Exhibit
10.24 


 


AMENDED
AND RESTATED EMPLOYMENT AGREEMENT 


 


MICHAEL
LINOS


 


THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of September 8, 2014, by and
between AllDigital, Inc., a California corporation (the “Company”), and Michael Linos (“Employee”). This
Agreement replaces the Employment Agreement, dated January 27, 2014 (the “Initial Effective Date”), by and between
the Company and Employee. In consideration of the mutual covenants set forth below, the Company and Employee hereby agree as follows:


 


1. Employment
Offer Contingencies. Employee will be required, as a condition of employment with the Company, to: (a) successfully
complete a background check; (b) execute the Company’s Confidential, Proprietary Information and Invention Assignment
Agreement, (c) execute the Company’s Security Training Acknowledgement Form, (d) provide, as required by law, legal
proof of identity and authorization to work in the United States, and (e) if applicable, obtain a written consent or release
from Employee’s current employer to join Company in the form of the Company’s Release Agreement. The above
documents will be provided in advance and Employee will have adequate time to review them, but the documents must be
completed and submitted to Employer no later than Employee’s first day of employment with the Company. Upon
commencement of employment, Employee will be provided a copy of the Company’s Employee Handbook, which Employee will be
required to review and submit an executed written acknowledgement thereof within 30 days of beginning employment with the
Company.


 


2. At
Will Employment. The Company hereby employs Employee, and Employee hereby accepts employment by the Company. The parties
acknowledge and agree that the Employee’s employment relationship is “at-will,” meaning that either party
may terminate the employment relationship for any reason (or no reason at all) at any time, with or without cause and with or
without prior notice. Any termination of Employee by the Company shall be by action of the Board of Directors of the
“Parent Company.” “Parent Company” shall mean any entity that wholly owns the Company and, if that
entity is wholly owned by another entity, shall include the entity that wholly-owns the entity that owns the Company. The
ultimate Parent Company and its consolidated direct and indirect subsidiaries are collectively referred to herein as the
“Consolidated Company.” 


 


3. Services. Employee
shall serve as President and Interim CEO of the Company (or Consolidated Company, as the case may be) and perform such
services for the Company as are customary for such position and as may be assigned to him from time to time by the Board of
Directors of the Parent Company.


 


4. Outside
Activities. During the term of this Agreement, or any extensions thereof, Employee agrees to not engage in any other
gainful employment, business or activity that is competitive to, or in conflict (directly, indirectly, actual or potential)
with the Consolidated Company, without the written consent of the Company. While Employee renders services to the
Consolidated Company, Employee will not assist any person or organization in competing with the Consolidated Company, in
preparing to compete with the Consolidated Company, or in hiring any employees of the Consolidated Company.


 




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5. Work
and Reside in Orange County. Employee agrees that he will work full time at the Company’s main office in Irvine,
California, and be required to reside (in a primary residence) in the immediate Irvine or greater Orange County, California
metropolitan area for the duration of Employee’s employment. 


 


6. Restrictive
Covenants During Term. 


 


a.
During his employment by the Company, Employee shall devote his full time and services exclusively to the Consolidated
Company and will not, without the prior written consent of the Board of Directors of the Parent Company, own, either directly
or indirectly, any interest in any privately-held business or commercial enterprise which is competitive with the business
conducted by the Consolidated Company. Furthermore, Employee shall not, without the prior written consent of the Board of
Directors of the Parent Company, serve as a partner, officer, director, advisor or employee of, or act in any other similar
capacity for, any business or commercial enterprise which is competitive with the business conducted by the Consolidated
Company. However, nothing contained in this Section 6 shall be construed to prohibit Employee from purchasing the stock or
other securities of any corporation or other business entity whose stock or securities are traded on any national or regional
securities exchange or in the national over-the-counter market. 


 


b.
During his employment by the Company, Employee shall comply with all employee manuals, handbook, and policies and procedures
adopted by the Board of Directors of the Company, unless such manual, handbook, policy or procedure expressly provides that
it is not applicable to Employee or a person holding Employee’s position. Without limiting the generality of the
foregoing, and whether or not included in any manual, handbook, policy or procedure, Employee shall not enter into any
agreement (written or verbal) or other instrument that includes a financial, service or other obligation on the part of any
Consolidated Company unless the Board of Directors of the Company or another executive officer of the Company has reviewed
and approved such agreement or instrument. 


