UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): September 16, 2022
GOLDEN MATRIX GROUP, INC. |
(Exact name of registrant as specified in its charter) |
Nevada |
| 001-41326 |
| 46-1814729 |
(State or other jurisdiction of incorporation or organization) |
| (Commission file number) |
| (IRS Employer Identification No.) |
3651 Lindell Road, Suite D131
Las Vegas, NV 89103
(Address of principal executive offices)(zip code)
Registrant’s telephone number, including area code: (702) 318-7548
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
| Trading Symbol(s) |
| Name of each exchange on which registered |
Common Stock, $0.00001Par Value Per Share |
| GMGI |
| The NASDAQ Stock Market LLC (The NASDAQ Capital Market) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
First Amended and Restated Employment Agreement with Mr. Anthony Brian Goodman
On September 16, 2022, Golden Matrix Group, Inc. (the “Company”, “we” and “us”) entered into a First Amended and Restated Employment Agreement with Mr. Anthony Brian Goodman, the Company’s Chief Executive Officer and director. The agreement amended and restated, effective as of September 16, 2022, the prior Employment Agreement entered into between the Company and Mr. Goodman dated October 26, 2020, to among other things, (a) extend the term thereof for four years, to August 20, 2026; (b) increase Mr. Goodman’s base salary to $158,400 per year, plus a Superannuation as mandated by the Australian Government - Superannuation Guarantee (Administration) Act 1992; (c) provide for annual increases in Mr. Goodman’s salary of no less than 10% per annum; (d) revise the non-compete language of the agreement to include prohibitions prohibiting Mr. Goodman from competing against the Company in connection with online raffles, lotteries, tournaments, competitions and sportsbook operations and technology, and provide for the non-compete to apply to both the United States and the United Kingdom; (e) include additional provisions allowing for Mr. Goodman’s right to immediately terminate the agreement for good reason and amend certain provisions allowing for the Company to terminate Mr. Goodman for cause; (f) amend the terms of severance payments due to Mr. Goodman, and include the right for Goodman to be paid certain change of control severance payments; and (g) include the right of the Company to clawback amounts paid to Mr. Goodman to the extent necessary to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission rule.
The terms of the agreement, as amended and restated, are summarized below:
The First Amended and Restated Employment Agreement with Mr. Goodman provides for Mr. Goodman to serve as the Chief Executive Officer of the Company, effective September 16, 2022, and remains in effect for four years, until August 20, 2026, unless terminated earlier pursuant to its terms, provided that the term of the agreement continues year-to-year thereafter unless either party provides notice to the other of its intent not to renew the agreement at least three months prior to the end of the initial term or any renewal term. Notwithstanding the above, the agreement may be terminated at any time by either party with or without cause. The agreement does not restrict Mr. Goodman’s ability to provide services to Luxor Capital LLC, Elray Resources or Articulate Pty Ltd.
Pursuant to the agreement, Mr. Goodman is to receive an annual base salary of $158,400, plus a superannuation (an employee funded pension required by the Government of Australia), which is currently equal to 10.5% of Mr. Goodman’s salary, and pursuant to Australian law is to increase by 0.5% per year, on June 30th of each year, until it reaches 12% in 2025 (the “Superannuation”), payable every two weeks. Mr. Goodman’s salary may be increased every 12 months by the Compensation Committee of the Board of Directors in connection with increases in the cost of living, the responsibilities of Mr. Goodman and/or his performance, and is required to be increased automatically in an amount of not less than 10% per annum. Increases of salary are not required to be set forth in an amendment to the Employment Agreement. Pursuant to the agreement, the Board of Directors has discretion to establish a cash bonus plan payable to Mr. Goodman and to set forth goals in connection with such plan, provided no plan has been established to date. The Board of Directors (or Compensation Committee of the Board of Directors) may also grant Mr. Goodman bonuses from time to time in its discretion, in cash, stock or the form of options or other equity awards (including Restricted Stock Units), in amounts determined in the sole discretion of the Board of Directors (or Compensation Committee of the Board of Directors). The Board of Directors or Compensation Committee may also increase Mr. Goodman’s salary from time to time in their discretion.
| 2 |
Pursuant to the agreement, Mr. Goodman is eligible to participate in all benefit programs offered by the Company to its senior executives. Mr. Goodman is entitled to holidays and annual leave in conformity with Australian law, along with seven additional days of leave pursuant to the terms of the agreement and up to 14 days per year of sick leave.
The agreement contains standard confidentiality and indemnification requirements. The agreement prohibits Mr. Goodman from competing against the Company in connection with the business of marketing of gaming intellectual property, tool bar technology, adware and ad serving products, and online raffles, lotteries, tournaments, competitions and sportsbook operations and technology in the United States or United Kingdom, for a period of one year from the date of termination of the agreement. During the same one-year period, Mr. Goodman is also prohibited from directly or indirectly soliciting customers or suppliers of the Company.
The agreement may be terminated by the Company (a) with not less than 2 weeks’ notice to Mr. Goodman of him being adjudicated disabled due to illness or accident (i.e., in the event he is incapacitated for six months in any 24 month period); or (b) immediately if he (i) commits any act of dishonesty, fraud, willful disobedience, misconduct or breach of duty; (ii) breaches any terms of the non-compete; (iii) materially breaches the employment agreement, and fails to cure such breach within 14 days after notice thereof is provided to Mr. Goodman; or (iv) is of unsound mind, each as determined in the reasonable discretion of the independent members of the Board of Directors acting in good faith (without the vote of Mr. Goodman)(each an “Immediate Company Termination”). Mr. Goodman may terminate the agreement immediately, and for 30 days after each of the following events, for good reason, if (a) the Company has gone into bankruptcy; (b) any amount owed to him under the agreement is not paid within 14 days after notice of such non-payment is provided to the Company; (c) without Mr. Goodman’s consent, his position or duties are modified by the Company to such an extent that his duties are no longer consistent with the position of CEO of the Company; (d) there has been a material breach by the Company of a material term of the agreement or Mr. Goodman reasonably believes that the Company is violating any law which would have a material adverse effect on the Company’s operations and such violation continues uncured following 30 days after such breach and after notice thereof has been provided to the Company; or (e) Mr. Goodman’s compensation is reduced without his consent, or the Company fails to pay him any compensation due to him after 15 days written notice of such failure.
If Mr. Goodman’s employment agreement is terminated (a) by the Company without Cause (discussed below), or pursuant to an Immediate Company Termination, except due to his disability, or (b) by Mr. Goodman for good reason (each a “Severance Termination”), the Company is required to pay Mr. Goodman severance pay in an amount equal to (a) a lump sum cash severance payment equal to the sum of (i) 18 months of his then current annual basic salary plus (ii) an amount equal to his targeted bonus for the year of termination (such total payment referred to herein as the “Severance Payment”); and (b) he is also entitled to a lump sum cash bonus payment based on prior service in an amount equal to the sum of (i) any unpaid bonus for the prior year that would have been paid had he not been terminated prior to such payment plus (ii) his targeted bonus for the year of termination multiplied by the number of days in such year preceding the termination date, divided by 365; additionally and notwithstanding anything to the contrary in any equity award agreement, any unvested stock options or other equity compensation (including, but not limited to restricted stock units (RSUs)) previously granted to Mr. Goodman will vest immediately upon such termination and in the case of stock options, shall be exercisable by Mr. Goodman until the earlier of (A) one year from the date of termination and (B) the latest date upon which such stock options or equity would have expired by their original terms under any circumstances. For purposes of the agreement, the term for “Cause” means because of gross negligence or willful misconduct by Mr. Goodman either in the course of his employment or Mr. Goodman’s ability to perform adequately and effectively his duties under the agreement as determined in the reasonable good faith determination of the independent members of the Board of Directors.
| 3 |
Separately, in the event that Mr. Goodman’s employment is terminated (a) by the Company for any reason other than Cause or an Immediate Company Termination, (ii) by the death of Mr. Goodman, or (iii) by the Company without Cause, or (b) by Mr. Goodman for good reason (as applicable, a “Change of Control Termination”) during the twelve month period following a Change of Control (discussed below) or in anticipation of a Change of Control, the Company is required to pay Mr. Goodman, within 60 days following the later of (i) the date of such Change of Control Termination; and (ii) the date of such Change of Control, a cash severance payment in a lump sum in an amount equal to 3.0 times the sum of (a) the current annual base salary of Mr. Goodman (less any actual payments made in connection with any severance payments made in connection with the preceding paragraph); and (b) the amount of the most recent bonus paid to Mr. Goodman for the last completed fiscal year, if any (less any actual payments made in connection with any severance payment made pursuant to the preceding paragraph)((a) and (b), the “Change of Control Payment”). If Mr. Goodman’s employment ends due to a Change of Control Termination within six (6) months prior to a Change of Control, it will be deemed to be “in anticipation of a Change of Control”. In addition, in the event of a Change of Control, all of Mr. Goodman’s equity-based compensation (including options and equity subject to vesting) shall immediately vest regardless of whether Mr. Goodman is retained by the Company or successor following the Change of Control. Additionally, in the event of a Change of Control Termination, unvested equity benefits and awards (including options, unvested RSU’s or unvested equity awards) will vest immediately upon such termination and in the case of stock options, shall be exercisable by Mr. Goodman until the earlier of (A) one (1) year from the date of termination and (B) the latest date upon which such stock options or equity would have expired by their original terms under any circumstances.
“Change of Control” means the happening of any of the following without the prior written approval of Mr. Goodman: (i) any person or entity is or becomes the beneficial owner, directly or indirectly, of securities of the Company representing more than 50% of the total voting power represented by the Company’s then outstanding voting securities; (ii) a merger or consolidation of the Company whether or not approved by the Board of Directors of the Company, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted or into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or (iii) as a result of the election of members to the Board of Directors, a majority of the Board of Directors consists of persons who are not members of the Board of Directors as of August 20, 2022 (including Mr. Goodman), except in the event that such slate of directors is proposed by the Nominating Committee of the Company. Notwithstanding the foregoing, if the definition of “Change of Control” in the Company’s Stock Incentive Plans or Equity Compensation Plans (each as amended from time to time) is more favorable to Mr. Goodman, then such definition shall be controlling for purposes of the agreement.
Pursuant to the agreement, the Company has the right to clawback amounts paid to Mr. Goodman to the extent necessary to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission rule.
First Amended and Restated Employment Agreement with Ms. Weiting Feng
On September 16, 2022, we entered into a First Amended and Restated Employment Agreement with Weiting ‘Cathy’ Feng, the Company’s Chief Operating Officer and director. The agreement amended and restated, effective as of September 16, 2022, the prior Employment Agreement entered into between the Company and Ms. Feng dated October 26, 2020, to among other things, (a) extend the term thereof for four years, to August 20, 2026; (b) increase Ms. Feng’s base salary to $132,000 per year, plus a Superannuation as mandated by the Australian Government - Superannuation Guarantee (Administration) Act 1992; (c) provide for annual increases in Ms. Feng’s salary of no less than 10% per annum; (d) revise the non-compete language of the agreement to include prohibitions prohibiting Ms. Feng from competing against the Company in connection with online raffles, lotteries, tournaments, competition’s and sportsbook operations and technology and include prohibits against competition in the United States and the United Kingdom; (e) include additional provisions allowing for Ms. Feng’s right to immediately terminate the agreement for good reason and amend certain provisions allowing for the Company to terminate Ms. Feng for cause; (f) amend the terms of severance payments due to Ms. Feng, and include right to change of control severance payment; and (g) include the right of the Company to clawback amounts paid to Ms. Feng to the extent necessary to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission rule.
| 4 |
As amended and restated, Ms. Feng’s employment agreement is substantially similar to Mr. Goodman’s agreement, as summarized above under “First Amended and Restated Employment Agreement with Mr. Anthony Brian Goodman”, except that Ms. Feng’s agreement (a) provides for her to serve as Chief Operating Officer of the Company; (b) provides for a base salary of $132,000 per year; (c) allows her to continue her involvement with, Elray Resources, Etrader Enterprise Pty Ltd and Articulate Pty Ltd.; and (d) provides for a six month severance payment upon a triggering termination (instead of 18 months under Mr. Goodman’s agreement), and also does not provide for additional severance in an amount equal to her targeted bonus for the year of termination.
* * * * *
The descriptions of the Amended and Restated Employment Agreements with Mr. Goodman and Ms. Feng above are not complete and are qualified in their entirety to the full text of the Amended and Restated Employment Agreements, copies of which are filed as Exhibits 10.1 and 10.2 hereto and are incorporated into this Item 5.02 by reference in their entity.
Grant of Restricted Stock Awards to Management and the Independent Directors
Effective on September 16, 2022, the Compensation Committee and the Board of Directors approved the grant, effective on the same date, of an aggregate of 1,575,000 restricted stock units to the officers and directors of the Company listed below (the “RSU Recipients”), in consideration for services to be rendered by such officers and directors through October 2024 (the “RSUs”):
Recipient | Position with Company | Number of RSUs |
Anthony Brian Goodman | President, Chief Executive Officer (Principal Executive Officer), Secretary, Treasurer, and Chairman of the Board of Directors | 750,000 |
Weiting ‘Cathy’ Feng | Chief Operating Officer and Director of the Company | 375,000 |
Murray G. Smith | Independent Director | 150,000 |
Aaron Richard Johnston | Independent Director | 150,000 |
Thomas E. McChesney | Independent Director | 150,000 |
|
| 1,575,000 |
The RSUs are subject to vesting, and vest to the RSU Recipients, to the extent and in the amounts set forth below, to the extent the following performance metrics are met by the Company as of the dates indicated (the “Performance Metrics” and the “Performance Metrics Schedule”):
| Revenue Targets | EBITDA Targets | |||
Performance Period | Target Goal | RSUs Vested | Target Goal | RSUs Vested | |
Year ended October 31, 2022 | $21,875,000 | * | $3,250,000 | * | |
Year ended October 31, 2023 | FY 2022 x 1.1 | * | FY 2022 x 1.1 | * | |
Year ended October 31, 2024 | FY 2023 x 1.1 | * | FY 2023 x 1.1 | * | |
* 1/6th of the total RSUs granted to each RSU Recipient above.
| 5 |
For purposes of the calculations above, (a) “EBITDA” means net income before interest, taxes, depreciation, amortization and stock-based compensation; (b) “Revenue” means annual revenue of the Company; and (c) “FY 2022” means actual Revenue or EBITDA, as the case may be achieved during the 12 month period from November 1, 2021 to October 31, 2022, and “FY 2023” means actual Revenue or EBITDA as the case may be for the 12 month period from November 1, 2022 to October 31, 2023, in each as set forth in the Company’s audited year-end financial statements (the “Target Definitions”). Both Revenue and EBITDA, and the determination of whether or not the applicable Revenue and EBITDA targets above have been met are to be determined based on the audited financial statements of the Company filed with the Securities and Exchange Commission in the Company’s Annual Reports on Form 10-K for the applicable year ends above, and determined on the date such Annual Reports on Form 10-K are filed publicly with the Securities and Exchange Commission (the “Dates of Determination”).
The Company also entered into a Restricted Stock Grant Agreement with each of the RSU Recipients above to evidence such grants of the RSUs.
The RSUs were granted pursuant to, and subject in all cases to, the terms of the Company’s 2022 Equity Incentive Plan.
The descriptions of the Restricted Stock Grant Agreements above are not complete and are qualified in their entirety to the full text of the Restricted Stock Grant Agreements, copies of which are filed as Exhibits 10.3 hereto, and are incorporated into this Item 5.02 by reference in their entity.
Item 8.01 Other Events.
Independent Director Restricted Stock Unit Grants
The information regarding the RSUs awarded to the independent members of the Board of Directors above in “Grant of Restricted Stock Awards to Management and the Independent Directors” of Item 5.02 is incorporated into this Item 8.01 by reference in its entirety.
Employment Agreement with Brett Goodman and Options
On September 16, 2022, and effective on September 1, 2022, the Company entered into an Employment Agreement with Brett Goodman, the son of Anthony Brian Goodman, the Chief Executive Officer of the Company and majority shareholder of the Company. Pursuant to the employment agreement, Mr. Brett Goodman agreed to serve as the Vice President of Business Development for the Company for a term of three years (through September 1, 2025), subject to automatic one-year extensions of the agreement, if not terminated by either party at least three months prior to the renewal date.
The agreement provides an annual salary of $60,000 per year, plus a 10.5% Superannuation, subject to annual increases in the discretion of the Audit Committee of the Company. Increases of salary are not required to be set forth in an amendment to the Employment Agreement. The Board of Directors (or Compensation Committee of the Board of Directors) may also grant Mr. Goodman bonuses from time to time in its discretion, in cash, stock or equity, including in the form of options, in amounts determined in the sole discretion of the Board of Directors (or Compensation Committee of the Board of Directors). The Board of Director or Compensation Committee may also increase Mr. Goodman’s salary from time to time in their discretion.
The agreement contains standard confidentiality and indemnification obligations of the parties and provides for Mr. Goodman to receive three months of severance pay in the event Mr. Goodman’s employment is terminated other than for cause or by Mr. Goodman without cause. Upon such qualifying termination, all options held by Mr. Goodman vest immediately and are exercisable for the later of the original stated expiration date thereof or 24 months after such termination date.
