1042-00004 · Lone Star Trust Company · Transaction Documents

founder-employment-agreement-form.docx DOCUMENT M&A / Corporate

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EMPLOYMENT AGREEMENT

Form for Founder Earnout Participant

Prepared by:

Calderwood & Harkness LLP 2000 McKinney Avenue, Suite 3400 Dallas, Texas 75201

Matter No.: 1042-00004

This form is to be completed separately for each of the following Founder Earnout Participants: [Insert Name of Employee]

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of July 22, 2023 (the "Effective Date"), by and between Brightfield Cloud Services Inc., a Delaware corporation ("Employer" or "BCS"), with its principal offices at 4200 Westgrove Boulevard, Suite 1100, Irving, Texas 75038, and [Insert Name of Employee] ("Employee").

RECITALS

WHEREAS, BCS, BCS DevTools Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of BCS ("Merger Sub"), and Codelaunch Labs, Inc., a Delaware corporation ("Codelaunch"), entered into that certain Agreement and Plan of Merger, dated as of June 1, 2023 (as the same may be amended, supplemented, or otherwise modified from time to time, the "Merger Agreement"), pursuant to which Merger Sub merged with and into Codelaunch, with Codelaunch surviving as a wholly owned subsidiary of BCS, with the merger (the "Merger") becoming effective on the Effective Date (the "Closing");

WHEREAS, Employee is a co-founder and key employee of Codelaunch and is designated as a "Founder Earnout Participant" under the Merger Agreement, and Employee's knowledge, skills, relationships, and expertise are critical to the successful integration and continued operation of the Codelaunch platform and related products within BCS;

WHEREAS, as a material condition and inducement to BCS's willingness to consummate the transactions contemplated by the Merger Agreement, Employee has agreed to enter into this Agreement and to continue employment with BCS (or a subsidiary thereof) on the terms and conditions set forth herein, and BCS would not have entered into or consummated the Merger without such agreement by Employee; and

WHEREAS, Employee acknowledges and agrees that a portion of the merger consideration payable under the Merger Agreement is in the form of earnout consideration (the "Earnout Payments"), the receipt of which is contingent upon, among other things, Employee's continued full-time employment with BCS through the applicable milestone measurement dates, as more particularly set forth in the Merger Agreement and this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

SECTION 1 — EMPLOYMENT; POSITION AND DUTIES

1.1 Employment. BCS hereby employs Employee, and Employee hereby accepts employment with BCS, effective as of the Effective Date, on the terms and conditions set forth in this Agreement. Employee's employment hereunder shall commence on the Effective Date and shall continue until terminated in accordance with Section 7 of this Agreement. Employee acknowledges that this Agreement supersedes any prior employment agreement, offer letter, or similar arrangement between Employee and Codelaunch with respect to the terms and conditions of Employee's employment, effective as of the Effective Date.

1.2 Position. Employee shall serve in the capacity of [Insert Title — e.g., Vice President, Engineering; Chief Technology Officer; or Vice President, Product] of BCS. In such capacity, Employee shall report directly to [Insert Reporting Manager — e.g., the Chief Technology Officer of BCS or the Senior Vice President, Engineering of BCS], or to such other person as BCS may designate from time to time in its reasonable discretion. Employee's title, reporting relationship, and organizational placement may be adjusted by BCS from time to time in connection with the integration of the Codelaunch business, organizational restructurings, or other legitimate business purposes; provided, however, that any material diminution of Employee's title, authority, or duties during the earnout period (as defined in Section 5) that is not consented to by Employee and that constitutes a constructive termination under the Merger Agreement shall be treated in accordance with the applicable provisions of the Merger Agreement.

