transactions contemplated by the Business Combination Agreement to be consummated concurrent with or prior to the Business Combination will have been consummated.
The opinions stated herein are subject to the following qualifications:
(a) we do not express any opinion with respect to any law, rule or regulation that is applicable to any party to the Plan of Domestication, the Business Combination Agreement or any Warrant certificate or Warrant Agreement or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
(b) we do not express any opinion with respect to the enforceability of any provision contained in any Warrant certificate or Warrant Agreement relating to any indemnification, contribution, non-reliance, exculpation, release, limitation or exclusion of remedies, waiver or other provisions having similar effect that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, or to the extent any such provision purports to, or has the effect of waiving or altering any statute of limitations; and
(c) we have assumed that Continental has the power, corporate or other, to enter into and perform all obligations under the Warrant Agreement and have also assumed due authorization by all requisite action, corporate or other, and the execution and delivery by Continental of the Warrant Agreement and that the Warrant Agreement constitutes the valid and binding obligation of Continental, enforceable against Continental in accordance with its terms.
ADAC is a Cayman Islands exempted company that will be redomesticated as a Delaware corporation pursuant to the Domestication, and we have not considered, and we express no opinion as to, any law other than the DGCL.
This opinion letter is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. This opinion letter is provided solely in connection with the distribution of the common
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stock and warrants pursuant to the Registration Statement and is not to be relied upon for any other purpose.
The opinions expressed above is as of the date hereof only, and we express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance occurring, or of which we learn, subsequent to the date of this opinion letter, including, without limitation, legislative and other changes in the law or changes in circumstances affecting any party. We assume no responsibility to update this opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they affect the opinions expressed in this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to our firm as counsel for the Company that has passed on the validity of the Common Stock appearing under the caption “Legal Matters” in the prospectus forming part of the Registration Statement or any prospectus filed pursuant to Rule 424(b) with respect thereto. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission thereunder.
| Very truly yours, | ||
| /s/ White & Case LLP | ||
ES:SB:SR:CM
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Exhibit 8.1
May 28, 2021 | ||||||||
Ascendant Digital Acquisition Corp. | ||||||||
| 667 Madison Avenue | White & Case LLP | |||||||
5th Floor | 1221 Avenue of the Americas | |||||||
New York, New York 10065 | New York, NY 10020-1095 | |||||||
T +1 212 819 8200 | ||||||||
Ladies and Gentlemen: | whitecase.com | |||||||
We have acted as New York counsel to Ascendant Digital Acquisition Corp., a Cayman Islands exempted company (“ADAC” and, after the Domestication, as defined below, “MarketWise PubCo”), in connection with the transactions contemplated by the business combination agreement, dated March 1, 2021 (the “Business Combination Agreement”), by and among the Company, MarketWise, LLC (formerly known as Beacon Street Group, LLC), all of the members of MarketWise, LLC party thereto (collectively, the “Sellers” and each a “Seller”) and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the representative of the Sellers thereunder (in such capacity, the “Seller Representative”), pursuant to which (1) ADAC will be domesticated as a Delaware corporation (the “Domestication”) pursuant to a plan of domestication (the “Plan of Domestication”), (2) ADAC will purchase certain units of MarketWise, LLC from the Sellers, (3) ADAC will contribute capital to MarketWise, LLC in exchange for certain units and warrants in MarketWise, LLC, (4) shares of Class B common stock, par value $0.0001 per share, of MarketWise PubCo will be issued to the Sellers and (5) the other transactions contemplated in the Registration Statement (as defined below) (the Domestication, together with the foregoing transactions, the “Business Combination”). Reference is made to the Registration Statement on Form S-4 of ADAC, including the proxy statement/prospectus forming a part thereof (as amended or supplemented through the date hereof, the “Registration Statement”), relating to the Business Combination. Capitalized terms used but not defined herein have the meaning given to such terms in the Registration Statement.
In rendering this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Business Combination Agreement, the Registration Statement, the Plan of Domestication and such other agreements and documents as we have deemed necessary or appropriate and we have made such investigations of law as we have deemed appropriate as a basis for the opinion expressed below. In our examination, we have assumed, without independent verification, (i) the authenticity and accuracy of all documents reviewed by us (including the conformity to original documents of all documents submitted to us as email, fax or photostatic copies and the authenticity of such original documents), (ii) that the signatures on all documents examined by us are genuine and have been duly authorized, and such documents reflect all material terms of the agreement between the parties to such documents, (iii) that the parties to such documents have complied and will comply with the terms thereof, and that such documents are enforceable in accordance with their respective terms, (iv) that such documents have been duly authorized by, have been duly executed and delivered by, and constitute (to the extent containing contractual or other obligations) legal, valid, binding and enforceable obligations of, all parties to such documents, (v) all of the parties to such documents are duly organized, validly existing, and have power and authority (corporate, partnership, or other) to execute, deliver, and perform the obligations in such documents, (vi) that the transactions provided for by each agreement were and will be carried out in accordance with their terms, (vii) that any statements and representations with respect to factual matters made in the certificate dated as of the date hereof from an officer of ADAC (the “Officers’ Certificate”) “to the knowledge of” or “to the best knowledge of” any person or similarly
qualified are true, complete and correct without such qualification; (viii) in the case of any statement or representation in this opinion, in such documents or in the Officers’ Certificate relating to the absence of any plan, intention, understanding or agreement, that there was in fact no such plan, intention, understanding or agreement; (ix) in the case of any statement or representation in this opinion, in such documents or in the Officers’ Certificate relating to the existence of any plan, intention, understanding or agreement, that there was in fact an actual intention to execute such plan, intention, understanding or agreement, as the case may be; (x) that the Business Combination has been and will be effected and documented in a manner that complies with all applicable legal and regulatory requirements; and (xi) that ADAC, the Sellers, and all other relevant parties have or will timely report the Domestication for U.S. federal income tax purposes in a manner consistent with the conclusions set forth in this opinion letter, except as required by regulatory pronouncements or a court of competent jurisdiction. In rendering our opinion we have made no independent investigation of the facts referred to herein and have relied for the purpose of rendering this opinion exclusively on those facts that have been provided to us by you and your agents, which we assume have been, and will continue to be, true.
We have not considered and we render no opinion on any aspect of law other than as expressly set forth below. Additional issues may exist that could affect the U.S. federal tax treatment of the Business Combination, and this opinion does not consider or provide a conclusion with respect to any additional issues.
The opinion set forth below is based upon the Internal Revenue Code of 1986, as amended (the “Code”), the U.S. Treasury Regulations promulgated thereunder, administrative rulings, judicial decisions, and other applicable authorities, all as available and in effect on the date hereof. The statutory provisions, regulations, and interpretations upon which our opinion is based are subject to change, and any such change could apply retroactively. There can be no assurance that positions contrary to those stated in our opinion will not be asserted by the Internal Revenue Service (“IRS”) and (as customary in transactions of this type) no rulings will be obtained from the IRS regarding the U.S. federal income tax consequences of the Business Combination or otherwise in connection with the transactions effected pursuant to the Business Combination Agreement (and any other documents or agreements executed in connection with the transactions contemplated thereunder). This opinion is being delivered prior to the consummation of the Domestication and therefore is prospective and dependent on future events. The opinion expressed below is as of the date hereof only, and we express no opinion as to, and assume no responsibility for, the effect of any fact or circumstance occurring, or of which we learn, subsequent to the date of this opinion letter, including, without limitation, legislative and other changes in the law or changes in circumstances affecting any party. We assume no responsibility to update this opinion letter for, or to advise you of, any such facts or circumstances of which we become aware, regardless of whether or not they affect the opinions expressed in this opinion letter.
Based upon and subject to the foregoing, and subject to the qualifications, assumptions and limitations contained herein, it is our opinion that the Domestication will be treated for U.S. federal income tax purposes as a reorganization within the meaning of Section 368(a)(1)(F) of the Code. We express no opinion on the potential U.S. federal income tax consequences of the Domestication pursuant to Section 367 of the Code or the passive foreign investment company rules.
This opinion is furnished to you solely for use in connection with the Registration Statement. We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement, and to the references therein to us. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.
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| Very truly yours, | ||
| /s/ White & Case LLP | ||
SIJ:SG:AZ
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Exhibit 10.13
EMPLOYMENT AGREEMENT
December 1, 2019
This Employment Agreement (“Agreement”) is entered into to be made effective as of December 1, 2019 (the “Effective Date”), by and among S&A HOLDINGS (2013), LLC (“Holdings” or the “Company”), a limited liability company doing business under the laws of the State of Florida, and MARK ARNOLD, a resident of Maryland (“Executive”). The Company and Executive may each be referred to herein as a “Party” and collectively as the “Parties.” This Agreement supersedes and replaces all prior employment agreements and understandings by and among the Parties and, as of the Effective Date, any such prior agreements and understandings shall be of no further force and effect.
RECITALS
WHEREAS, the Company manages and operates several financial research and publishing businesses and other entities, including, but not limited to, Stansberry & Associates Investment Research, LLC; TradeSmith, LLC; and Legacy Research Group, LLC (and its subsidiaries and affiliates); and any other entities created by the Company hereafter that publish products and services (any and all publications and services provided by the businesses and entities managed and operated by the Company are hereinafter referred to as the “Products”);
WHEREAS, the Parties wish to enter into this Agreement to reflect their mutual understanding as to their overall business arrangement.
NOW THEREFORE, in consideration of the mutual covenants and agreements of the Parties herein contained and other good and valuable consideration as provided below, the Parties hereby agree as follows:
TERMS
1. Executive’s Performance and Understanding. The Company agrees to continue Executive’s employment with the Company with the Executive continuing to serve as Chief Executive Officer (“CEO”). Executive will have such duties and responsibilities as are consistent with Executive’s title and such other duties as may be assigned by the Company to Executive from time to time (the “Services”). Executive shall report directly to the Board of Managers (“Board”) of the Company.
2. Compensation. In consideration of Executive’s performance of the Services, the Company shall compensate Executive as follows:
(a) Base Pay. Executive shall receive an annual guaranteed payment of Five Hundred Thousand Dollars ($500,000.00) (“Base Pay”). Base Pay shall be paid to Executive on a monthly basis in equal installments without deductions and withholdings. The Base Pay shall be periodically reviewed by the Board and adjusted upward or downward by the Board as the Board deems appropriate; provided, however, that any adjustment downward shall only be permitted if the same adjustment is being made to other similarly situated executives of the Company.
(b) Management Bonus. The Executive will receive an annual management bonus (the “Management Bonus”) based on the performance of the Company each fiscal year during the Term (each, a “Performance Year”). The amount of the Management Bonus shall be equal to the product of (x) 1.5%, and (y) the Net Income of the Company for the applicable Performance Year. The Management Bonus will be paid in a lump sum, in cash and less any required withholdings, between January 1st and April 15th of the year following the applicable Performance Year.
(c) Discretionary Bonus. The Executive may also receive and the Company may choose to award the Executive an additional discretionary bonus (a “Discretionary Bonus”) based on the performance of the Company for the applicable Performance Year. The amount of the Discretionary Bonus for the applicable Performance Year shall be determined by the Board or a committee thereof in its sole discretion. The Discretionary Bonus will be paid in a lump sum, in cash and less required withholdings, on or before April 15th of the year following the applicable Performance Year.
(d) Equity Incentive Compensation. The Executive shall be eligible to receive equity incentive compensation with respect to the Company and/or its Affiliates pursuant to the applicable equity incentive compensation plan documents of the Company and/or its Affiliates, or other agreements between Executive and the Company and/or its Affiliates.
(e) Self-Employment Taxes. Executive understands that he will be responsible for any self-employment taxes arising from payments of his guaranteed payment or any bonus amounts from Holdings and that, after the Effective Date, he shall no longer be treated as an employee of Holdings for purposes of federal or state income or employment tax withholding and reportings.
(f) Definitions. As used in this Agreement, the following terms shall have the following meanings:
(i) “Affiliate” or “Affiliated” of or with any specified entity means any other entity controlling, controlled by or under common control with such specified entity. For purposes of this definition, “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of any specified entity, whether through the ownership of voting securities, by contract or otherwise, and such “control” will be presumed if any other entity owns a majority or more of the voting capital stock or other ownership interests, directly or indirectly, of such specified entity.
(ii) “Cause” means any of the following: (i) repeated and gross failure to perform Executive’s material duties under this Agreement, after written notice of such nonperformance has been given to Executive with thirty (30) days to cure such nonperformance; (ii) habitual use of illegal drugs by Executive; (iii) commission of a felony, a crime of moral turpitude or a misdemeanor involving fraud or dishonesty (for avoidance of doubt, a single driving while intoxicated (or other similar charge) shall not be considered a felony or crime of moral turpitude); (iv) the perpetration of any act of fraud or material dishonesty against or affecting the Company, its Affiliates, or their respective customers, agents or employees; (v) material breach of fiduciary duty or material breach of this Agreement, after written notice of such breach has been given to Executive and, to the extent such breach is curable, with thirty (30) days to cure such breach; (vi) repeated insolent or abusive conduct in the workplace, including but not limited to, harassment of others of a racial or sexual nature after notice of such behavior; (vii) taking any action which is intended to harm or disparage the Company and/or its Affiliates, or their respective reputations, or which would reasonably be expected to lead to unwanted or unfavorable publicity to the Company and/or its Affiliates; or (viii) engaging in any act of material self-dealing without prior notice to and consent by the Board.
(iii) “Change of Control” shall mean the occurrence of any of the following events:
A. the closing of the sale, transfer or other disposition of all or substantially all of the Company’s assets or the exclusive license of substantially all of the intellectual property of the Company material to the business of the Company resulting in the Company being unable to continue its business as in effect prior to such license;
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B. the consummation of a merger or consolidation of the Company with or into another entity in which the equityholders of the Company exchange their equity interests of the Company for cash, stock, property or other consideration (except one in which the equityholders of the Company as constituted immediately prior to such transaction continue to hold after the transaction at least 50% of the voting power of the equityholders of the Company or the surviving or acquiring entity or parent entity of the surviving or acquiring entity);
C. any “person,” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”) (other than (a) a trustee or other fiduciary holding securities under an employee benefit plan of the Company, (b) a corporation owned, directly or indirectly, by the equityholders of the Company in substantially the same proportions as their ownership of stock of the Company or (c) any current beneficial equityholder or group, as defined by Rule 13d-5 of the Exchange Act, including the heirs, assigns and successors thereof, of beneficial ownership, within the meaning of Rule 13d 3 of the Exchange Act, of securities possessing more than 20% of the total combined voting power of the Company’s outstanding securities) hereafter becomes the “beneficial owner,” as defined in Rule 13d-3 of the Exchange Act, directly or indirectly, of securities of the Company representing 35% or more of the total combined voting power represented by the Company’s then outstanding voting securities; or
D. individuals who, as of sixty (60) days after the Effective Date of this Agreement 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 Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Agreement, be considered as a member of the Incumbent Board.
Further and for the avoidance of doubt, a transaction shall not constitute a Change of Control if: (A) its primary purpose is to change the state of the Company’s incorporation; (B) its primacy purpose is to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately prior to such transaction; or (C) it is a bona fide equity financing in which the Company is the surviving corporation.
(iv) “Disability” shall mean an injury, or physical or mental illness or incapacity of such character as to substantially disable him from performing his duties (as determined in good faith by the Company) hereunder for a period of more than either (A) ninety (90) consecutive days, or (B) one hundred twenty (120) days whether or not consecutive, in any twelve (12) month period.
(v) “Net Income” means, with respect to the applicable Performance Year, the net income earned by the Company as calculated in good faith by the Company and measured under the modified accrual basis of accounting used to produce its internal management reporting; for the avoidance of doubt, in calculating the Company’s Net Income, (i) the Company shall deduct any distributions paid to minority partners of any operating subsidiary in which the Company owns less than 100% of the equity of such subsidiary; and (ii) the Board shall determine whether to include or exclude any extraordinary items in the calculation of Net Income in any particular Performance Year.
(g) Expenses. The Company shall reimburse Executive for any reasonable travel and other out-of-pocket expenses incurred by Executive in the performance of his obligations hereunder, including, but not limited to, travel, cell phone, dining and entertainment, and similar expenses; provided that such expenses shall have been documented and submitted on a timely basis and in accordance with the regular reimbursement procedures and practices of the Company in effect from time to time. Travel expenses will be reimbursed within thirty (30) days of delivery of an expense report and applicable receipts.
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(h) Benefits. Executive shall be eligible to participate in all applicable medical, dental, disability, life insurance, accidental death, savings, retirement and/or 401k plan and other fringe benefits and executive perquisites generally provided to employees and/or other similar executives of the Company on terms and based on any required employee contributions no less favorable to Executive than as apply to other employees and similar executives generally.
3. License Grant.
(a) Executive hereby grants to the Company and its Affiliates the right to trade off Executive’s name, reputation, likeness and background in promotional material aimed at marketing the Products to potential and current subscribers, as well as at seminars, conferences and any related events, during the Term of this Agreement and for a period of five (5) years following the termination or expiration of this Agreement; provided, however, that in no event does this Agreement authorize the Company or any of its Affiliates to use Executive’s name, reputation, likeness and background in any manner that is negative or detrimental to Executive.