In connection with the entry into the employment agreement, the Company granted Mr. Brett Goodman options to purchase 50,000 shares of the Company’s common stock, evidenced by a Notice of Grant of Stock Options and Stock Option Award Agreement (the “Option Agreement”), with an exercise price equal to $3.98 per share, the closing sales price of the Company on the Nasdaq Capital Market on the date the grant was approved by the Board of Directors of the Company. The options vest at the rate of 1/2 of such Options on each of August 22, 2023 and 2024, subject to Mr. Brett Goodman’s continued service with the Company on such vesting dates and such options shall expire if unexercised on February 22, 2025. The options were granted under, and subject to the terms and conditions of, the Company’s 2018 Equity Incentive Plan.
The descriptions of the Brett Goodman Employment Agreement and Option Agreement above are not complete and are qualified in their entirety to the full text of the Brett Goodman Employment Agreement and Option Agreement, copies of which are filed as Exhibits 10.4 and 10.5 hereto, and are incorporated into this Item 8.01 by reference in their entity.
| 6 |
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. |
| Description |
| ||
| ||
| ||
| ||
| Form of Stock Option Agreement – Brett Goodman (2018 Equity Incentive Plan) *** | |
104 |
| Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document) |
* Filed herewith.
*** Indicates management contract or compensatory plan or arrangement.
| 7 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned, hereunto duly authorized.
| GOLDEN MATRIX GROUP, INC. |
| |
|
|
| |
Date: September 20, 2022 | By: | /s/ Anthony Brian Goodman |
|
|
| Anthony Brian Goodman |
|
|
| Chief Executive Officer |
|
8 |
EXHIBIT 10.1
FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Between
Golden Matrix Group Inc.
and
Anthony Brian Goodman
THIS FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made the 16th day of September, effective on the same date.
BETWEEN: Golden Matrix Group Inc. of: 3651 Lindell Road Ste D131 Las Vegas NV 89103 USA (the "Company")
AND: Anthony Brian Goodman (the “Executive”)
RECITALS:
| A. | The Company and Executive previously entered into an Employment Agreement, dated as of October 26, 2020 (the “Prior Agreement”), concerning the employment of Executive as Chief Executive Officer of the Company, which the Company and Executive now desire to amend and restate in its entirety in connection with the entry into this Agreement. |
|
|
|
| B. | The Company currently employs the Executive and the Executive desires to continue to serve as Chief Executive Officer of the Company on the terms contained in this agreement. |
|
|
|
| C. | Term of Employment. Except as otherwise provided below, the Company shall employ Executive for the period commencing on the Start Date and ending on the fourth anniversary of the Start Date. At the expiration of the original term or any extended term (each a “Renewal Date”), Executive’s employment hereunder shall be extended automatically, upon the same terms and conditions, for successive one-year periods, unless either party shall give written notice to the other of its intention not to renew such employment at least three months prior to such Renewal Date. |
|
|
|
| D. | The parties agree that Executive’s employment with the Company will be “at-will” employment and may be terminated at any time with or without cause or notice, subject to the terms of this agreement. Executive understands and agrees that neither his job performance nor promotions, commendations, bonuses or the like from the Company give rise to or in any way serve as the basis for modification, amendment, or extension, by implication or otherwise, of his employment with the Company. However, as described in this agreement, Executive may be entitled to severance benefits depending on the circumstances of Executive’s termination of employment with the Company as discussed below. |
THE PARTIES AGREE in consideration of, among other things, the mutual promises contained in this agreement, the receipt and sufficiency of which is confirmed by the parties, to the following:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Accounts: means the audited profit and loss account of the Company;
Basic Salary means the basic salary package of the Executive as adjusted under clause 4.2;
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 2 of 18
Board means the board of directors of the Company;
Business Day means a date other than a Saturday or Sunday, where the banks are generally open for business in Nevada.
Change of Control means the happening of any of the following without the prior written approval of Executive:
|
| (i) | Any “Person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) is or becomes the “Beneficial Owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the total voting power represented by the Company’s then outstanding voting securities; |
|
|
|
|
|
| (ii) | A merger or consolidation of the Company whether or not approved by the Board of Directors of the Company, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted or into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or |
|
|
|
|
|
| (iii) | As a result of the election of members to the Board of Directors, a majority of the Board of Directors consists of persons who are not members of the Board of Directors as of the Start Date (including Executive as a member of the Board of Directors as of the Start Date), except in the event that such slate of directors is proposed by the Nominating Committee. |
Notwithstanding the foregoing, if the definition of “Change of Control” in the Company’s Stock Incentive Plans or Equity Compensation Plans (each as amended from time to time) is more favorable to the Executive, then such definition shall be controlling for purposes of this Agreement.
Compensation Committee means a committee comprised of independent members of a board of directors who are responsible for setting Executive’s compensation;
Expert means an individual appointed under clause 15(a), (b) or (c), by the mutual approval of the Company and the Executive;
Group means the Company and any Subsidiary Company;
Group Company means the Company or any Subsidiary Company;
Information means any information in respect of the Company's business which is not in the public domain and includes, but is not limited to, any document, book, account, process, patent, specification, drawing, design or know-how which:
|
| (a) | comes to the notice of the Executive in the course of the Executive's employment; or |
|
|
|
|
|
| (b) | is generated by the Executive in the course of performing the Executive's obligations. |
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 3 of 18
Month means calendar month;
Start Date means the 20 of August 2022;
Salary Review Date means every 12 months after the Start Date; and
Termination Date means the date when the Executive ceased to be employed by the Company.
1.2 Interpretation
In this agreement, headings are for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires:
|
| (a) | a reference to termination of this agreement includes a reference to termination of the Executive's contract of employment; |
|
|
|
|
|
| (b) | words importing the singular include the plural and vice versa; |
|
|
|
|
|
| (c) | words importing a gender include any gender; |
|
|
|
|
|
| (d) | other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning; |
|
|
|
|
|
| (e) | an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and vice versa; |
|
|
|
|
|
| (f) | a reference to anything (including, but not limited to, any right) includes a part of that thing; |
|
|
|
|
|
| (g) | a reference to a party to a document includes that party's successors and permitted assigns; |
|
|
|
|
|
| (h) | a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; and |
|
|
|
|
|
| (i) | a reference to a document or agreement includes all amendments or supplements to, or replacements or novations of, that document or agreement. |
2. APPOINTMENT
Executive shall serve as Chief Executive Officer of the Company pursuant to the terms of this agreement and the Executive accepts that appointment.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 4 of 18
3. DUTIES OF EXECUTIVE
3.1 General Duties
The Executive must:
|
| (a) | devote his/her full time, attention and skill during normal business hours, and at other times as reasonably necessary, to the duties of office; |
|
|
|
|
|
| (b) | faithfully and diligently perform the duties and exercise the powers consistent with the position of a Chief Executive Officer; |
|
|
|
|
|
| (c) | provide his services in a proper, efficient, diligent and competent manner and so as to promote the development of the Company; |
|
|
|
|
|
| (d) | act at all times with the utmost good faith to promote the welfare and interests of the Company; |
|
|
|
|
|
| (e) | at all times comply with the then current business plan of the Company, as approved by the Board of Directors of the Company; and |
|
|
|
|
|
| (f) | at all times maintain accurate and complete financial records of all financial transactions undertaken in the performance of these services and in the operations of the Company. |
3.2 Non-Exclusive
The Company acknowledges that the Executive will be entitled to continue his involvement with Luxor Capital LLC, Elray Resources and Articulate Pty Ltd.
4. REMUNERATION
4.1 Basic Salary
|
| (a) | During the period that the Executive serves the Company under this agreement, the Company must pay the Executive the Basic Salary, determined under this clause 4, in equal fortnightly payments by, or as otherwise agreed between the parties. |
|
|
|
|
|
| (b) |
|
4.2 Starting Salary
The Basic Salary is One Hundred and Fifty Eight Thousand Four Hundred Dollars per annum ($158,400.00 USD) plus Superannuation as mandated by the Australian Government - Superannuation Guarantee (Administration) Act 1992.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 5 of 18
4.3 Salary Review
|
| (a) | The Basic Salary is subject to review by the Compensation Committee on each Salary Review Date. |
|
|
|
|
|
| (b) | The Basic Salary for the period after a review is the amount per annum agreed between the Executive and the Compensation Committee, subject to an increase of no less than 10% per annum. |
|
|
|
|
|
| (c) | At each review, the Basic Salary may be increased having regard to: |
|
|
| (i) | the cost of living; |
|
|
|
|
|
|
|
| (ii) | the responsibilities of the Executive and remuneration available in the workforce outside the Company for a person with responsibilities and experience equivalent to those of the Executive; and |
|
|
|
|
|
|
|
| (iii) | the performance of the Executive. |
|
|
|
|
|
|
| (d) | Increases in such Basic Salary shall be documented in the Company’s records, but shall not require the parties enter into a new or amended form of this agreement. | |
4.4 Other Benefits.
Executive shall be entitled to participate in the Company’s Executive stock option plan, life, health, accident, disability insurance plans, pension plans and retirement plans, in effect from time to time (including, without limitation, any incentive program or discretionary bonus program of the Company which may be implemented in the future by the Board), to the extent and on such terms and conditions as the Company customarily makes such plans available to its senior Executives.
5. BONUS AND/OR INCENTIVES
| 5.1 | The Board at their discretion will create an executive cash bonus plan. The bonus will align shareholder values with the bonus plan. The Board will set executive goals with the executives that reward the plans successful completion. |
|
|
|
| 5.2 | The Company may with the express agreement of the Executive, satisfy any bonus payment by the granting of shares or other interests in the Company (or any other company acceptable to the Executive). |
|
|
|
| 5.3 | The Company may issue options to Executive from time to time. |
|
|
|
| 5.4 | The Board or Compensation Committee may award the Executive bonuses from time to time, in their discretion, in cash, stock or other securities of the Company. |
6. EXPENSES
|
| (a) | The Company must reimburse the Executive for reasonable out-of-pocket expenses incurred by the Executive on Company business including but not limited to travel and entertainment. |
|
|
|
|
|
| (b) | The Company may require evidence of expenses incurred by the Executive. |
|
|
|
|
The Compensation Committee in conjunction with the Board may approve any variations to this Clause provided that such variations are with the Executive’s consent.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 6 of 18
7. LEAVE
7.1 Leave Entitlements
| (a) | The Executive is entitled to public holidays, and holiday leave in conformity with Australian statutory entitlements. https://www.fairwork.gov.au/about-us/legislation |
|
|
|
| (b) | The Executive must take annual leave at a period or periods agreed between the Company and Executive. The Company’s consent shall not be unreasonably withheld. |
|
|
|
| (c) | Annual leave entitlements shall accrue on a pro rata basis during the first year of the Executive’s employment by the Company and, thereafter, upon each anniversary of the Employment Date, as provided in the Australian The Fair Work Act 2009. https://www.fairwork.gov.au/about-us/legislation |
7.2 Accrued Leave
Subject to any statutory provision, the Company may require the Executive to take any significant accrued leave entitlement.
8.3 Special Leave
The Executive will in each period of twelve months be entitled to seven days special leave. Any untaken special leave is not cumulative and you are required to notify the Company as soon as possible on the day of any absence if you are taking special leave. You will not be entitled to a lump sum payment for unused special leave at the termination of your employment.
8. PAYMENT DURING ABSENCE ON MEDICAL GROUNDS
8.1 Sick Leave Entitlement
|
| (a) | The Company must continue to pay the Executive's salary in full during any absences on medical grounds up to a maximum total of 14 Business Days absence in any period of 12 Months or whatever minimum that may be dictated by local New South Wales (NSW) Australian legislation. |
|
| (b) | The Executive’s sick leave entitlement under clause 8.1(a) arises on the Start Date of this agreement and is renewed on each anniversary of that date. |
8.2 Sick Leave Not Cumulative
The Executive's sick leave entitlement under clause 8.1(a) is not cumulative from year to year.
8.3 Evidence of Illness or Injury
The Executive must, if the Company so requires, provide evidence to the reasonable satisfaction of the Company that any absence was due to illness or involuntary injury.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 7 of 18
8.4 Compensation
|
| (a) | If the Executive's absence is due to any actionable negligence of a third party for which damages are or may be recoverable then all money paid by the Company under clause 8.1(a) is a loan to the Executive. |
|
|
|
|
|
| (b) | The Executive must immediately notify the Company of any claim, compromise, settlement or judgment made or awarded to the Executive in respect of any absence from work as a result of the negligence of a third party. |
|
|
|
|
|
| (c) | If the Company requires, the Executive must refund to the Company an amount of the money advanced to the Executive for the period of incapacity which is equivalent to any compensation the Executive received for lost wages and other emolument. |
9. CONFIDENTIALITY
9.1 Executive's Obligations
The Executive must:
|
| (a) | keep any information secret and confidential, except to the extent that the Executive is required by law to disclose it; |
|
|
|
|
|
| (b) | take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any information; and |
|
|
|
|
|
| (c) | not disclose information to any third party without first obtaining the written consent of the Board except in the ordinary and proper course of employment with the Company. |
For the sake of clarity, nothing in this Section 9 prohibits Executive from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. Executive does not need the prior authorization of the Company to make any such reports or disclosures and Executive is not required to notify the Company that he has made such reports or disclosures. Executive further understands that this Agreement does not limit Executive’s ability to communicate with any government agencies or otherwise participate in any investigation or proceeding that may be conducted by any government agency, including providing documents or other information, without notice to the Company. This Agreement does not limit Executive’s right to receive an award for information provided to any government agencies, including, but not limited to under Rule 21F-17(a) under the Securities Exchange Act of 1934, as amended, or other rules or regulations implemented under the Dodd-Frank Wall Street Reform Act and Consumer Protection Act. Executive acknowledges, agrees, and understands that (i) nothing in this Agreement prohibits him from reporting to any governmental authority or attorney information concerning suspected violations of law or regulation, provided that Executive does so consistent with 18 U.S.C. § 1833, and (ii) Executive may disclose trade secret information to a government official or to an attorney and use it in certain court proceedings without fear of prosecution or liability, provided that Executive does so consistent with 18 U.S.C. § 1833.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 8 of 18
10.1 Survival of Obligations
The Executive's obligations under this clause survive the termination of this agreement.
11. PROTECTION OF THE COMPANY'S INTERESTS
11.1 Restricted Areas and Restricted Activities
|
| (a) | For the purposes of clause 11.1(b) the expression "competitive with the business of the Company" means in competition with the business of marketing of Gaming Intellectual Property, Online Raffles, Lotteries, Tournaments, Competition’s and Sportsbook operations and technology. |
|
|
|
|
|
| (b) | Subject, to clause 11.2(b), 3.2 and in consideration for $10 and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Executive must not, without the prior written consent of the Company do any of the following: |
|
| (i) | directly or indirectly carry on (whether alone, in partnership or in joint venture with anyone else) or otherwise be concerned with or interested in (whether as trustee, principal, agent, shareholder, unit holder or in any other capacity) in a similar or competitive business in the U.S.A. and the U.K. for a period of 1 year from the Termination Date; |
|
|
|
|
|
| (ii) | at any time induce or attempt to include any director, manager or Executive of the Company to terminate his employment with the Company, whether or not that person would commit a breach of that person's contract of employment; or |
|
|
|
|
|
| (iii) | directly or indirectly accept or solicit, in any capacity, the business of any customer of the Company with whom Executive worked or otherwise had access to during the last year of Executive’s employment with the Company, or solicit, directly or indirectly, or encourage any of the Company’s customers or suppliers to terminate their business relationship with the Company, or otherwise interfere with such business relationships, for a period of 1 year from the Termination Date. |
11.2 Restraints Reasonable
|
| (a) | The Executive and the Company consider the restraints contained in this clause to be reasonable and intend the restraints to operate to the maximum extent. |
|
|
|
|
|
| (b) | If these restraints: |
|
| (i) | are void as unreasonable for the protection of the interests of the Company; and |
|
|
|
|
|
| (ii) | would be valid if part of the wording was deleted or the period or area was reduced, then the restraints will apply with the modifications necessary to make them effective. |
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 9 of 18
11.3 Restraints Independent
The restraints contained in this clause are separate, distinct and several, so that the unenforceability of any restraint does not affect the enforceability of the other restraints.
11.4 Acknowledgments by Executive
The Executive acknowledges that:
|
| (a) | the Executive will obtain information concerning the business and finances of the Company and Group Companies including trade secrets and industrial processes; |
|
|
|
|
|
| (b) | disclosure of Information could materially harm the Company; |
|
|
|
|
|
| (c) | the restrictive covenants contained in this clause are reasonable and necessary for the protection of the goodwill of the Company; |
|
|
|
|
|
| (d) | the remedy of damages may be inadequate to protect the interests of the Company and the Company is entitled to seek and obtain injunctive relief, or any other remedy, in any Court; and |
|
|
|
|
|
| (e) | in view of the importance of the restraints contained in this clause for the protection of the proprietary interests of the Company, this clause will survive the termination of the Executive's employment with the Company in all circumstances including repudiation by the Company of the remainder of this agreement. |
12.1 Survival of Obligations
The Executive's obligations under this clause 12 shall survive the termination of this agreement.
12.2 Definition
The expression Termination Date means the date when the Executive ceases to be employed by the Company.