1.3 Duties. Employee shall devote Employee's full business time, attention, skill, and best efforts to the performance of Employee's duties hereunder and to the furtherance of BCS's business interests. Employee shall perform such duties and responsibilities as are customarily associated with Employee's position and title and such additional duties as may be reasonably assigned by BCS from time to time, including duties related to the integration, development, maintenance, and commercialization of the Codelaunch platform, customer relationship management, and product strategy initiatives. Employee's principal place of work shall be BCS's offices located at 4200 Westgrove Boulevard, Suite 1100, Irving, Texas 75038, or such other location as BCS and Employee may mutually agree, including the former Codelaunch offices located at 1607 East 6th Street, Suite 300, Austin, Texas 78702, subject to reasonable travel requirements consistent with Employee's duties and BCS's business needs. Employee acknowledges that Employee's position may require travel to BCS offices, customer sites, conferences, and other locations from time to time.

1.4 Exclusive Service. During the term of Employee's employment with BCS, Employee shall not, without the prior written consent of BCS, engage in any other employment, business, consulting, or professional activity, whether or not such activity is pursued for gain, profit, or other pecuniary advantage, that (a) interferes or conflicts with Employee's duties and responsibilities to BCS, (b) creates an actual or potential conflict of interest with BCS, or (c) is competitive with BCS's business. Notwithstanding the foregoing, Employee may (i) serve on civic, charitable, educational, or professional boards or committees, (ii) manage Employee's personal investments, and (iii) engage in other passive activities, in each case so long as such activities do not materially interfere with Employee's duties under this Agreement and are not in conflict with the interests of BCS. Employee shall disclose to BCS any outside board service or material outside activities prior to commencing such service or activities.

SECTION 2 — AT-WILL EMPLOYMENT

2.1 At-Will. Employee's employment with BCS is and shall remain "at-will," meaning that either Employee or BCS may terminate the employment relationship at any time, with or without Cause (as defined in Section 7.5 below), and with or without advance notice or reason, subject to the provisions of this Agreement. The at-will nature of Employee's employment is not intended to and shall not alter, modify, or limit any rights to Earnout Payments, severance, or other compensation that may arise under this Agreement, the Merger Agreement, or any other written agreement between the parties. Nothing in this Agreement shall be construed as a guarantee of employment for any specific duration or as creating an implied or express contract of employment for a definite term.

2.2 No Modification of At-Will Status. The at-will nature of Employee's employment may not be modified, amended, or altered in any way except by a written agreement that is (a) signed by both Employee and either the Chief Executive Officer or the General Counsel of BCS, and (b) expressly states the specific intention to alter the at-will relationship established under this Agreement. No oral representations, promises, or course of dealing between the parties shall modify the at-will status of Employee's employment. No manager, supervisor, recruiter, or other representative of BCS, other than the Chief Executive Officer or General Counsel acting in writing as described above, has any authority to modify the at-will nature of Employee's employment.

SECTION 3 — COMPENSATION

3.1 Base Salary. In consideration of the services to be rendered by Employee under this Agreement, Employee shall receive an annualized base salary (the "Base Salary"), payable in substantially equal installments in accordance with BCS's standard payroll practices and subject to all applicable withholdings and deductions required by law. The applicable Base Salary for Employee shall be determined as follows:

[Insert applicable Base Salary: $____________ per year]

BCS may review and adjust the Base Salary from time to time in its sole discretion in connection with annual performance reviews, market adjustments, promotions, or other circumstances. Notwithstanding the foregoing, during the earnout period (i.e., the period commencing on the Effective Date and ending on July 22, 2025, or such later date as the final Earnout Milestone is determined under the Merger Agreement), the Base Salary shall not be reduced below the initial amount set forth above without Employee's prior written consent. For the avoidance of doubt, any increase in Base Salary during the earnout period or thereafter shall not obligate BCS to maintain such increased Base Salary in subsequent periods, except as otherwise provided by this Agreement or applicable law.

3.2 Annual Bonus. Employee shall be eligible to participate in BCS's annual incentive bonus program, if any, as in effect from time to time, on terms and conditions determined by BCS in its sole discretion, including the establishment of performance targets, the determination of whether such targets have been achieved, and the amount of any bonus award. Any annual bonus, if earned, shall be paid at the time bonuses are paid to other similarly situated BCS employees, but in no event later than March 15 of the calendar year following the calendar year in which the applicable performance period ends. Participation in any annual bonus program in one year shall not guarantee participation in, eligibility for, or any award under any bonus program in any subsequent year. Employee must be employed by BCS on the date any annual bonus is paid in order to earn and receive such bonus, except as otherwise required by applicable law.