 


7. Compensation.


 


a. Base
Salary. As compensation for the services to be performed hereunder, Employee shall receive an annual base salary
(“Base Salary”) of $144,000. The Base Salary shall be subject to adjustment upward, but not downward, in the sole
and absolute discretion of the Board of Directors of the Parent Company. All Base Salary hereunder shall be payable in
accordance with the Company’s customary payroll practices and subject to federal and state withholding requirements. 


 


b. Bonuses. Employee
will have the ability to earn an amount equal to 50% of the annual Base Salary as a “Management by
Objective Bonus” (“MBO Bonus”). The MBO Bonus will be deemed earned by the Employee following the
successful achievement of quarterly objectives approved in writing by the Board of Directors of the Parent Company. The MBO
Bonus will be payable in quarterly payments. The MBO Bonus, if earned, will be paid within 45 days of the end of the fiscal
quarter, except for any bonus due and payable at the Company’s year-end, which will then be due no later than March 15
of the following year. If Employee’s employment is terminated for any reason during any bonus term, the Employee will
receive the payment of his pro-rated share of the MBO Bonus within 45 days of the end of the fiscal quarter provided that the
written objectives for that quarter were in the process of being achieved (as reasonably determined by the Parent
Company’s Board and Directors) or were actually achieved during that fiscal quarter.


 







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c. Payment
Upon Termination. 


 


(i)
Subject to the following paragraph and the last sentence of this paragraph, upon any termination of Employee’s
employment by the Company (other than a termination for “Cause” as that term is defined below), the Company shall
pay to Employee, in addition to any accrued but unpaid compensation and accrued but unused Paid Time Off (as defined below)
pay earned by Employee through the effective date of the termination of employment, the following “Severance
Amount”: (A) an amount equal to one year’s Base Salary being paid to Employee as of the effective date of the
termination of employment and payable in six equal monthly installments less any applicable taxes, and (B) an amount equal to
100% of Employee’s group health and dental insurance premiums with the Company (or, at the election of the Company,
100% of the amount payable under COBRA necessary to maintain Employee’s health and dental insurance) for a period of
one year following Employee’s date of termination. Notwithstanding anything in this Agreement to this contrary, (Y) any
obligation of the Company to pay any portion of the Severance Amount shall immediately and automatically cease, without
notice or opportunity to cure, upon Employee’s breach of Section 9 or 10 of this Agreement during, or following
termination of, Employee’s employment with the Consolidated Company, and (Z) any obligation of the Company to pay any
portion of the severance amount shall be suspended (but not terminated) at the option of the Company (1) during any period
that the Parent Company’s independent public accountants require the Consolidated Company to include a going concern
qualification in the financial statements, until such going concern qualification is removed or eliminated, (2) during any
calendar month in which the Consolidated Company’s current ratio (i.e. ratio of current assets to current liabilities)
as of the last day of the prior calendar month was less than 2.5, or (3) during any period in which the Consolidated Company
has current assets of less than $650,000; provided, however, none of (1), (2) or (3) shall apply if the Consolidated
Company has cash or cash equivalents in excess of $1 million.


 


Payments
of the cash portion of the Severance Amount shall be made to Employee in six equal monthly installments less any applicable taxes,
except as set forth below in this paragraph. Notwithstanding anything in this subsection (c) (i) to the contrary: (A) no base
salary continuation or bonus amount otherwise payable to the Employee under this subsection (i) shall be paid unless and until
the Employee incurs a “separation from service” (as defined in Treasury Regulation Section 1.409A-1(h)) from the Company
(a “Separation from Service”) (with any amounts deferred as a result of this subsection (A) being payable promptly
following such Separation from Service and as permitted by subsection (B)); and (B) any base salary and bonus amounts that are
otherwise due or payable under this subsection (c)(i) during the six-month period following the Employee’s Separation from
Service shall instead be deferred and paid to the Employee within five business days after, but in no instance prior to, the six-month
anniversary of Employee’s Separation from Service (or, if earlier, the date of Employee’s death) if and to the extent
that such amounts (1) do not constitute “separation pay due to involuntary separation from service” (as defined in
Treasury Regulation Section 1.409A-1(b)(9)(iii); and (2) are subject to Section 409A of the Internal Revenue of 1986, as amended
(the “Code”). The foregoing restrictions on the payment of continuing base salary and bonus are intended to comply
with the requirements of Section 409A of the Code and shall be interpreted consistently with that intent.


