EX-10.16




 Exhibit 10.16 

 
 



 
 June 3, 2019 

CONFIDENTIAL 
 Nicolas Cabrera 

VIA ELECTRONIC MAIL 
 Re: Employment Proposal 

Dear Nicolas: 
 It is with great pleasure that I present you with
the following proposed terms for your employment at BAKKT LLC (the “Company”), a subsidiary of Intercontinental Exchange, Inc. (“ICE”). 
  

			
	Position:	  	Head of Consumer Engagement
		
	Position Status/Type:	  	Exempt, Full Time employee reporting to Mike Blandina, Chief Product Officer, Bakkt, or such other person as the Company may designate from time to time.
		
	Position Location:	  	 San Francisco Office
 220 Montgomery Street,
Suite 200
 San Francisco, CA 94104

		
	Commencement Date:	  	On or about July 8, 2019
		
	New Hire Equity Award:	  	As soon as administratively feasible following your Commencement Date, we intend to award you 900,000 “Incentive Units.” As will be described in more detail in the documents accompanying the award, these incentive units
will have forfeiture and vesting schedules that will include requirements regarding your continued employment and certain financial performance thresholds
		
	Relocation Bonus:	  	A $31,500 relocation bonus will be paid as soon as practical following your Relocation Date. You will receive this amount less appropriate withholding taxes and authorized deductions. Should you decide to leave the Company within
the first twelve months of your employment, you will be required to repay a prorated portion of the relocation bonus based on the number of months not completed within the first year.
		
	Additional Vacation:	  	As part of your relocation, you will be provided with three (3) additional vacation days in 2020 to facilitate your relocation.













 



 
  


			
	Signing Bonus:	  	A $30,000 signing bonus will be paid as soon as practical following your Commencement Date. You will receive this amount less applicable withholding taxes and authorized deductions. Should you decide to leave the Company within the
first twelve months of your employment, you will be required to repay a prorated portion of the signing bonus based on the number of months not completed within the first year.
		
	Targeted Annual Compensation:	  	Based on the programs summarized below, and excluding the value of benefits and other forms of indirect compensation, your targeted annual compensation is approximately $472,500. It is important to note that, by design, actual
compensation earned will vary based on your individual performance and the Company’s performance.
		
	Initial Annual Base Salary:	  	$315,000 payable in equal semi-monthly installments, less applicable withholdings and authorized deductions, on the 15th and last day of each month. In the event a pay date falls
on a weekend or holiday, you will be paid on the preceding business day. You are an exempt employee under the Fair Labor Standards Act (FLSA) which means that you are ineligible for overtime compensation, regardless of the number of hours you work
in a given week.
		
	Annual Bonus:	  	You shall be eligible for a performance-based discretionary annual cash bonus, with a current target of 50% of salary. For the year you are hired, your bonus target will be prorated based on your Commencement Date. However, if your
Commencement Date is in December, eligibility begins the following calendar year.
		
	Annual Review:	  	You shall be eligible for an annual performance and salary review. Any adjustments to your compensation shall be at the sole discretion of senior management.
		
	Benefits:	  	You shall be eligible to participate in the employee benefits generally applicable to ICE employees, in accordance with the terms and conditions of each such employee benefit plan. ICE reserves the right to modify, add or eliminate
benefits in accordance with the relevant plan and applicable law.
		
		  	Paid Vacation. You will receive paid vacation in accordance with Company policies, as they may be modified from time to time. You will initially be eligible for 15 days (three weeks) per year of paid vacation time, which is
subject to accrual over each calendar year of employment. Should you leave the company for any reason, you must repay any vacation benefits taken but not yet accrued. For the year you are hired, your vacation will be prorated based on your
Commencement Date.
		
	Term:	  	Your employment is not for a fixed term and is considered an “at will” relationship, meaning that either you or the Company can end your employment at any time, with or without advance notice, for any lawful reason. There
is no guarantee for you to be employed for any particular period of time.