(b) Executive agrees that all intellectual property and any rights associated therewith produced under this Agreement, including copyrights and trademarks, are considered work for hire and therefore the sole property of the Company and/or its Affiliates.
(c) Executive agrees that all designs, trademarks, discoveries, formulas, processes, techniques, strategies, trade secrets, inventions, improvements, ideas, copyrightable works, and/or the like, including all rights to obtain, register, perfect and enforce these proprietary interests, that Executive may solely or jointly develop, conceive, or reduce to practice or author, in whole or in part, during Executive’s employment or association with the Company or its Affiliates that relate to his employment or association or are aided by the use of time, material, or facilities of the Company or its Affiliates, whether or not during normal working hours, (“Inventions”) are the sole and exclusive property of the Company and/or its Affiliates and are considered works for hire under the U.S. Copyright Act, including, but not limited to, as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as editorial copy, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, as an atlas or as any other applicable category. Without compensation, Executive hereby assigns to the Company his entire right, title, and interest in and to the Inventions, and agrees to execute all documents and take all other actions deemed necessary by the Company to protect its rights in any such Inventions, including to vest the Company or its designee with sole ownership of all Inventions. Executive represents and warrants that his development and use of the Inventions will not infringe, misappropriate or otherwise violate any intellectual property rights of any third party (including without limitation any of the Company’s former employers) or any duty owed by the Company to any third party (including without limitation any of the Company’s former employers). To the extent allowed by applicable law, all rights to Inventions include all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral or the like (collectively, “Moral Rights”). To the extent Executive retains any such Moral Rights under applicable law, he hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by the Company and agrees to waive, release and not to assert any Moral Rights with respect thereto. Executive will confirm any such ratification, consent or agreement from time to time as requested by the Company. Executive shall return all tangible evidence of such Inventions, including, but not limited to, any papers, lists, books, files, and computer diskettes or CDs, to the Company prior to or at the termination of this Agreement or extensions thereof, if any, with or without the Company’s request, or upon the Company’s written request.
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4. Non-Compete: Confidential Information: and Non-Disparagement.
(a) Unless otherwise agreed to by the Board, Executive hereby agrees and covenants that he will not (i) write or otherwise contribute to the publication of any financial material; or (ii) directly or indirectly, engage in any business on behalf of himself or any other person, and whether as an owner, director, officer, employee, or consultant, which could be deemed competitive with the Products or other products owned or published by Holdings or its Affiliates (hereinafter, “Compete”) while he is an employee of the Company and for a period of two (2) years following the termination of such employment; provided, however, that if Executive is terminated without Cause or resigns for Good Reason, then the term of this covenant shall expire upon one (1) year from the effective date of such termination without Cause or resignation for Good Reason (the “Non-Compete Term”). Any financial writing and/or consulting for a financial newsletter and/or Internet-related financial product is deemed per se competitive. As used herein, “Good Reason” means (i) material breach of this Agreement by the Company, or (ii) a material reduction in Executive’s duties, title or annual Base Pay, unless otherwise provided for in this Agreement or unless agreed to by Executive in writing; provided, however, that Good Reason shall not be deemed to have occurred in the event of a reduction in your annual Base Pay that is pursuant to a salary reduction program affecting similarly situated employees of the Company; (iii) a requirement that Executive relocate his primary place of employment to a geographic location outside of a fifty (50) mile radius from the Company’s location as of the Effective Date unless agreed to by Executive in writing; provided, however, that a resignation will be a resignation for Good Reason only if Executive shall have first provided written notice of the condition constituting Good Reason to the Board no later than sixty (60) days after the initial existence of the condition and the Company shall have failed to cure such condition within thirty (30) days of the Board’s receipt of notice.
(b) Unless otherwise agreed in a writing in advance duly signed by the Board, during the Non-Compete Term, Executive also will not, directly or indirectly:
(i) induce or encourage any employee or independent contractor of the Company or any of its Affiliates to leave or reduce such employment or engagement, whether such employment or engagement is pursuant to a contract or at will, or, on his own behalf or on behalf of any person or entity, employ or engage in any capacity any former employee or independent contractor of the Company, or any of its Affiliates, unless such former employee or independent contractor will have ceased to be so employed or engaged by the Company or its Affiliates for a period of at least one (1) year immediately prior to Executive’s inducement or engagement of such employee or independent contractor; or
(ii) on his own behalf or on behalf of any person or entity, solicit or call upon, or attempt to solicit or call upon, any customer or subscriber of the Company or its Affiliates (as of the date of termination of this Agreement or at any time during the one year period immediately prior to such termination), for the purpose of selling or providing any product or service which is competitive with any of the products owned, sold, managed or distributed by the Company or its Affiliates.
(c) Confidential Information. Executive acknowledges and agrees that the Company and its Affiliates, in the course of performing their business activities, acquire and develop Confidential Information (as defined below) that provides them with a business advantage and that Executive will be provided with such Confidential Information during his association with the Company and its Affiliates. Executive agrees that he will not, directly or indirectly, at any time during or after the Term of this Agreement, use (whether on his own behalf or on behalf of any other person or entity) or disclose (to any person or entity) any Confidential Information, except as may be required by law or necessary in the performance of his duties for the Company or its Affiliates during the Term of this Agreement. “Confidential Information” means all confidential, proprietary, and non-public information (whether in
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written, electronic, or other form) of the Company or its Affiliates or third parties with whom the Company or any of its Affiliates do business (including without limitation investors, sources of investment capital, and suppliers of the Company or any of its Affiliates), including without limitation the following information of the Company or its Affiliates: trade secrets; business information; track record information; books and records used to calculate and present track record information; information regarding assets and affairs; financial information; operating methods or strategies; portfolio holdings and performance; marketing plans or strategies; competitive know-how; processes; forecasts; investor lists or other investor-related information of any kind; marketing promotions, copy packages, subscriber/customer lists, email addresses, contact information or other subscriber/customer-related information of any kind, and any other information of a similar nature not already in the public domain. Confidential Information also includes any information that becomes publicly available as a direct or indirect result of Executive’s breach of this Agreement or other obligation to the Company or any of its Affiliates. Executive will take all reasonable and necessary precautions to prevent disclosure of Confidential Information to unauthorized persons or entities. Executive further agrees to immediately notify the Company or any of its Affiliates if he becomes aware that Confidential Information has been improperly used or disclosed. In the event Executive is required by law to disclose Confidential Information, Executive will (i) immediately (and prior to such disclosure) notify the Company and cooperate with the Company and its Affiliates (at their expense) in any efforts by them to oppose such disclosure, and (ii) will disclose only that portion of the Confidential Information that is legally required to be disclosed and exercise best efforts to ensure that such Confidential Information will be afforded confidential treatment. Under no circumstances will Executive acquire any ownership interest in, or right to use, any Confidential Information. Confidential Information shall not include information (i) which is or becomes generally available to the public, (ii) acquired by the Executive from a third party lawfully entitled to disclose same, or (iii) knowingly disclosed by Holdings and/or its Affiliates to any third party without any intent to restrict the same as to further disclosure.
(d) Notice of Immunity. Executive acknowledges that the Company has provided Executive with the following notice of immunity rights in compliance with the requirements of the Defend Trade Secrets Act of 2016: (i) Executive shall not be held criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in confidence to a U.S. federal, state or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; (ii) Executive shall not be held criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the Confidential Information to Executive’s attorney and use the Confidential Information in the court proceeding, if Executive files any document containing the Proprietary Information under seal, and does not disclose the Confidential Information, except pursuant to court order. However, under no circumstance will Executive be authorized to disclose any information covered by attorney-client privilege or attorney work product of the Company without prior written consent of the Company’s general counsel or other officer designated by the Company. Notwithstanding anything to the contrary contained herein, no provision of this Agreement shall be interpreted so as to impede Executive (or any other individual) from reporting possible violations of U.S. federal law or regulation to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S. Securities and Exchange Commission, the U.S. Congress, and any agency Inspector General of the U.S. government, or making other disclosures under the whistleblower provisions of U.S. federal law or regulation. Executive does not need the prior authorization of the Company to make any such reports or disclosures and Executive shall not be not required to notify the Company that such reports or disclosures have been made.
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(e) Non-Disparagement. Executive agrees and covenants that Executive will not at any time, whether during the Term or thereafter, make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements both (i) concerning the Company, its Affiliates, or their respective employees, officers, directors, managers, products, services, or businesses and (ii) which would reasonably be expected to materially damage the reputation, goodwill or business of the Company. This Section does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. If Executive materially breaches the foregoing non-disparagement obligations, then Executive shall pay to the Company $500,000 (the “Liquidated Damages”). The parties acknowledge and agree that the Company’s harm caused by a breach of Executive’s non-disparagement obligations would be impossible or very difficult to accurately estimate, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from Executive’s breach of his non-disparagement obligations. Executive’s payment of the Liquidated Damages is the Executive’s sole financial liability and obligation, but Company shall also be entitled to seek specific performance of the non-disparagement obligations under Section 4(e) in the event Executive breaches same.
5. Warrants, Covenants, Indemnity and Forfeiture.
(a) Executive hereby warrants and covenants that any editorial or promotional work produced under this Agreement by him shall not knowingly violate or infringe any copyright(s) and shall not knowingly contain anything libelous or otherwise contrary to the law. Executive shall also acknowledge and agrees to use his best efforts to comply with any and all written policies and procedures of the Company of which Executive is made aware, as revised and supplemented from time to time, including, but not limited to, the Company’s Securities and Cryptocurrencies Trading Policy, Customer Relations Policy, Information Barrier Policies and Procedures, and policies and procedures set forth in the Company’s Employee Handbook.
(b) Each of the Parties shall have the right to take legal action against an unrelated third party in the event of any infringement or violation of the rights of the Party and each shall be solely responsible for its expenses in such suit, except as otherwise set forth in this Agreement.
(c) Executive shall indemnify and hold harmless the Company and any of its Affiliates for any losses resulting from an intentional breach of the representations, warranties and covenants by Executive in Sections 4 and 5, including reasonable attorney’s costs, suffered by the Company and its Affiliates. The Parties agree that the foregoing representations, warranties, covenants and indemnity by Executive shall not extend to any editorial, marketing or promotional materials that the Company or its Affiliates provide to Executive so long as Executive’s presentation of such material is consistent with the warranties and covenants described in Section 5(a) above.
(d) Executive represents and warrants to the Company that: (i) Executive has the full power and authority to enter into this Agreement and to incur and perform Executive’s obligations hereunder; and (ii) the execution, delivery and performance by Executive of this Agreement does not conflict with or result in a breach or violation of or constitute a default under (whether immediately, upon the giving of notice or lapse of time or both) any agreement or instrument to which Executive is a party or by which Executive may be bound or affected.
(e) The Company represents and warrants to Executive that: (i) it is duly organized, validly existing and in good standing under the laws of the State of Florida, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted; (ii)
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it is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary; (iii) it has full power and authority to enter into this Agreement and to incur and perform its obligations hereunder; and (iv) the execution, delivery and performance by the Company of this Agreement does not conflict with or result in a breach or violation of or constitute a default under (whether immediately, upon the giving of notice or lapse of time or both) the articles of organization, bylaws, or operating agreement of the Company, or any agreement or instrument to which the Company is a party or by which the Company or any of its properties may be bound or affected.
6. Term and Termination.
(a) Term. Executive’s employment hereunder shall be effective as of the Effective Date and shall continue until January 2, 2025 (the “Initial Term”), unless terminated earlier pursuant to the terms of this Agreement. The Initial Term shall automatically expire on January 2, 2025, unless the Parties mutually agree, within one hundred eighty (180) days before the expiration of the Initial Term, to renew this Agreement for one (1) subsequent two (2) year renewal term (the “Renewal Term”). The Initial Term and the Renewal Term, if applicable, shall be collectively referred to herein as the “Term.”
(b) Termination. Either Party may terminate Executive’s employment at any time, provided that (i) the Company shall provide one hundred eighty (180) days’ prior written notice of such termination (absent Cause, in which case notice, if required, shall be provided as set forth in Section 2(e)(ii)) and (ii) Executive (absent Good Reason, in which case the notice period required in Section 4(a) shall be required) shall provide the Company with one hundred eighty (180) days prior written notice before terminating his employment, in which case, for the avoidance of doubt, the Company may relieve Executive of some or all of his duties during such 180-day notice period provided that the Company pays Executive his Base Pay for the portion of the notice period that is waived. Except as provided in Section 6(c) below, upon termination of Executive’s employment for any reason, he shall receive unpaid Base Pay through the date of termination and reimbursement for any expenses incurred through the date of termination pursuant to Section 2(g) and any benefits through such date.
If Executive’s employment by Company is terminated (1) by the Company without Cause during the Initial Term; (2) by Executive for Good Reason during the Initial Term; or (3) due to the expiration of the this Agreement at the end of the Initial Term and the Parties fail to renew this Agreement or enter into a new employment agreement, then all unvested awards granted to Executive that were scheduled to vest during the Initial Term, including, but not limited to, any profits interests, equity or other equity-based awards, shall immediately vest. For the avoidance of doubt, if any of the events listed in the preceding sentence occur, Executive shall forfeit all awards granted to Executive that were scheduled to vest during the Renewal Term, including, but not limited to, any profits interests, equity or other equity-based awards.
If Executive’s employment by Company is terminated (1) by the Company without Cause during the Renewal Term; or (2) by Executive for Good Reason during the Renewal Term, then all unvested awards granted to Executive that were scheduled to vest during the Renewal Term, including, but not limited to, any profits interests, equity or other equity-based awards, shall immediately vest.
(c) Death or Disability. Executive’s employment hereunder shall terminate automatically on Executive’s death during the Term, and the Company may terminate Executive’s employment on account of Executive’s Disability. If Executive’s employment is terminated during the Term on account of Executive’s death or Disability, Executive (or Executive’s estate and/or beneficiaries, as the case may be) shall be entitled to receive the following:
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(i) any unpaid Base Pay and a pro-rated Management Bonus based on the Net Income of the Company through the date Executive dies or is terminated on account of Executive’s Disability; and
(ii) all unvested awards granted to Executive including, but not limited to, any profits interests, equity or other equity-based awards, shall immediately vest.
Notwithstanding any other provision contained herein, all payments made in connection with the Executive’s Disability shall be provided in a manner which is consistent with applicable law.
(d) Additional Payments Upon Termination. If Executive’s employment by Company is terminated by (1) the Company without Cause or (2) the Executive resigns for Good Reason, then this Agreement shall be deemed to be terminated as of the date Executive ceases to be employed by the Company (the “Termination Date”). Upon the Termination Date under either of clauses (1) or (2) in the preceding sentence, the Company shall pay Executive (i) any unpaid Base Pay and a pro-rated Management Bonus based on the Net Income of the Company through the Termination Date, (ii) an amount equal to the two times the total Base Pay and Management Bonus paid to Executive for the calendar year prior to the Termination Date (the “Separation Amount”), and (iii) notwithstanding any vesting terms of any profits interest, option or other equity-based awards, any and all such profits interests, options or other equity-based awards shall immediately vest on the Termination Date and shall be exercisable for twelve (12) months following the Termination Date, but in no event beyond the maximum permitted expiration date of such profits interests, options or equity-based awards, as applicable. In the event that Executive’s employment is terminated within twenty (24) months following a Change of Control, the Executive shall be enitled to the benefits set forth in clauses (i) and (iii) of the preceding sentence and a single lump sum payment equal to one and a half times the Separation Amount. As a condition to receiving such payments following the Termination Date, Executive must sign, deliver, and not revoke a release in the form attached hereto as Exhibit A, such that it has become effective and enforceable as a condition to any payment pursuant to this Section 6(c).
(e) Executive acknowledges and agrees to the following in the event that Executive breaches Sections 4(a) or (b) of this Agreement and such breach either (1) results in the termination of Executive’s employment with the Company or (2) occurs following the termination of Executive’s employment with the Company, then all compensation and benefits payable pursuant to Section 6(d)(ii) of this Agreement (the Separation Amount) shall immediately cease and be forfeited, or shall otherwise be immediately returned in its entirety by Executive to Company within thirty (30) days of written notice from the Company.
7. Assignment of Agreement. Executive’s services and functions are considered unique. This Agreement or any rights or obligations herein may not be assigned or otherwise transferred by Executive to any other party without the prior written consent of the Company, which consent shall not be unreasonably withheld.
8. Indemnification; Insurance. Executive shall be entitled to indemnification (including advancement of and reimbursement of Executive’s own reasonable attorney’s fees and costs) to the extent provided under applicable law and under the Company’s Certificate of Incorporation, Bylaws or Operating Agreement, as well as to liability insurance coverage (including directors and officers liability insurance coverage) provided at the Company’s cost, in each case, on the same basis as other directors and officers of the Company, with respect to Executive’s acts or failures to act in his capacity as an officer, employee or agent of the Company during the term of his employment with the Company. For the avoidance of doubt, in no event shall Executive’s indemnification rights described in this Section be less favorable than those provided to active directors and officers of the Company.
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(a) Appearance as a Witness. Notwithstanding any other provision of this Section 8, the Company shall pay or reimburse expenses incurred by the Executive in connection with his appearance as a witness or other participation in a Proceeding at a time when he is not a named defendant or respondent in the Proceeding.