 




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(ii)
Upon any termination of Employee’s employment by the Company for “Cause”, the Company shall pay to Employee
any accrued but unpaid Base Salary and accrued but unused Paid Time Off earned by Employee through the effective date of the termination
of his employment. As used herein, the term “Cause” shall mean (a) Employee’s conviction of, or plea of guilty,
nolo contendere or the equivalent, in any criminal action involving a felony, (b) Employee’s misappropriation of
any material funds or property of the Company, (c) Employee’s willful misconduct in the performance of his duties for the
Company, (d) Employee’s breach of any of the covenants set forth in Sections 4, 5, 6, 9 or 10, or (e) the continuation of
any breach, or repeat of any breach, by Employee of any covenant not designated in subsection (c) of this paragraph after the
Company has given Employee written notice identifying such breach.


 


(iii)
If Employee elects to terminate his employment with the Company for “Good Reason,” Employee shall be entitled
to the same Severance Amount as set forth in subsection (c)(i) above, including the modifying restrictions set forth in the last
sentence of the first paragraph, and the second paragraph, of subsection (c)(i). “Good Reason” shall mean (A) a material
reduction of Employee’s compensation, responsibilities or duties; (B) a change in the principal place of Employee’s
employment such that it causes Employee to relocate or materially increases Employee’s commute time; or (C) any other event
that is a functional equivalent of an involuntary termination and which falls within the safe-harbor provisions related to termination
for good reason set forth in the regulations implementing Section 409A of the Code.


 


(iv)
The payments described in this Section 7(c) shall constitute the entirety of the compensation payable to Employee by any
Consolidated Company upon a termination of his employment with the Company.


 


8. Employee
Benefits.


 


a. Paid
Time Off. Employee shall be entitled to Paid Time Off (“PTO”) plus company holidays in accordance with the
PTO and Holiday policies set forth in the Company’s Employee Handbook. Initially, it is understood that Employee shall
be entitled to a maximum of 20 days per year, accruing at a rate of two days per month, and a maximum accrual of 20 days at
any one point in time, excluding paid holidays, the scheduling of which will be approved in advance (generally at least one
month in advance) by Employee providing notice to the senior human resource contact in the Company and one other executive
officer of the Company. 


 


b. Group
Health Insurance Benefits. The Company shall provide for Employee and his dependents, at the Company’s expense,
participation in such health, accident and dental insurance plans as are made available generally to the Company’s
senior executive management level employees (i.e. officers party to substantially similar written employment agreements) from
time to time. 


 


c. Business
Expenses. Employee shall be entitled to reimbursement by the Company for any ordinary and necessary expenses reasonably
incurred by Employee in the performance of his duties and in acting for the Company, provided that: 


 


i.
Each such expenditure over $1,000.00 is pre-approved in writing by the Employee’s supervisor in accordance with Company
policy.


 


ii.
Employee furnishes to the Company such documentation regarding such expenses as is required by the rules and policies
relating to expense reimbursements that the Company shall from time to time establish in order to permit such reimbursement
payments to be taken as proper deductions by the Company under applicable state and federal tax laws.


 




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Repeated
violations of this provision shall be deemed cause for termination as defined in Section 7(c)(ii)(e).


 


d. Indemnification. Employee
shall have the full benefit of all provisions of the Company’s limits of liability as may be provided to an employee of
the Company in the Company’s articles of incorporation, bylaws, and California Labor Code Section 2802 providing for
indemnification of Employee in the circumstances described therein.


 


9. Confidential
Information.


 


a. Access
to Confidential and Trade Secret Information. Employee acknowledges that during the course of Employee’s retention
by the Consolidated Company, Employee will be exposed to and provided documents and other information regarding the
confidential business and technical affairs of the Consolidated Company, whether reduced to writing, maintained on any form
of electronic media or maintained in the mind or memory and whether compiled by Employee or the Consolidated Company,
including, without limitation, information about the Consolidated Company’s past, present and future financial
condition, the markets for its products, key personnel, past, present or future actual or threatened litigation, trade
secrets, current and prospective customer lists, operational methods, acquisition plans, prospects, plans for future
development, pricing information, cost information, sources of supply, sources of customers, customer lists, identities and
purchasing characteristics and histories, business plans, models, projections or prospects, actual and/or projected expenses,
actual and/or projected revenues, actual and/or projected profits, financial information, data, know-how, formulae,
processes, designs, specifications, drawings, contract rights, and other information concerning the Consolidated
Company’s organization, business operations, business affairs, marketing plans, clients, customers, partners,
suppliers, vendors, licensees, or licensors, of a confidential, proprietary, or secret nature not readily available to the
public (the “Confidential Information”). 