 



 
  


			
	Miscellaneous:	  	This offer of employment is contingent upon:
		
		  	1. successful completion of a background check, which may include among other checks, verification of your education and employment history, criminal background checks, and verification of your identity;
		
		  	2. sufficient proof of eligibility to work in the United States as required by law, including completion of any required visa documentation; and
		
		  	3. your agreement to comply with the Company’s non-negotiable Terms of Employment, which is provided hereto and must be separately signed and returned along with this offer letter. Please
read it carefully as it sets forth various other important terms, conditions and covenants that apply to your employment.

 This proposal shall remain in effect through June 6, 2019, after which time it shall be considered withdrawn if not
accepted by signing and returning to the Company’s Human Resources department. 
 In closing, I am very excited about you joining BAKKT LLC and look
forward to working with you. If you should have any questions regarding this proposal letter or any other aspects of the position, please do not hesitate to contact KC Downs in the Human Resources department at (312)
836-6510. 
  

	
	 Sincerely,
  

Intercontinental Exchange, Inc.

	
	/s/ Douglas Foley
	Douglas Foley
	Senior Vice President, HR & Administration

  

			
	I accept this offer of employment.
		
	Signature:	 	 /s/ Nicolas Cabrera

		
	Date:	 	06/03/2019














 



 
  

 EXHIBIT A - TERMS OF EMPLOYMENT 

SIGN, DATE AND RETURN ENTIRE DOCUMENT 
 As
consideration for Nicolas Cabrera’s (“You” or “Your”) employment with BAKKT LLC, a subsidiary of Intercontinental Exchange, Inc. (collectively, “ICE” or the “Company”), any compensation that will be
provided to you in connection with your employment (including without limitation the cash bonus component described in your accompanying offer letter), and your exposure and access to the confidential information of the Company, the receipt and
sufficiency of all of which are hereby acknowledged, You hereby agree to the following Terms of Employment (referred to herein as the “Agreement”). 

1. Professional Conduct and Business Ethics 
 At all times
while employed by ICE, You must observe the policies and procedures that ICE publishes from time to time for employees. The provisions of these policies, which include without limitation the ICE Global Code of Business Conduct, as amended from time
to time, are specifically incorporated by reference into this document and are among the terms and conditions of Your employment. You must always act in compliance with applicable law, ICE’s standards of conduct and in a sound ethical manner.
You must not do anything which may be a conflict of interest with Your responsibilities as an employee, which publicly places ICE in a negative light, or which reflects negatively on ICE as a premier financial institution and employer. 

2. Confidentiality 
 As an employee You may have access to
various types of proprietary, confidential or private information, including but not limited to any knowledge or data relating to know-how, designs, drawings, plans, reports, specifications, contracts,
documents, blueprints, computer software, computer tapes, computer disks, computer printouts, inventions, methods, processes, products, operations, policies, business development, costs, markets, sales, financial information, customer lists, or
other data or trade secrets of ICE, a subsidiary or affiliate of ICE, any of their respective clients, or any other third party (hereafter collectively referred to as “Information”). You agree that at all times during and after your
employment with ICE you will not disclose or use, directly or indirectly, any Information, unless such disclosure or use is part of Your duties at ICE or has been expressly authorized in writing by ICE. You shall not remove or transmit any documents
or data files containing Information from the premises or possession of ICE, any subsidiary or affiliate of ICE, any of their respective customers, or any other third party, unless You have obtained express authorization in writing by ICE or as
required by law. Notwithstanding anything in this Agreement, you may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (a) in confidence to a federal, state,
or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document that is filed under seal in a lawsuit
or other proceeding and does not disclose the trade secret, except pursuant to court order. 
 You also must not disclose to ICE or use for ICE purposes any
idea, invention, discovery, improvement, trade secret or the like which is the property of Your previous employer(s) or of any third party who has not authorized such use. 