9. Integration, Amendments and Modifications. This Agreement sets forth the entire agreement among the Parties hereto with respect to the subject matter herein and supersedes all prior and contemporaneous understandings, agreements representations and warranties, both written and oral, with respect to such subject matter. The Parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement. This Agreement may not be amended or modified except by a writing duly executed by the Parties hereto.
10. Confidentiality. The Parties agree that this Agreement is confidential and, except as otherwise required by law or court order, no Party shall disclose the terms herein to anyone, including any employee of the Company. Notwithstanding the foregoing, the Company may disclose the terms of this Agreement to senior management of the Company. Executive may disclose this contract to his immediate family members and his legal and financial representatives provided such disclosures are protected by professional codes of conduct or signed confidentiality agreements.
11. Severability; Provisions Subject to Applicable Law. All provisions of this Agreement shall be applicable only to the extent that they do not violate any applicable law. If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, such provision will be enforced to the maximum extent permissible and the remainder of the Agreement will remain in full force and effect according to its terms.
12. Arbitration. The Parties agree that any dispute arising from or relating to this Agreement, or the breach thereof, shall be submitted to the American Arbitration Association (“AAA”) for binding arbitration to take place in Baltimore, Maryland before a single arbitrator under the rules of the AAA Employment Arbitration Rules and Mediation Procedures, and the decision of the arbitrator shall be final and binding upon the Parties. Notwithstanding the foregoing, in the event of any Party’s breach of any of the covenants set forth in Sections 3, 4, 5 or 8, a Party shall have the right to obtain injunctive relief from any federal or state court of competent jurisdiction located within Baltimore County, Maryland and will not be required to arbitrate any claim for the breach of such Sections. Accordingly, except as provided in the prior sentence, the Parties will not be permitted to pursue court action regarding claims that are subject to arbitration.
13. Governing Law; Venue. This Agreement and the rights and obligations of the Parties hereto shall be governed, construed, interpreted and enforced in accordance with the laws of the State of Maryland, without giving effect to the principles of conflict of laws. The Parties hereto hereby irrevocably submit to the exclusive jurisdiction of the federal or state courts located within Baltimore County, Maryland in the event that: a Party seeks injunctive relief with respect to a breach of any of the covenants set forth in Sections 3, 4, 5 or 8; or (ii) a Party seeks to enforce an arbitration award. In the event of a breach of the covenants set forth in Sections 3, 4, 5 or 8, the Parties agree that, in addition to any other remedies available at law or equity, a Party may file litigation against another Party seeking specific performance and temporary and/or preliminary injunctive relief, enjoining or restraining such breach, and the Parties consent to the issuance of such injunctive relief without bond. The Parties agree that if a Party initiates litigation seeking to enforce an arbitration award, the Party initiating such litigation shall be entitled to recover from the other Party reasonable attorney’s fees and costs incurred in such litigation, including all reasonable and necessary attorney’s fees and costs arising from a successful appeal. The Parties consent
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to the personal jurisdiction of such courts and thereby waive: (a) any objection to jurisdiction or venue; or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.
14. Reports. For so long as Executive holds any membership interests in the Company, the Company shall provide Executive with copies of the financial statements of the Company and its subsidiaries in such form and at such time as they are provided to the Company’s other equityholders; provided, however, all and all rights conferred to Executive under this Section 14 shall terminate upon the date of the Company’s (or its Affiliate’s) first underwritten public offering of common equity securities under the Securities Act of 1933, as amended.
15. Excess Parachute Payments: Limitation on Payments.
(a) Best Pay Cap. Notwithstanding any other provision of this Agreement, in the event that any payment or benefit received or to be received by Executive (including any payment or benefit received in connection with a termination of Executive’s employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, including the payments and benefits under Section 2 hereof, being hereinafter referred to as the “Total Payments”) would be subject (in whole or part), to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986 (the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in-such other plan, arrangement or agreement, the cash severance payments under this Agreement shall first be reduced, and the noncash severance payments hereunder shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
(b) Certain Exclusions. For purposes of determining whether and the extent to which the Total Payments will be subject to the Excise Tax, (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the written opinion of an independent, nationally recognized accounting or consulting firm (the “Independent Advisors”) selected by the Company, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code (including by reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion of such Total Payments shall be taken into account which, in the opinion of the Independent Advisors, constitutes reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the “base amount” (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation; and (iii) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
16. Section 409A. Notwithstanding any other provision of this Agreement to the contrary, the provision, time and manner of payment or distribution of all compensation and benefits provided by this Agreement that constitute nonqualified deferred compensation subject to and not exempted from the requirements of Code Section 409A (“Section 409A Deferred Compensation”) shall be subject to, limited
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by and construed in accordance with the requirements of Code Section 409A and all regulations and other guidance promulgated by the Secretary of the Treasury pursuant to such Section (such Section, regulations and other guidance being referred to herein as “Section 409A”), including the following:
(a) Separation from Service. Payments and benefits constituting Section 409A Deferred Compensation otherwise payable or provided upon the Executive’s termination of employment shall be paid or provided only at the time of a termination of the Executive’s employment that constitutes a Separation from Service. For the purposes of this Agreement, a “Separation from Service” is a separation from service within the meaning of Treasury Regulation Section 1.409A-1(h).
(b) Six-Month Delay Applicable to Specified Employees. If, at the time of a Separation from Service of the Executive, the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) (a “Specified Employee”), then any payments and benefits constituting Section 409A Deferred Compensation to be paid or provided upon the Separation from Service of the Executive shall be paid or provided commencing on the later of (i) the date that is six months after the date of such Separation from Service or, if earlier, the date of death of the Executive (in either case, the “Delayed Payment Date”), or (ii) the date or dates on which such Section 409A Deferred Compensation would otherwise be paid or provided. All such amounts that would, but for this Section, become payable prior to the Delayed Payment Date shall be accumulated and paid on the Delayed Payment Date.
(c) Installments. Executive’s right to receive any installment payments payable hereunder shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment for purposes of Section 409A.
(d) Reimbursements. To the extent that any reimbursements or in-kind benefits payable to Executive pursuant to this Agreement are subject to the provisions of Section 409A of the Code, such reimbursements shall be paid to Executive no later than December 31 of the year following the year in which the cost was incurred; the amount of expenses reimbursed in one year shall not affect the amount eligible for reimbursement in any subsequent year; and Executive’s right to reimbursement under this Agreement will not be subject to liquidation or exchange for another benefit.
(e) Any payments subject to Section 409A that are subject to execution of a waiver and release which may be executed and/or revoked in a calendar year following the calendar year in which the payment event (such as termination of employment) occurs shall commence payment only in the calendar year in which the consideration period or, if applicable, release revocation period ends, as necessary to comply with Section 409A
17. Waiver. No waiver by the Parties of any breach by a Party hereto of any condition or provision of this Agreement to be performed by such Party shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by a Party in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
18. Survival. Notwithstanding anything to the contrary in this Agreement, Sections 2, 3, 4, 5, 6(b), 8 and 10 through 26 will survive the termination of Executive’s employment and the termination or expiration of the Term, as shall all other Sections herein that by their nature contemplate survival beyond the termination of Executive’s employment with the Company.
19. Notice. Any notice, demand, request or other communication which Executive or Company may be required to give the other Party hereunder shall be in writing, shall be effective and deemed received the following business day when sent by overnight mail, upon transmission if sent by e-mail, or the third
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business day after deposited in first class United States mail, postage prepaid. The current contact information for each Party is:
For Company: | ||||||||
| S&A Holdings (2013), LLC | ||||||||
| c/o Beacon Street Services - LEGAL | ||||||||
| 1125 N. Charles Street | ||||||||
| Baltimore, Maryland 21210 | ||||||||
| Attn: Gary Anderson, Esq. - General Counsel | ||||||||
Email: ganderson@beaconstreetservices.com | ||||||||
| For Executive: | ||||||||
| Mark Arnold | ||||||||
| 200 Garrison Forrest Road | ||||||||
| Owings Mills, Marylnad 21117 | ||||||||
Email: mamold@stansberryresearch.com | ||||||||
20. Headings. The headings used in this Agreement are solely for convenience of reference and shall not affect its interpretation.
21. Construction. The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one instrument.
23. Prevailing Party. In the event any dispute arises out of or relating to this Agreement, whether in law or equity, the prevailing Party shall be entitled to recover, in addition to the relief awarded, its reasonable attorneys’ fees, paralegals’ fees and costs, at all levels whether pursuant to an arbitration proceeding, at trial, on appeal, or in bankruptcy.
24. Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
25. Further Assurances. If any further action is necessary or desirable to carry out the purposes of this Agreement, each Party agrees to take such further action (including the execution and delivery of such further instruments and documents) as the other Party may request, all at the sole cost and expense of the requesting Party.
26. Signature. A signed copy transmitted via e-mail or an electronic signature is presumed authentic and will be accepted as an original unless shown to be invalid by the other Party. This Agreement may be executed in two or more counterparts, each of which counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the Effective Date.
| THE COMPANY: | |||||||||||
| S & A Holdings (2013), LLC | |||||||||||
| By: | /s/ Myles Norin | ||||||||||
| Name: | Myles Norin | ||||||||||
| EXECUTIVE: | |||||||||||
| /s/ Mark Arnold | |||||||||||
| Mark Arnold | |||||||||||
EXHIBIT A
FORM OF RELEASE
THIS RELEASE (this “Release”) is dated ______________, 20__, by Mark Arnold (“Employee”) in favor of the Releasees (as defined below).
WHEREAS, pursuant to the Employment Agreement (the “Employment Agreement”), by and between Employee and S&A Holdings (2013), LLC (the “Company”), dated December 1, 2019, the Company has agreed to pay Employee the consideration described in the Employment Agreement (the “Severance”), subject to the terms and conditions described in the Employment Agreement.
WHEREAS, pursuant to the Employment Agreement, Employee is required to execute and not revoke this Release as provided in the Employment Agreement in order to receive the Severance.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, Employee agrees as follows:
1. Release in Full of All Claims. In exchange for the Severance and other good and valuable consideration as provided in accordance with the terms of the Employment Agreement, Employee, for himself, his agents, attorneys, heirs, administrators, executors, assigns, and other representatives, and anyone acting or claiming on his or their joint or several behalf, hereby releases, waives, and forever discharges the Company, including its past or present employees, officers, directors, managers, trustees, board members, stockholders, agents, affiliates, parent entity(ies), subsidiaries, successors, assigns, and other representatives, and anyone acting on their joint or several behalf (the “Releasees”), from any and all known and unknown claims, causes of action, demands, damages, costs, expenses, liabilities, or other losses arising on or prior to the date Employee signs this Release, including, but not limited to, those that in any way arise from, grow out of, or are related to Employee’s employment with the Company or any of its affiliates and subsidiaries or the termination thereof. By way of example only and without limiting the immediately preceding sentence, Employee agrees that he is releasing, waiving, and discharging any and all claims against the Company and the Releasees under (a) any federal, state, or local employment law or statute, including, but not limited to, Title VII of the Civil Rights Act(s) of 1964 and 1991, Section 1981 of the Civil Rights Act of 1870, the Employee Retirement Income Security Act, the Americans with Disabilities Act (the “ADA”), the Age Discrimination in Employment Act (the “ADEA”), the Family and Medical Leave Act (the “FMLA”), the Worker Adjustment and Retraining Notification Act(“WARN”), the Uniformed Services Employment and Reemployment Rights Act (the “USERRA”), applicable state civil rights law(s), or (b) any federal, state or municipal law, statute, ordinance or common law doctrine regarding (i) the existence or breach of oral or written contracts of employment, (ii) negligent or intentional misrepresentations, (iii) promissory estoppel, (iv) interference with contract or employment, (v) defamation or damage to business or personal reputation, (vi) assault and battery, (vii) negligent or intentional infliction of emotional distress, (viii) unlawful discharge in violation of public policy, (ix) discrimination, (x) retaliation, (xi) wrongful discharge, (xii) harassment, (xiii) whistleblowing, (xiv) breach of implied covenant of good faith, or (xv) claims under any of the Releasees’ policies or practices.
Notwithstanding the foregoing, Employee does not: (A) give up his right to any benefits to which he is entitled under any retirement plan of the Company that is intended to be qualified under Section 40l(a) of the Code, (B) give up his rights, if any, under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), (C) give up his rights to any monetary award from a government-administered whistleblower award program, such as that offered by the
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Securities and Exchange Commission pursuant to Section 21F of the Securities Exchange Act of 1934, (D) give up his rights to enforce the terms of the Employment Agreement and this Release, (E) give up his rights to any claims in respect of his equity interests in the Company and/or (F) release any claims to challenge the validity of this release under the ADEA or any claims that Employee cannot waive by operation of law. Nothing contained herein shall be construed to prohibit Employee from filing a charge with or participating in any investigation by the Equal Employment Opportunity Commission (the “EEOC”) or any other governmental or administrative agency or participating in investigations by that entity or any other governmental or administrative agency. However, Employee acknowledges that the release he executes herein waives his right to seek or accept individual remedies or monetary damages in any such action or lawsuit arising from such charges or investigations, including, but not limited to, back pay, front pay, or reinstatement. Employee further agrees that if any person, organization, or other entity should bring a claim against the Releasees involving any matter covered by this Release, Employee will not accept any personal relief in any such action, including damages, attorneys’ fees, costs, and all other legal or equitable relief.
2. Assistance to Others. Employee agrees not to assist or cooperate, in any way, directly or indirectly, with any person, entity or group (other than the EEOC or other governmental or administrative agency) involved in any proceeding, inquiry or investigation of any kind or nature against or involving the Company or any of the Releasees, except as required by law, subpoena or other compulsory process.
Moreover, Employee agrees that to the extent he is compelled to cooperate with such third parties, he shall disclose to the Company in advance that he intends to cooperate and shall disclose the manner in which he intends to cooperate. Further, Employee agrees that within three (3) days after such cooperation, he will meet with representatives of the Company and disclose the information that he provided to the third party. This Section is to be broadly construed and is to include conversations, informal comments, confirmations, suggestions or advice of any type to third parties, their counsel or their advisors. Further, if Employee is legally required to appear or participate in any proceeding that involves or is brought against the Company or the Releasees, Employee agrees to disclose to the Company in advance what he plans to say or produce and otherwise cooperate fully with the Company or the Releasees; however, nothing in this Release is intended to require Employee to notify the Company in advance of any communication with or disclose what he plans to say to the EEOC, the Securities and Exchange Commission (SEC) or any other governmental or administrative agency.
3. No Admission of Wrongful Conduct. Employee hereby acknowledges and agrees that, by the Company providing the consideration described above and entering into this Release, the Company, including its past or present employees, officers, managers, directors, trustees, board members, stockholders, agents, affiliates, subsidiaries, parent corporations, successors, assigns, or other representatives, and the Releasees are not admitting any unlawful or otherwise wrongful conduct or liability to Employee or his heirs, executors, administrators, assigns, agents, or other representatives.
Employee and the Company further understand and agree that the Employment Agreement and this Release shall not be admissible as evidence in any court or administrative proceeding, except that either party may submit the Employment Agreement and this Release to any appropriate forum in the event of an alleged breach of the Employment Agreement and this Release or a claim by either party concerning the enforceability or interpretation of the Employment Agreement and this Release.
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4. Arbitration and Damages in Case of Breach. Any and all disputes arising out of or in any way relating to this Release shall be submitted to binding arbitration before a panel mutually agreed to by the parties and conducted in accordance with the Rules of the American Arbitration Association.
Any breach of this Release by Employee or the Company shall entitle the other party to recover (a) any and all amounts paid pursuant to this Release, plus (b) any actual damages that the Company or Employee can establish resulted or will result from such breach, upon a showing to a binding arbitration panel mutually agreed to by the parties and conducted in accordance with the Rules of the American Arbitration Association. The costs of any such proceeding, including reasonable attorneys’ fees, shall be paid by the non-prevailing party. This Section shall not apply to any claim filed by Employee with the EEOC, SEC or other governmental or administrative agencies, including an action concerning the enforceability of this Release.
5. ADEA/OWBPA Waiver & Acknowledgment. Employee understands that the release set forth herein includes a release of any claims he may have under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., against any of the Releasees that may have existed on or prior to the date upon which Employee executes this Release. Employee understands that the ADEA is a federal statute that prohibits discrimination on the basis of age. Employee wishes to waive any and all claims under the ADEA that Employee may have against any of the Releasees as of the date upon which Employee executes this Release, and hereby waives such claims. Employee understands that any claims under the ADEA that may arise after the date this Release is executed by Employee are not waived. Employee acknowledges that he is receiving consideration for the waiver of any and all claims under the ADEA to which he is not already entitled.
Employee, pursuant to and in compliance with the rights afforded him under the Older Workers Benefit Protection Act: (a) is advised to consult with an attorney before executing this Release; (b) has, at his option, at least twenty-one (21) days to consider this Release; (c) may revoke this Release at any time within the seven (7) day period following his execution of this Release (the “Revocation Period”); (d) is advised that this Release shall not become effective or enforceable until the Revocation Period has expired; and (e) is advised that he is not waiving claims that may arise after the date on which he executes this Release.