13. RESTRICTIONS ON OTHER ACTIVITIES OF THE EXECUTIVE
13.1 Inducements
Other than under this agreement, the Executive must not accept any payment or other benefit as an inducement or reward for any act in connection with the business of the Company or any Group Company. This clause does not prevent the Executive receiving any dividend arising from him holding shares in the Company or any Group Company.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 10 of 18
14. TERMINATION
14.1 Termination because of Illness
The Company may terminate this agreement by not less than 2 Weeks notice in writing if it is adjudicated under part 15 that the Executive:
|
| (a) | is incapacitated by illness or accident as certified by an independent medical officer for an accumulated period of 6 Months in any 24 Month period; or |
|
|
|
|
|
| (b) | is advised by an independent medical officer that the Executive's health has deteriorated to a degree that it is advisable for the Executive to cease working permanently for the Company. |
14.2 Immediate Termination by the Company
The Company may terminate this agreement immediately if it is adjudicated under part 15 that the Executive:
|
| (a) | Commits any act of dishonesty, fraud, willful disobedience, misconduct or breach of duty, as determined in the reasonable discretion of the independent members of the Board of Directors acting in good faith (without the vote of the Executive); |
|
|
|
|
|
| (b) | undertakes any of the activities described in clause 11.1 during his employment by the Company, as determined by the reasonable determination of the independent members of the Board of Directors of the Company acting in good faith (without the vote of the Executive); |
|
|
|
|
|
| (c) | willfully, persistently and materially breaches this agreement and does not remedy the breach within 14 days after receipt of notice in writing from the Company specifying the breach, as determined by the reasonable determination of the independent members of the Board of Directors of the Company acting in good faith (without the vote of the Executive); or |
|
|
|
|
|
| (d) | is of unsound mind or becomes liable to be dealt with under any law relating to mental health, as determined by the reasonable determination of the independent members of the Board of Directors of the Company acting in good faith (without the vote of the Executive). |
14.3 Immediate Termination by the Executive
The Executive may terminate this agreement immediately upon, and for a period of thirty (30) days following, the occurrence of any of the following:
|
| (a) | the Company has gone into receivership or liquidation; |
|
|
|
|
|
| (b) | any amount payable by the Company to the Executive under this agreement remains unpaid for more than 14 days after the Executive has given written notice of default to the Company; |
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 11 of 18
|
| (c) | without Executive’s consent, his position or duties are modified by the Company to such an extent that his duties are no longer consistent with the position of CEO of the Company; |
|
|
|
|
|
| (d) | there has been a material breach by the Company of a material term of this Agreement or Employee reasonably believes that the Company is violating any law which would have a material adverse effect on the Company’s operations and such violation continues uncured following thirty (30) days after such breach and after notice thereof has been provided to the Company by the Executive, or |
|
|
|
|
|
| (e) | Executive’s compensation as set forth hereunder is reduced without Executive’s consent, or the Company fails to pay to Executive any compensation due to him hereunder upon fifteen (15) days written notice from Executive informing the Company of such failure. |
14.4 Severance Pay
If the Executive’s employment herein is terminated (a) by the Company without "Cause", except for a reason set forth in Section 14.1 or 14.2 hereof, or (b) by the Executive pursuant to Section 14.3 hereof (each a “Severance Termination”), the Company shall pay the Executive severance pay in an amount equal to (a) a lump sum cash severance payment equal to the sum of (i) 18 months of Executive’s then current annual Basic Salary plus (ii) an amount equal to Executive’s targeted bonus for the year of termination (such total payment referred to herein as the “Severance Payment”); (b) Executive shall be entitled to a lump sum cash bonus payment based on prior service in an amount equal to the sum of (i) any unpaid bonus for the prior year that would have been paid had Executive not been terminated prior to such payment plus (ii) Executive’s targeted bonus for the year of termination multiplied by the number of days in such year preceding the termination date, divided by 365; additionally and notwithstanding anything to the contrary in any equity award agreement, any unvested stock options or other equity compensation (including, but not limited to restricted stock units (RSUs)) previously granted to the Executive will vest immediately upon such termination and in the case of stock options, shall be exercisable by the Executive until the earlier of (A) one (1) year from the date of termination and (B) the latest date upon which such stock options or equity would have expired by their original terms under any circumstances. For purposes of this Agreement, the term for "Cause" shall mean because of gross negligence or willful misconduct by the Executive either in the course of his employment hereunder or the Executive's ability to perform adequately and effectively his duties hereunder as determined in the reasonable good faith determination of the independent members of the Board of Directors.
Additionally, in the event of a Severance Termination, unvested equity benefits (including options, unvested RSU’s or unvested equity awards) will vest immediately upon such termination. Executive shall be entitled to no other post-employment benefits except as provided for under this Section 14.4 and for benefits payable under applicable benefit plans in which Executive is entitled to participate through the termination date, subject to and in accordance with the terms of such plans.
14.5 Termination Payment
Except as set forth under Section 14.4 or 14.6, below, upon the termination of this Agreement by the Company or Executive, Executive shall be entitled to salary accrued through the termination date and no other benefits other than as required under the terms of employee benefit plans in which Executive was participating as of the termination date. Additionally, any unvested stock options or unvested equity compensation held by Executive shall immediately terminate and be forfeited (unless otherwise provided in the applicable award agreement) and any previously vested stock options (or if applicable equity compensation) shall be subject to terms and conditions set forth in the applicable Stock Incentive Plan or Equity Compensation Plan, or award agreement, as such may describe the rights and obligations upon termination of employment of Executive.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 12 of 18
14.7 Change of Control Payment
In the event that Executive’s employment is terminated (a) by the Company for any reason other than (i) those set forth in Section 14.1 or 14.2 hereof, (ii) by the death of Executive, or (iii) by the Company without "Cause", or (b) by the Executive pursuant to Section 14.3 hereof (as applicable, a “Change of Control Termination”) during the twelve month period following a Change of Control or in anticipation of a Change of Control, the Company shall pay Executive, within 60 days following the later of (i) the date of such Change of Control Termination; and (ii) the date of such Change of Control, a cash severance payment in a lump sum in an amount equal to 3.0 times the sum of (a) the current annual Base Salary of the Executive (less any actual payments made in connection with any severance payments pursuant to Section 14.4); and (b) the amount of the most recent bonus paid to the Executive for the last completed fiscal year, if any (less any actual payments made in connection with any severance payments pursuant to Section 14.4)((a) and (b), the “Change of Control Payment”). If Executive’s employment ends due to a Change of Control Termination within six (6) months prior to a Change of Control, it will be deemed to be “in anticipation of a Change of Control” for purposes of this paragraph. In addition, in the event of a Change of Control, all of Executive’s equity-based compensation (including options and equity subject to vesting) shall immediately vest regardless of whether the Executive is retained by the Company or successor following the Change of Control. Additionally, in the event of a Change of Control Termination, unvested equity benefits and awards (including options, unvested RSU’s or unvested equity awards) will vest immediately upon such termination and in the case of stock options, shall be exercisable by the Executive until the earlier of (A) one (1) year from the date of termination and (B) the latest date upon which such stock options or equity would have expired by their original terms under any circumstances.
For the sake of clarity, if the Executive has already received any severance pay under Section 14.4, above, prior to a deemed Change of Control Termination, such amounts shall be subtracted from the Change of Control Payment payable hereunder.
14.8 Payment in Lieu of Severance
Payment under clause 14.4 constitutes full satisfaction and discharge of the Company's obligations with respect to notice of termination.
14.9 Obligations on Termination
On termination of this agreement, the Executive must return to the Company all tangible property of the Company or any Group Company including, but not limited to, all books, documents, papers, materials, credit cards, cars and keys held by the Executive or under the Executive's control.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 13 of 18
15. ADJUDICATION
An issue which requires adjudication under this agreement is adjudicated if the following procedures are followed:
|
| (a) | The parties must within two (2) Business Days after the receipt of notice from a party requiring adjudication appoint an Expert agreed to by both parties to determine which of the Company's or the Executive's position is the more reasonable having regard to the law and the facts. |
|
|
|
|
|
| (b) | If the Expert appointed under clause (a) is unable to carry out the determination another Expert must be appointed in accordance with clause (a) to determine the dispute. |
|
|
|
|
|
| (c) | The Expert appointed under this clause acts as an expert and not an arbitrator. |
|
|
|
|
|
| (d) | Each party must make a written submission to the Expert in support of its position. The submission must be delivered to the Expert within 15 days after his/her appointment, and must request the Expert's determination on an urgent basis. |
|
|
|
|
|
| (e) | The parties must co-operate fully with the Expert and make available to the Expert all relevant information and documents. |
|
|
|
|
|
| (f) | The Expert's determination is final and binding on the parties. |
|
|
|
|
|
| (g) | The cost of the Expert shall be borne by the party whose position was not determined to be the more reasonable by the Expert. |
|
|
|
|
|
| (h) | Failure by a party to do anything required of it under this clause 15 shall be deemed a refusal to co-operate fully and the matter shall be deemed adjudicated in favor of the other party which shall entitle the other party to act on the basis that the Expert has adjudicated in its favor. |
|
|
|
|
|
| (i) | Until the dispute has been decided by the Expert, the status quo shall prevail. |
16. INDEMNIFICATION
| 16.1. | The Company agrees to indemnify Executive and hold Executive harmless from and against any and all losses, claims, damages, liabilities and costs (and all actions in respect thereof and any legal or other expenses in giving testimony or furnishing documents in response to a subpoena or otherwise), including, without limitation, the costs of investigating, preparing or defending any such action or claim, whether or not in connection with litigation in which Executive is a party, as and when incurred, directly or indirectly caused by, relating to, based upon or arising out of any work performed by Executive in connection with this agreement to the full extent permitted by the Nevada Revised Statutes, and by the Articles of Incorporation and Bylaws of the Company, as may be amended from time to time, and pursuant to any indemnification agreement between Executive and the Company. |
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 14 of 18
| 16.2. | The indemnification provision of this ARTICLE 16 shall be in addition to any liability which the Company may otherwise have to Executive. |
|
|
|
| 16.3. | If any action, proceeding or investigation is commenced as to which Executive proposes to demand such indemnification, Executive shall notify the Company with reasonable promptness. Executive shall have the right to retain counsel of Executive’s own choice to represent Executive and the Company shall pay all reasonable fees and expenses of such counsel; and such counsel shall, to the fullest extent consistent with such counsel’s professional responsibilities, cooperate with the Company and any counsel designated by the Company. The Company shall be liable for any settlement of any claim against Executive made with the Company’s written consent, which consent shall not be unreasonably withheld or delayed, to the fullest extent permitted by the Nevada Revised Statutes and the Articles of Incorporation and Bylaws of the Company, as may be amended from time to time. |
17. GENERAL
17.1 Notices
|
| (a) | Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a party to this agreement: | |
|
|
|
|
|
|
|
| (i) | must be in legible writing and in English addressed as shown at the commencement of this agreement, or as specified to the sender by any party by notice; |
|
|
|
|
|
|
|
| (ii) | where the sender is a company, must be signed by an officer or under the common seal of the sender; |
|
|
|
|
|
|
|
| (iii) | is regarded as being given by the sender and received by the addressee: |
|
|
|
|
|
|
| (1) | if by delivery in person, when delivered to the addressee; |
|
|
|
|
|
| (2) | if by post, 3 Business Days from and including the date of postage; or |
|
|
|
|
|
| (3) | if by email transmission, when transmitted to the addressee, |
|
| but if the delivery or receipt is on a day which is not a Business Day or is after 4:00 pm (addressee's time) it is regarded as received at 9:00 am on the following Business Day; and | |
|
| (iv) | can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorised by the sender. |
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 15 of 18
|
| (b) | A facsimile transmission is regarded as legible unless the addressee telephones the sender within 2 hours after transmission is received or regarded as received under clause 16.1(a)(iii) and informs the sender that it is not legible. |
|
|
|
|
|
| (c) | In this clause 16.1, a reference to an addressee includes a reference to an addressee's officers or agents. |
17.2 Governing Law and Jurisdiction
|
| (a) | Save for the provisions of clause 15 above and the other provisions of this agreement specifically referencing Australian laws (local or otherwise), this agreement shall be governed and interpreted in accordance with the laws of Nevada, USA and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Nevada. |
|
|
|
|
|
| (b) | Each of the parties irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum. |
17.3 Prohibition, Enforceability and Severance
|
| (a) | Any provision of, or the application of any provision of, this agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition. |
|
|
|
|
|
| (b) | Any provision of, or the application of any provision of, this agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction. |
|
|
|
|
|
| (c) | If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this agreement. |
17.4 Waiver
The failure of either the Company or the Executive at any time to require performance by the other party of any provision of this agreement does not affect the party's right to require the performance at any time.
The waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.
17.5 Binding Effect; Assignment.
This agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, heirs, successors and assigns. Executive may not assign any of his rights or obligations under this agreement. The Company may assign its rights and obligations under this agreement to any successor entity.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 16 of 18
17.6 Entire Agreement.
This agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior agreements between the Company and Executive, whether written or oral, relating to any or all matters covered by and contained or otherwise dealt with in this agreement, including, but not limited to the Prior Agreement. This agreement does not constitute a commitment of the Company with regard to Executive’s employment, express or implied, other than to the extent expressly provided for herein.
17.7 Amendment.
No modification, change or amendment of this agreement or any of its provisions shall be valid, unless in a writing signed by the parties and approved by the Compensation Committee.
17.8 Legal Counsel.
Executive acknowledges and warrants that (A) he has been advised that Executive’s interests may be different from the Company’s interests, (B) he has been afforded a reasonable opportunity to review this agreement, to understand its terms and to discuss it with an attorney and/or financial advisor of his choice and (C) he knowingly and voluntarily entered into this agreement. The Company and Executive shall each bear their own costs and expenses in connection with the negotiation and execution of this agreement.
17.9 Clawback.
Notwithstanding any provision in this agreement to the contrary, any portion of the payments and benefits provided under this agreement, as well as any other payments and benefits which the Executive receives pursuant to a Company plan or other arrangement, shall be subject to a clawback to the extent necessary to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission rule.
17.10 Counterparts, Effect of Facsimile, Emailed and Photocopied Signatures.
This agreement and any signed agreement or instrument entered into in connection with this agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .peg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manners and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party, each other party shall re execute the original form of this agreement and deliver such form to all other parties. No party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
[Remainder of page left intentionally blank. Signature page follows.]
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 17 of 18
EXECUTED AS AN AGREEMENT
EXECUTED FOR AND ON BEHALF OF
Golden Matrix Group Inc.
by authority of its Board Member: Thomas McChesney
/s/ Thomas McChesney
EXECUTED FOR AND ON BEHALF OF
Golden Matrix Group Inc.
by authority of its Board Member: Murray Smith
/s/ Murray Smith
SIGNED SEALED AND DELIVERED
by the said Anthony Brian Goodman
/s/ Anthony Brian Goodman
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Anthony Brian Goodman
Page 18 of 18
EXHIBIT 10.2
FIRST AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Between
Golden Matrix Group Inc.
and
Weiting Feng
THIS FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made the 16th day of September, effective on the same date.
BETWEEN: Golden Matrix Group Inc. of: 3651 Lindell Road Ste D131 Las Vegas NV 89103 USA (the "Company")
AND: Weiting Feng (the “Executive”)
RECITALS:
A. The Company and Executive previously entered into an Employment Agreement, dated as of October 26, 2020 (the “Prior Agreement”), concerning the employment of Executive as Chief Operating Officer of the Company, which the Company and Executive now desire to amend and restate in its entirety in connection with the entry into this Agreement.
B. The Company currently employs the Executive and the Executive desires to continue to serve as Chief Operating Officer of the Company on the terms contained in this agreement.
C. Term of Employment. Except as otherwise provided below, the Company shall employ Executive for the period commencing on the Start Date and ending on the fourth anniversary of the Start Date. At the expiration of the original term or any extended term (each a “Renewal Date”), Executive’s employment hereunder shall be extended automatically, upon the same terms and conditions, for successive one-year periods, unless either party shall give written notice to the other of its intention not to renew such employment at least three months prior to such Renewal Date.
D. The parties agree that Executive’s employment with the Company will be “at-will” employment and may be terminated at any time with or without cause or notice, subject to the terms of this agreement. Executive understands and agrees that neither her job performance nor promotions, commendations, bonuses or the like from the Company give rise to or in any way serve as the basis for modification, amendment, or extension, by implication or otherwise, of her employment with the Company. However, as described in this agreement, Executive may be entitled to severance benefits depending on the circumstances of Executive’s termination of employment with the Company as discussed below.
THE PARTIES AGREE in consideration of, among other things, the mutual promises contained in this agreement, the receipt and sufficiency of which is confirmed by the parties, to the following:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Accounts: means the audited profit and loss account of the Company;
Basic Salary means the basic salary package of the Executive as adjusted under clause 4.2;
Board means the board of directors of the Company;
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 2 of 18
Business Day means a date other than a Saturday or Sunday, where the banks are generally open for business in Nevada.
Change of Control means the happening of any of the following without the prior written approval of Executive:
(i) Any “Person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) is or becomes the “Beneficial Owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the total voting power represented by the Company’s then outstanding voting securities;
(ii) A merger or consolidation of the Company whether or not approved by the Board of Directors of the Company, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted or into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or
(iii) As a result of the election of members to the Board of Directors, a majority of the Board of Directors consists of persons who are not members of the Board of Directors as of the Start Date (including Executive as a member of the Board of Directors as of the Start Date), except in the event that such slate of directors is proposed by the Nominating Committee.