  
 



 













 



 
  

 3. Employee Inventions 

You hereby agree that all Intellectual Property (defined below) conceived, invented, developed and/or reduced to practice by You, alone or jointly with others,
during Your employment is the exclusive property of ICE, regardless of whether such Intellectual Property falls within the scope of Your employment with ICE. You hereby agree that all Intellectual Property shall be considered a Work Made For Hire
pursuant to 17 U.S.C. § 101 and all rights, titles and interests therein shall vest exclusively with ICE, and to the extent that any Intellectual Property shall not qualify as a Work Made For Hire, You hereby assign to ICE all of Your right,
title and interest in such Intellectual Property and agree to assist ICE, at ICE’s expense, to obtain patents, copyright and trademark registrations for Intellectual Property, to execute and deliver all documents and do any and all things
necessary and proper on Your part to obtain such patents and copyright and trademark registrations and to execute specific assignments and other documents for such Intellectual Property as may be considered necessary or appropriate by ICE at any
time during or after Your employment. This paragraph does not apply to any invention that You develop entirely on Your own time without using ICE’s equipment, supplies, facilities, confidential or trade secret information, know-how or
proprietary information, unless the invention either (a) relates at the time of conception or reduction to practice of the invention to ICE’s business, or actual or demonstrably anticipated research or development of ICE, or
(b) results from any work performed by You for ICE. You will not place Intellectual Property in the public domain or disclose any inventions to third parties without the prior written consent of ICE. “Intellectual Property” shall
include all inventions, ideas, discoveries, patents, patent applications, registered and unregistered trademarks and service marks and all goodwill associated therewith and symbolized thereby, domain names, trademark applications and service mark
applications, registered and unregistered copyrights (including without limitation databases and other compilations of information), confidential information, trade secrets and know-how, including processes,
schematics, business methods, formulae, and computer software programs, and all other intellectual property, property and proprietary rights that, in ICE’s sole discretion, could be used within the scope of ICE’s business. 

4. Non-Solicitation of Customers 

During Your employment with ICE, You shall not solicit, contact or call upon any customers of ICE for any purpose other than carrying out the business of ICE,
except with express written permission from the Chief Executive Officer or General Counsel of ICE. For a period of six (6) months following the end of Your employment with ICE (whether your employment ended voluntarily or involuntarily), You
shall not, either directly or indirectly, on Your own behalf or on behalf of others, (i) solicit, contact or call upon any Restricted Customer for the purpose of offering or providing Competitive Services or (ii) in any manner interfere
with, disrupt or damage, or attempt to interfere with, disrupt or damage, the relationship between the Company and any customer of the Company. For purposes of this paragraph, “Restricted Customer” means customers or actively sought
prospective customers of ICE with which You had Material Contact on behalf of ICE during the period of twelve (12) months immediately preceding the end of Your employment with ICE or about which you learned confidential information during your
employment with ICE. For purposes of this paragraph, “Competitive Services” means selling or providing any product, equipment, deliverable or service competitive or potentially competitive with any product, equipment, deliverable or
service sold or provided or under active development by ICE during the period of twelve (12) months immediately preceding the end of Your employment with ICE, and “Material Contact” means contact with each customer or potential
customer: (a) with whom or which You dealt on behalf of the Company; (b) whose dealings with the Company You coordinated or supervised; (c) about whom You obtained Confidential Information in the ordinary course of business as a
result of Your association with the Company; or (d) who receives products or services authorized by the Company, the sale or provision of which results or resulted in compensation of any kind to You. 