Employee may revoke this Release by delivering a written notice of revocation to [name of contact], [contact title] at [contact address] or by email at [contact email address]. For this revocation to be effective, such written notice must be received by such person, at the address set forth above no later than the close of business on the seventh (7th) day after Employee signs this Release. If this Release is not revoked within the Revocation Period, this Release will become effective and enforceable on the date immediately following the last day of the Revocation Period (the “Effective Date”). Employee understands and acknowledges that if he revokes this Release within the Revocation Period, Employee will not receive any Severance and will be required to repay any Severance previously paid.
6. Governing Law. This Release shall in all respects be interpreted, construed and governed by and in accordance with the internal substantive laws of the State of Maryland.
7. Severability. Should any provision of this Release be declared or be determined by any court to be invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby, and said invalid part, term or provision shall be deemed not to be part of this Release. The waiver of a breach of any of the provisions of this Release shall not operate or be construed as a waiver of any other provision of this Release or a waiver or any subsequent breach of the same provision. Notwithstanding the foregoing, if this Release is invalidated, the Employment Agreement is nullified in its entirety and the Company shall have no obligation under the Employment Agreement.
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8. Voluntary Execution. Employee acknowledges that he is executing this Release voluntarily and of his own free will and that he fully understands and intends to be bound by the terms of this Release. Further, Employee acknowledges that he has received a copy of this Release on _____ __, 20__ and has had an opportunity to carefully review this Release with his attorney prior to executing it or warrants that he chooses not to have his attorney review this Release prior to signing. Employee will be responsible for any attorneys’ fees incurred in connection with the review of this Release by his attorneys. This Release may be executed in counterparts and by signatures transmitted by fax or email. Employee acknowledges that this Release may not be executed prior Employee’s last day of employment, and if Employee executes the Release prior to his last day of employment, it is null and void. The offer to enter into this Release shall remain open for twenty-one (21) days following Employee’s last day of employment, after which time it shall be deemed withdrawn without further action or notice by the Company. Employee will not receive any Severance if this Release is not executed on or prior to the twenty-first (21st) day following his last day of employment and will be required to repay any Severance previously paid.
9. No Assignment of Claims. Employee hereby represents and warrants that he has not previously assigned or purported to assign or transfer to any person or entity any of the claims or causes of action herein released.
10. Successors and Assigns. This Release shall bind and inure to the benefit of and be enforceable by Employee, the Company and their respective heirs, executors, personal representatives, successors and assigns, except that neither party may assign any rights or delegate any obligations hereunder without the prior written consent of the other party. Employee hereby consents to the assignment by the Company of all of its rights and obligations hereunder to any successor to the Company by merger or consolidation or purchase of all or substantially all of the Company’s assets, provided such transferee or successor assumes the liabilities of the Company hereunder.
[SIGNATURE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Employee has executed and delivered this Release on the date set forth below.
| Dated: | ||||||||||||||
| Name: | Mark Arnold | |||||||||||||
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Exhibit 10.14
Execution Version
Confidential
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is entered into on November 5, 2019 so as to be made effective as of December 2, 2019 (the “Effective Date”) by and among Beacon Street Services, LLC (“Beacon Street”or the “Company”), a limited liability company doing business under the laws of Delaware, S&A Holdings (2013), LLC, a limited liability company doing business under the laws of Florida (“Holdings”) and Dale Lynch (“Executive”). Company, Holdings and Executive are collectively referred to herein as the “Parties” and each individually as a “Party.”
RECITALS
WHEREAS, Company provides support services to various publishing entities organized under Holdings which offer various publications, software, media and information services (hereinafter referred to as the “Products”); and
WHEREAS, Company wishes to employ Executive as its Chief Financial Officer, and Executive has agreed to such employment, on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements of the Parties herein contained and other good and valuable consideration as provided below, the Parties hereby agree as follows:
TERMS
1. Executive’s Performance and Understanding.
(a) During the term of the Executive’s employment under this Agreement, Company shall employ the Executive, and the Executive shall serve Company and Holdings, as the Chief Financial Officer of the Company reporting directly to the Chief Executive Officer (“CEO”) of Holdings.
(b) The Executive shall perform services and duties (“Services”) at the direction of the CEO which Services shall be typically associated with such position and title held by the Executive.
(c) While Executive is the Company’s employee, Employee agrees to devote his full business time and attention to the performance of his duties and responsibilities hereunder. Employee’s principal work location shall be at the offices of the Company located in Baltimore, Maryland.
2. Compensation. In consideration of Executive’s performance of the Services, the Company shall compensate Executive as follows:
(a) Salary. Executive shall initially receive an annualized salary of $500,000 (the “Base Salary”). Base Salary payments shall be payable to Executive in accordance with the normal payroll practices and schedule of the Company, less applicable deductions and withholdings. This
Confidential
Base Salary shall be periodically reviewed by the Board of Managers of Holdings (the “Board”) and adjusted by the Board as the Board deems appropriate in its sole discretion.
(b) Initial Bonus; Bonus Pool. (i) Initial Bonus: If Executive delivers a fully executed copy of this Agreement to Company on or before November 8, 2019 and is Continuously Employed by the Company from December 2, 2019 through December 31, 2019, Company will pay Executive a one-time bonus of Fifty Thousand Dollars ($50,000) in one (1) payment, less all required deductions and withholdings (“Initial Bonus”) within thirty (30) days of December 31, 2019; and (ii) Bonus Pool: Beginning with the 2020 Performance Year, Executive will be eligible to participate in the annual executive bonus pool (the “Bonus Pool”), from which annual bonus payments are determined and paid by the Company in its sole discretion, less all required deductions and witholdings. If Executive has been Continuously Employed by the Company through the one-year anniversary of the Effective Date, Company will pay Executive a one-time payment of Two Hundred Thousand Dollars ($200,000), less all required deductions and withholdings within thirty (30) days of the one-year anniversary of the Effective Date, which payment shall set the floor, but not the ceiling, for Executive’s Bonus Pool payment for the 2020 Performance Year. Executive must be an employee of the Company on the date any Initial Bonus or Bonus Pool payments are made, if any, in order to earn such bonus.
(c) Holdings Equity Award. Within ninety (90) days of the Effective Date, Holdings shall grant Executive 5.415 Class B Units, which grant shall become effective on January 1, 2020 (the “Profits Interest”). The Profits Interest represents approximately 0.5% of the profits interests in Holdings and will be given to Executive pursuant to a grant agreement containing such terms and conditions as Holdings shall deem appropriate in its sole discretion. Executive acknowledges that such grant is intended to be a profits interest within the meaning of IRS Revenue Procedures 93-27, 1993-2 C.B. 343, and 2001-43, 2001-2 C.B. 191.
(d) Definitions. As used in this Agreement, the following terms shall have the following meanings:
i. “Affiliate” or “Affiliated” of or with any specified entity or Person means any other entity or Person controlling, controlled by or under common control with such specified entity or Person. For purposes of this definition, “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of any specified entity or Person, whether through the ownership of voting securities, by contract or otherwise, and such “control” will be presumed if any other entity or Person owns a majority or more of the voting capital stock or other ownership interests, directly or indirectly, of such specified entity or Person.
ii. “Cause” means any of the following: (i) Executive’s repeated and gross failure to perform his material duties under this Agreement, after written notice of such non performance has been given by Company to Executive with thirty (30) days to cure such non performance; (ii) use of illegal drugs by Executive; (iii) Executive’s commission of a felony, a crime of moral turpitude or a misdemeanor involving fraud or dishonesty (for avoidance of doubt, a single driving while intoxicated (or other similar charge) shall not be considered a felony or crime of moral turpitude); (iv) Executive’s perpetration of any act of fraud or material dishonesty against or affecting the Company or Holdings, any of their Affiliates, or any customer, agent or employee thereof; (v)
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Executive’s material breach of any fiduciary duty or material breach of this Agreement or any other contractual duty to, written policy of, or written agreement with the Company, which breach is not cured or corrected within 30 days of written notice thereof from the Company or Holdings, except for breaches of Section 4 of this Agreement, which cannot be cured and for which the Company or Holdings need not give any opportunity to cure; (vi) Executives repeated insolent or abusive conduct in the workplace, including but not limited to harassment of others of a racial or sexual nature after notice of such behavior; (vii) Executive knowingly taking any action which is intended to materially harm or disparage the Company or Holdings, their Affiliates, or their reputations, or which would reasonably be expected to lead to unwanted or unfavorable publicity to the Company or Holdings, or any of their Affiliates; or (viii) Executive knowingly engaging in any act of material self-dealing without prior notice to and consent by the Board. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company.
iii. “Continuously Employed” means the absence of any interruption or termination of the Services provided by Executive to the Company.
iv. “Good Reason” means, without Executive’s consent: (i) material breach of this Agreement by either the Company or Holdings: (ii) a requirement that Executive relocate his primary place of employment to a geographic location outside of a seventy-five (75) mile radius from the Company’s location as of the Effective Date unless agreed to by Executive in writing; or (iii) a reduction in Executive’s annual base salary in a percentage greater than concurrent base salary reductions for similarly-situated executives; provided, however, that a resignation will be a resignation for Good Reason only if Executive shall have first provided written notice of the condition constituting Good Reason to the Board no later than sixty (60) days after Executive knew or should have reasonably known given his position with the Company of the existence of the condition and the Company or Holdings shall have failed to cure such condition within thirty (30) days of the Boards receipt of notice.
v. “Performance Year” means the calendar year during which the Executive’s performance is measured for the purpose of allocating a share of the Bonus Pool to Executive’s annual bonus, as determined by the Company in its sole discretion.
vi. “Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or governmental entity (whether federal, state, county, city or otherwise and including any instrumentality, division. agency or department thereof), including any group of Affiliated Persons.
(e) Expenses. The Company shall reimburse Executive for any reasonable travel and other out-of-pocket expenses incurred by Executive in the performance of his obligations hereunder, including travel, cell phone, dining and entertainment, and similar expenses; provided that such expenses shall have been documented and submitted in accordance with the regular reimbursement procedures and practices of the Company in effect from time to time. Travel expenses will be reimbursed within thirty (30) days of delivery of an expense report and applicable receipts.
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(f) Benefits. Executive shall be eligible to participate in all individual and group medical, dental, disability, life insurance, accidental death, savings, retirement and/or 401k plan and all other fringe benefits and executive perquisites generally provided to employees and/or other executives of the Company similar to Executive on terms and based on any required employee contributions no less favorable to Executive than as apply to other such employees and similar executives generally. Executive is entitled to four (4) weeks’ paid vacation during each calendar year, with the scheduling of such vacation to be determined in accordance with the Company’s vacation policies as in effect from time to time. If Executive does not take the full vacation available in any year, the unused vacation may not be carried over to the next calendar year, and Executive will not be compensated for it.
3. License Grant.
(a) Executive hereby grants to Company and its affiliates the right to trade off Executive’s name, reputation, likeness and background in promotional material aimed at marketing the Products to potential and current subscribers, as well as at seminars, conferences and any related events, during the term of this Agreement and for a period of five (5) years following the termination or expiration of this Agreement; provided, however, that in no event does this Agreement authorize Company or any of its affiliates to use Executive’s name, reputation, likeness and background in any manner that is negative or detrimental to Executive.
(b) Executive agrees that all intellectual property, including copyright and trademark, produced under this Agreement is considered work for hire and therefore is the sole property of Company and/or its affiliates.
(c) Executive agrees that all designs, trademarks, discoveries, formulas, processes, techniques, strategies, trade secrets, inventions, improvements, copyrightable works. and/or the like, including all rights to obtain, register, perfect and enforce these proprietary interests, that Executive may solely or jointly develop, conceive, or reduce to practice or author, in whole or in part, during Executive’s employment or association with Company or its affiliates that relate to his employment or association or are aided by the use of time, material, or facilities of Holdings, Company or their affiliates, whether or not during normal working hours, (“Inventions”) are the sole and exclusive property of Company and/or its affiliates and are considered works for hire under the U.S. Copyright Act, including. but not limited to, as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as editorial copy, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, as an atlas or as any other applicable category. Without compensation, Executive hereby assigns to Company his entire right, title, and interest in and to the Inventions, and agrees to execute all documents and take all other actions deemed necessary by Company to protect its rights in any such Inventions, including to vest Company or its designee with sole ownership of all Inventions. Executive represents and warrants that his development and use of the Inventions will not infringe, misappropriate or otherwise violate any intellectual property rights of any third party (including without limitation any of Company’s former employers) or any duty owed by Company to any third party (including without limitation any of Company’s former employers). To the extent allowed by applicable law, all rights to Inventions include all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral or the like (collectively, “Moral Rights”). To the extent Executive retains
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any such Moral Rights under applicable law, he hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by Company and agrees not to assert any Moral Rights with respect thereto. Executive will confirm any such ratification, consent or agreement from time to time as requested by Company. Executive shall return all tangible evidence of such Inventions, including, but not limited to, any papers, lists, books, files, and computer diskettes or CDs, to Company prior to or at the termination of this Agreement or extensions thereof, if any, with or without Company’s request, or upon Company’s written request.
4. Non-Compete and Confidential Information.
(a) Unless otherwise agreed to by the Board, Executive hereby agrees and covenants that he will not (i) write or contribute to the publication of any financial material, or (ii) directly or indirectly, engage in any business on behalf of himself or any other person, and whether as an owner, director, officer, employee, or consultant, which could be deemed competitive with the Products or other products owned by Company or Holdings or any of their Affiliates (hereinafter, “Compete”) while he is an employee of Company and for a period of two (2) years following the termination of such employment; (the “Non-Compete Term”); provided. however, that if Executive resigns for Good Reason or is terminated by the Company without Cause, then the Non-Compete Term shall expire upon such resignation or termination of employment. Any financial writing for a financial newsletter and/or Internet-related financial product is deemed per se competitive.
(b) During the Non-Compete Term, Executive also will not, directly or indirectly:
i. induce or encourage any employee or independent contractor of Holdings, Company or their affiliates to leave or reduce such employment or engagement, whether such employment or engagement is pursuant to a contract or at will, or, on his own behalf or on behalf of any person or entity, employ or engage in any capacity any former employee or independent contractor of Holdings, Company or their affiliates, unless such former employee or independent contractor will have ceased to be so employed or engaged by Holdings, Company or their affiliates for a period of at least one (1) year immediately prior to such employment or engagement; or
ii. on his own behalf or on behalf of any person or entity, solicit or call upon, or attempt to solicit or call upon, any customer of Holdings, Company or their affiliates (as of the date of termination of this Agreement), for the purpose of selling or providing any product or service which is competitive with any of the products owned, sold, managed or distributed by Holdings, Company or their affiliates.
(c) Confidential Information. Executive acknowledges and agrees that Holdings, Company and any of their Affiliates, in the course of performing their business activities, acquire and develop Confidential Information (as defined below) that provides them with a business advantage and that Executive will be provided with such Confidential Information during his association with Holdings, Company and any of their Affiliates. Executive agrees that he will not, directly or indirectly, at any time during or after the Term of this Agreement, use (whether on his own behalf or on behalf of any other person or entity) or disclose (to any person or entity) any Confidential Information, except as may be required by law or necessary in the performance of his duties for Holdings, Company or any of their Affiliates during the Term. “Confidential
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Information” means all confidential, proprietary, and non-public information (whether in written, electronic, or other form) of Holdings. Company or any of their Affiliates or third parties with whom Holdings, Company or any of their Affiliates do business (including without limitation investors, sources of investment capital, and suppliers of Holdings, Company or any of their Affiliates), including without limitation the following information of Holdings, Company or any of their Affiliates: trade secrets: business information; track record information; books and records used to calculate and present track record information; information regarding the assets and affairs of Holdings, Company or any their Affiliates; financial information; operating methods or strategies; portfolio holdings and performance; marketing plans or strategies; competitive know-how; processes; forecasts; investor lists or other investor-related information of any kind; subscriber lists or other subscriber-related information of any kind, and any other information of a similar nature not already in the public domain. Confidential Information also includes any information that becomes publicly available as a direct or indirect result of Executive’s breach of this Agreement or other obligation to Holdings, Company or any their Affiliates. Notwithstanding anything to the contrary in this Section 4(c), the provisions in this Section shall not apply to information that: (1) is in the public domain at the time of disclosure by Executive or is subsequently made available to the general public through no violation of this Section 4(c) by Executive; (2) is independently developed by Executive without use of or reference to the Confidential Information; (3) is disclosed with the prior written consent of the Holdings, Company or any of their Affiliates; or (4) is required to be disclosed by law or by regulatory, judicial or arbitration process. Executive will take all reasonable and necessary precautions to prevent disclosure of Confidential Information to unauthorized persons or entities. Executive further agrees to immediately notify the Holdings, Company or any of their Affiliates if he becomes aware that Confidential Information has been improperly used or disclosed. In the event Executive is requested or required (by oral questions, interrogatories, requests for Confidential Information or documents in a court or administrative proceeding, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information, Executive will, to the extent permitted under applicable law. (i) immediately (and prior to such disclosure) notify the Company by providing notice to the Company cooperate with Company (at Company’s sole expense) in any efforts by them to oppose such disclosure, and (ii) will disclose only that portion of the Confidential Information that is legally required to be disclosed and exercise reasonable efforts to ensure that such Confidential Information will be afforded confidential treatment. Executive acknowledges and agrees that Executive has not, and will not, acquire any right, title or interest in or to any of the Confidential Information.