3.3 Payroll Practices. All compensation payable to Employee under this Agreement, including Base Salary, any annual bonus, and any other forms of compensation, will be paid in accordance with BCS's normal payroll schedule and practices as in effect from time to time and will be subject to all applicable federal, state, local, and, if applicable, foreign tax withholdings and deductions required by law or authorized by Employee.

SECTION 4 — EQUITY COMPENSATION

4.1 Restricted Stock Unit Grant. Effective as of the Effective Date, BCS shall grant to Employee 50,000 restricted stock units ("RSUs") with respect to shares of BCS common stock, par value $0.001 per share, under the Brightfield Cloud Services Inc. 2021 Equity Incentive Plan (as may be amended from time to time, the "Plan"). The RSUs shall be subject to the terms and conditions of the Plan and a separate Restricted Stock Unit Award Agreement to be entered into by Employee and BCS substantially contemporaneously with this Agreement (the "RSU Award Agreement"). Employee's execution of this Agreement shall not be deemed to constitute acceptance of the RSU grant or the RSU Award Agreement; Employee must separately accept the RSU Award Agreement in accordance with BCS's equity administration procedures.

4.2 Vesting Schedule. Subject to Employee's continued employment with BCS (or a subsidiary of BCS) through each applicable vesting date, the RSUs shall vest over a four (4)-year period from the Effective Date, with a one (1)-year cliff vesting period, as follows:

(a) Cliff Vesting. Twenty-five percent (25%) of the RSUs (12,500 RSUs) shall vest on the first anniversary of the Effective Date (i.e., July 22, 2024), subject to Employee's continued employment with BCS (or a subsidiary of BCS) through such date.

(b) Quarterly Vesting. Following the cliff vesting date, the remaining seventy-five percent (75%) of the RSUs (37,500 RSUs) shall vest in twelve (12) equal quarterly installments of 3,125 RSUs each, vesting on the last day of each calendar quarter (or, if the applicable vesting date is not the last day of a calendar quarter, the nearest quarterly vesting date designated under the Plan's standard vesting schedule), over the thirty-six (36)-month period following the first anniversary of the Effective Date, subject to Employee's continued employment with BCS (or a subsidiary of BCS) through each such vesting date.

4.3 Termination of Vesting. Upon the termination of Employee's employment with BCS (and all subsidiaries of BCS) for any reason, vesting of any then-unvested RSUs shall immediately cease, and all unvested RSUs shall be automatically forfeited and canceled without consideration, except as may be otherwise expressly provided in the Plan, the RSU Award Agreement, or any written severance or separation agreement entered into between BCS and Employee. The treatment of vested but unsettled RSUs upon termination of employment shall be governed by the terms of the Plan and the RSU Award Agreement.

4.4 Plan Governs. The RSU grant described in this Section 4 is subject in all respects to the terms and conditions of the Plan and the RSU Award Agreement. In the event of any inconsistency or conflict between the provisions of this Section 4 and the terms of the Plan or the RSU Award Agreement, the terms of the Plan shall control with respect to matters governed by the Plan, and the terms of the RSU Award Agreement shall control with respect to matters governed by the RSU Award Agreement. Nothing in this Section 4 shall be construed to limit or modify BCS's rights under the Plan or the RSU Award Agreement, including with respect to adjustments, clawback, and administration.

SECTION 5 — EARNOUT CONSIDERATION

5.1 Earnout Entitlement. Employee is designated as a "Founder Earnout Participant" under Article VII of the Merger Agreement. Subject to the terms and conditions of the Merger Agreement and this Agreement, Employee shall be entitled to receive Employee's allocable share of the earnout consideration (the "Earnout Payments") upon the achievement of the earnout milestones described in the Merger Agreement and this Section 5 (collectively, the "Earnout Milestones"). Employee acknowledges and agrees that the Earnout Payments constitute a portion of the aggregate merger consideration payable under the Merger Agreement and that Employee's entitlement to any Earnout Payment is contingent upon, and subject to, both the achievement of the applicable Earnout Milestone and Employee's satisfaction of the continued employment requirement set forth in Section 5.4 below.