Notwithstanding the foregoing, if the definition of “Change of Control” in the Company’s Stock Incentive Plans or Equity Compensation Plans (each as amended from time to time) is more favorable to the Executive, then such definition shall be controlling for purposes of this Agreement.
Compensation Committee means a committee comprised of independent members of a board of directors who are responsible for setting Executive’s compensation;
Expert means an individual appointed under clause 15(a), (b) or (c), by the mutual approval of the Company and the Executive;
Group means the Company and any Subsidiary Company;
Group Company means the Company or any Subsidiary Company;
Information means any information in respect of the Company's business which is not in the public domain and includes, but is not limited to, any document, book, account, process, patent, specification, drawing, design or know-how which:
(a) comes to the notice of the Executive in the course of the Executive's employment; or
(b) is generated by the Executive in the course of performing the Executive's obligations.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 3 of 18
Month means calendar month;
Start Date means the 20 of August 2022;
Salary Review Date means every 12 months after the Start Date; and
Termination Date means the date when the Executive ceased to be employed by the Company.
1.2 Interpretation
In this agreement, headings are for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires:
(a) a reference to termination of this agreement includes a reference to termination of the Executive's contract of employment;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and vice versa;
(f) a reference to anything (including, but not limited to, any right) includes a part of that thing;
(g) a reference to a party to a document includes that party's successors and permitted assigns;
(h) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; and
(i) a reference to a document or agreement includes all amendments or supplements to, or replacements or novations of, that document or agreement.
2. APPOINTMENT
Executive shall serve as Chief Operating Officer of the Company pursuant to the terms of this agreement and the Executive accepts that appointment.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 4 of 18
3. DUTIES OF EXECUTIVE
3.1 General Duties
The Executive must:
(a) devote his/her full time, attention and skill during normal business hours, and at other times as reasonably necessary, to the duties of office;
(b) faithfully and diligently perform the duties and exercise the powers consistent with the position of a Chief Operating Officer;
(c) provide her services in a proper, efficient, diligent and competent manner and so as to promote the development of the Company;
(d) act at all times with the utmost good faith to promote the welfare and interests of the Company;
(e) at all times comply with the then current business plan of the Company, as approved by the Board of Directors of the Company; and
(f) at all times maintain accurate and complete financial records of all financial transactions undertaken in the performance of these services and in the operations of the Company.
3.2 Non-Exclusive
The Company acknowledges that the Executive will be entitled to continue her involvement with, Elray Resources, Etrader Enterprise Pty Ltd and Articulate Pty Ltd.
4. REMUNERATION
4.1 Basic Salary
(a) During the period that the Executive serves the Company under this agreement, the Company must pay the Executive the Basic Salary, determined under this clause 4, in equal fortnightly payments by, or as otherwise agreed between the parties.
4.2 Starting Salary
The Basic Salary is One Hundred and Thirty Two Thousand Dollars per annum ($132,000 USD) plus Superannuation as mandated by the Australian Government - Superannuation Guarantee (Administration) Act 1992.
4.3 Salary Review
(a) The Basic Salary is subject to review by the Compensation Committee on each Salary Review Date.
(b) The Basic Salary for the period after a review is the amount per annum agreed between the Executive and the Compensation Committee, subject to an increase of no less than 10% per annum.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 5 of 18
(c) At each review, the Basic Salary may be increased having regard to:
(i) the cost of living;
(ii) the responsibilities of the Executive and remuneration available in the workforce outside the Company for a person with responsibilities and experience equivalent to those of the Executive; and
(iii) the performance of the Executive.
(d) Increases in such Basic Salary shall be documented in the Company’s records, but shall not require the parties enter into a new or amended form of this agreement.
4.4 Other Benefits.
Executive shall be entitled to participate in the Company’s Executive stock option plan, life, health, accident, disability insurance plans, pension plans and retirement plans, in effect from time to time (including, without limitation, any incentive program or discretionary bonus program of the Company which may be implemented in the future by the Board), to the extent and on such terms and conditions as the Company customarily makes such plans available to its senior Executives.
5. BONUS AND/OR INCENTIVES
5.1 The Board at their discretion will create an executive cash bonus plan. The bonus will align shareholder values with the bonus plan. The Board will set executive goals with the executives that reward the plans successful completion.
5.2 The Company may with the express agreement of the Executive, satisfy any bonus payment by the granting of shares or other interests in the Company (or any other company acceptable to the Executive).
5.3 The Company may issue options to Executive from time to time.
5.4 The Board or Compensation Committee may award the Executive bonuses from time to time, in their discretion, in cash, stock or other securities of the Company.
6. EXPENSES
(a) The Company must reimburse the Executive for reasonable out-of-pocket expenses incurred by the Executive on Company business including but not limited to travel and entertainment.
(b) The Company may require evidence of expenses incurred by the Executive.
The Compensation Committee in conjunction with the Board may approve any variations to this Clause provided that such variations are with the Executive’s consent.
7. LEAVE
7.1 Leave Entitlements
(a) The Executive is entitled to public holidays, and holiday leave in conformity with Australian statutory entitlements. https://www.fairwork.gov.au/about-us/legislation
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 6 of 18
(b) The Executive must take annual leave at a period or periods agreed between the Company and Executive. The Company’s consent shall not be unreasonably withheld.
(c) Annual leave entitlements shall accrue on a pro rata basis during the first year of the Executive’s employment by the Company and, thereafter, upon each anniversary of the Employment Date, as provided in the Australian The Fair Work Act 2009. https://www.fairwork.gov.au/about-us/legislation
7.2 Accrued Leave
Subject to any statutory provision, the Company may require the Executive to take any significant accrued leave entitlement.
7.3 Special Leave
The Executive will in each period of twelve months be entitled to seven days special leave. Any untaken special leave is not cumulative and you are required to notify the Company as soon as possible on the day of any absence if you are taking special leave. You will not be entitled to a lump sum payment for unused special leave at the termination of your employment.
8. PAYMENT DURING ABSENCE ON MEDICAL GROUNDS
8.1 Sick Leave Entitlement
(a) The Company must continue to pay the Executive's salary in full during any absences on medical grounds up to a maximum total of 14 Business Days absence in any period of 12 Months or whatever minimum that may be dictated by local New South Wales (NSW) Australian legislation.
(b) The Executive’s sick leave entitlement under clause 8.1(a) arises on the Start Date of this agreement and is renewed on each anniversary of that date.
8.2 Sick Leave Not Cumulative
The Executive's sick leave entitlement under clause 8.1(a) is not cumulative from year to year.
8.3 Evidence of Illness or Injury
The Executive must, if the Company so requires, provide evidence to the reasonable satisfaction of the Company that any absence was due to illness or involuntary injury.
8.4 Compensation
(a) If the Executive's absence is due to any actionable negligence of a third party for which damages are or may be recoverable then all money paid by the Company under clause 8.1(a) is a loan to the Executive.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 7 of 18
(b) The Executive must immediately notify the Company of any claim, compromise, settlement or judgment made or awarded to the Executive in respect of any absence from work as a result of the negligence of a third party.
(c) If the Company requires, the Executive must refund to the Company an amount of the money advanced to the Executive for the period of incapacity which is equivalent to any compensation the Executive received for lost wages and other emolument.
9. CONFIDENTIALITY
9.1 Executive's Obligations
The Executive must:
(a) keep any information secret and confidential, except to the extent that the Executive is required by law to disclose it;
(b) take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any information; and
(c) not disclose information to any third party without first obtaining the written consent of the Board except in the ordinary and proper course of employment with the Company.
For the sake of clarity, nothing in this Section 9 prohibits Executive from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. Executive does not need the prior authorization of the Company to make any such reports or disclosures and Executive is not required to notify the Company that he has made such reports or disclosures. Executive further understands that this Agreement does not limit Executive’s ability to communicate with any government agencies or otherwise participate in any investigation or proceeding that may be conducted by any government agency, including providing documents or other information, without notice to the Company. This Agreement does not limit Executive’s right to receive an award for information provided to any government agencies, including, but not limited to under Rule 21F-17(a) under the Securities Exchange Act of 1934, as amended, or other rules or regulations implemented under the Dodd-Frank Wall Street Reform Act and Consumer Protection Act. Executive acknowledges, agrees, and understands that (i) nothing in this Agreement prohibits him from reporting to any governmental authority or attorney information concerning suspected violations of law or regulation, provided that Executive does so consistent with 18 U.S.C. § 1833, and (ii) Executive may disclose trade secret information to a government official or to an attorney and use it in certain court proceedings without fear of prosecution or liability, provided that Executive does so consistent with 18 U.S.C. § 1833.
10 Survival of Obligations
The Executive's obligations under this clause survive the termination of this agreement.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 8 of 18
11. PROTECTION OF THE COMPANY'S INTERESTS
11.1 Restricted Areas and Restricted Activities
(a) For the purposes of clause 11.1(b) the expression "competitive with the business of the Company" means in competition with the business of marketing of Gaming Intellectual Property, Online Raffles, Lotteries, Tournaments, Competition’s and Sportsbook operations and technology.
(b) Subject, to clause 11.2(b), 3.2 and in consideration for $10 and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Executive must not, without the prior written consent of the Company do any of the following:
(i) directly or indirectly carry on (whether alone, in partnership or in joint venture with anyone else) or otherwise be concerned with or interested in (whether as trustee, principal, agent, shareholder, unit holder or in any other capacity) in a similar or competitive business in the U.S.A. and the U.K. for a period of 1 year from the Termination Date;
(ii) at any time induce or attempt to include any director, manager or Executive of the Company to terminate his employment with the Company, whether or not that person would commit a breach of that person's contract of employment; or
(iii) directly or indirectly accept or solicit, in any capacity, the business of any customer of the Company with whom Executive worked or otherwise had access to during the last year of Executive’s employment with the Company, or solicit, directly or indirectly, or encourage any of the Company’s customers or suppliers to terminate their business relationship with the Company, or otherwise interfere with such business relationships, for a period of 1 year from the Termination Date.
11.2 Restraints Reasonable
(a) The Executive and the Company consider the restraints contained in this clause to be reasonable and intend the restraints to operate to the maximum extent.
(b) If these restraints:
(i) are void as unreasonable for the protection of the interests of the Company; and
(ii) would be valid if part of the wording was deleted or the period or area was reduced, then the restraints will apply with the modifications necessary to make them effective.
11.3 Restraints Independent
The restraints contained in this clause are separate, distinct and several, so that the unenforceability of any restraint does not affect the enforceability of the other restraints.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 9 of 18
11.4 Acknowledgments by Executive
The Executive acknowledges that:
(a) the Executive will obtain information concerning the business and finances of the Company and Group Companies including trade secrets and industrial processes;
(b) disclosure of Information could materially harm the Company;
(c) the restrictive covenants contained in this clause are reasonable and necessary for the protection of the goodwill of the Company;
(d) the remedy of damages may be inadequate to protect the interests of the Company and the Company is entitled to seek and obtain injunctive relief, or any other remedy, in any Court; and
(e) in view of the importance of the restraints contained in this clause for the protection of the proprietary interests of the Company, this clause will survive the termination of the Executive's employment with the Company in all circumstances including repudiation by the Company of the remainder of this agreement.
12 Definition
The expression Termination Date means the date when the Executive ceases to be employed by the Company.
13. RESTRICTIONS ON OTHER ACTIVITIES OF THE EXECUTIVE
13.1 Inducements
Other than under this agreement, the Executive must not accept any payment or other benefit as an inducement or reward for any act in connection with the business of the Company or any Group Company. This clause does not prevent the Executive receiving any dividend arising from him holding shares in the Company or any Group Company.
14. TERMINATION
14.1 Termination because of Illness
The Company may terminate this agreement by not less than 2 Weeks notice in writing if it is adjudicated under part 15 that the Executive:
(a) is incapacitated by illness or accident as certified by an independent medical officer for an accumulated period of 6 Months in any 24 Month period; or
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 10 of 18
(b) is advised by an independent medical officer that the Executive's health has deteriorated to a degree that it is advisable for the Executive to cease working permanently for the Company.
14.2 Immediate Termination by the Company
The Company may terminate this agreement immediately if it is adjudicated under part 15 that the Executive:
(a) Commits any act of dishonesty, fraud, willful disobedience, misconduct or breach of duty, as determined in the reasonable discretion of the independent members of the Board of Directors acting in good faith (without the vote of the Executive);
(b) undertakes any of the activities described in clause 11.1 during her employment by the Company, as determined by the reasonable determination of the independent members of the Board of Directors of the Company acting in good faith (without the vote of the Executive);
(c) willfully, persistently and materially breaches this agreement and does not remedy the breach within 14 days after receipt of notice in writing from the Company specifying the breach, as determined by the reasonable determination of the independent members of the Board of Directors of the Company acting in good faith (without the vote of the Executive); or
(d) is of unsound mind or becomes liable to be dealt with under any law relating to mental health, as determined by the reasonable determination of the independent members of the Board of Directors of the Company acting in good faith (without the vote of the Executive).
14.3 Immediate Termination by the Executive
The Executive may terminate this agreement immediately upon, and for a period of thirty (30) days following, the occurrence of any of the following:
(a) the Company has gone into receivership or liquidation;
(b) any amount payable by the Company to the Executive under this agreement remains unpaid for more than 14 days after the Executive has given written notice of default to the Company;
(c) without Executive’s consent, her position or duties are modified by the Company to such an extent that her duties are no longer consistent with the position of COO of the Company;
(d) there has been a material breach by the Company of a material term of this Agreement or Employee reasonably believes that the Company is violating any law which would have a material adverse effect on the Company’s operations and such violation continues uncured following thirty (30) days after such breach and after notice thereof has been provided to the Company by the Executive, or
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 11 of 18
(e) Executive’s compensation as set forth hereunder is reduced without Executive’s consent, or the Company fails to pay to Executive any compensation due to her hereunder upon fifteen (15) days written notice from Executive informing the Company of such failure.
14.4 Severance Pay
If the Executive’s employment herein is terminated (a) by the Company without "Cause", except for a reason set forth in Section 14.1 or 14.2 hereof, or (b) by the Executive pursuant to Section 14.3 hereof (each a “Severance Termination”), the Company shall pay the Executive severance pay in an amount equal to (a) a lump sum cash severance payment equal to the sum of (i) 6 months of Executive’s then current annual Basic Salary such total payment referred to herein as the “Severance Payment”); (b) Executive shall be entitled to a lump sum cash bonus payment based on prior service in an amount equal to the sum of (i) any unpaid bonus for the prior year that would have been paid had Executive not been terminated prior to such payment plus (ii) Executive’s targeted bonus for the year of termination multiplied by the number of days in such year preceding the termination date, divided by 365; additionally and notwithstanding anything to the contrary in any equity award agreement, any unvested stock options or other equity compensation (including, but not limited to restricted stock units (RSUs)) previously granted to the Executive will vest immediately upon such termination and in the case of stock options, shall be exercisable by the Executive until the earlier of (A) one (1) year from the date of termination and (B) the latest date upon which such stock options or equity would have expired by their original terms under any circumstances. For purposes of this Agreement, the term for "Cause" shall mean because of gross negligence or willful misconduct by the Executive either in the course of her employment hereunder or the Executive's ability to perform adequately and effectively her duties hereunder as determined in the reasonable good faith determination of the independent members of the Board of Directors.
Additionally, in the event of a Severance Termination, unvested equity benefits (including options, unvested RSU’s or unvested equity awards) will vest immediately upon such termination. Executive shall be entitled to no other post-employment benefits except as provided for under this Section 14.4 and for benefits payable under applicable benefit plans in which Executive is entitled to participate through the termination date, subject to and in accordance with the terms of such plans.
14.5 Termination Payment
Except as set forth under Section 14.4 or 14.6, below, upon the termination of this Agreement by the Company or Executive, Executive shall be entitled to salary accrued through the termination date and no other benefits other than as required under the terms of employee benefit plans in which Executive was participating as of the termination date. Additionally, any unvested stock options or unvested equity compensation held by Executive shall immediately terminate and be forfeited (unless otherwise provided in the applicable award agreement) and any previously vested stock options (or if applicable equity compensation) shall be subject to terms and conditions set forth in the applicable Stock Incentive Plan or Equity Compensation Plan, or award agreement, as such may describe the rights and obligations upon termination of employment of Executive.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 12 of 18
.
14.7 Change of Control Payment
In the event that Executive’s employment is terminated (a) by the Company for any reason other than (i) those set forth in Section 14.1 or 14.2 hereof, (ii) by the death of Executive, or (iii) by the Company without "Cause", or (b) by the Executive pursuant to Section 14.3 hereof (as applicable, a “Change of Control Termination”) during the twelve month period following a Change of Control or in anticipation of a Change of Control, the Company shall pay Executive, within 60 days following the later of (i) the date of such Change of Control Termination; and (ii) the date of such Change of Control, a cash severance payment in a lump sum in an amount equal to 3.0 times the sum of (a) the current annual Base Salary of the Executive (less any actual payments made in connection with any severance payments pursuant to Section 14.4); and (b) the amount of the most recent bonus paid to the Executive for the last completed fiscal year, if any (less any actual payments made in connection with any severance payments pursuant to Section 14.4)((a) and (b), the “Change of Control Payment”). If Executive’s employment ends due to a Change of Control Termination within six (6) months prior to a Change of Control, it will be deemed to be “in anticipation of a Change of Control” for purposes of this paragraph. In addition, in the event of a Change of Control, all of Executive’s equity-based compensation (including options and equity subject to vesting) shall immediately vest regardless of whether the Executive is retained by the Company or successor following the Change of Control. Additionally, in the event of a Change of Control Termination, unvested equity benefits and awards (including options, unvested RSU’s or unvested equity awards) will vest immediately upon such termination and in the case of stock options, shall be exercisable by the Executive until the earlier of (A) one (1) year from the date of termination and (B) the latest date upon which such stock options or equity would have expired by their original terms under any circumstances.