Under the Defend Trade Secrets Act of 2016, the Company hereby provides notice and Executive hereby acknowledges that 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 (i) is made (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (B) is solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
5. Warrants, Covenants, Indemnity and Forfeiture.
(a) Executive hereby warrants and covenants that any editorial or promotional work produced under this Agreement by him shall not knowingly violate or infringe any copyright(s)
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and shall not knowingly contain anything libelous or otherwise contrary to the law. Executive also covenants and agrees to undertake best efforts to comply with any and all internal securities trading (such Securities and Cryptocurrencies Trading Policy attached hereto as Exhibit A to be executed by Executive concurrently with this Agreement), customer relations (such Customer Relations Policy attached hereto as Exhibit B to be executed by Executive concurrently with this Agreement), information barrier, and similar policies of the Company.
(b) Each of the Parties shall each have the right to take legal action against an unrelated third party in the event of any infringement or violation of the rights of the Party and each shall be solely responsible for its expenses in such suit. However, the Company agrees to provide a legal defense (including the payment of legal fees and any court ordered damages that are assessed against Executive) for legal claims asserted against Executive arising out of Executive’s employment with Company, unless such actions are in violation of this Agreement, applicable policies of the Company or Holdings, or applicable law.
(c) Executive shall indemnify and hold harmless Holdings, Company and their Affiliates for any losses resulting from a willful and intentional breach in bad faith of the warranties and covenants by Executive in Sections 3, 4 and 5, including reasonable attorney’s costs, suffered by Holdings, Company and/or their Affiliates. The Parties agree that the foregoing representations, covenants and indemnity by Executive shall not extend to any editorial, marketing or promotional materials Holdings or Company provides to Executive so long as Executive’s presentation of such material is consistent with the warranties and covenant described in Section 5(a) above.
(d) Executive represents and warrants to the Company that: (i) Executive has the full power and authority to enter into this Agreement and to incur and perform Executive’s obligations hereunder; and (ii) the execution, delivery and performance by Executive of this Agreement does not conflict with or result in a breach or violation of or constitute a default under (whether immediately, upon the giving of notice or lapse of time or both) any agreement or instrument to which Executive is a party or by which Executive may be bound or affected.
(e) The Company represents and warrants to Executive that: (i) it is duly organized, validly existing and in good standing under the laws of the State of Maryland, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted; (ii) it is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes qualification necessary; (iii) it has full power and authority to enter into this Agreement and to incur and perform its obligations hereunder; and (iv) the execution, delivery and performance by the Company of this Agreement does not conflict with or result in a breach or violation of or constitute a default under (whether immediately, upon the giving of notice or lapse of time or both) the articles of organization, bylaws, or operating agreement of the Company, or any agreement or instrument to which the Company is a party or by which the Company or any of its properties may be bound or affected.
(f) Holdings represents and warrants to Executive that: (i) it is duly organized, validly existing and in good standing under the laws of the State of Florida, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently
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conducted; (ii) it is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary; (iii) it has full power and authority to enter into this Agreement and to incur and perform its obligations hereunder; and (iv) the execution, delivery and performance by Holdings of this Agreement does not conflict with or result in a breach or violation of or constitute a default under (whether immediately, upon the giving of notice or lapse of time or both) the articles of organization, bylaws, or operating agreement of Holdings, or any agreement or instrument to which Holdings is a party or by which Holdings or any of its properties may be bound or affected.
6. Term and Termination.
(a) Term. Unless terminated earlier pursuant to the terms of this Agreement, Executive’s employment hereunder shall be effective as of the Effective Date, shall continue for ten (10) years after the Effective Date (the “Initial Term”), and shall automatically renew for additional one (1) year renewal periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”); provided, however, at any time within one hundred eighty (180) days prior to the expiration of the Initial Term or any subsequent Renewal Term. any Party may (1) request the other to negotiate the terms of a renewal of this Agreement or (2) elect not to renew the Agreement by providing written notice to the other Parties. Notwithstanding the foregoing. none of the Parties shall be obligated to renew this Agreement beyond the Initial Term or any subsequent Renewal Term, as applicable.
(b) Termination. Any Party may terminate Executive’s employment at any time in accordance with the applicable provisions herein, provided that: (i) the Company shall provide Executive sixty (60) days prior written notice in the event the Company terminates Executive without Cause; or (ii) Executive shall provide the Company with ninety (90) days prior written notice before terminating his employment,in which case, for the avoidance of doubt, the Company may relieve Executive of some or all of his duties (which shall not trigger Good Reason) during such 90-day notice period provided that the Company pays Executive his salary, bonuses, benefits and any compensation due to Executive for the portion of the notice period that is waived. Upon termination of Executive’s employment, for any reason, he shall receive any unpaid Base Salary through the date of termination and reimbursement for any expenses incurred through the date of termination pursuant to Section 2(f) along with any benefits through such date.
i. If during the applicable Performance Year, Company terminates the Executives employment for any reason other than for Cause (including due to Executive’s disability) or Executive dies, then Executive shall receive a prorated bonus, as applicable, based on the date of termination or death occurring in the applicable Performance Year. If during the applicable Performance Year. Executive resigns without Good Reason or Company terminates the Executive’s employment for Cause, then Executive shall not receive and Executive shall not be entitled to any bonus, nor any portion thereof.
ii. Any Profits Interests rights granted to Executive by Holdings that are unvested as of the date on which Executive’s employment terminates shall automatically be forfeited and Executive shall have no further rights with respect to such award.
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iii. Executive acknowledges and agrees in the event that Executive breaches Section 4 of this Agreement, such breach shall constitute grounds for termination of Executive's employment for Cause. If Executive breaches Section 4 and such breach either (1) results in the termination of Executive’s employment with the Company or (2) occurs following the termination of Executive’s employment with the Company. then the following shall occur: all compensation and benefits otherwise payable pursuant to this Agreement and the vesting and/or exercisability of applicable bonuses, Profits Interests, and other forms of compensation previously awarded to Executive, shall immediately cease; and any and all Profits Interests in described herein shall be immediately forfeited by Executive.
iv. In the event that before the third anniversary of the Effective Date (a) the Company terminates the Executive's employment for any reason other than termination for Cause, (b) there is a Change in Control of the Company that results in the Involuntary Separation from Employment of the Executive by the Company or its successor, or (c) Executive resigns for Good Reason, then the Executive shall have the following rights and benefits subject to Executive’s execution, delivery and non-revocation of a general release of claims in a form approved by the Company: (1) Executive shall be entitled to any unpaid salary, bonuses, benefits and any compensation due to Executive through the date of termination of employment and reimbursement for any expenses incurred before such date pursuant to Section2(f); and (2) Executive shall receive one (1) year of Base Salary less applicable deductions and withholdings which shall be paid pursuant to the terms of the Company’s regular payroll schedule, and the extension of Executive’s benefits (excluding vacation time and paid time off) for a period of one (1) year following the date of termination. For the purpose of this Section 6(b)(iv), the following definitions shall apply:
A. “Involuntary Separation from Employment” shall be defined as either: (i) termination without Cause; or (ii) a reduction in Executive’s title, responsibilities or authority (unless agreed to in advance by Executive in writing) resulting from duplication of the Executive’s position by another equivalent executive employed by the Company.
B. “Change in Control” shall be defined as (i) the sale of all or substantially all of the assets Holdings: (ii) any merger or acquisition of Holdings with, by or into another corporation, or (iii) any change of ownership of more than fifty percent (50%) the equity interests in Holdings in one or more related transactions. Notwithstanding the foregoing, for purposes of this Section, the following shall not be considered a Change in Control: (x) the completion of a public offering of the equity interests of Holdings or any change in the composition of the Board or the Board of Directors of Holdings within one (1) year following such public offering: or (y) the merger of Holdings with, by or into another corporation or a sale of fifty percent (50%) or more of the equity interests in Holdings in one or more related transactions where the ability to elect the Board of Directors of Holdings or determine the strategic direction of Holdings is retained by the current equity holders of Holdings or a portion thereof.
7. Assignment of Agreement. Executive’s services and functions are considered unique. This Agreement or any rights or obligations herein may not be assigned or otherwise transferred by
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Executive to any other party without the prior written consent of Company and Holdings, which consent shall not be unreasonably withheld.
8. Indemnification; Insurance. During Executive’s employment and thereafter, the Company shall indemnify and hold Executive harmless against any costs or expenses (including attorneys’ fees), judgments, fines, penalties, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, by reason of the fact that Executive is or was a Board member, manager, director, officer, employee or agent of the Company or any Affiliate, whether asserted or claimed prior to, at or after the date of Executives termination of employment, to the fullest extent permitted under applicable law and on a basis no less favorable than what is provided to any other continuing officer or director of the Company; provided, however, that Executive acted in good faith and in a manner Executive reasonably believed to be in or not opposed to the best interests of the Company; or was acting in good faith reliance upon the records of the Company, including its financial statements, or upon information, opinions, reports or statements furnished to Executive by the Board, officers or employees of the Company, or Holdings, or any of their Affiliates in the course of their duties, or by committees of the Board, or by any other person (including legal counsel, accountants and financial advisors) who has been selected with reasonable care by or on behalf of the Company or Holdings or any of their Affiliates; or in the case of a criminal proceeding or claim, had no reasonable cause to believe Executive’s conduct was unlawful. During Executive’s employment and thereafter, Company shall provide Executive with coverage under a policy of directors’ and officers’ liability insurance that provides Executive with coverage on the same basis as is provided for the Company’s continuing officers and directors from time to time, in the event Company decides to obtain such coverage.
9. Integration, Amendments and Modifications. This Agreement sets forth the entire agreement among the Parties hereto with respect to the subject matter herein and supersedes all prior and contemporaneous understandings, agreements representations and warranties, both written and oral, with respect to such subject matter. The Parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement. This Agreement may not be amended or modified except by a writing duly executed by the Parties hereto.
10. Confidentiality. The Parties agree that this Agreement is confidential and, except as otherwise required by law or court order, no party shall disclose the terms herein to anyone, including any employee of Company or Holdings. Notwithstanding the foregoing, Company may disclose the terms of this Agreement to senior management of Company and Holdings. Executive may disclose this contract to his immediate family member and his legal and financial representatives provided such disclosures are protected by professional codes of conduct or signed confidentiality agreements.
11. Severability; Provisions Subject to Applicable Law. All provisions of this Agreement shall be applicable only to the extent that they do not violate any applicable law. If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, such provision will be enforced to the maximum extent permissible and the remainder of the Agreement will remain in full force and effect according to its terms.
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12. Arbitration. The Parties agree that any dispute arising from or relating to this Agreement, or the breach thereof, shall be submitted to the American Arbitration Association (“AAA”) for binding arbitration to take place in Baltimore, Maryland before a single arbitrator under the rules of the AAA Employment Arbitration Rules and Mediation Procedures, and the decision of the arbitrator shall be final and binding upon the Parties. Notwithstanding the foregoing, in the event of any Party’s breach of any of the covenants set forth in Sections 3, 4, 5 or 8, a Party shall have the right to obtain injunctive relief from any federal or state court of competent jurisdiction located within Baltimore County, Maryland and will not be required to arbitrate any claim for the breach of such Sections. Accordingly. except as provided in the prior sentence, the Parties will not be permitted to pursue court action regarding claims that are subject to arbitration.
13. Governing Law; Venue. This Agreement and the rights and obligations of the Parties hereto shall be governed, construed, interpreted and enforced in accordance with the laws of the State of Maryland, without giving effect to the principles of conflict of laws. The Parties hereto hereby irrevocably submit to the exclusive jurisdiction of the federal or state courts located within Baltimore County, Maryland in the event that (1) a Party seeks injunctive relief with respect to a breach of any of the covenants set forth in Sections 3, 4, 5 or 8 or (2) a Party seeks to enforce an arbitration award. In the event of a breach of the covenants set forth in Sections 3, 4, 5 or 8, the Parties agree that, in addition to any other remedies available at law or equity, a Party may file litigation against another Party seeking specific performance and temporary and/or preliminary injunctive relief, enjoining or restraining such breach, and the Parties consent to the issuance of such injunctive relief without bond. The Parties agree that if a Party initiates litigation seeking to enforce an arbitration award, the Party initiating such litigation shall be entitled to recover from the other Party reasonable attorney’s fees and costs incurred in such litigation, including all reasonable and necessary attorneys fees and costs arising from a successful appeal. The Parties consent to the personal jurisdiction of such courts and thereby waive: (a) any objection to jurisdiction or venue; or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.
14. Section 409A.
(a) The intent of the parties is that payments and benefits under this Agreement comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Section 409A”) and the Company shall have complete discretion to interpret and construe this Agreement and any associated documents in any manner that establishes an exemption from (or compliance with) the requirements of Section 409A. If for any reason, such as imprecision in drafting. any provision of this Agreement (or of any award of compensation, including, without limitation, equity compensation or benefits) does not accurately reflect its intended establishment of an exemption from (or compliance with) Section 409A, as demonstrated by consistent interpretations or other evidence of intent, such provision shall be considered ambiguous as to its exemption from (or compliance with) Section 409A and shall be interpreted by the Company in a manner consistent with such intent, as determined in the discretion of the Company.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits that are considered nonqualified deferred compensation under Section 409A upon or following a
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termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A, and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “such a separation from service.” The determination of whether and when a separation from service has occurred for proposes of this Agreement shall be made in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulations.
(c) For purposes of Section 409A, Executive’s right to receive any installment payments shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (for example, “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within sole discretion of the Company. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent such payment is subject to Section 409A.
(d) If Executive is a “specified employee” (as that term used in Section 409A) on the date the separation from service becomes effective and the payment of the amounts under this Agreement payable upon a separation compensation, the payment of which would result in additional taxes or penalties under Section 409A, then such payments shall be delayed until the first business day following the six (6)-month anniversary of the date the separation from service becomes effective, but only to the extent necessary to avoid such additional taxes or penalties under Section 409A. On the first business day following the six (6) month anniversary of the date the separation from service becomes effective, the Company shall pay Executive in a lump sum the aggregate value of the nonqualified deferred compensation that the Company otherwise would have paid prior to that date under this Agreement.
(e) The provisions of this Agreement are intended to be exempt from or otherwise comply with Section 409A and will be operated and administered in accordance with such intent.
15. Waiver. No waiver by the Parties of any breach by a Party hereto of any condition or provision of this Agreement to be performed by such Party shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by a Party in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
16. Survival. Notwithstanding anything to the contrary in this Agreement, Sections 2, 3, 4, 5, 6(b), 8 and 10 through 24 will survive the termination of Executive’s employment and the termination or expiration of the Term, as shall all other Sections herein that by their nature contemplate survival beyond the termination of Executive’s employment with the Company.
17. Notice. Any notice, demand, request or other communication which Executive or Company may be required to give the other Party hereunder shall be in writing, shall be effective and deemed received the following business day when sent by overnight mail, upon transmission
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if sent by e-mail, or the third business day after deposited in first class United States mail, postage prepaid. The current contact information for each Party is:
For Company:
Mark Arnold
Chief Executive Officer
1125 N. Charles Street
Baltimore, MD, 21201
Email: marnold@stansberryholdings.com
With a copy to:
Gary Anderson
General Counsel
1125 N. Charles Street
Email: ganderson@beaconstreetsenrices.com
For Executive:
Dale Lynch
9648 Maymont Drove
Vienna. Virginia 22182
Email: rdlynch1764@gmail.com
18. Headings. The headings used in this Agreement are solely for convenience of reference and shall not affect its interpretation.
19. Construction. The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against drafting Party shall not apply in the interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one instrument.
21. Prevailing Party. In the event any dispute arises out of or relating to this Agreement, whether in law or equity,the prevailing Party shall be entitled to recover, in addition to the relief awarded, its reasonable attorneys fees, paralegals’ fees and costs, at all levels whether pursuant to an arbitration proceeding, at trial, on appeal, or in bankruptcy.
22. Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
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23. Further Assurances. If any further action is necessary or desirable to carry out the purposes of this Agreement, each Party agrees to take such further action (including the execution and delivery of such further instruments and documents) as the other Party may request, all at the sole cost and expense of the requesting Party.
24. Signature. A signed copy transmitted via e-mail or an electronic signature is presumed authentic and will be accepted as an original unless shown to be invalid by the other Party. This Agreement may be executed in two or more counterparts, each of which counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement so as to be made effective as of the Effective Date.
| Beacon Street Services, LLC | ||||||||||||||
| By: | /s/ Mark Arnold | |||||||||||||
| Name: | Mark Arnold | |||||||||||||
| Its: | Authorized Agent | |||||||||||||
| S&A Holdings (2013), LLC | ||||||||||||||
| By: | /s/ Mark Arnold | |||||||||||||
| Name: | Mark Arnold | |||||||||||||
| Its: | Authorized Agent | |||||||||||||
| /s/ Dale Lynch | ||||||||||||||
| Dale Lynch | ||||||||||||||
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Confidential
EXHIBIT A - SECURITIES AND CRYPTOCURRENCIES TRADING POLICY
This Securities and Cryptocurrencies Trading Policy (the “Policy”) applies to all employees and independent contractors of the Company. For purposes of this Policy, the term “securities” includes all digital assets, cryptocurrencies and “utility tokens,” as well as derivatives (e.g., options and futures) on securities and cryptocurrencies.