 


Employee
expressly acknowledges that this Confidential Information has independent economic value from not being readily known, disclosed
to or ascertainable by proper means by the public and/or others in the industry and business of the Consolidated Company, and
that reasonable efforts have been made by the Consolidated Company to maintain the secrecy of such Confidential Information, and
this Confidential Information shall be considered and deemed the Consolidated Company’s trade secrets and confidential,
proprietary information.


 


b. No
Disclosure or Use of Confidential Information. At no time during Employee’s employment or thereafter shall
Employee ever divulge, disclose, or otherwise use any Confidential Information for any purpose other than to do and perform
the business and activities of the Consolidated Company, unless and until such information is readily available in the public
domain by reason other than Employee’s disclosure or use thereof in violation of this Section 9, or unless such
disclosure is required by law. Employee specifically acknowledges that the Confidential Information derives independent
economic value from not being readily known, disclosed to or ascertainable by proper means by the public or the industry or
business of the Consolidated Company, that reasonable efforts have been made by the Consolidated Company to maintain the
secrecy of such Confidential Information, that such Confidential Information is the sole property of the Consolidated
Company, is considered the Consolidated Company’s trade secrets, and that any retention, use or disclosure of such
Confidential Information by Employee (except in the course of performing duties hereunder) shall constitute a
misappropriation of trade secrets of the Consolidated Company and/or unfair competition.


 







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10. Non-Solicitation. Employee
shall not, for a period of 12 months following the termination of his employment with the Consolidated Company, for any
reason whatsoever, directly or indirectly, for himself or for, on behalf of or in conjunction with any other person or
entity, solicit or induce any employee, agent, independent contractor or consultant of or to the Consolidated Company to
terminate his, her or its employment or other relationship with the Consolidated Company for the purpose of associating with
any competitor of the Consolidated Company or otherwise encourage any such person to leave or sever his, her or its
employment or other business relationship with the Consolidated Company. 


 


11. Damages
and Injunction. Because of the difficulty of measuring economic losses to the Consolidated Company as a result of a
breach by Employee of the provisions of Sections 9 and 10 hereof, and because of the immediate and irreparable damage that
could be caused for which it would have no other adequate remedy, Employee agrees that the provisions of Sections 9 and 10
hereof may be enforced by the Consolidated Company in the event of breach or threatened breach by Employee, by injunctions
and restraining orders without having to post a bond or other security. Such actions may be taken in state or federal court
notwithstanding the inclusion of an arbitration provision in this Agreement. Nothing herein shall be construed as prohibiting
the Consolidated Company from pursuing any other available remedy for such breach or threatened breach, including the
recovery of damages as provided for in this Agreement.


 


12. Agency
and Authority. Employee agrees that his employment by the Company shall deem him an agent for the Company only for such
purposes as are customary for his position. Employee agrees that he will not act or purport to act in any way for the
Company, except as to matters directly related to his employment or as may otherwise be authorized by the Board of Directors
of the Parent Company. 


 


13. Severability. Nothing
contained in this Agreement shall be construed as requiring the commission of any act contrary to law, and wherever there is
any conflict between any provision of this Agreement and any present or future statute, law, ordinance or regulation contrary
to which the parties have no legal right to contract, the latter shall prevail, but in such event, the provision of
this Agreement thus affected shall be curtailed and limited only to the extent necessary to bring it within the requirements
of the law. In the event that any part, article, paragraph, section or clause of this Agreement shall be held to be
indefinite or invalid, the entire Agreement shall not fail on account thereof, and the balance of the Agreement shall
continue in full force and effect. 


 


14. Notices. Any
notice required to be given under this Agreement shall be in writing and shall be deemed effective upon personal delivery or
three (3) days after deposit in the U.S. mail, postage prepaid and properly addressed to the party entitled to such
notice, at the address indicated beside such party’s signature line on this Agreement or at such other address as such
party may designate by ten (10) days advance written notice under this paragraph to all other parties to this Agreement. 


 




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15. Amendment. Any
waiver, alteration or modification of any of the provisions of this Agreement or cancellation or replacement of this
Agreement shall not be valid unless made in writing and signed by the parties hereto.


 


16. Governing
Law. This Agreement shall be construed and governed in accordance with the laws of the State of California applicable to
contracts executed and to be wholly performed within the State of California, with venue and jurisdiction for any dispute in
the County of Orange. 