For the sake of clarity, if the Executive has already received any severance pay under Section 14.4, above, prior to a deemed Change of Control Termination, such amounts shall be subtracted from the Change of Control Payment payable hereunder.
14.8 Payment in Lieu of Severance
Payment under clause 14.4 constitutes full satisfaction and discharge of the Company's obligations with respect to notice of termination.
14.9 Obligations on Termination
On termination of this agreement, the Executive must return to the Company all tangible property of the Company or any Group Company including, but not limited to, all books, documents, papers, materials, credit cards, cars and keys held by the Executive or under the Executive's control.
15. ADJUDICATION
An issue which requires adjudication under this agreement is adjudicated if the following procedures are followed:
(a) The parties must within two (2) Business Days after the receipt of notice from a party requiring adjudication appoint an Expert agreed to by both parties to determine which of the Company's or the Executive's position is the more reasonable having regard to the law and the facts.
(b) If the Expert appointed under clause (a) is unable to carry out the determination another Expert must be appointed in accordance with clause (a) to determine the dispute.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 13 of 18
(c) The Expert appointed under this clause acts as an expert and not an arbitrator.
(d) Each party must make a written submission to the Expert in support of its position. The submission must be delivered to the Expert within 15 days after his/her appointment, and must request the Expert's determination on an urgent basis.
(e) The parties must co-operate fully with the Expert and make available to the Expert all relevant information and documents.
(f) The Expert's determination is final and binding on the parties.
(g) The cost of the Expert shall be borne by the party whose position was not determined to be the more reasonable by the Expert.
(h) Failure by a party to do anything required of it under this clause 15 shall be deemed a refusal to co-operate fully and the matter shall be deemed adjudicated in favor of the other party which shall entitle the other party to act on the basis that the Expert has adjudicated in its favor.
(i) Until the dispute has been decided by the Expert, the status quo shall prevail.
16. INDEMNIFICATION
16.1. The Company agrees to indemnify Executive and hold Executive harmless from and against any and all losses, claims, damages, liabilities and costs (and all actions in respect thereof and any legal or other expenses in giving testimony or furnishing documents in response to a subpoena or otherwise), including, without limitation, the costs of investigating, preparing or defending any such action or claim, whether or not in connection with litigation in which Executive is a party, as and when incurred, directly or indirectly caused by, relating to, based upon or arising out of any work performed by Executive in connection with this agreement to the full extent permitted by the Nevada Revised Statutes, and by the Articles of Incorporation and Bylaws of the Company, as may be amended from time to time, and pursuant to any indemnification agreement between Executive and the Company.
16.2. The indemnification provision of this ARTICLE 16 shall be in addition to any liability which the Company may otherwise have to Executive.
16.3. If any action, proceeding or investigation is commenced as to which Executive proposes to demand such indemnification, Executive shall notify the Company with reasonable promptness. Executive shall have the right to retain counsel of Executive’s own choice to represent Executive and the Company shall pay all reasonable fees and expenses of such counsel; and such counsel shall, to the fullest extent consistent with such counsel’s professional responsibilities, cooperate with the Company and any counsel designated by the Company. The Company shall be liable for any settlement of any claim against Executive made with the Company’s written consent, which consent shall not be unreasonably withheld or delayed, to the fullest extent permitted by the Nevada Revised Statutes and the Articles of Incorporation and Bylaws of the Company, as may be amended from time to time.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 14 of 18
17. GENERAL
17.1 Notices
(a) Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a party to this agreement:
(i) must be in legible writing and in English addressed as shown at the commencement of this agreement, or as specified to the sender by any party by notice;
(ii) where the sender is a company, must be signed by an officer or under the common seal of the sender;
(iii) is regarded as being given by the sender and received by the addressee:
(1) if by delivery in person, when delivered to the addressee;
(2) if by post, 3 Business Days from and including the date of postage; or
(3) if by email transmission, when transmitted to the addressee,
but if the delivery or receipt is on a day which is not a Business Day or is after 4:00 pm (addressee's time) it is regarded as received at 9:00 am on the following Business Day; and
(iv) can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorised by the sender.
(b) A facsimile transmission is regarded as legible unless the addressee telephones the sender within 2 hours after transmission is received or regarded as received under clause 17.1(a)(iii) and informs the sender that it is not legible.
(c) In this clause 17.1, a reference to an addressee includes a reference to an addressee's officers or agents.
17.2 Governing Law and Jurisdiction
(a) Save for the provisions of clause 15 above and the other provisions of this agreement specifically referencing Australian laws (local or otherwise), this agreement shall be governed and interpreted in accordance with the laws of Nevada, USA and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Nevada.
(b) Each of the parties irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 15 of 18
17.3 Prohibition, Enforceability and Severance
(a) Any provision of, or the application of any provision of, this agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision of, this agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
(c) If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this agreement.
17.4 Waiver
The failure of either the Company or the Executive at any time to require performance by the other party of any provision of this agreement does not affect the party's right to require the performance at any time.
The waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.
17.5 Binding Effect; Assignment.
This agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, heirs, successors and assigns. Executive may not assign any of her rights or obligations under this agreement. The Company may assign its rights and obligations under this agreement to any successor entity.
17.6 Entire Agreement.
This agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior agreements between the Company and Executive, whether written or oral, relating to any or all matters covered by and contained or otherwise dealt with in this agreement, including, but not limited to the Prior Agreement. This agreement does not constitute a commitment of the Company with regard to Executive’s employment, express or implied, other than to the extent expressly provided for herein.
17.7 Amendment.
No modification, change or amendment of this agreement or any of its provisions shall be valid, unless in a writing signed by the parties and approved by the Compensation Committee.
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 16 of 18
17.8 Legal Counsel.
Executive acknowledges and warrants that (A) she has been advised that Executive’s interests may be different from the Company’s interests, (B) she has been afforded a reasonable opportunity to review this agreement, to understand its terms and to discuss it with an attorney and/or financial advisor of his choice and (C) she knowingly and voluntarily entered into this agreement. The Company and Executive shall each bear their own costs and expenses in connection with the negotiation and execution of this agreement.
17.9 Clawback.
Notwithstanding any provision in this agreement to the contrary, any portion of the payments and benefits provided under this agreement, as well as any other payments and benefits which the Executive receives pursuant to a Company plan or other arrangement, shall be subject to a clawback to the extent necessary to comply with the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any Securities and Exchange Commission rule.
17.10 Counterparts, Effect of Facsimile, Emailed and Photocopied Signatures.
This agreement and any signed agreement or instrument entered into in connection with this agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .peg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manners and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party, each other party shall re execute the original form of this agreement and deliver such form to all other parties. No party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
[Remainder of page left intentionally blank. Signature page follows.]
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 17 of 18
| EXECUTED AS AN AGREEMENT |
|
| EXECUTED FOR AND ON BEHALF OF |
|
| Golden Matrix Group Inc. |
|
| by authority of its Board Member: Thomas McChesney |
|
|
|
|
| /s/ Thomas McChesney |
|
|
|
|
| EXECUTED FOR AND ON BEHALF OF |
|
| Golden Matrix Group Inc. |
|
| by authority of its Board Member: Murray Smith |
|
|
|
|
| /s/ Murray Smith |
|
|
|
|
| SIGNED SEALED AND DELIVERED |
|
| by the said Weiting Feng |
|
|
|
|
| /s/ Weiting Feng |
|
|
|
|
First Amended and Restated Employment Agreement
Golden Matrix Group, Inc. and Weiting Feng
Page 18 of 18
EXIHIBIT 10.3
RSU Number XX-XXXX-X
GOLDEN MATRIX GROUP, INC.
RSU AWARD GRANT NOTICE
(2022 EQUITY INCENTIVE PLAN)
Golden Matrix Group, Inc. (the “Company”) has awarded to you (the “Participant”) the number of restricted stock units specified and on the terms set forth below (the “RSU Award”). Your RSU Award is subject to all of the terms and conditions as set forth herein and in the Company’s 2022 Equity Incentive Plan (the “Plan”) and the RSU Award Agreement, including any additional terms and conditions for your country set forth in the appendix thereto (the “Appendix” and, together with the RSU Award Agreement, the “Agreement”), all of which are incorporated herein in their entirety. Capitalized terms not explicitly defined herein but defined in the Plan or the Agreement shall have the meanings set forth in the Plan or the Agreement, as applicable.
| Participant: |
| [______________] | ||||
| Date of Grant: |
| [______________] | ||||
| Vesting Commencement Date: |
| [______________] | ||||
| Number of Restricted Stock Units: |
| [______________] | ||||
| Vesting Schedule: |
| The Restricted Stock Units shall vest in accordance with Schedule 1 attached hereto. | ||||
|
| Notwithstanding the foregoing, except as set forth in Section 7 of the Agreement, vesting shall terminate upon the Participant’s termination of Continuous Service Status, as described in Section 6(l) of the Agreement. | |||||
| Issuance Schedule: |
| One share of Common Stock will be issued for each restricted stock unit which vests at the time set forth in Section 5 of the Agreement. | ||||
Participant Acknowledgements: By your signature below or by electronic acceptance or authentication in a form authorized by the Company, you understand and agree that:
|
| • | The RSU Award is governed by this RSU Award Grant Notice (the “Grant Notice”), and the provisions of the Plan and the Agreement, all of which are made a part of this document. Unless otherwise provided in the Plan, this Grant Notice and the Agreement (together, the “RSU Award Agreement”) may not be modified, amended or revised except in a writing signed by you and a duly authorized officer of the Company. |
|
| • | You have read and are familiar with the provisions of the Plan, the RSU Award Agreement and to the extent the Plan and/or the Common Stock issuable pursuant to this Agreement are registered under the Securities Act, the document containing the Plan information specified in Section 10(a) of the Securities Act (“Prospectus”). In the event of any conflict between the provisions in the RSU Award Agreement, or the Prospectus and the terms of the Plan, the terms of the Plan shall control. |
|
| • | The RSU Award Agreement sets forth the entire understanding between you and the Company regarding the acquisition of Common Stock and supersedes all prior oral and written agreements, promises and/or representations on that subject with the exception of: (i) other equity awards previously granted to you, and (ii) any written employment agreement, offer letter, severance agreement, written severance plan or policy, or other written agreement between the Company and you in each case that specifies the terms that should govern this RSU Award, and (iii) any clawback policy that the Company is required to adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other Applicable Law, and any clawback policy that the Company otherwise adopts, to the extent applicable and permissible under Applicable Law. | ||
| GOLDEN MATRIX GROUP, INC. |
| PARTICIPANT: | |||
|
|
|
| |||
| By: |
| By: |
| ||
|
|
|
| |||
| Title: |
|
| Date: |
| |
|
|
|
|
|
|
|
| Date: |
|
|
|
| |
RSU Number XX-XXXX-X
GOLDEN MATRIX GROUP, INC.
2022 EQUITY INCENTIVE PLAN
RSU AWARD AGREEMENT
As reflected by your RSU Award Grant Notice (“Grant Notice”), Golden Matrix Group, Inc. (the “Company”) has granted you an RSU Award under its 2022 Equity Incentive Plan (the “Plan”) for the number of restricted stock units as indicated in your Grant Notice (the “RSU Award”). The terms of your RSU Award as specified in this RSU Award Agreement for your RSU Award, including any additional terms and conditions for your country set forth in the appendix hereto (the “Appendix” and, together with the RSU Award Agreement, the “Agreement”) and the Grant Notice constitute your “RSU Award Agreement”. Defined terms not explicitly defined in this Agreement but defined in the Grant Notice or the Plan shall have the same definitions as in the Grant Notice or Plan, as applicable.
The general terms applicable to your RSU Award are as follows:
1. GOVERNING PLAN DOCUMENT. Your RSU Award is subject to all the provisions of the Plan. Your RSU Award is further subject to all interpretations, amendments, rules and regulations, which may from time to time be promulgated and adopted pursuant to the Plan. In the event of any conflict between the RSU Award Agreement and the provisions of the Plan, the provisions of the Plan shall control.
2. GRANT OF THE RSU AWARD. This RSU Award represents your right to be issued on a future date the number of shares of the Company’s Common Stock that is equal to the number of restricted stock units indicated in the Grant Notice subject to your satisfaction of the vesting conditions set forth therein (the “Restricted Stock Units”). Any additional Restricted Stock Units that become subject to the RSU Award pursuant to capitalization adjustments set forth in Section 3.9 of the Plan (“Capitalization Adjustments”) and the provisions of Section 3 below, if any, shall be subject, in a manner determined by the Board, to the same forfeiture restrictions, restrictions on transferability, and time and manner of delivery as applicable to the other Restricted Stock Units covered by your RSU Award.
3. DIVIDENDS. You shall receive no benefit or adjustment to your RSU Award with respect to any cash dividend, stock dividend or other distribution that does not result from a Capitalization Adjustment; provided, however, that this sentence shall not apply with respect to any shares of Common Stock that are delivered to you in connection with your RSU Award after such shares have been delivered to you.
4. RESPONSIBILITY FOR TAXES.
(a) You hereby authorize withholding from payroll and any other amounts payable to you, and otherwise agree to make adequate provision for, any sums required to satisfy the federal, state, local and foreign tax withholding obligations, if any, which arise in connection with your RSU Award (the “Withholding Obligation”) in accordance with the withholding procedures established by the Company. Unless the Withholding Obligation is satisfied, the Company shall have no obligation to deliver to you any Common Stock in respect of the RSU Award. In the event the Withholding Obligation of the Company arises prior to the delivery to you of Common Stock or it is determined after the delivery of Common Stock to you that the amount of the Withholding Obligation was greater than the amount withheld by the Company, you agree to indemnify and hold the Company harmless from any failure by the Company to withhold the proper amount.
(b) Regardless of any action taken by the Company or, if different, the Affiliate to which you provide continuous service (the “Service Recipient”) with respect to any income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items associated with the grant or vesting of the RSU Award or sale of the underlying Common Stock or other tax-related items related to your participation in the Plan and legally applicable or deemed applicable to you (the “Tax Liability”), you hereby acknowledge and agree that the Tax Liability is your ultimate responsibility and may exceed the amount, if any, actually withheld by the Company or the Service Recipient. You further acknowledge that the Company and the Service Recipient (i) make no representations or undertakings regarding any Tax Liability in connection with any aspect of this RSU Award, including, but not limited to, the grant or vesting of the RSU Award, the issuance of Common Stock pursuant to such vesting, the subsequent sale of shares of Common Stock, and the payment of any dividends on the shares; and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the RSU Award to reduce or eliminate your Tax Liability or achieve a particular tax result. Further, if you are subject to Tax Liability in more than one jurisdiction, you acknowledge that the Company and/or the Service Recipient (or former service recipient, as applicable) may be required to withhold or account for Tax Liability in more than one jurisdiction.
| 2 |
RSU Number XX-XXXX-X
(c) The Company shall be entitled to withhold the amount of applicable Tax Liability due, including, at your election, by having the Company withhold shares of Common Stock from the shares of Common Stock issued or otherwise issuable to you in connection with the Award, with such shares of Common Stock having a value equal to the Tax Liability due. Such shares of Common Stock which are withheld shall be valued at their Fair Market Value as of the date on which the amount of tax to be withheld is determined. Fractional share amounts shall be settled in cash. Such a withholding election may be made by you with respect to all or any portion of the shares of Common Stock to be delivered pursuant to the Restricted Stock Units.
(d) The Company and/or the Service Recipient may withhold or account for your Tax Liability by considering statutory withholding amounts or other withholding rates applicable in your jurisdiction(s), including (i) maximum applicable rates in your jurisdiction(s). In the event of over-withholding, you may receive a refund of any over-withheld amount in cash from the Company or the Service Recipient (with no entitlement to the Common Stock equivalent), or if not refunded, you may seek a refund from the local tax authorities. In the event of under-withholding, you may be required to pay any Tax Liability directly to the applicable tax authority or to the Company and/or the Service Recipient. If the Tax Liability withholding obligation is satisfied by withholding shares of Common Stock, for tax purposes, you are deemed to have been issued the full number of shares of Common Stock subject to the vested portion of the RSU Award, notwithstanding that a number of the shares of Common Stock is held back solely for the purpose of paying such Tax Liability.
(e) You acknowledge that you may not participate in the Plan and the Company shall have no obligation to issue or deliver shares of Common Stock until you have fully satisfied any applicable Tax Liability, as determined by the Company. Unless any withholding obligation for the Tax Liability is satisfied, the Company shall have no obligation to issue or deliver to you any Common Stock in respect of the RSU Award.