  
 



 













 



 
  

 5. Non-Competition Period 

During Your employment with ICE and for a period of 6 month(s) after the termination of Your employment for any reason You shall not directly or indirectly,
anywhere in the United States, Canada or the United Kingdom, own, control, manage, loan money to, or act as an officer, director, become employed by, or provide consulting or advisory service to, any person or entity that competes with the line(s)
of business with which You had substantial involvement during the last three years of Your employment with the Company. 
 If your employment with ICE is
based in the state of California, then Paragraphs 4 and 5 above do not apply to You. If You are an attorney licensed by a state bar to practice law, nothing in this Agreement shall be construed as a restriction on Your ability to practice law in
violation of the applicable rules of professional conduct of any jurisdiction in which You are so licensed (any resulting limitation on the scope of the restrictive covenants set forth above shall be limited exclusively to You engaging in the
practice of law). 
 6. Nonrecruitment of Employees 

During Your employment with ICE, and for a period of twelve (12) months following the end of Your employment with ICE, You shall not, either directly or
indirectly, on Your own behalf or on behalf of others, solicit, encourage or induce, or attempt to solicit, encourage or induce, any person employed or retained by ICE to become employed elsewhere, or otherwise solicit, encourage or induce or
attempt to solicit, encourage or induce any person employed or retained by ICE to terminate his or her employment or contractual relationship with ICE. 

Upon your written request at the time of the termination of your employment for any reason, the Company in its sole and absolute discretion may elect to waive
some or all of the obligations described in Sections 4, 5 and 6 above, taking into consideration, among other things, the protection of the Company’s competitive interests, its customer relationships, and the protection of its Information. 

7. Return of Property 
 At any time upon the request of
ICE, and in any event upon the termination of Your employment, You will deliver to ICE all property belonging to ICE, including but not limited to computer equipment, communication devices (such as cellular telephones or tablets), credit cards,
keys, electronic files, memoranda, notes, records, drawings, manuals, files or other documents, and all copies of each, whether made or compiled by You or furnished to or acquired by You from ICE. 

8. No Conflicting Obligations 
 You represent and warrant
to ICE that You are not now under any obligation of a contractual or other nature to any person or entity which would prevent, limit or impair You in any way from being employed by ICE and performing Your employment duties and obligations on behalf
of ICE. You represent that you are in compliance with all agreements pertaining to the protection of confidential and proprietary information and trade secrets of any prior employer and that you shall not use or disclose or induce ICE to use any
protectable trade secret or proprietary information or material of any type belonging to any prior employer or other third party. You agree to provide, upon ICE’s request, copies of any of the foregoing agreements. 

  
 



 













 



 
  

 9. Dispute Resolution 

Any controversy between You, Your heirs or estate and the Company or any officer, director, or employee of the Company arising from, related to, or having any
connection with Your employment by, or other association with, the Company, whether based on tort, contract, statutory, equitable, or other theories (including, without limitation, all claims of harassment, discrimination, wrongful termination, or
breach of contract of any kind), shall be resolved by binding arbitration at a facility specified by the Company which (if feasible) shall be proximate to the Company office at which You primarily work. Such arbitration shall be conducted in
accordance with the rules of the American Arbitration Association (AAA) then applicable to employment-related disputes, and judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. 

You hereby waive any right to bring any claim that You have with the Company on a class-wide basis so long as such claim is subject to this arbitration
provision. Therefore, You agree that all claims brought in arbitration shall be brought in Your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Furthermore, both You and
the Company each agree to waive their respective rights to a jury trial for any claim or dispute subject to this arbitration provision. 
 You also agree
that the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. Unless otherwise allocated by the arbitrator, the Company will pay for any administrative or hearing fees
charged by the arbitrator or AAA except that You will pay the first $125.00 of any filing fees associated with any arbitration initiated by You. The arbitrator shall not have the authority to disregard or refuse to enforce any lawful Company policy,
and the arbitrator shall not order or require the Company to adopt a policy not otherwise required by law which the Company has not adopted. You agree that the decision of the arbitrator shall be in writing. The arbitrator shall have exclusive
authority to resolve any challenges to the scope or enforceability of this arbitration provision. 
 Except as provided herein, arbitration shall be the
sole, exclusive, and final remedy for any dispute between You and the Company, and neither You nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. This arbitration provision does not prohibit
You from pursuing an administrative claim with a federal, state, or local administrative agency such as the U.S. Equal Employment Opportunity Commission, similar state agency, or workers compensation board. This Agreement does, however, preclude You
from pursuing court action concerning any such claim. 
 Notwithstanding the foregoing, ICE may elect to seek interim injunctive relief in a court of
competent jurisdiction in order to restrain an actual or threatened violation of Sections 2, 3, 4, 5 or 6 of this Agreement. In the event ICE brings a legal proceeding (whether in court or arbitration) to enforce Sections 2, 3, 4, 5 or 6 of this
Agreement, and ICE substantially prevails in such legal proceeding, You shall be responsible for reimbursing ICE for its litigation expenses, including reasonable attorney’s fees, involved in such legal proceeding. 