NO PERSONALIZED ADVICE
• You may not give personalized investment advice to customers of the Company.
• You may not engage in discussions about securities or cryptocurrencies with any individual customer.
• You may address customer service issues that do not involve recommending securities or cryptocurrencies.
EDITORIAL PROCESS
Special restrictions apply to writers (including editors, any member of the editorial team, copywriters, and any other employees or independent contractors) involved in selecting securities or cryptocurrencies for recommendations for publication or promotion. The Policy for writers and other such individuals is as follows:
• You may not participate in the selection of a security or cryptocurrency recommendation for publication in which you have a direct or indirect interest.
• You may not purchase a security while it is an open recommendation for subscribers if you participated in the selection of that security or cryptocurrency recommendation.
For all employees and independent contractors of the Company who are aware of unpublished security and cryptocurrency recommendations:
• You may not take a benefit of any kind in exchange for passing on knowledge of an upcoming, unpublished recommendation by the Company to a third party.
PERMISSIBLE & PROHIBITED TRADING
Because the Company and its affiliates publish a wide variety of financial information, it is unrealistic to expect that all employees and independent contractors ensure that they are not invested in any unpublished recommendation to purchase or sell a security. However, to the extent that such information is known by you, you are expected to abide by the following restrictions:
• You must wait a full 24 hours after a published securities or cryptocurrency recommendation is posted by Company on the Internet before trading based on the security or cryptocurrency recommendation, so as to allow our readers a reasonable first opportunity to trade on our recommendation.
• Similarly, you may not increase your holdings in any security or cryptocurrency based upon knowledge obtained in the course of your employment/engagement with Company that Company intends to publish a new buy recommendation, such as an editorial instruction to “buy more” or a promo that will more widely disseminate existing “buy” instructions.
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• Likewise, you may not decrease your holdings in a security or cryptocurrency based upon knowledge obtained in the course of your employment/engagement with Company that Company intends to publish a new sell recommendation, such as an editorial instruction to “sell” or a promo that will more widely disseminate existing “sell” instructions.
EXEMPTIONS
The above Policy restrictions do not apply to the following securities, cryptocurrencies and other assets which may be traded at any time by any Company employee or independent contractor, including writers:
• Mutual funds (including ETFs), money market funds and unit investment trusts invested exclusively in one or more mutual funds;
• Educational savings plans (i.e., 529 plans);
• Futures and options on broad-based securities indexes (e.g., S&P 500 futures);
• Accounts managed by an independent third party without prior input from an employee or independent contractor of the Company (i.e., managed by an investment adviser acting with discretion);
• Automatic transactions (e.g., reinvested dividends);
• Bitcoin;
• Ethereum; and
• Investments in physical commodities, such as precious metals (e.g., coins, although the Policy applies to options on gold), silver, currency or real estate (e.g., a hard asset like a house, although it would apply to a REIT).
The Company may add to the list of securities and cryptocurrencies exempt from this Policy from time to time, through e-mail or other written communications to employees and independent contractors.
The Company will not condone, and does not wish to be accused of condoning, any of the above-mentioned prohibited practices. The Company will not assist any employee or independent contractor who violates this Policy, and the Company and/or its affiliates may serve as a witness against a violator.
I have read and understand the Securities and Cryptocurrencies Trading Policy. I shall comply with the above stated policy and all securities regulations.
| Signed: | /s/ Dale Lynch | Date: | 11/5/19 | ||||||||||||||
| Print Name: | Dale Lynch | ||||||||||||||||
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EXHIBIT B-CUSTOMER RELATIONS POLICY
This Customer Relations Policy (the “Policy”) applies to all employees and independent contractors of the Company. The purpose of this Policy is to avoid any perception that you, as a representative of the Company, are engaging in communications in your capacity as a representative of the Company or otherwise for compensation for the purpose of providing individualized investment advice to any person (“Customer”). Exceptions to this Policy are addressed below.
This perception alone – even without the commission of any violative act – endangers the Company’s essential qualification for the “publisher’s exclusion” and therefore strict adherence to this Policy is required, The Company’s ability to rely upon the publisher’s exclusion relies upon, among other things, communications from the Company/Company personnel regarding securities and any other investments1 (collectively, “Securities”) remaining entirely impersonal and not tailored to any individual’s (or specific group of individuals’) circumstances.
If you have any questions or concerns regarding this Policy, please contact the Company’s legal department.
CORRESPONDENCE
You are not at any time for any reason to correspond with any Customer for the purpose of providing investment-related advice that is tailored to the individual needs of a specific individual or group. Prohibited correspondence activities in this regard include, but are not limited to, the following examples:
a. Sending an e-mail/letter to a Customer which relates to, or has the potential to relate to, an individualized, investment-related advice topic;
b. Engaging in a phone conversation with a Customer which relates to, or has the potential to relate to, an individualized, investment-related advice topic;
c. Meeting or speaking with a Customer regarding an individualized, investment-related advice topic;
d. Communicating with a Customer through a customer service representative regarding an individualized, investment-related advice topic (for example, this means that you may not write a response to a Customer over e-mail and have a customer service representative forward your response to the Customer, nor may you receive a Customer inquiry e-mail from a customer service representative and then respond directly on your own).
If you do receive such an e-mail/letter/phone call from a Customer, please forward it immediately to a customer service representative or a telesales agent for further assistance.
You may read e-mails/letters from a Customer but you may not respond directly to them if such a response could be interpreted as providing individualized, investment-related advice.
1 For example and without limitation, other investments may include cryptocurrencies, digital assets, utility tokens, or derivatives (e.g., options and futures).
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CONFERENCES, SEMINARS, MEETUPS AND INTERNET CHAT FUNCTIONS
You are not at any time, for any reason, to give individualized investment advice on any Security to attendees of any Company sponsored event, seminar, meetup or conference or otherwise through any internet chat function as a representative of the Company. Rendering individualized investment advice is considered outside your scope of authority as a representative for the Company.
a. As an example, this means that you are not to engage in one-on-one conversations with any attendee or chat participant that discusses the subject of investing in any type of Security whatsoever or that discusses an attendee’s personal financial situation or portfolio. Examples of questions that should not be answered: “How much money do you think I need to work your strategy?”; “If you had $X to invest in the market, what would you do?”; “Right now, I’m holding shares of ABC Company, what should I do with them?”; ·What do you think is the best way to make 20% in the next two months?”; “What do you see ABC Company doing in the next six months?”
b. Attendees may ask questions after the Company representative has finished their presentation. In such situations, either: (1) you should inform attendees before you take questions that you cannot answer questions designed to elicit personalized investment advice or (2) if an attendee’s question seeks personalized investment advice, you should remind the audience that you cannot give personalized investment advice and answer the question in a generalized way, if possible.
It is especially important to be aware and mindful of these rules when attending social events that are sponsored by the Company (e.g., cocktail receptions, luncheons and dinners). standing at a vendor booth that attendees may approach or simply conversing with individuals before or after a lecture. It is very easy for an attendee to wander over and attempt to solicit your opinion for individualized investment advice during these events.
EXCEPTIONS
The Legal Department, in consultation with the Chief Executive Officer of S&A Holdings (2013), LLC, has the sole authority to grant exceptions from any provision of this Policy to an employee or independent contractor of the Company. Any such exception, which shall be infrequently granted, shall be based upon a determination that such exception would not conflict with the interests of the Company in general and would not endanger the Company’s reliance upon the publisher’s exclusion.
| Signed: | /s/ Dale Lynch | Date: | 11/5/19 | ||||||||||||||
| Print Name: | Dale Lynch | ||||||||||||||||
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Exhibit 10.15
EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is effective as of July 30, 2018 (the “Effective Date”) by and between S&A Holdings (2013), LLC, a limited liability company doing business under the laws of Florida (the “Company” or “Holdings”) and Marco Ferri, an individual residing in the State of Florida (“Executive”). Holdings and Executive are collectively referred to herein as the “Parties” and each individually as a “Party.”
RECITALS
WHEREAS, the Company manages and operates several financial research and publishing businesses and other entities, including, but not limited to, Stansberry & Associates Investment Research, LLC, TradeSmith, LLC, Legacy Research Group, LLC (and its subsidiaries and affiliates), Empire Financial Research, LLC, InvestorPlace Media, LLC, KOC Publishing, LLC, VRSH, LLC and any other entities created by the Company hereafter that publish several products and services (any and all publications and services provided by the businesses and entities managed and operated by the Company are hereinafter referred to as the “Products”); and
WHEREAS, Company wishes to employ Executive as its Director of Business Development, and Executive has agreed to such employment, on the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements of the Parties herein contained and other good and valuable consideration as provided below, the Parties hereby agree as follows:
TERMS
1. Executive’s Performance and Understanding.
(a) During the term of the Executive’s employment under this Agreement, Company shall employ the Executive, and the Executive shall serve Company, as the Director of Business Development of Company reporting directly to the Chief Executive Officer (“CEO”) of the Company.
(b) Executive may reside and be based in the Miami, Florida area.
(c) The Executive shall perform services and duties (“Services”) at the direction of the CEO which Services shall be reasonably suited for the position and title held by the Executive and shall include, without limitation, the following:
i. Identify and evaluate, both independently and in collaboration with the executive team, potential opportunities for acquisition.
ii. Build and maintain relationships with industry and professional networks.
iii. Lead all non-legal aspects of the acquisition process, including coordination of internal working groups, management of external advisors, develop relationships with target company management teams, agreement negotiations and due diligence process.
iv. Analyze and recommend strategic direction for company acquisitions with the Company’s senior management.
v. Lead post-acquisition integration and oversee all post-closing activities.
vi. Lead strategy of identifying and incorporating acquisition targets into overall strategy for a Holdings Strategic Transaction (as hereinafter defined).
vii. Work closely with the executive team in connection with a Holdings Strategic Transaction strategy, including improving processes across the organization, and developing strategic objectives with the goal of maximizing the Company’s profile for a Holdings Strategic Transaction.
viii. Working with external advisors and audit team to prepare for a Holdings Strategic Transaction; and
ix. Use legal experience to assist Company’s legal department on improving corporate governance and overall legal support.
2. Compensation. In consideration of Executive’s performance of the Services, the Company shall compensate Executive as follows:
(a) Salary. Executive shall initially receive an annual salary of $500,000.00 (the “Base Salary”). Base Salary payments shall be payable to Executive in accordance with the normal payroll practices and schedule of the Company, less applicable deductions and withholdings. Following the date when the Executive receives equity incentive compensation as referenced in Section 2(e), the Executive’s Base Salary shall be treated as guaranteed payments and without any deductions and withholdings. Executive understands that upon said change in treatment, he will be responsible for any self-employment taxes arising from payments of his guaranteed payment or any bonus amounts from the Company and that he shall no longer be treated as an employee of Company for purposes of federal or state income or employment tax withholding and reporting. This Base Salary shall be periodically reviewed by the Board of Managers of Company (the “Board”) and adjusted upward or downward by the Board as the Board deems appropriate in its sole discretion; provided that any adjustment downward shall only be permitted if the same adjustment is being made to all other similarly situated executives of the Company.
(b) Bonus Pool. Executive will be eligible to participate in the annual executive bonus pool (the “Bonus Pool”), which is usually based on the Company’s Net Income and from which such bonus payments are determined by the Company in its sole discretion. Executive must be an employee of the Company on the date any Bonus Pool payments are made, if any, in order to earn such bonus.
(c) Acquisition Transaction Performance Bonus. Subject to Executive’s continued employment and unless otherwise agreed to in writing between Executive and Company with respect to a certain Acquisition Transaction (defined below), Executive shall receive a bonus payable in installments (an “Acquisition Transaction Performance Bonus”) for each occurrence of the Company’s (or a subsidiary of Company’s) merger or acquisition of a target company (an “Acquisition Target Entity,” and each such merger or acquisition, an “Acquisition Transaction”). Prior to entering into an Acquisition Transaction, Executive and Company shall memorialize the Acquisition Transaction Performance Bonus in a form mutually agreed to by the Parties in a form substantially similar to the Acquisition Schedule document attached hereto as Exhibit A. Unless otherwise agreed to in writing by the Parties, Executive shall be paid the Acquisition Transaction Performance Bonus in an amount of up to five percent (5.0%) of the “Enterprise Value” (defined below) of the Acquisition Target Entity that is the subject of each Acquisition Transaction that is consummated as follows:
1. Executive shall be paid two percent (2.0%) of the “Enterprise Value” (defined below) of the Acquisition Target Entity upon the closing date of the Acquisition Transaction;
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2. Executive shall be paid one percent (1.0%) of the Enterprise Value of the Acquisition Target Entity if, as of the expiration of the indemnification period contained in the Acquisition Transaction documents, which shall be at least six months to one year depending on transaction conditions, or greater if representation and warranty insurance is purchased for the Acquisition Transaction, the aggregate amount of any indemnity claims and adverse Purchase Price adjustments totals no more than 5% of the Purchase Price for the Acquisition Target Entity; and
3. Executive shall be paid two percent (2.0%) of the Enterprise Value of the Acquisition Target Entity if, on the earlier of the third or fourth anniversary of the closing date of the Acquisition Transaction, the product of the Aggregate Net Income of the Acquisition Target Entity as measured from the closing date of the Acquisition Transaction multiplied by Holdings’ (or any of its Affiliate’s) ownership percentage of the Acquisition Target Entity, exceeds the Purchase Price of the Acquisition Target Entity.
In those instances where the Acquisition Transaction Performance Bonus could exceed $2 Million Dollars based on the Enterprise Value of the Acquisition Target Entity (i.e. $40,000,000 or more), the above calculation shall not apply and the Parties shall, in good faith, negotiate and agree in writing to a different calculation or structure, but in no event shall Executive receive less than $2 Million Dollars for the Acquisition Transaction Performance Bonus in such instances where the calculations under Sections 2(c)(1) through (3) above would have resulted in an Acquisition Transaction Performance Bonus equal to or greater than $2 Million Dollars (notwithstanding the fact that such calculations shall not be used in calculating or structuring the Acquisition Transaction Performance Bonus).
Any such Acquisition Transaction Performance Bonus payments shall be made within 60 days of the determination (such date of determination, the “Determination Date”) that such payment has been earned and is due to Executive; provided, however, that Executive must be an employee on the Determination Date of any Acquisition Transaction Performance Bonus in order to earn such bonus. For the avoidance of doubt, if Executive is not employed on the Determination Date (except in the case of Executive’s death or Disability or if Executive is terminated without Cause), then Executive shall have no rights to any payments under this Section. In the event Executive is not employed on the Determination Date because of Executive’s death or Disability or Executive is terminated without Cause, Executive (or his estate) shall receive any Acquisition Transaction Performance Bonus due as if Executive had been employed on such Determination Date.
(d) Joint Venture Performance Bonus. Subject to Executive’s continued employment and unless otherwise agreed to in writing between Executive and Holdings with respect to a certain Joint Venture Transaction (defined below), Executive shall receive a bonus payable in installments (a “Joint Venture Performance Bonus”) for each occurrence of the Company’s or Holding’s creation of a joint venture entity by Company or an Affiliate (each such joint venture, a “Joint Venture Entity,” and each such joint venture formation, a “Joint Venture Transaction”). Prior to entering into a Joint Venture Transaction, Executive and Company shall memorialize the Joint Venture Performance Bonus in a form mutually agreed to by the Parties in a form substantially similar to the Joint Venture Schedule document attached hereto as Exhibit B. Unless otherwise agreed to in writing by the Parties, Executive shall be paid the Joint Venture Performance Bonus based on the Aggregate Net Sales
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(defined below) of the applicable Joint Venture that is the subject of each such Joint Venture Transaction that is consummated as follows:
| Total Aggregate Net Sales | Total Joint Venture Performance Bonus | Payable at 1 year anniversary from Launch | Payable at 2 year anniversary from Launch | Payable at 3 year anniversary from Launch | ||||||||||
| Less than $5 million | $0 | N/A | N/A | N/A | ||||||||||
| Between $5M and %9.99M | $300,000 | $120,000 | $60,000 | $120,000 | ||||||||||
| Between $10M and $14.99M | $400,000 | $160,000 | $80,000 | $160,000 | ||||||||||
| $15M or greater | $500,000 | $200,000 | $100,000 | $200,000 | ||||||||||
Any such Joint Venture Performance Bonus payments shall be made within 60 days of the applicable anniversary date set forth above (each such date, the “Anniversary Date”); provided, however, that the Joint Venture Entity must be active and the Executive must be an employee on the Anniversary Date for any Joint Venture Performance Bonus in order to earn such bonus. For the avoidance of doubt, if Executive is not employed on the Anniversary Date (except in the case of Executive’s death or Disability or if Executive is terminated without Cause), then Executive shall have no rights to any payments under this Section. In the event Executive is not employed on the applicable Anniversary Date because of Executive’s death or Disability or Executive is terminated without Cause, Executive (or his estate) shall receive any Joint Venture Performance Bonus due as if Executive had been employed on such Determination Date.
(e) Equity Incentive Compensation. The Executive shall receive equity incentive compensation with respect to the Company pursuant to the equity incentive compensation plan documents to be adopted by the Company or such other agreements entered into between the Company and Executive.