5. DATE OF ISSUANCE.
(a) The issuance of shares in respect of the Restricted Stock Units is intended to comply with U.S. Treasury Regulations Section 1.409A-1(b)(4) and will be construed and administered in such a manner. Subject to the satisfaction of the Tax Liability withholding obligation, if any, in the event one or more Restricted Stock Units vests, the Company shall issue to you one (1) share of Common Stock for each vested Restricted Stock Unit on the applicable vesting date. Each issuance date determined by this paragraph is referred to as an “Original Issuance Date.”
(b) If the Original Issuance Date falls on a date that is not a business day, delivery shall instead occur on the next following business day. In addition, if:
(i) the Original Issuance Date does not occur (1) during an “open window period” applicable to you, as determined by the Company in accordance with the Company’s then-effective policy on trading in Company securities, or (2) on a date when you are otherwise permitted to sell shares of Common Stock on an established stock exchange or stock market (including but not limited to under a previously established written trading plan that meets the requirements of Rule 10b5-1 under the Exchange Act and was entered into in compliance with the Company’s policies (a “10b5-1 Arrangement”)), and
(ii) either (1) a Tax Liability withholding obligation does not apply, or (2) the Company decides, prior to the Original Issuance Date, (A) not to satisfy the Tax Liability withholding obligation by withholding shares of Common Stock from the shares otherwise due, on the Original Issuance Date, to you under this Award, and (B) not to permit you to enter into a “same day sale” commitment with a broker-dealer (including but not limited to a commitment under a 10b5-1 Arrangement) and (C) not to permit you to pay your Tax Liability in cash,
| 3 |
RSU Number XX-XXXX-X
then the shares that would otherwise be issued to you on the Original Issuance Date will not be delivered on such Original Issuance Date and will instead be delivered on the first business day when you are not prohibited from selling shares of the Common Stock in the open public market, but in no event later than December 31 of the calendar year in which the Original Issuance Date occurs (that is, the last day of your taxable year in which the Original Issuance Date occurs), or, if and only if permitted in a manner that complies with U.S. Treasury Regulations Section 1.409A-1(b)(4), no later than the date that is the 15th day of the third calendar month of the applicable year following the year in which the shares of Common Stock under this Award are no longer subject to a “substantial risk of forfeiture” within the meaning of U.S. Treasury Regulations Section 1.409A-1(d).
6. NATURE OF GRANT. In accepting the RSU Award, you acknowledge, understand and agree that:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, to the extent permitted by the Plan;
(b) the grant of the RSU Award is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been granted in the past;
(c) all decisions with respect to future RSU Awards or other grants, if any, will be at the sole discretion of the Company;
(d) the RSU Award and your participation in the Plan shall not create a right to employment or other service relationship with the Company;
(e) the RSU Award and your participation in the Plan shall not be interpreted as forming or amending an employment or service contract with the Company or the Service Recipient, and shall not interfere with the ability of the Company or the Service Recipient, as applicable, to terminate your continuous service (if any);
(f) you are voluntarily participating in the Plan;
(g) the RSU Award and the shares of Common Stock subject to the RSU Award, and the income from and value of same, are not intended to replace any pension rights or compensation;
(h) the RSU Award and the shares of Common Stock subject to the RSU Award, and the income from and value of same, are not part of normal or expected compensation for purposes of, including but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments;
(i) unless otherwise agreed with the Company in writing, the RSU Award and the shares of Common Stock subject to the RSU Award, and the income from and value of same, are not granted as consideration for, or in connection with, the service you may provide as a director of an Affiliate;
(j) the future value of the underlying shares of Common Stock is unknown, indeterminable and cannot be predicted with certainty;
(k) no claim or entitlement to compensation or damages shall arise from forfeiture of the RSU Award resulting from the termination of your Continuous Service Status (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are providing service or the terms of your employment or other service agreement, if any);
(l) except as set forth herein, for purposes of the RSU Award, your Continuous Service Status will be considered terminated as of the date you are no longer actively providing services to the Company or any Affiliate (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are providing service or the terms of your employment or other service agreement, if any), and such date will not be extended by any notice period (e.g., your period of continuous service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are providing service or the terms of your employment or other service agreement, if any); the Board or Compensation Committee shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of your RSU Award (including whether you may still be considered to be providing services while on a leave of absence); and
| 4 |
RSU Number XX-XXXX-X
(m) neither the Company nor the Service Recipient shall be liable for any foreign exchange rate fluctuation between your local currency and the United States Dollar that may affect the value of the Restricted Stock Units or of any amounts due to you pursuant to the settlement of the RSU Award or the subsequent sale of any shares of Common Stock acquired upon settlement.
7. Accelerated Vesting and settlement. The Restricted Stock Units shall immediately vest to you in full (a) upon a Change of Control (as defined in the Plan); and either (b) if you are an employee of the Company and your employment with the Company is Involuntarily Terminated within six months of a Change of Control, or (c) you are a Director and you are either removed as a Director or you are not nominated to serve as a Director in connection with the election of directors within six months of a Change of Control (as defined below). “Involuntary Termination” shall mean your termination without Cause as well as any instance of Constructive Termination. “Cause” has the meaning ascribed to such term or words of similar import in your written employment or service contract with the Company or its parent or any subsidiary and, in the absence of such agreement or definition, means your (i) conviction of, or plea of nolo contendere to, a felony or any other crime involving moral turpitude; (ii) fraud on or misappropriation of any funds or property of the Company or its subsidiaries, or any affiliate, customer or vendor; (iii) personal dishonesty, incompetence, willful misconduct, willful violation of any law, rule or regulation (other than minor traffic violations or similar offenses), or breach of fiduciary duty which involves personal profit; (iv) willful misconduct in connection with your duties or willful failure to perform your responsibilities in the best interests of the Company or its subsidiaries; (v) illegal use or distribution of drugs; (vi) violation of any material rule, regulation, procedure or policy of the Company or its subsidiaries, the violation of which could have a material detriment to the Company; or (vii) material breach of any provision of any employment, non-disclosure, non-competition, non-solicitation or other similar agreement executed by you for the benefit of the Company or its subsidiaries, all as reasonably determined by the Company’s Board of Directors, which determination will be conclusive. For this purpose, a “Constructive Termination” shall occur when you resign within ninety (90) days following the end of the Cure Period (as defined below) as a result of the occurrence of any of the following without your written consent: (i) a material reduction in the your base salary, relative to the your base salary as in effect immediately prior to such reduction, occurs, or (ii) a material diminution of your authority, duties, or responsibilities, relative to your authority, duties, or responsibilities in effect immediately prior to such reduction occurs; provided, however, that you must provide written notice to the Board of Directors of the Company (the “Board”) of the condition that could constitute a “Constructive Termination” event within ninety (90) days of the initial existence of such condition and such condition must not have been remedied by the Company within thirty (30) days (the “Cure Period”) of such written notice. Notwithstanding the foregoing, the Board or Compensation Committee reserves the right, to the extent the Board or Compensation Committee deems necessary or advisable in its sole discretion, to unilaterally amend or modify the vesting acceleration provisions described herein to ensure that the Restricted Stock Units are made in a manner that qualifies for exemption from or compliance with Section 409A of the Internal Revenue Code of 1986, as amended; or in the event of the Award Recipient’s separation from service due to death or Disability, the Award (including, without limitation, the RSUs attributable to dividend equivalents) shall immediately and fully vest and become nonforfeitable effective as of the date of your separation from service due to death or Disability, and such Award shall be settled as soon as practicable (but in no event more than 30 days) following the date of your separation from service due to death or Disability, as applicable.
8. TRANSFERABILITY. Except as otherwise provided in the Plan, your RSU Award is not transferable, except by will or by the applicable laws of descent and distribution
9. CORPORATE TRANSACTION. Your RSU Award is subject to the terms of any agreement governing a Corporate Transaction involving the Company, including, without limitation, a provision for the appointment of a stockholder representative that is authorized to act on your behalf with respect to any escrow, indemnities and any contingent consideration.
10. NO LIABILITY FOR TAXES. As a condition to accepting the RSU Award, you hereby (a) agree to not make any claim against the Company, or any of its Officers, Directors, Employees or Affiliates related to any Tax Liability arising from the RSU Award and (b) acknowledge that you were advised to consult with your own personal tax, financial and other legal advisors regarding the tax consequences of the RSU Award and have either done so or knowingly and voluntarily declined to do so.
| 5 |
RSU Number XX-XXXX-X
11. NO ADVICE REGARDING GRANT. The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying shares of Common Stock. You should consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan.
12. GOVERNING LAW AND VENUE. The RSU Award and the provisions of this Agreement are governed by, and construed in accordance with, the internal laws of the State of Nevada, without regard to the conflict of law principles that would result in any application of any law other than the law of the State of Nevada. For purposes of any action, lawsuit or other proceedings brought to enforce this Agreement, relating to it, or arising from it, the parties hereby submit to and consent to the sole and exclusive jurisdiction of the courts of the State of Nevada, and no other courts, where this grant is made and/or to be performed.
13. SEVERABILITY. If any part of this Agreement or the Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid will, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
14. COMPLIANCE WITH LAW. Notwithstanding any other provision of the Plan or this Agreement, unless there is an exemption from any registration, qualification or other legal requirement applicable to the shares of Common Stock, the Company shall not be required to deliver any shares issuable upon settlement of the Restricted Stock Units prior to the completion of any registration or qualification of the shares under any local, state, federal or foreign securities or exchange control law or under rulings or regulations of the U.S. Securities and Exchange Commission (“SEC”) or of any other governmental regulatory body, or prior to obtaining any approval or other clearance from any local, state, federal or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the shares with the SEC or any state or foreign securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the shares. Further, you agree that the Company shall have unilateral authority to amend the Agreement without your consent to the extent necessary to comply with securities or other laws applicable to issuance of shares of Common Stock.
15. LANGUAGE. You acknowledge that you are proficient in the English language, or have consulted with an advisor who is proficient in the English language, so as to enable you to understand the provisions of this Agreement and the Plan. If you have received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
16. ELECTRONIC DELIVERY AND PARTICIPATION. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the Plan through an online or electronic system established and maintained by the Company or a third party designated by the Company.
17. SEVERABILITY. The provisions of this Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
18. APPENDIX. Notwithstanding any provisions in this RSU Award Agreement, the RSU Award shall be subject to any additional terms and conditions set forth in any Appendix for your country. Moreover, if you relocate to one of the countries included in the Appendix, the additional terms and conditions for such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Appendix constitutes part of this Agreement.
| 6 |
RSU Number XX-XXXX-X
19. IMPOSITION OF OTHER REQUIREMENT. The Company reserves the right to impose other requirements on your participation in the Plan, on the RSU and on any shares of Common Stock acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
20. WAIVER. You acknowledge that a waiver by the Company of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by you or any other participant.
21. INSIDER TRADING/MARKET ABUSE. You acknowledge that, depending on your or your broker’s country or where the Company shares are listed, you may be subject to insider trading restrictions and/or market abuse laws which may affect your ability to accept, acquire, sell or otherwise dispose of shares of Common Stock, rights to shares (e.g., Restricted Stock Units) or rights linked to the value of shares (e.g., phantom awards, futures) during such times you are considered to have “inside information” regarding the Company as defined in the laws or regulations in the applicable jurisdictions). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed inside information. Furthermore, you could be prohibited from (i) disclosing the inside information to any third party (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. Keep in mind third parties includes fellow employees. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable insider trading policy of the Company. You are responsible for complying with any restrictions and should speak to your personal advisor on this matter.
22. EXCHANGE CONTROL, FOREIGN ASSET/ACCOUNT AND/OR TAX REPORTING. Depending upon the country to which laws you are subject, you may have certain foreign asset/account and/or tax reporting requirements that may affect your ability to acquire or hold shares of Common Stock under the Plan or cash received from participating in the Plan (including from any dividends or sale proceeds arising from the sale of shares of Common Stock) in a brokerage or bank account outside your country of residence. Your country may require that you report such accounts, assets or transactions to the applicable authorities in your country. You also may be required to repatriate cash received from participating in the Plan to your country within a certain period of time after receipt. You are responsible for knowledge of and compliance with any such regulations and should speak with your personal tax, legal and financial advisors regarding same.
23. OTHER DOCUMENTS. To the extent the Plan and/or the Common Stock issuable pursuant to this Agreement are registered under the Securities Act, you hereby acknowledge receipt of or the right to receive a document providing the information required by Rule 428(b)(1) promulgated under the Securities Act, which includes the Prospectus.
24. QUESTIONS. If you have questions regarding these or any other terms and conditions applicable to your RSU Award, including a summary of the applicable federal income tax consequences, please contact the Company’s Secretary, or to the extent the Plan and/or the Common Stock issuable pursuant to this Agreement are registered under the Securities Act, see the Prospectus.
| 7 |
RSU Number XX-XXXX-X
GOLDEN MATRIX GROUP, INC.
2022 EQUITY INCENTIVE PLAN
APPENDIX
TO RSU AWARD AGREEMENT
TERMS AND CONDITIONS
This Appendix forms part of the Agreement and includes additional terms and conditions that govern the RSU Award granted to you under the Plan if you reside and/or work in one of the jurisdictions listed below. Capitalized terms used but not defined in this Appendix have the meanings set forth in the Plan and/or in the RSU Award Agreement.
If you are a citizen or resident (or are considered as such for local law purposes) of a country other than the country in which you are currently residing and/or working, or if you relocate to another country after the grant of the RSU Award, the Company shall, in its discretion, determine to what extent the additional terms and conditions contained herein shall be applicable to you.
NOTIFICATIONS
This Appendix may also include information regarding exchange controls and certain other issues of which you should be aware with respect to participation in the Plan. The information is based on the securities, exchange control, and other laws in effect in the respective countries as of [___________]. Such laws are often complex and change frequently. As a result, you should not rely on the information in this Appendix as the only source of information relating to the consequences of your participation in the Plan because the information may be out of date at the time you vest in the Restricted Stock Units, acquire shares of Common Stock, or sell shares of Common Stock acquired under the Plan.
In addition, the information contained below is general in nature and may not apply to your particular situation. You should seek appropriate professional advice as to how the relevant laws in your country may apply to your situation.
If you are a citizen or resident (or are considered as such for local law purposes) of a country other than the country in which you are currently residing and/or working, or if you relocate to another country after the grant of the RSU Award, the notifications herein may not apply to you in the same manner.
| 8 |
RSU Number XX-XXXX-X
SCHEDULE 1
VESTING TERMS
The RSU Award shall vest to the extent and in the amounts set forth below, provided the following performance metrics are met by the Company as of the dates indicated (the “Performance Metrics Schedule”):
|
| Revenue Targets | EBITDA Targets | ||
| Performance Period | Target Goal | RSUs Vested | Target Goal | RSUs Vested |
| Year ended October 31, 2022 | $21,875,000 | * | $3,250,000 | * |
| Year ended October 31, 2023 | FY 2022 x 1.1 | * | FY 2022 x 1.1 | * |
| Year ended October 31, 2024 | FY 2023 x 1.1 | * | FY 2023 x 1.1 | * |
* 1/6th of the total RSUs granted under “Number of Restricted Stock Units” on the RSU Award Grant Notice, above.
For the purposes of the table above, (a) “EBITDA” means net income before interest, taxes, depreciation, amortization and stock-based compensation; (b) “Revenue” means annual revenue of the Company; and (c) “FY 2022” means actual Revenue or EBITDA, as the case may be achieved during the 12 month period from November 1, 2021 to October 31, 2022, and “FY 2023” means actual Revenue or EBITDA as the case may be for the 12 month period from November 1, 2022 to October 31, 2023, in each as set forth in the Company’s audited year-end financial statements (the “Target Definitions”). Both Revenue and EBITDA, and the determination of whether or not the applicable Revenue and EBITDA targets above have been met shall be determined based on the audited financial statements of the Company filed with the Securities and Exchange Commission in the Company’s Annual Reports on Form 10-K for the applicable year ends above, and shall be determined on the date such Annual Reports on Form 10-K are filed publicly with the Securities and Exchange Commission (the “Dates of Determination”).
For example, the Revenue target goal for the year ended October 31, 2023 is equal to FY 2022 Revenue x 1.1, so if total Revenue for FY 2022 was $30,000,000, the Target Revenue Goal for the year ended October 31, 2023 would be $33,000,000 ($30,000,000 x 1.1).
Any RSUs not vested in accordance with the Performance Metrics Schedule above will be forfeited immediately and not eligible for further vesting as of the applicable Date of Determination.
| 9 |
EXHIBIT 10.4
EMPLOYMENT AGREEMENT
Between
Golden Matrix Group Inc.
and
Brett Goodman
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made the 16th Day of September 2022 and will take effect on the 1st of September, 2022.
BETWEEN: Golden Matrix Group Inc. of: 3651 Lindell Road Ste D131 Las Vegas NV 89103 USA (the "Company")
AND: Brett Goodman of 602/63 Hall Street, Bondi Beach, NSW 2026, Australia
RECITALS:
A. The Company has agreed to employ the Employee and the Employee has agreed to accept the appointment as an employee of the Company on the terms contained in this agreement.
B. Term of Employment. Except as otherwise provided below, the Company shall employ Employee for the period commencing on the Start Date and ending on the third anniversary of the Start Date. At the expiration of the original term or any extended term (each a “Renewal Date”), Employee’s employment hereunder shall be extended automatically, upon the same terms and conditions, for successive one-year periods, unless either party shall give written notice to the other of its intention not to renew such employment at least three months prior to such Renewal Date.