 


17. Waiver. Waiver
by either party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach.


 


18. Arbitration. In
the event of any dispute or any claim arising out of this agreement, the termination of Employee’s employment, or the
employment relationship between the Employee and the Company (including, but not limited to, any claims of wrongful
termination or claims for discrimination based on race, age, sex, disability, creed, color, religion, sexual orientation,
marital status, or any other protected category, under California Fair Employment and Housing Act, Title VII of the Civil
Rights Act, Age Discrimination in Employment Act, or Americans with Disabilities Act), Employee and the Company agree that
all such disputes shall be fully and finally resolved by binding arbitration conducted under the rules of the California
Arbitration Act, Code of Civil Procedure Section 1280 et seq. (the “Arbitration Act”). The parties shall
(1) select a neutral arbitrator from a panel obtained from Orange County Superior Court (or some other source mutually agreed
upon between the parties), (2) be permitted adequate and reasonable discovery necessary to arbitrate or resolve all issues in
dispute in the arbitration, and (3) direct the arbitrator to render a written award setting forth his findings of fact and
conclusions of law which shall be afforded appropriate judicial review as permitted by and provided for in the Arbitration
Act and state laws interpreting the Arbitration Act. Each party shall bear his or its own expenses incurred in connection
with the arbitration, including attorneys’ fees and costs, except that the Company will pay all the arbitrator’s
costs and fees unique to the arbitration. This arbitration provision shall not apply to claims for unemployment insurance
benefits filed with the Employment Development Department or to claims for normal workers compensation benefits filed with
the Workers Compensation Appeals Board. In the event Employee prevails in the resolution of any dispute arising out of this
agreement, Company shall reimburse Employee for all expenses Employee incurred in connection with the arbitration, including
attorneys fees and costs, and any other costs, fees or attorneys fees as may otherwise be provided under state or federal
law.


 


19. Entire
Agreement. This Agreement, along with the other documents and agreements executed contemporaneously herewith by the
parties, which includes the Confidential, Proprietary Information and Invention Assignment Agreement, the Offer Letter, New
Hire Information Form, and the Security Training Acknowledgement Form, and any Stock Option Agreements (incorporating the
Amended and Restated 2011 Stock Incentive Plan), contains all the terms and conditions agreed upon by the parties hereto and
sets forth the entirety of the consideration to which Employee shall be entitled hereunder. No other agreements, oral or
otherwise, shall be deemed to exist or to bind any of the parties hereto in any manner related to this Agreement. No officer
or employee of the Company has any authorization to make any representation or promise in any manner related to this
Agreement not contained in this Agreement, and Employee agrees that he has not executed this Agreement in reliance upon any
such representation or promise. This Agreement cannot be modified or changed except by written instrument, signed by both
parties hereto.


 




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20. Employee
Handbook. Employee shall be governed by the personnel rules and regulations set forth in the Company’s employee
handbook and related documents, which may be modified from time to time. To the extent there exists a conflict between this
Agreement and the personnel rules and regulations of the Company, this Agreement shall be the controlling document and
supersede any conflicting policy.


 


21. Section
Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the
meaning hereof. 


 


22. Counterparts. This
Agreement may be executed in a number of counterparts, each of which shall be construed as an original for all
purposes. 


 


23. Stock
Grants. Provided that the Employee is employed by the Company on the applicable issuance date, the Company shall grant
and issue 1,000,000 shares of Common Stock on each of the first anniversary and the second anniversary of the Initial
Effective Date. Immediately prior to the consummation of a “Transaction” as defined in Section 9.2 of the Amended
and Restated 2011 Stock Incentive Plan of AllDigital Holdings, Inc. (as the same may be amended and/or restated from time to
time), provided that the Employee is employed by the Company immediately prior to the consummation of the Transaction, upon
the Employee’s written demand in accordance with this section, the Company shall issue to Employee the number of
unissued shares of Common Stock to which the Employee would be entitled to under this Section 23. The Company shall give
Employee at least 5 business days notice prior to the consummation of any Transaction and, within 2 business days of
receiving such notice, Employee shall provide the Company with written notice stating whether or not Employee elects to
exercise his rights under this Section 23.


 


[Signature
Page Follows.]


 




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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.


 


	 	ALLDIGITAL,
    INC.
	 	 
	 	By:	 /s/
    Brad     Eisenstein 





        

	 	Name:	 Brad
Eisenstein 
	 	Its:

        
	 Chief Financial
Officer and Chief Operating Officer 
	 	Date:	 
	 	 	 
	

        
	Address:	 
	 	 	 
		EMPLOYEE
	 	 
	 	  /s/
    Michael Linos 
	 	Michael
    Linos
	 	

        

        Date:
	 
	 	 	 
		Address:	 


 




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