(f) Separation Bonus Right. If Executive dies or the Company terminates Executive’s employment for any reason (including due to Executive’s Disability) other than for Cause, and subject to Executive’s execution, delivery and non-revocation of a general release of claims in the current form approved by the Company and attached as Exhibit C (subject to any amendments required by law or regulation) (the “Release”) which shall be provided to Executive by the Company no later than five (5) business days after the last date of employment, and executed by Executive either twenty-one (21) days or forty-five (45) days thereafter (in accordance with applicable law), before the sixtieth (60th) day following the last date of employment, the Company will pay Executive an amount (the “Separation Bonus”) equal to three (3) years of Base Salary, less any Base Salary amounts previously paid during the Term prior to such termination; provided, however, that in no event shall any such severance amount paid to Executive during the first three (3) years of the Initial Term be less than $500,000. The Separation Bonus, if any, will be paid in three (3) equal annual installments, with the first instal1ment being paid within ten (10) days following the date on which the Release becomes effective and binding upon Executive and each subsequent installment being paid on each anniversary of the last day of Executive’s employment so long as Executive is in compliance with Executive’s obligations set forth in Sections 3,4 and 5. If the sixty (60) day period in which to sign the Release begins in one calendar year and ends in a later calendar year, the Separation Bonus will commence to be paid in the later calendar year. In no event may Executive designate the year in which the Separation Bonus will be paid. If Executive properly
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executes the Release by the deadline set forth above and does not effectively revoke the executed Release within the applicable revocation period set forth in the Release, then the Company shall execute the Release within eight (8) days of its delivery by Executive. If Executive does not properly execute the Release by the deadline set forth above, or effectively revokes the executed Release within the applicable revocation period set forth in the Release, Executive (or Executive’s estate) will not be entitled to any Separation Bonus.
(g) Definitions. As used in this Agreement, the following terms shall have the following meanings:
i. “Affiliate” or “Affiliated” of or with any specified entity or Person means any other entity or Person controlling, controlled by or under common control with such specified entity or Person. For purposes of this definition, “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of any specified entity or Person, whether through the ownership of voting securities, by contract or otherwise, and such “control” will be presumed if any other entity or Person owns a majority or more of the voting capital stock or other ownership interests, directly or indirectly, of such specified entity or Person.
ii. “Aggregate Net Income” means the total net income of the Acquisition Target Entity realized from the closing date of the Acquisition Transaction up through the applicable measuring date.
iii. “Aggregate Net Sales” means aggregate gross sales revenue earned by a Joint Venture Entity in the first 12 months following Launch minus the amount of any refunds paid by the Joint Venture Entity in such calendar year.
iv. “Cause” means any of the following: (i) Executive’s repeated and gross failure to perform his material duties under this Agreement, after written notice of such non- performance has been given by Company to Executive with thirty (30) days to cure such non- performance; (ii) use of illegal drugs by Executive; (iii) Executive’s commission of a felony, a crime of moral turpitude or a misdemeanor involving fraud or dishonesty (for avoidance of doubt, a single driving while intoxicated (or other similar charge) shall not be considered a felony or crime of moral turpitude); (iv) Executive’s perpetration of any act of fraud or material dishonesty against or affecting the Company, any of its Affiliates, or any customer, agent or employee thereof; (v) Executive’s material breach of fiduciary duty or material breach of this Agreement, after written notice of such breach has been given by Company to Executive with thirty (30) days to cure such breach; (vi) Executive’s repeated insolent or abusive conduct in the workplace, including but not limited to harassment of others of a racial or sexual nature after notice of such behavior; (vii) Executive knowingly taking any action which is intended to materially harm or disparage the Company, its Affiliates, or their reputations, or which would reasonably be expected to lead to unwanted or unfavorable publicity to the Company or any of its Affiliates; or (viii) Executive knowingly engaging in any act of material self-dealing without prior notice to and consent by the Board. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by Executive in good faith and in the best interests of the Company.
v. “Disability” means Executive’s inability, due to physical or mental incapacity, to perform the essential functions of his job, for ninety (90) days, whether or not consecutive, in any twelve (12) month period. Any question as to the existence of Executive’s Disability as to which Executive and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to Executive and the Company. If Executive and the Company cannot agree as to a qualified
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independent physician, each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of Disability made in writing to the Company and Executive by an independent physician in accordance with this Section 2(g)(v) shall be final and conclusive for all purposes of this Agreement. The Company shall have the right to terminate the employment of Executive under this Agreement for Disability during the Term if, in the opinion of the independent physician, Executive meets the definition of Disability set forth in this Section 2(g)(v). In case of Executive’s termination by the Company pursuant to Executive’s Disability, Executive shall be entitled to receive such salary, bonuses, benefits, and reimbursable expenses owing to Executive through the date of termination as set forth in this Agreement. Upon payment to Executive of all accrued but unpaid salary, bonuses, benefits, and reimbursable expenses owing to Executive through the date of termination of Executive’s employment as set forth in this Agreement, the Company shall have no further obligation to Executive.
vi. “Enterprise Value” shall be determined by Holdings or any of its Affiliates and the seller of the Acquisition Target Entity at the time of the Acquisition Transaction and documented in the definitive documents for such Acquisition Transaction and in the Acquisition Schedule in the form attached as Exhibit A. In no event shall the Enterprise Value be less that an amount equal to the Purchase Price paid for an Acquisition Transaction divided by Holdings’ (or any Affiliate’s) ownership percentage of the Acquisition Target Entity.
vii. “Good Reason” means, without Executive’s consent: (i) material breach of this Agreement by Company; (ii) a requirement that Executive relocate his primary place of employment to a geographic location outside of a seventy (70) mile radius from either (i) the Company’s location in Baltimore, Maryland or (ii) an Affiliate’s office location in Delray Beach, Florida, as of the Effective Date; (iii) a requirement that Executive relocate his primary place of employment to a geographic location outside of Miami-Dade County, Florida; (iv) if both Porter Stansberry and Mark Arnold shall cease to be employed by the Company, or (v) a reduction in Executive’s title or authority (unless agreed to in advance by Executive in writing); provided, however, that a resignation will be a resignation for Good Reason only if Executive shall have first provided written notice of the condition constituting Good Reason to the Board no later than sixty (60) days after Executive knew or should have reasonably known given his position with the Company of the existence of the condition and the Company shall have failed to cure such condition within thirty (30) days of the Board’s receipt of notice.
viii. “Holdings Strategic Transaction” shall mean either (i) the sale of at least 35% of the outstanding ownership interests of Holdings, (ii) any other transaction or series of related transactions in which at least 35% of the outstanding ownership interests in Holdings shall be transferred, directly or indirectly, from the existing owners (or shall be issued by Holdings) to one or more persons or organizations not presently direct or indirect owners (including the admission of new members to Holdings) or (iii) an initial public offering of the interests of Holdings.
ix. “Net Income” means net income of Holdings after deducting operating expenses (including, but not limited to, salaries, royalties, Performance Bonuses, and any other contractual and discretionary bonuses), but before deducting income taxes, interest and any distribution, dividend or dividend-like payments to equity holders of the Company or equity-like partners and employees (i.e., holders of a contractual right to a Profits Interest). The determination of Net Income shall be determined by the Company in its reasonable discretion and in good faith.
x. “Launch” means the date the first product for a Joint Venture Entity is sold to the general public and generates revenue.
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xi. “Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or governmental entity (whether federal, state, county, city or otherwise and including any instrumentality, division, agency or department thereof), including any group of Affiliated Persons.
xii. “Purchase Price” shall mean an amount equal to: (i) any consideration paid or exchanged directly or indirectly by Holdings or any of its Affiliates in connection with an Acquisition Transaction; plus (ii) any capital contributions directly or indirectly invested by Holdings or any of its Affiliates in the Acquisition Target Entity in connection with the Acquisition Transaction. If the amount of consideration cannot be reasonably determined due to the structure of the Acquisition Transaction, the Parties shall use their best efforts to determine the applicable Purchase Price. In any event, the Purchase Price shall be determined by the Parties at the time of the Acquisition Transaction and documented in the definitive documents for such Acquisition Transaction and in the Acquisition Schedule in the form attached as Exhibit A.
(h) Expenses. The Company shall reimburse Executive for any reasonable travel and other out-of-pocket expenses incurred by Executive in the performance of his obligations hereunder, including travel, cell phone, dining and entertainment, and similar expenses; provided that such expenses shall have been documented and submitted in accordance with the regular reimbursement procedures and practices of the Company in effect from time to time. Travel expenses will be reimbursed within thirty (30) days of delivery of an expense report and applicable receipts.
(i) Benefits. Executive shall be eligible to participate in all individual and group medical, dental, disability, life insurance, accidental death, savings, retirement and/or 401k plan and all other fringe benefits and executive perquisites generally provided to employees and/or other executives of the Company similar to Executive on terms and based on any required employee contributions no less favorable to Executive than as apply to other such employees and similar executives generally. Executive is entitled to four (4) weeks’ paid vacation during each calendar year, with the scheduling of such vacation to be determined in accordance with the Company’s vacation policies as in effect from time to time. If Executive does not take the full vacation available in any year, the unused vacation may not be carried over to the next calendar year, and Executive will not be compensated for it.
(j) Office Expenses. Company shall provide Executive with, or pay directly, for an office the location of which shall be located in Miami-Dade County, Florida and shall be mutually determined by the Parties, including reasonable ancillary expenses for such office.
3. License Grant.
(a) Executive hereby grants to Company and its affiliates the right to trade off Executive’s name, reputation, likeness and background in promotional material aimed at marketing the Products to potential and current subscribers, as well as at seminars, conferences and any related events, during the term of this Agreement and for a period of five (5) years following the termination or expiration of this Agreement; provided, however, that in no event does this Agreement authorize Company or any of its affiliates to use Executive’s name, reputation, likeness and background in any manner that is negative or detrimental to Executive.
(b) Executive agrees that all intellectual property, including copyright and trademark, produced under this Agreement is considered work for hire and therefore is the sole property of Company and/or its affiliates.
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(c) Executive agrees that all designs, trademarks, discoveries, formulas, processes, techniques, strategies, trade secrets, inventions, improvements, copyrightable works, and/or the like, including all rights to obtain, register, perfect and enforce these proprietary interests, that Executive may solely or jointly develop, conceive, or reduce to practice or author, in whole or in part, during Executive’s employment or association with Company or its affiliates that relate to his employment or association or are aided by the use of time, material, or facilities of Company or its Affiliates, whether or not during normal working hours, (“Inventions”) are the sole and exclusive property of Company and/or its affiliates and are considered works for hire under the U.S. Copyright Act, including, but not limited to, as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as editorial copy, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, as an atlas or as any other applicable category. Without compensation, Executive hereby assigns to Company his entire right, title, and interest in and to the Inventions, and agrees to execute all documents and take all other actions deemed necessary by Company to protect its rights in any such Inventions, including to vest Company or its designee with sole ownership of all Inventions. Executive represents and warrants that his development and use of the Inventions will not infringe, misappropriate or otherwise violate any intellectual property rights of any third party (including without limitation any of Company’s former employers) or any duty owed by Company to any third party (including without limitation any of Company’s former employers). To the extent allowed by applicable law, all rights to Inventions include all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral or the like (collectively, “Moral Rights”). To the extent Executive retains any such Moral Rights under applicable law, he hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by or authorized by Company and agrees not to assert any Moral Rights with respect thereto. Executive will confirm any such ratification, consent or agreement from time to time as requested by Company. Executive shall return all tangible evidence of such Inventions, including, but not limited to, any papers, lists, books, files, and computer diskettes or CDs, to Company prior to or at the termination of this Agreement or extensions thereof, if any, with or without Company’s request, or upon Company’s written request.
4. Non-Compete and Confidential Information.
(a) Unless otherwise agreed to by the Board, Executive hereby agrees and covenants that he will not (i) write or contribute to the publication of any financial material, or (ii) directly or indirectly, engage in any business on behalf of himself or any other person, and whether as an owner, director, officer, employee, or consultant, which could be deemed competitive with the Products or other products owned by Company or any of its Affiliates (hereinafter, “Compete”) while he is an employee of Company and for a period of two (2) years following the termination of such employment; (the “Non-Compete Term”); provided, however, that if Executive resigns for Good Reason or is terminated by the Company without Cause, then the Non-Compete Term shall expire upon such resignation or termination of employment.
Any financial writing for a financial newsletter and/or Internet-related financial product is deemed per se competitive.
(b) During the Non-Compete Term, Executive also will not, directly or indirectly:
1. induce or encourage any employee or independent contractor of Holdings or its Affiliates to leave or reduce such employment or engagement, whether such employment or engagement is pursuant to a contract or at will, or, on his own behalf or on behalf of any person or entity, employ or engage in any capacity any former employee or independent contractor of Holdings or its
8
Affiliates, unless such former employee or independent contractor will have ceased to be so employed or engaged by Holdings or its Affiliates for a period of at least one (1) year immediately prior to such employment or engagement; or
2. on his own behalf or on behalf of any person or entity, solicit or call upon, or attempt to solicit or call upon, any customer of Holdings or its Affiliates (as of the date of termination of this Agreement), for the purpose of selling or providing any product or service which is competitive with any of the products owned, sold, managed or distributed by Holdings or its Affiliates.
(c) Confidential Information. Executive acknowledges and agrees that Company and any of its Affiliates, in the course of performing their business activities, acquire and develop Confidential Information (as defined below) that provides them with a business advantage and that Executive will be provided with such Confidential Information during his association with Company and any of its Affiliates. Executive agrees that he will not, directly or indirectly, at any time during or after the Term of this Agreement, use (whether on his own behalf or on behalf of any other person or entity) or disclose (to any person or entity) any Confidential Information, except as may be required by law or necessary in the performance of his duties for Holdings or any of its Affiliates during the Term. “Confidential Information” means all confidential, proprietary, and non-public information (whether in written, electronic, or other form) of Holdings, or any of its Affiliates or third parties with whom Holdings or any of its Affiliates do business (including without limitation investors, sources of investment capital, and suppliers of Holdings or any of its Affiliates), including without limitation the following information of Company or any of its Affiliates: trade secrets; business information; track record information; books and records used to calculate and present track record information; information regarding the assets and affairs of Holdings or any of its Affiliates; financial information; operating methods or strategies; portfolio holdings and performance; marketing plans or strategies; competitive know-how; processes; forecasts; investor lists or other investor-related information of any kind; subscriber lists or other subscriber-related information of any kind, and any other information of a similar nature not already in the public domain. Confidential Information also includes any information that becomes publicly available as a direct or indirect result of Executive’s breach of this Agreement or other obligation to Holdings or any of its Affiliates. Notwithstanding anything to the contrary in this Section 4(c), the provisions in this Section shall not apply to information that: (1) is in the public domain at the time of disclosure by Executive or is subsequently made available to the general public through no violation of this Section 4(c) by Executive; (2) is independently developed by Executive without use of or reference to the Confidential Information; (3) is disclosed with the prior written consent of the Holdings or any of its Affiliates; or (4) is required to be disclosed by law or by regulatory, judicial or arbitration process. Executive will take all reasonable and necessary precautions to prevent disclosure of Confidential Information to unauthorized persons or entities. Executive further agrees to immediately notify the Holdings or any of its Affiliates if he becomes aware that Confidential Information has been improperly used or disclosed. In the event Executive is requested or required (by oral questions, interrogatories, requests for Confidential Information or documents in a court or administrative proceeding, subpoena, civil investigative demand or other similar process) to disclose any Confidential Information, Executive will, to the extent permitted under applicable law, (i) immediately (and prior to such disclosure) notify the Company by providing notice to the Company and cooperate with Company (at Company’s sole expense) in any efforts by them to oppose such disclosure, and (ii) will disclose only that portion of the Confidential Information that is legally required to be disclosed and exercise reasonable efforts to ensure that such Confidential Information will be afforded confidential treatment. Executive acknowledges and agrees that Executive has not, and will not, acquire any right, title or interest in or to any of the Confidential Information.
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Under the Defend Trade Secrets Act of 2016, the Company hereby provides notice and Executive hereby acknowledges that 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 (i) is made (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney and (B) is solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
5. Warrants, Covenants, Indemnity and Forfeiture.
(a) Executive hereby warrants and covenants that any editorial or promotional work produced under this Agreement by him shall not knowingly violate or infringe any copyright(s) and shall not knowingly contain anything libelous or otherwise contrary to the law. Executive also covenants and agrees to undertake reasonable efforts to comply with any and all internal securities trading, customer relations, information barrier, and similar policies of the Company.
(b) Each of the Parties shall each have the right to take legal action against an unrelated third party in the event of any infringement or violation of the rights of the Party and each shall be solely responsible for its expenses in such suit. However, the Company agrees to provide a legal defense (including the payment of legal fees and any court ordered damages that are assessed against Executive) for legal claims asserted against Executive arising out of Executive’s employment with Company, unless such actions are in violation of this Agreement, applicable policies of the Company, or applicable law.
(c) Executive shall indemnify and hold harmless Holdings and its Affiliates for any losses resulting from a willful and intentional breach in bad faith of the warranties and covenants by Executive in Sections 3, 4 and 5, including reasonable attorney’s costs, suffered by Holdings and/or its Affiliates. The Parties agree that the foregoing representations, covenants and indemnity by Executive shall not extend to any editorial, marketing or promotional materials Holdings provides to Executive so long as Executive's presentation of such material is consistent with the warranties and covenant described in Section 5(a) above.