C. The parties agree that Employee’s employment with the Company will be “at-will” employment and may be terminated at any time with or without cause or notice. Employee understands and agrees that neither his job performance nor promotions, commendations, bonuses or the like from the Company give rise to or in any way serve as the basis for modification, amendment, or extension, by implication or otherwise, of his employment with the Company. However, as described in this agreement, Employee may be entitled to severance benefits depending on the circumstances of Employee’s termination of employment with the Company as discussed below.
THE PARTIES AGREE in consideration of, among other things, the mutual promises contained in this agreement, the receipt and sufficiency of which is confirmed by the parties, to the following:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Accounts: means the audited profit and loss account of the Company;
Basic Salary means the basic salary package of the Employee as adjusted under clause 4.2;
Board means the board of directors of the Company;
Business Day means a date other than a Saturday or Sunday, where the banks are generally open for business in Nevada.
Compensation Committee means a committee comprised of independent members of a board of directors who are responsible for setting Executive’s compensation;
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 2 of 16
Audit Committee means a committee comprised of independent members of a board of directors who are responsible for oversight of and integrity of the accounting, auditing, and reporting practices of the Company.
Expert means an individual appointed under clause 15(a), (b) or (c), by the mutual approval of the Company and the Employee;
Group means the Company and any Subsidiary Company;
Group Company means the Company or any Subsidiary Company;
Information means any information in respect of the Company's business which is not in the public domain and includes, but is not limited to, any document, book, account, process, patent, specification, drawing, design or know-how which:
(a) comes to the notice of the Employee in the course of the Employee's employment; or
(b) is generated by the Employee in the course of performing the Employee's obligations.
Month means calendar month;
Start Date means the 1st of September 2022;
Salary Review Date means every 12 months after the Start Date; and
Termination Date means the date when the Employee ceased to be employed by the Company.
1.2 Interpretation
In this agreement, headings are for convenience only and do not affect the interpretation of this agreement and, unless the context otherwise requires:
(a) a reference to termination of this agreement includes a reference to termination of the Employee's contract of employment;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and vice versa;
(f) a reference to anything (including, but not limited to, any right) includes a part of that thing;
(g) a reference to a party to a document includes that party's successors and permitted assigns;
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 3 of 16
(h) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute; and
(i) a reference to a document or agreement includes all amendments or supplements to, or replacements or novation’s of, that document or agreement.
2. APPOINTMENT
The Company appoints the Employee as VP Business Development and the Employee accepts that appointment.
3. DUTIES OF EMPLOYEE
3.1 General Duties
The Employee must:
(a) devote his/her full time, attention and skill during normal business hours, and at other times as reasonably necessary, to the duties of office;
(b) faithfully and diligently perform the duties and exercise the powers consistent with the position of a VP Business Development;
(c) provide his services in a proper, efficient, diligent and competent manner and so as to promote the development of the Company;
(d) act at all times with the utmost good faith to promote the welfare and interests of the Company;
(e) at all times comply with the then current business plan of the Company, as approved by the Board of Directors of the Company; and
(f) at all times maintain accurate and complete financial records of all financial transactions undertaken in the performance of these services and in the operations of the Company.
3.2 Non-Exclusive
The Company acknowledges that the Executive will be entitled to continue his involvement with Luxor Capital LLC, Elray Resources and Articulate Pty Ltd.
3.3 Related Party
It is noted that the Employee is the son of the Company’s Chief Executive Officer, and as such the agreement will be pre-approved by the Audit Committee, and filings by the Company will disclose the relationship.
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 4 of 16
4. REMUNERATION
4.1 Basic Salary
(a) During the period that the Employee serves the Company under this agreement, the Company must pay the Employee the Basic Salary, determined under this clause 4, in equal monthly payments by, or as otherwise agreed between the parties.
(b) The Basic Salary can be provided in cash or other benefits, providing that at all times (unless otherwise provided in this agreement) the cost to the Company, including fringe benefits tax, does not exceed the Basic Salary. The compensation shall be provided in cash until the Employee proposes an alternative agreeable to the Company.
4.2 Starting Salary
The Basic Salary is Sixty Thousand Dollars per annum ($60,000 USD) plus Superannuation of (10.5%) mandated by the Australian Government - Superannuation Guarantee (Administration) Act 1992.
4.3 Salary Review
(a) The Basic Salary is subject to review by the Audit Committee on each Salary Review Date.
(b) The Basic Salary for the period after a review is the amount per annum agreed between the Employee and the Audit Committee.
(c) At each review, the Basic Salary may be increased having regard to:
(i) the cost of living;
(ii) the responsibilities of the Employee and remuneration available in the workforce outside the Company for a person with responsibilities and experience equivalent to those of the Employee; and
(iii) the performance of the Employee.
(d) The parties must commence review of the Basic Salary 1 Month before the Salary Review Date, with a view to the Employee and the Audit Committee reaching an agreement for the purposes of clause 4.3(c), by the Salary Review Date.
(e) Increases in such Basic Salary shall be documented in the Company’s records, but shall not require the parties enter into a new or amended form of this agreement.
4.4 Other Benefits.
Employee shall be entitled to participate in the Company’s stock option plan, life, health, accident, disability insurance plans, pension plans and retirement plans, in effect from time to time (including, without limitation, any incentive program or discretionary bonus program of the Company which may be implemented in the future by the Board), to the extent and on such terms and conditions as the Company customarily makes such plans available to its senior Employees.
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 5 of 16
5. BONUS AND/OR INCENTIVES
5.1 The Board at their discretion will create an employee cash bonus plan. The bonus will align shareholder values with the bonus plan. The Board will set goals with the employees that reward the plans successful completion.
5.2 The Company may with the express agreement of the Employee, satisfy any bonus payment by the granting of shares or other interests in the Company (or any other company acceptable to the Employee).
5.3 The Company may issue options to Employee from time to time.
5.4 The Board or Audit Committee may award the Employee bonuses from time to time, in their discretion, in cash, stock or other securities of the Company.
6. EXPENSES
(a) The Company must reimburse the Employee for reasonable out-of-pocket expenses incurred by the Employee on Company business including but not limited to travel and entertainment.
(b) The Company may require evidence of expenses incurred by the Employee.
The Audit Committee in conjunction with the Board may approve any variations to this Clause provided that such variations are with the Employee’s consent.
7. LEAVE
7.1 Leave Entitlements
(a) The Employee is entitled to public holidays, and holiday leave in conformity with Australian statutory entitlements. https://www.fairwork.gov.au/about-us/legislation
(b) The Employee must take annual leave at a period or periods agreed between the Company and Employee. The Company’s consent shall not be unreasonably withheld.
(c) Annual leave entitlements shall accrue on a pro rata basis during the first year of the Employee’s employment by the Company and, thereafter, upon each anniversary of the Employment Date, as provided in the Australian The Fair Work Act 2009. https://www.fairwork.gov.au/about-us/legislation
7.2 Accrued Leave
Subject to any statutory provision, the Company may require the Employee to take any significant accrued leave entitlement.
7.3 Special Leave
The Employee will in each period of twelve months be entitled to seven days special leave. Special leave may only be taken where:
(a) The Employees spouse, dependent child, dependent parent or dependent parent- in-law; becomes ill.
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 6 of 16
(b) on the death of the Employee’s spouse, parent, child, brother, sister, grandparent, father-in-law and mother-in-law.
Any untaken special leave is not cumulative and you are required to notify the Company as soon as possible on the day of any absence if you are taking special leave. You will not be entitled to a lump sum payment for unused special leave at the termination of your employment.
8. PAYMENT DURING ABSENCE ON MEDICAL GROUNDS
8.1 Sick Leave Entitlement
(a) The Company must continue to pay the Employee's salary in full during any absences on medical grounds up to a maximum total of 10 Business Days absence in any period of 12 Months or whatever minimum that may be dictated by local New South Wales (NSW) Australian legislation.
(b) The Employee’s sick leave entitlement under clause 8.1(a) arises on the Start Date of this agreement and is renewed on each anniversary of that date.
8.2 Sick Leave Not Cumulative
The Employee's sick leave entitlement under clause 8.1(a) is not cumulative from year to year.
8.3 Evidence of Illness or Injury
The Employee must, if the Company so requires, provide evidence to the reasonable satisfaction of the Company that any absence was due to illness or involuntary injury.
8.4 Compensation
(a) If the Employee's absence is due to any actionable negligence of a third party for which damages are or may be recoverable then all money paid by the Company under clause 8.1(a) is a loan to the Employee.
(b) The Employee must immediately notify the Company of any claim, compromise, settlement or judgment made or awarded to the Employee in respect of any absence from work as a result of the negligence of a third party.
(c) If the Company requires, the Employee must refund to the Company an amount of the money advanced to the Employee for the period of incapacity which is equivalent to any compensation the Employee received for lost wages and other emolument.
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 7 of 16
9. CONFIDENTIALITY
9.1 Employee's Obligations
The Employee must:
(a) keep any information secret and confidential, except to the extent that the Employee is required by law to disclose it;
(b) take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any information; and
(c) not disclose information to any third party without first obtaining the written consent of the Board except in the ordinary and proper course of employment with the Company.
For the sake of clarity, nothing in this Section 9 prohibits Employee from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. Employee does not need the prior authorization of the Company to make any such reports or disclosures and Employee is not required to notify the Company that he has made such reports or disclosures. Employee further understands that this Agreement does not limit Employee’s ability to communicate with any government agencies or otherwise participate in any investigation or proceeding that may be conducted by any government agency, including providing documents or other information, without notice to the Company. This Agreement does not limit Employee’s right to receive an award for information provided to any government agencies, including, but not limited to under Rule 21F-17(a) under the Securities Exchange Act of 1934, as amended, or other rules or regulations implemented under the Dodd-Frank Wall Street Reform Act and Consumer Protection Act. Employee acknowledges, agrees, and understands that (i) nothing in this Agreement prohibits him from reporting to any governmental authority or attorney information concerning suspected violations of law or regulation, provided that Employee does so consistent with 18 U.S.C. § 1833, and (ii) Employee may disclose trade secret information to a government official or to an attorney and use it in certain court proceedings without fear of prosecution or liability, provided that Employee does so consistent with 18 U.S.C. § 1833.
10.1 Survival of Obligations
The Employee's obligations under this clause survive the termination of this agreement.
11. PROTECTION OF THE COMPANY'S INTERESTS
11.1 Restricted Areas and Restricted Activities
(a) For the purposes of clause 11.1(b) the expression "competitive with the business of the Company" means in competition with the business of marketing of Gaming Intellectual Property.
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 8 of 16
(b) Subject, to clause 11.2(b), 3.2 and in consideration for $10 and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Employee must not, without the prior written consent of the Company do any of the following:
(i) directly or indirectly carry on (whether alone, in partnership or in joint venture with anyone else) or otherwise be concerned with or interested in (whether as trustee, principal, agent, shareholder, unit holder or in any other capacity) in a similar or competitive business in the U.S.A. for a period of 1 year from the Termination Date; or
(ii) at any time induce or attempt to include any director, manager or Employee of the Company to terminate his employment with the Company, whether or not that person would commit a breach of that person's contract of employment.
11.2 Restraints Reasonable
(a) The Employee and the Company consider the restraints contained in this clause to be reasonable and intend the restraints to operate to the maximum extent.
(b) If these restraints:
(i) are void as unreasonable for the protection of the interests of the Company; and
(ii) would be valid if part of the wording was deleted or the period or area was reduced.
11.3 Restraints Independent
The restraints contained in this clause are separate, distinct and several, so that the unenforceability of any restraint does not affect the enforceability of the other restraints.
11.4 Acknowledgments by Employee
The Employee acknowledges that:
(a) the Employee will obtain information concerning the business and finances of the Company and Group Companies including trade secrets and industrial processes;
(b) disclosure of Information could materially harm the Company;
(c) the restrictive covenants contained in this clause are reasonable and necessary for the protection of the goodwill of the Company;
(d) the remedy of damages may be inadequate to protect the interests of the Company and the Company is entitled to seek and obtain injunctive relief, or any other remedy, in any Court; and
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 9 of 16
(e) in view of the importance of the restraints contained in this clause for the protection of the proprietary interests of the Company, this clause will survive the termination of the Employee's employment with the Company in all circumstances including repudiation by the Company of the remainder of this agreement.
12.1 Survival of Obligations
The Employee's obligations under this clause 11 shall survive the termination of this agreement.
12.2 Definition
The expression Termination Date means the date when the Employee ceases to be employed by the Company.
13. RESTRICTIONS ON OTHER ACTIVITIES OF THE EMPLOYEE
13.1 Inducements
Other than under this agreement, the Employee must not accept any payment or other benefit as an inducement or reward for any act in connection with the business of the Company or any Group Company. This clause does not prevent the Employee receiving any dividend arising from him holding shares in the Company or any Group Company.
14. TERMINATION
14.1 Termination because of Illness
The Company may terminate this agreement by not less than 2 Weeks’ notice in writing if it is adjudicated under part 15 that the Employee:
(a) is incapacitated by illness or accident as certified by an independent medical officer for an accumulated period of 6 Months in any 24 Month period; or
(b) is advised by an independent medical officer that the Employee's health has deteriorated to a degree that it is advisable for the Employee to cease working permanently for the Company.
14.2 Immediate Termination by the Company
The Company may terminate this agreement immediately if it is adjudicated under part 15 that the Employee:
(a) Commits any act which may detrimentally affect the Company or any Group Company, including but not limited to an act of dishonesty, fraud, willful disobedience, misconduct or breach of duty;
(b) undertakes any of the activities described in clause 11.1 during his employment by the Company;
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 10 of 16
(c) willfully, persistently and materially breaches this agreement and does not remedy the breach within 14 days after receipt of notice in writing from the Company specifying the breach; or
(d) is of unsound mind or becomes liable to be dealt with under any law relating to mental health.
14.3 Immediate Termination by the Employee
The Employee may terminate this agreement immediately if:
(a) the Company has gone into receivership or liquidation; or
(b) any amount payable by the Company to the Employee under this agreement remains unpaid for more than 2 Months after the Employee has given written notice of default to the Company.
14.4 Severance Pay
If the Employee’s employment herein is involuntarily terminated by the Company for any reason other than those set forth in Sections 14.1, 14.2 and 14.3 hereof, then unless the Company shall have terminated the Employee for "Cause", the Company shall pay the Employee severance pay in an amount equal to three (3) Months of the Employee's Basic Salary in effect on the effective date of the termination. Such payment shall be made in a lump sum within ten (10) business Days following the effective date of the termination. The severance pay shall be in lieu of all other compensation or payments of any kind relating to the termination of the Employee's employment hereunder; provided that the Employee's entitlement to compensation or payments under the Company's retirement plans, leave entitlements, stock option or incentive plans, savings plans or bonus plans attributable to service rendered prior to the Termination Date shall not be affected by this clause and shall continue to be governed by the applicable provisions of such plans; and further provided that in lieu hereof, at his election, the Employee shall be entitled to the benefits of the Change in Control Agreement of even date hereof between the Company and the Employee, if termination occurs in a manner and at a time when such Change in Control Agreement is applicable. For purposes of this agreement, the term for "Cause" shall mean because of gross negligence or willful misconduct by the Employee either in the course of his employment hereunder or which has a material adverse effect on the Company or the Employee's ability to perform adequately and effectively his duties hereunder.
If the Employee’s employment herein is involuntarily terminated then all options held by Employee and all unvested securities held by the Employee shall vest immediately and all options may be exercised by Employee, at any time prior to the later of (a) the originally stated expiration date thereof; and (b) twenty four months after such Termination Date.
14.5 Payment in Lieu of Severance
Payment under clause 14.4 constitutes full satisfaction and discharge of the Company's obligations with respect to notice of termination, and the Company may condition the payment of such amounts on Employee’s entry into a settlement and release with the Company (in reasonably agreeable form).
14.6 Obligations on Termination
On termination of this agreement, the Employee must return to the Company all tangible property of the Company or any Group Company including, but not limited to, all books, documents, papers, materials, credit cards, cars and keys held by the Employee or under the Employee's control, and provided the Company all documents, materials, passwords and other information regarding the Company and its operations that are reasonably requested by the Company.
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 11 of 16
15. ADJUDICATION
An issue which requires adjudication under this agreement is adjudicated if the following procedures are followed:
(a) The parties must within two (2) Business Days after the receipt of notice from a party requiring adjudication appoint an Expert agreed to by both parties to determine which of the Company's or the Employee's position is the more reasonable having regard to the law and the facts.
(b) If the Expert appointed under clause (a) or clause (b) is unable to carry out the determination another Expert must be appointed in accordance with clause (a) or clause (b) to determine the dispute.
(c) The Expert appointed under this clause acts as an expert and not an arbitrator.
(d) Each party must make a written submission to the Expert in support of its position. The submission must be delivered to the Expert within 15 days after his/her appointment, and must request the Expert's determination on an urgent basis.
(e) The parties must co-operate fully with the Expert and make available to the Expert all relevant information and documents.
(f) The Expert's determination is final and binding on the parties.
(g) The cost of the Expert shall be borne by the party whose position was not determined to be the more reasonable by the Expert.