The arbitration provision in this paragraph is accepted by both parties: 

 

	
	Your Initials: NC                                 
Initials of ICE Representative:                

 10. At-Will Employment 

Your employment relationship is “at-will” which means that either You or ICE may terminate the employment
relationship at any time with or without cause, and for any lawful reason at any time, without advance notice. There is no guarantee for You to be employed for any particular period of time. 

  
 



 













 



 
  

 11. Miscellaneous 

This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia; provided, however, that if you primarily reside and
work in the State of California, then California law shall apply. Each of the provisions of this Agreement shall be deemed separate and severable each from the other. In the event that any provision or portion of this Agreement shall be determined
to be invalid or unenforceable for any reason by final judgment of a court of competent jurisdiction, this Agreement shall be deemed amended by modifying or deleting, as necessary, the invalid or unenforceable provisions or portions and the
remaining provisions or portions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law. This Agreement may be enforced by ICE, any of its affiliates or subsidiaries, and any
successor in interest to ICE (whether by merger, sale of assets, or otherwise). The existence or claimed existence of any claim by You against ICE shall not serve as a defense to the enforcement by ICE of any of the covenants contained in this
Agreement. 
 Nothing in this Agreement, including the provisions of Sections 2 (confidentiality) or 9 (dispute resolution), shall prohibit you from
responding truthfully to a valid subpoena or from filing a charge with, or participating in any investigation or proceeding conducted by, or making reports of possible or suspected violations of law or regulation to, a governmental agency,
regulatory body or other law enforcement entity, or from making other disclosures that are protected under any law or regulation, or require you to notify ICE or obtain its authorization prior to doing so. 

Upon the termination of your employment with the Company for any reason, you may no longer represent yourself in any context as an employee of the Company.
This means that, among other things, you should update any references to your Company affiliation in social media sites controlled by you (such as a Linkedin profile). 

We believe these matters are important, both to you as an employee and to us as an employer. We require that you signify your agreement by signing below
and by initialing the Dispute Resolution paragraph above. 
 Receipt and Employee Agreement 

I acknowledge receipt of ICE’s Terms of Employment I understand them and agree to comply with them and am entering into them voluntarily and without any
duress or undue influence by the Company or anyone else. I understand the terms, consequences, and binding effect of this Agreement and fully understand it, including that I am waiving all rights to a jury trial. I understand and agree that the
provisions of this document set forth the conditions of my employment with ICE, and any other subsidiary of ICE by whom I may become employed, and that I may be subject to discipline or termination of employment if I fail to comply with them. I
further understand and agree that some of the provisions of this document (and/or Company policies that are incorporated by reference in this document) impose obligations that continue beyond the end of my employment, and that these are contractual
provisions that may be enforced by a court or arbitrator. I acknowledge that the consideration described above in the introductory paragraph of this document, whether provided by BAKKT LLC or any other ICE subsidiary by whom I may become employed,
is sufficient for the covenants and obligations contained in this document (including, without limitation, the obligations that continue beyond the end of my employment). I also understand that while other terms of employment, policies or procedures
may exist and be changed from time to time, the conditions set forth herein, including those concerning at-will employment, are not subject to change absent a written agreement expressly so providing, signed
by the Chief Executive Officer or General Counsel of the Company. 
  

	
	Accepted and agreed:
	
	 /s/ Nicolas Cabrera

	Nicolas Cabrera
	
	Date 06/03/2019