(d) Executive represents and warrants to the Company that: (i) Executive has the full power and authority to enter into this Agreement and to incur and perform Executive’s obligations hereunder; and (ii) the execution, delivery and performance by Executive of this Agreement does not conflict with or result in a breach or violation of or constitute a default under (whether immediately, upon the giving of notice or lapse of time or both) any agreement or instrument to which Executive is a party or by which Executive may be bound or affected.
(e) The Company represents and warrants to Executive that: (i) it is duly organized, validly existing and in good standing under the laws of the State of Maryland, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted; (ii) it is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary; (iii) it has full power and authority to enter into this Agreement and to incur and perform its obligations hereunder; and (iv) the execution, delivery and performance by the Company of this Agreement does not conflict with or result in a breach or violation of or constitute a default under (whether immediately, upon the giving of notice or lapse of time or both) the articles of organization, bylaws, or operating agreement of the Company, or any agreement or instrument to which the Company is a party or by which the Company or any of its properties may be bound or affected.
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(f) Holdings represents and warrants to Executive that: (i) it is duly organized, validly existing and in good standing under the laws of the State of Florida, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted; (ii) it is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary; (iii) it has full power and authority to enter into this Agreement and to incur and perform its obligations hereunder; and (iv) the execution, delivery and performance by Holdings of this Agreement does not conflict with or result in a breach or violation of or constitute a default under (whether immediately, upon the giving of notice or lapse of time or both) the articles of organization, bylaws, or operating agreement of Holdings, or any agreement or instrument to which Holdings is a party or by which Holdings or any of its properties may be bound or affected.
6. Term and Termination.
(a) Term. Unless terminated earlier pursuant to the terms of this Agreement, Executive’s employment hereunder shall be effective as of the Effective Date and shall continue until July 30, 2021 (the “Initial Term”), and shall automatically renew for additional one (1) year renewal periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”); provided, however, at any time within one hundred eighty (180) days prior to the expiration of the Initial Term or any subsequent Renewal Term, any Party may (1) request the other to negotiate the terms of a renewal of this Agreement or (2) elect not to renew the Agreement by providing written notice to the other Parties. Notwithstanding the foregoing, none of the Parties shall be obligated to renew this Agreement beyond the Initial Term or any subsequent Renewal Term, as applicable.
(b) Termination. Any Party may terminate Executive’s employment at any time in accordance with the applicable provisions herein, provided that: (i) the Company shall provide Executive sixty (60) days prior written notice in the event the Company terminates Executive without Cause; or (ii) Executive shall provide the Company with sixty (60) days prior written notice before terminating his employment, in which case, for the avoidance of doubt, the Company may relieve Executive of some or all of his duties (which shall not trigger Good Reason) during such 60-day notice period provided that the Company pays Executive his salary, bonuses, benefits and any compensation due to Executive for the portion of the notice period that is waived. Upon termination of Executive’s employment, for any reason, he shall receive unpaid salary, bonuses, benefits and any compensation due to Executive through the date of termination and reimbursement for any expenses incurred through the date of termination pursuant to Section 2(h) along with any benefits through such date.
1. If during the applicable Performance Year, Executive resigns without Good Reason or Company terminates the Executive’s employment for Cause, then Executive shall not receive and Executive shall not be entitled to the Performance Bonus or any other bonus, nor any portion thereof.
2. Executive is eligible for a Separation Bonus subject to the terms of Section 2(f) above.
3. Any Profits Interests rights granted to Executive by Holdings that are unvested as of the date on which Executive’s employment terminates shall automatically be forfeited and Executive shall have no further rights with respect to such award.
4. Executive acknowledges and agrees to the following in the event that Executive breaches Section 4 of this Agreement and such breach either (1) results in the termination of Executive’s employment with the Company or (2) occurs following the
11
termination of Executive’s employment with the Company: all compensation and benefits otherwise payable pursuant to this Agreement and the vesting and/or exercisability of applicable bonuses, Performance Bonuses and Profits Interests, and other forms of compensation previously awarded to Executive, shall immediately cease; and any and all Profits Interests in described herein shall be immediately forfeited by Executive.
7. Assignment of Agreement. Executive’s services and functions are considered unique. This Agreement or any rights or obligations herein may not be assigned or otherwise transferred by Executive to any other party without the prior written consent of Company, which consent shall not be unreasonably withheld.
8. Indemnification; Insurance. During Executive’s employment and thereafter, the Company shall indemnify and hold Executive harmless against any costs or expenses (including attorneys’ fees), judgments, fines, penalties, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, by reason of the fact that Executive is or was a Board member, manager, director, officer, employee or agent of the Company or any Affiliate, whether asserted or claimed prior to, at or after the date of Executive’s termination of employment, to the fullest extent permitted under applicable law and on a basis no less favorable than what is provided to any other continuing officer or director of the Company; provided, however, that Executive acted in good faith and in a manner Executive reasonably believed to be in or not opposed to the best interests of the Company; or was acting in good faith reliance upon the records of the Company, including its financial statements, or upon information, opinions, reports or statements furnished to Executive by the Board, officers or employees of Holdings, or any of its Affiliates in the course of their duties, or by committees of the Board, or by any other person (including legal counsel, accountants and financial advisors) who has been selected with reasonable care by or on behalf of the Company or any of its Affiliates; or in the case of a criminal proceeding or claim, had no reasonable cause to believe Executive’s conduct was unlawful. During Executive’s employment and thereafter, Company shall provide Executive with coverage under a policy of directors’ and officers’ liability insurance that provides Executive with coverage on the same basis as is provided for the Company’s continuing officers and directors from time to time, in the event Company decides to obtain such coverage.
9. Integration, Amendments and Modifications. This Agreement sets forth the entire agreement among the Parties hereto with respect to the subject matter herein and supersedes all prior and contemporaneous understandings, agreements representations and warranties, both written and oral, with respect to such subject matter. The Parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement. This Agreement may not be amended or modified except by a writing duly executed by the Parties hereto.
10. Confidentiality. The Parties agree that this Agreement is confidential and, except as otherwise required by law or court order, no party shall disclose the terms herein to anyone, including any employee of Holdings. Notwithstanding the foregoing, Company may disclose the terms of this Agreement to senior management of Holdings. Executive may disclose this contract to his immediate family member and his legal and financial representatives provided such disclosures are protected by professional codes of conduct or signed confidentiality agreements.
11. Severability; Provisions Subject to Applicable Law. All provisions of this Agreement shall be applicable only to the extent that they do not violate any applicable law. If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, such provision will be
12
enforced to the maximum extent permissible and the remainder of the Agreement will remain in full force and effect according to its terms.
12. Arbitration. The Parties agree that any dispute arising from or relating to this Agreement, or the breach thereof, shall be submitted to the American Arbitration Association (“AAA”) for binding arbitration to take place in Baltimore, Maryland before a single arbitrator under the rules of the AAA Employment Arbitration Rules and Mediation Procedures, and the decision of the arbitrator shall be final and binding upon the Parties. Notwithstanding the foregoing, in the event of any Party’s breach of any of the covenants set forth in Sections 3, 4, 5 or 8, a Party shall have the right to obtain injunctive relief from any federal or state court of competent jurisdiction located within Baltimore County, Maryland and will not be required to arbitrate any claim for the breach of such Sections. Accordingly, except as provided in the prior sentence, the Parties will not be permitted to pursue court action regarding claims that are subject to arbitration.
13. Governing Law; Venue. This Agreement and the rights and obligations of the Parties hereto shall be governed, construed, interpreted and enforced in accordance with the laws of the State of Maryland, without giving effect to the principles of conflict of laws. The Parties hereto hereby irrevocably submit to the exclusive jurisdiction of the federal or state courts located within Baltimore County, Maryland in the event that (1) a Party seeks injunctive relief with respect to a breach of any of the covenants set forth in Sections 3, 4, 5 or 8 or (2) a Party seeks to enforce an arbitration award. In the event of a breach of the covenants set forth in Sections 3, 4, 5 or 8, the Parties agree that, in addition to any other remedies available at law or equity, a Party may file litigation against another Party seeking specific performance and temporary and/or preliminary injunctive relief, enjoining or restraining such breach, and the Parties consent to the issuance of such injunctive relief without bond. The Parties agree that if a Party initiates litigation seeking to enforce an arbitration award, the Party initiating such litigation shall be entitled to recover from the other Party reasonable attorney’s fees and costs incurred in such litigation, including all reasonable and necessary attorney’s fees and costs arising from a successful appeal. The Parties consent to the personal jurisdiction of such courts and thereby waive: (a) any objection to jurisdiction or venue; or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.
14. Section 409A.
(a) The intent of the parties is that payments and benefits under this Agreement comply with or be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and guidance promulgated thereunder (collectively “Section 409A”) and the Company shall have complete discretion to interpret and construe this Agreement and any associated documents in any manner that establishes an exemption from (or compliance with) the requirements of Section 409A. If for any reason, such as imprecision in drafting, any provision of this Agreement (or of any award of compensation, including, without limitation, equity compensation or benefits) does not accurately reflect its intended establishment of an exemption from (or compliance with) Section 409A, as demonstrated by consistent interpretations or other evidence of intent, such provision shall be considered ambiguous as to its exemption from (or compliance with) Section 409A and shall be interpreted by the Company in a manner consistent with such intent, as determined in the discretion of the Company.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits that are considered non qualified deferred compensation under Section 409A upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A, and, for purposes of any such provision of this Agreement, references to a “termination,”
13
“termination of employment” or like terms shall mean “such a separation from service.” The determination of whether and when a separation from service has occurred for proposes of this Agreement shall be made in accordance with the presumptions set forth in Section 1.409A-1(h) of the Treasury Regulations.
(c) For purposes of Section 409A, Executive’s right to receive any installment payments shall be treated as a right to receive a series of separate and distinct payments. Whenever a payment under this Agreement specifies a payment period with reference to a number of days (for example, “payment shall be made within thirty (30) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement, to the extent such payment is subject to Section 409A.
(d) If Executive is a “specified employee” (as that term is used in Section 409A) on the date the separation from service becomes effective and the payment of the amounts under this Agreement payable upon a separation from service constitute non qualified deferred compensation, the payment of which would result in additional taxes or penalties under Section 409A, then such payments shall be delayed until the first business day following the six (6)-month anniversary of the date the separation from service becomes effective, but only to the extent necessary to avoid such additional taxes or penalties under Section 409A. On the first business day following the six (6) month anniversary of the date the separation from service becomes effective, the Company shall pay Executive in a lump sum the aggregate value of the nonqualified deferred compensation that the Company otherwise would have paid prior to that date under this Agreement.
(e) The provisions of this Agreement are intended to be exempt from or otherwise comply with Section 409A and will be operated and administered in accordance with such intent.
15. Waiver. No waiver by the Parties of any breach by a Party hereto of any condition or provision of this Agreement to be performed by such Party shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by a Party in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
16. Survival. Notwithstanding anything to the contrary in this Agreement, Sections 2, 3, 4, 5, 6(b), 8 and 10 through 24 will survive the termination of Executive’s employment and the termination or expiration of the Term, as shall all other Sections herein that by their nature contemplate survival beyond the termination of Executive’s employment with the Company.
17. Notice. Any notice, demand, request or other communication which Executive or Company may be required to give the other Party hereunder shall be in writing, shall be effective and deemed received the following business day when sent by overnight mail, upon transmission if sent by e-mail, or the third business day after deposited in first class United States mail, postage prepaid. The current contact information for each Party is:
For Company:
Mark Arnold
Chief Executive Officer
1125 N. Charles Street
Baltimore, MD, 21201
E-mail: marnold@stansberryresearch.com
14
For Executive:
Marco Ferri
3335 Alton Road
Miami Beach, FL 33140
E-mail: ferrifamily5@gmail.com
18. Headings. The headings used in this Agreement are solely for convenience of reference and shall not affect its interpretation.
19. Construction. The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement.
20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one instrument.
21. Prevailing Party. In the event any dispute arises out of or relating to this Agreement, whether in law or equity, the prevailing Party shall be entitled to recover, in addition to the relief awarded, its reasonable attorneys’ fees, paralegals’ fees and costs, at all levels whether pursuant to an arbitration proceeding, at trial, on appeal, or in bankruptcy.
22. Specific Performance. The Parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
23. Further Assurances. If any further action is necessary or desirable to carry out the purposes of this Agreement, each Party agrees to take such further action (including the execution and delivery of such further instruments and documents) as the other Party may request, all at the sole cost and expense of the requesting Party.
24. Signature. A signed copy transmitted via e-mail or an electronic signature is presumed authentic and will be accepted as an original unless shown to be invalid by the other Party. This Agreement may be executed in two or more counterparts, each of which counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
15
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the Effective Date.
| S&A Holdings (2013), LLC | |||||||||||
| By: | /s/ Mark Arnold | ||||||||||
| Name: Mark Arnold | |||||||||||
| Its: Chief Executive Officer | |||||||||||
| /s/ Marco Ferri | |||||||||||
| Marco Ferri | |||||||||||
16
EXHIBIT A – Acquisition Schedule
Name of Acquisition Target Entity:
Date of Acquisition Transaction:
Acquisition Target Entity’s Enterprise Value on Date of Closing:
Purchase Pasdfasdfrice:
1. Executive shall be paid [two percent (2%) of the Enterprise Value of the Acquisition Target Entity] upon the closing date of the Acquisition Transaction;
2. Executive shall be paid [one percent (1 %) of the Enterprise Value of the Acquisition Target Entity] if, as of [the expiration of the indemnification period contained in the Acquisition Transaction documents, which shall be at least six months to one year depending on transaction conditions, or greater if representation and warranty insurance is purchased for the Acquisition Transaction], the aggregate amount of any indemnity claims and adverse Purchase Price adjustments totals no more than[ __% of the Purchase Price for the Acquisition Target Entity]; and
3. Executive shall be paid [two percent (2%) of the Enterprise Value of the Acquisition Target Entity] if, on the earlier of [the third or fourth anniversary of the closing date of the Acquisition Transaction], the product of the Aggregate Net Income of the Acquisition Target Entity as measured from the closing date of the Acquisition Transaction multiplied by [Holdings’(or any of its Affiliate’) ownership percentage of the Acquisition Target Entity], exceeds [the Purchase Price of the Acquisition Target Entity].
17
EXHIBIT B Joint Venture Schedule
Name of Joint Venture Entity:
Joint Venture Entity’s Launch Date:
Joint Venture Performance Bonus Structure:
[DETAILS TO BE PROVIDED IF DIFFERENT FROM SECTION 2(d)]
18
EXHIBIT C – Form of Release
19
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the use in this Prospectus constituting a part of this Registration Statement on Amendment No. 2 to Form S-4 of our report dated May 10, 2021, relating to the financial statements of Ascendant Digital Acquisition Corp., which is contained in that Registration Statement. We also consent to the reference to our Firm under the caption “Experts” in the Prospectus.
| /s/ WithumSmith+Brown, PC | ||
| New York, New York | ||
| May 27, 2021 | ||
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use in this Registration Statement No. 333-254720 on Form S-4 of our report dated March 25, 2021, relating to the financial statements of MarketWise, LLC (formerly Beacon Street Group, LLC). We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ Deloitte & Touche LLP
Baltimore, MD
May 28, 2021
Exhibit 99.4
Consent to be Named as a Director
In connection with the filing by Ascendant Digital Acquisition Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Ascendant Digital Acquisition Corp. following the consummation of the business combination, which will be renamed MarketWise, Inc. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: May 28, 2021
| By: | /s/ Manuel Borges | ||||
Signature | |||||
| Name: Manuel Borges | |||||
Exhibit 99.5
Consent to be Named as a Director
In connection with the filing by Ascendant Digital Acquisition Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Ascendant Digital Acquisition Corp. following the consummation of the business combination, which will be renamed MarketWise, Inc. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: May 28, 2021
| By: | /s/ Elizabeth Burton | ||||
Signature | |||||
| Name: Elizabeth Burton | |||||
Exhibit 99.6
Consent to be Named as a Director
In connection with the filing by Ascendant Digital Acquisition Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Ascendant Digital Acquisition Corp. following the consummation of the business combination, which will be renamed MarketWise, Inc. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: May 28, 2021
| By: | /s/ Paul Idzik | ||||
Signature | |||||
| Name: Paul Idzik | |||||
Exhibit 99.7
Consent to be Named as a Director
In connection with the filing by Ascendant Digital Acquisition Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Ascendant Digital Acquisition Corp. following the consummation of the business combination, which will be renamed MarketWise, Inc. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: May 28, 2021
| By: | /s/ Van Simmons | ||||
Signature | |||||
| Name: Van Simmons | |||||
Exhibit 99.8
Consent to be Named as a Director
In connection with the filing by Ascendant Digital Acquisition Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of Ascendant Digital Acquisition Corp. following the consummation of the business combination, which will be renamed MarketWise, Inc. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: May 28, 2021
| By: | /s/ Stephen Sjuggerud | ||||
Signature | |||||
| Name: Stephen Sjuggerud | |||||
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