(h) Failure by a party to do anything required of it under this clause 15 shall be deemed a refusal to co-operate fully and the matter shall be deemed adjudicated in favor of the other party which shall entitle the other party to act on the basis that the Expert has adjudicated in its favor.
(i) Until the dispute has been decided by the Expert, the status quo shall prevail.
16. INDEMNIFICATION
16.1. The Company agrees to indemnify Employee and hold Employee harmless from and against any and all losses, claims, damages, liabilities and costs (and all actions in respect thereof and any legal or other expenses in giving testimony or furnishing documents in response to a subpoena or otherwise), including, without limitation, the costs of investigating, preparing or defending any such action or claim, whether or not in connection with litigation in which Employee is a party, as and when incurred, directly or indirectly caused by, relating to, based upon or arising out of any work performed by Employee in connection with this agreement to the full extent permitted by the Nevada Revised Statutes, and by the Articles of Incorporation and Bylaws of the Company, as may be amended from time to time, and pursuant to any indemnification agreement between Employee and the Company.
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 12 of 16
16.2. The indemnification provision of this ARTICLE V shall be in addition to any liability which the Company may otherwise have to Employee.
16.3. If any action, proceeding or investigation is commenced as to which Employee proposes to demand such indemnification, Employee shall notify the Company with reasonable promptness. Employee shall have the right to retain counsel of Employee’s own choice to represent Employee and the Company shall pay all reasonable fees and expenses of such counsel; and such counsel shall, to the fullest extent consistent with such counsel’s professional responsibilities, cooperate with the Company and any counsel designated by the Company. The Company shall be liable for any settlement of any claim against Employee made with the Company’s written consent, which consent shall not be unreasonably withheld or delayed, to the fullest extent permitted by the Nevada Revised Statutes and the Articles of Incorporation and Bylaws of the Company, as may be amended from time to time.
17. GENERAL
17.1 Notices
(a) Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a party to this agreement:
(i) must be in legible writing and in English addressed as shown at the commencement of this agreement, or as specified to the sender by any party by notice;
(ii) where the sender is a company, must be signed by an officer or under the common seal of the sender;
(iii) is regarded as being given by the sender and received by the addressee:
(1) if by delivery in person, when delivered to the addressee;
(2) if by post, 3 Business Days from and including the date of postage; or
(3) if by email transmission, when transmitted to the addressee,
but if the delivery or receipt is on a day which is not a Business Day or is after 4:00 pm (addressee's time) it is regarded as received at 9:00 am on the following Business Day; and
(iv) can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorised by the sender.
(b) A facsimile transmission is regarded as legible unless the addressee telephones the sender within 2 hours after transmission is received or regarded as received under clause 16.1(a)(iii) and informs the sender that it is not legible.
(c) In this clause 16.1, a reference to an addressee includes a reference to an addressee's officers or agents.
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 13 of 16
17.2 Governing Law and Jurisdiction
(a) Save for the provisions of clause 15 above and the other provisions of this agreement specifically referencing Australian laws (local or otherwise), this agreement shall be governed and interpreted in accordance with the laws of Nevada, USA and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of Nevada.
(b) Each of the parties irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
17.3 Prohibition, Enforceability and Severance
(a) Any provision of, or the application of any provision of, this agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision of, this agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
(c) If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this agreement.
17.4 Waiver
(a) The failure of the Company any time to require performance by the other party of any provision of this agreement does not affect the party's right to require the performance at any time.
(b) The waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.
17.5 Binding Effect; Assignment.
This agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, heirs, successors and assigns. Employee may not assign any of his rights or obligations under this agreement. The Company may assign its rights and obligations under this agreement to any successor entity.
17.6 Entire Agreement.
This agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior agreements between the Company and Employee, whether written or oral, relating to any or all matters covered by and contained or otherwise dealt with in this agreement. This agreement does not constitute a commitment of the Company with regard to Employee’s employment, express or implied, other than to the extent expressly provided for herein.
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 14 of 16
17.7 Amendment.
No modification, change or amendment of this agreement or any of its provisions shall be valid, unless in a writing signed by the parties and approved by the Audit Committee.
17.8 Legal Counsel.
Employee acknowledges and warrants that (A) he has been advised that Employee’s interests may be different from the Company’s interests, (B) he has been afforded a reasonable opportunity to review this agreement, to understand its terms and to discuss it with an attorney and/or financial advisor of his choice and (C) he knowingly and voluntarily entered into this agreement. The Company and Employee shall each bear their own costs and expenses in connection with the negotiation and execution of this agreement.
17.9 Counterparts, Effect of Facsimile, Emailed and Photocopied Signatures.
This agreement and any signed agreement or instrument entered into in connection with this agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .peg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manners and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party, each other party shall re execute the original form of this agreement and deliver such form to all other parties. No party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
[Remainder of page left intentionally blank. Signature page follows.]
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 15 of 16
| EXECUTED AS AN AGREEMENT |
|
| EXECUTED FOR AND ON BEHALF OF |
|
| Golden Matrix Group Inc. |
|
| by authority of its Chief Executive Officer: Anthony Brian Goodman |
|
|
|
|
| /s/ Anthony Brian Goodman |
|
|
|
|
|
|
|
| SIGNED SEALED AND DELIVERED |
|
| by the said Brett Goodman |
|
|
|
|
| /s/ Brett Goodman |
|
|
|
|
Employment Agreement
Golden Matrix Group, Inc. and Brett Goodman
Page 16 of 16
EXIHIBIT 10.5
Golden Matrix Group Inc.
Notice of Grant of Stock Options
and Stock Option Award Agreement
Dear Brett Goodman,
Golden Matrix Group Inc. hereby grants you Stock Options to purchase up to 50,000 shares of our Common Stock (the “Stock Options”), subject to the terms and conditions set forth in this Notice of Grant, the Terms and Conditions attached hereto as Appendix A and terms of the Golden Matrix Group Inc. 2018 Equity Incentive Plan. The key terms of the Stock Options granted to you are as follows.
Number of Shares: Under these Stock Options, you may purchase up to 50,000 shares of Common Stock.
Exercise Price: The purchase price for your Stock Options shall be $3.98 per share.
Date of Grant: The “Date of Grant” for your Stock Options is September 16, 2022.
Vesting Schedule: Your Stock Options will be exercisable only after they become “vested.” Vesting is subject to your continued performance of consulting services for Golden Matrix Group Inc. through the following vesting dates.
| Vesting Date |
| Vested Percentage of Shares |
| Total Number of Purchasable Shares |
| August 22, 2023 |
| 50% |
| 25,000 |
| August 22, 2024 |
| 50% |
| 25,000 |
Not ISOs: These Stock Options are not “incentive stock options” under the federal tax laws.
Expiration Date: If not previously exercised or forfeited, the Stock Options shall expire on February 22, 2025.
Your signature below acknowledges your agreement that these Stock Options granted to you are subject to all of the terms and conditions contained in Appendix A and the Plan.
Please sign one copy of this Stock Option Agreement (the other copy is for your files) and return the signed copy to Brian Goodman no later than September 22, 2022.
| EMPLOYEE |
| GOLDEN MATRIX GROUP INC. |
|
|
|
| ||
| /s/ Brett Goodman |
| /s/ Anthony Brian Goodman |
|
| Brett Goodman |
| Anthony Goodman, Chairman & CEO |
|
|
|
| ||
| Date: September 16, 2022 |
| Date: September 16, 2022 |
|
APPENDIX A
TERMS AND CONDITIONS OF STOCK OPTIONS
1. Grant. Golden Matrix Group Inc. (the “Company”) has granted the Optionee of the Company named in the attached Notice of Grant (the “Optionee”) stock options to purchase the number of shares of the Company’s Common Stock, $.00001 par value per share (“Common Stock”), specified in the Notice of Grant attached hereto and incorporated into this Award Agreement by reference. Capitalized terms used and not defined in this Agreement will have the meaning set forth in the Plan.
The Stock Options granted under this Award Agreement are not intended to be Incentive Stock Options covered by Section 422 of the Code.
2. Incorporation of the 2018 Equity Incentive Plan. The Stock Options have been granted pursuant to the provisions of the Company’s 2018 Equity Incentive Plan, and the terms and definitions of the 2018 Equity Incentive Plan are incorporated into this Award Agreement by reference and made a part of this Award Agreement. The Optionee acknowledges receipt of a copy of the 2018 Equity Incentive Plan.
3. Purchase Price. The price per share to be paid by the Optionee for the shares purchased pursuant to these Stock Options (the “Exercise Price”) shall be as specified in the Notice of Grant. This Exercise Price shall be an amount not less than the Fair Market Value of a share of Common Stock as of the Date of Grant (as defined in the Plan and specified in the Notice of Grant).
4. Exercise Terms. The Stock Options shall become vested and exercisable in the amounts and at the time(s) described in vesting schedule set forth in the Notice of Grant. The Stock Options shall become vested and exercisable only if the Optionee continues to regularly perform services for the Company as a Optionee through the vesting dates set forth in the vesting schedule in Notice of Grant.
The Optionee must exercise the Stock Options for at least 10,000 shares, or, if less the full number of shares shown as Purchasable Shares in the vesting schedule in the Notice of Grant as to which the Stock Options remain unexercised.
If the Stock Options are not exercised with respect to all or any part of the shares subject to the Stock Options prior to the expiration date specified in the Notice of Grant, the Stock Options shall expire and any shares with respect to which the Stock Options were not exercised shall no longer be Purchasable Shares subject to the Stock Options.
5. Option Non-Transferable. No Stock Options shall be transferable by the Optionee other than by will or the laws of descent and distribution or, in the case of non-Incentive Stock Options, pursuant to a Qualified Domestic Relations Order or as otherwise permitted pursuant to Section 11.7 of the 2018 Equity Incentive Plan. During the lifetime of the Optionee, the Stock Options shall be exercisable only by such Optionee (or by such Optionee’s guardian or legal representative, should one be appointed).
6. Notice of Exercise of Option. The Stock Options may be exercised by the Optionee, or by the Optionee’s administrators, executors or personal representatives, by a written notice signed by the Optionee, or by such administrators, executors or personal representatives, and delivered or mailed to the Company to the attention of the President, Chief Executive Officer or such other officer as the President or Chief Executive Officer may designate. Any such notice shall:
(a) specify the number of shares of Common Stock which the Optionee or the Optionee’s administrators, executors or personal representatives, as the case may be, then elects to purchase hereunder,
(b) contain such information as may be reasonably required pursuant to Section 10 below, and
(c) be accompanied by (i) a certified or cashier’s check or, if acceptable to the Committee, a recourse note payable to the Company in payment of the total Exercise Price applicable to such shares as provided herein,
| 2 |
(ii) shares of Common Stock owned by the Optionee and duly endorsed or accompanied by stock transfer powers having a Fair Market Value equal to the total Exercise Price applicable to such shares purchased under this Agreement, (iii) shares otherwise issuable upon exercise of the Stock Options having a Fair Market Value equal to the total Exercise Price applicable to such shares purchased under this Agreement or (iv) a certified or cashier’s check or, if acceptable to the Committee, a recourse note payable to the Company, accompanied by the number of shares of Common Stock whose Fair Market Value when added to the amount of the check or note equals the total Exercise Price applicable to the shares being purchased under this Agreement.
Upon receipt of any such notice and accompanying payment, and subject to the terms hereof, the Company agrees to issue to the Optionee or the Optionee’s administrators, executors or personal representatives, as the case may be, stock certificates for the number of shares specified in such notice registered in the name of the person exercising the Stock Options.
7. Issuance of Stock Certificates for Shares. The stock certificates for any shares of Common Stock issuable to the Optionee upon exercise of the Stock Options shall be delivered to the Optionee (or to the person to whom the rights of the Optionee shall have passed by will or the laws of descent and distribution) as promptly after the date of exercise as is feasible, but not before the Optionee has paid the option price for such shares.
8. Termination of Consulting Services.
(a) Except as otherwise specified in the Notice of Grant for the Stock Options covered by this Agreement, in the event of the termination of the Optionee’s consulting services for the Company, other than a termination that is either (i) for Cause, (ii) voluntarily initiated on the part of the Optionee and without written consent of the Company, or (iii) for reasons of death or retirement, the Optionee may exercise the vested portion of the Stock Options at any time within ninety (90) days after such termination to the extent of the number of shares which were Purchasable Shares under the vesting schedule in the Notice of Grant at the date of such termination,
(b) Except as specified in the Notice of Grant for the Stock Options attached hereto, in the event of a termination of the Optionee’s consulting services that is either (i) for Cause or (ii) voluntarily initiated on the part of the Optionee and without the written consent of the Company, the Stock Options, to the extent not previously exercised, shall terminate immediately and shall not thereafter be or become exercisable.
9. Death of Optionee. Except as otherwise set forth in the Notice of Grant with respect to the rights of the Optionee upon termination of the consulting services for the Company under Section 8(a) above, in the event of the Optionee’s death while performing consulting services for the Company or within three months after termination of such consulting services (if such termination was neither (i) for cause nor (ii) voluntary on the part of the Optionee and without the written consent of the Company), the appropriate persons described in Section 6 of this Agreement or persons to whom all or a portion of the Stock Options is transferred in accordance with Section 5 of this Agreement may exercise the Stock Options at any time within a period ending on the earlier of (a) the last day of the one year period following the Optionee’s death or (b) the expiration date of the Stock Options specified in the Notice of Grant. If the Optionee was actively performing consulting services for the Company at the time of death, any unvested rights to acquire shares pursuant to the Stock Options shall immediately vest and the Stock Options may be so exercised to the extent of the number of shares that were Purchasable Shares under the vesting schedule in the Notice of Grant at the date of death. If the Optionee’s consulting services terminated prior to his or her death, the Stock Options may be exercised only to the extent of the number of shares covered by the Stock Options which were Purchasable Shares under the vesting schedule in the Notice of Grant at the date of such termination.
10. Compliance with Regulatory Matters. The Optionee acknowledges that the issuance of capital stock of the Company is subject to limitations imposed by federal and state law, and the Optionee hereby agrees that the Company shall not be obligated to issue any shares of Common Stock upon an attempted exercise of this Stock Options that would cause the Company to violate law or any rule, regulation, order or consent decree of any regulatory authority (including without limitation the SEC) having jurisdiction over the affairs of the Company. The Optionee agrees that he or she will provide the Company with such information as is reasonably requested by the Company or its counsel to determine whether the issuance of Common Stock complies with the provisions described by this Section 10.
| 3 |
11. Adjustment in Option. The number of Shares subject to these Stock Options, the Exercise Price and other matters are subject to adjustment during the term of the Stock Options in accordance with Section 4.3 of the 2018 Equity Incentive Plan.
12. Rights Prior to Issuance of Certificates. Neither the Optionee nor any person to whom the rights of the Optionee shall have passed by will or the laws of descent and distribution shall have any of the rights of a shareholder with respect to any shares of Common Stock until the date of the issuance to him of certificates for such Common Stock as provided in Section 7 above
13. Capitalization Adjustments to Common Stock. In the event of a Capitalization Adjustment, then any and all new, substituted or additional securities or other property to which Purchaser is entitled by reason of Purchaser’s ownership of Common Stock shall be immediately subject to the Repurchase Option and be included in the word “Common Stock” for all purposes of the Repurchase Option with the same force and effect as the shares of the Common Stock presently subject to the Repurchase Option, but only to the extent the Common Stock is, at the time, covered by such Repurchase Option. While the total Option Price shall remain the same after each such event, the Option Price per share of Common Stock upon exercise of the Repurchase Option shall be appropriately adjusted.
14. Corporate Transactions. In the event of a Corporate Transaction, then the Repurchase Option may be assigned by the Company to the successor of the Company (or such successor’s parent company), if any, in connection with such Corporate Transaction. To the extent the Repurchase Option remains in effect following such Corporate Transaction, it shall apply to the new capital stock or other property received in exchange for the Common Stock in consummation of the Corporate Transaction, but only to the extent the Common Stock was at the time covered by such right. Appropriate adjustments shall be made to the price per share payable upon exercise of the Repurchase Option to reflect the Corporate Transaction upon the Company’s capital structure; provided, however, that the aggregate price payable upon exercise of the Repurchase Option shall remain the same.
15. Miscellaneous.
(a) This Agreement shall be binding upon the parties hereto and their representatives, successors and assigns.
(b) This Agreement shall be governed by the laws of, the State of Nevada.
(c) Any requests or notices to be given hereunder shall be deemed given, and any elections or exercises to be made or accomplished shall be deemed made or accomplished, upon actual delivery thereof to the designated recipient, or three days after deposit thereof in the United States mail, registered, return receipt requested and postage prepaid, addressed, if to the Optionee, at the most recent mailing address provided to the Company in writing, and, if to the Company, to the executive offices of the Company at, 3651 Lindell Road, Ste D131, Las Vegas, NV 89103 USA or at such other addresses that the parties provide to each other in accordance with the foregoing notice requirements.
(d) This Agreement may not be modified except in writing executed by each of the parties to it.
(e) This Agreement is subject to all terms and provisions of the Plan. In the event of a conflict between one or more provisions of this Agreement and one or more provisions of the Plan, the provisions of the Plan will govern.
(f) Neither this Agreement nor the Stock Options confer upon the Optionee any right with respect to continuance of consulting services for the Company.
| 4 |