Exhibit 10.2



  


ALLDIGITAL EMPLOYMENT AGREEMENT 


 


JOHN WALPUCK


 


THIS EMPLOYMENT AGREEMENT (the “Agreement”)
is made and entered into as of August 1, 2011 (the “Effective Date”), by and between AllDigital, Inc., a California
corporation (the “Company”), and John Walpuck (“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 execute and 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 or 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 the Company, except that if at any time the Company becomes a wholly-owned subsidiary of another corporation
or entity, “Parent Company” shall mean the corporation or entity that owns the Company. The Parent Company, and its
consolidated subsidiaries, are referred to herein as the “Consolidated Company.”


 


3.          Services.
Employee shall serve as Chief Operating Officer and Chief Financial Officer 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 which, generally, shall include the following: (1) interact with executive
management to develop Company’s strategic plans, (2) develop operational and financial objectives, (3) develop, implement
and ensure compliance with operational and financial policies and procedures in collaboration with executive management, (4) prepare
the Company’s annual budget; (5) prepare and present monthly financial statements, (6) develop and maintain effective systems
of general accounting and cost determination, (7) supervise cost analysis and make recommendations to ensure appropriate income
and cash flow, (8) review billing and collection patterns and make corrective recommendations, (9) select, orient and train, as
appropriate and necessary, finance and other employees, including recommendation of merit increases, promotions and disciplinary
actions, (10) review financial performance and ensure compliance with government reporting requirements, including tax reports,
(11) provide assistance to executive management related to performance of operational and financial management matters, (12) monitor
budgetary performance and internal controls, and (13) other duties as may be assigned by the Chief Executive Officer and Parent
Company Board of Directors.


 



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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.


 


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, policies and procedures adopted by the
Board of Directors of the Company, unless such manual, handbook, policies 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 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 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 $12,000.00 per month. The Base Salary shall be subject to adjustment upward, but not downward, in the sole and
absolute discretion of the Parent Company’s Board of Directors. All Base Salary hereunder shall be payable in accordance
with the Company’s customary payroll practices and subject to federal and state withholding requirements.


 



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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 Parent Company’s Board of Directors. 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.


 


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 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 at the annual rate of Base Salary being paid to Employee as of the effective date of the termination of employment,
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 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 compensation 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, (c) Employee’s breach of any of the covenants set forth in Sections 4, 5, 6, 9 or 10, or (d) 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 the 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 of a maximum of 24 days per year, accruing at a rate of two days per month, and a maximum accrual of 24 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 the Chief Executive Officer, which approval will not be unreasonably withheld. Any requested PTO days beyond 24 days shall only
be approved in writing by the Chief Executive Officer and shall be without compensation unless otherwise agreed by the Chief Executive
Officer or Parent Company Board of Directors.


 



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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, or in the case of the Chief Executive
Officer, by another executive officer of the Company, 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.


 


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


 


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, suppliers, vendors, licensees,
or licensors, of a confidential, proprietary, or secret nature not readily available to the public (the “Confidential Information”).


 



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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.


 


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 Parent Company’s Board of Directors.


 


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.


 



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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.


 


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.


 



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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 SBW Security Training Acknowledgement Form, and the Stock Option Agreement (incorporating the 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.


 


20.          Employee
Handbook. Employee shall be governed by the personnel rules and regulations set forth in the Company’s employee handbook
and related documents. 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.          Acceleration
of Vesting of Options. Upon the occurrence of a “Transaction” as defined in paragraph 9.2 of the 2011 Stock Incentive
Plan (“Incentive Plan”) or 2011 Stock Option Agreement (“Option Agreement”), as well as any and all other
individual stock option agreements that that may be executed during the term of Employee’s employment with the Company (“Future
Option Agreements”), all stock options granted to Employee in connection with his employment at the Company including, without
limitation, those granted in connection with the execution of the Option Agreement, shall immediately vest and Employee will have
the immediate right and option to purchase those shares of stock on the terms and conditions set forth in the Option Agreement,
the Incentive Plan and Future Option Agreements. The acceleration of the vesting of the options described herein shall occur regardless
of any contrary provision or language found in the Incentive Plan, Option Agreement and Future Option Agreements.


 



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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/
	 	 	Its:	 
	 	 	Date:	 
	 	 	 	 
	Address:	 	 
	 	 	 
	 	 	 
	 	 	EMPLOYEE
	 	 	 
	 	 	/s/   JOHN WALPUCK
	 	 	Date:
	 	 	 
	Address:	 	 
	 	 	 


 







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