5.2 Earnout Milestones. The maximum aggregate earnout consideration payable to all Founder Earnout Participants under the Merger Agreement is Three Million Three Hundred Thousand Dollars ($3,300,000), which shall be allocated among the Earnout Milestones and the Founder Earnout Participants as follows:

(a) Milestone 1 (representing fifty percent (50%) of the aggregate earnout consideration, or $1,650,000): Milestone 1 shall be deemed achieved, and the corresponding Earnout Payments shall become payable to the eligible Founder Earnout Participants, if the Codelaunch platform (as defined in the Merger Agreement) reaches two hundred (200) or more enterprise customer accounts (as defined in the Merger Agreement) by the twelve (12)-month anniversary of the Closing Date (i.e., July 22, 2024) (the "Milestone 1 Measurement Date"). The determination of whether the Codelaunch platform has achieved two hundred (200) or more enterprise customer accounts shall be made by BCS in accordance with the methodology and procedures set forth in the Merger Agreement.

(b) Milestone 2 (representing fifty percent (50%) of the aggregate earnout consideration, or $1,650,000): Milestone 2 shall be deemed achieved, and the corresponding Earnout Payments shall become payable to the eligible Founder Earnout Participants, if the Codelaunch platform generates Eight Million Dollars ($8,000,000) or more in annual recurring revenue ("ARR") attributable to the Codelaunch product line (as calculated in accordance with the Merger Agreement) during the twenty-four (24)-month earnout period commencing on the Closing Date and ending on July 22, 2025 (the "Milestone 2 Measurement Date" and, together with the Milestone 1 Measurement Date, the "Measurement Dates"). For the avoidance of doubt, the ARR calculation shall be determined in accordance with the definitions, methodologies, and accounting principles set forth in the Merger Agreement, including any adjustments for customer churn, contract modifications, and revenue recognition standards.

5.3 Employee's Allocable Share. Employee's allocable share of the earnout consideration for each Earnout Milestone shall be determined on a pro rata basis based on Employee's percentage of the total equity held by all Founder Earnout Participants as of the Closing, as set forth in the allocation schedule below:

[Insert Employee's allocable percentage: ________%; maximum earnout share: $____________]

The foregoing allocation percentages shall be fixed as of the Closing Date and shall not be subject to adjustment, except in connection with the redistribution provisions set forth in Section 5.5 below. Each Earnout Payment, if and when earned, shall be payable to Employee within the timeframe specified in the Merger Agreement following BCS's determination that the applicable Earnout Milestone has been achieved, subject to all applicable tax withholdings and deductions.

5.4 Continued Employment Requirement. As a material condition to the receipt of any Earnout Payment, Employee must remain continuously employed on a full-time basis by BCS or any subsidiary of BCS from the Effective Date through the applicable Earnout Milestone Measurement Date. If Employee's employment with BCS and all subsidiaries of BCS terminates prior to the applicable Measurement Date — whether by Employee's voluntary resignation (including resignation for any reason) or by BCS for Cause (as defined in Section 7.5) — Employee shall immediately and irrevocably forfeit any and all right to receive the Earnout Payment associated with such Measurement Date (and any Earnout Payment associated with any subsequent Measurement Date for which Employee is no longer employed). For the avoidance of doubt:

(a) If Employee's employment terminates after the Milestone 1 Measurement Date but prior to the Milestone 2 Measurement Date (whether by voluntary resignation or termination for Cause), Employee shall retain the right to receive the Milestone 1 Earnout Payment (if Milestone 1 has been achieved), but shall forfeit all rights to the Milestone 2 Earnout Payment.

(b) If Employee's employment terminates prior to the Milestone 1 Measurement Date (whether by voluntary resignation or termination for Cause), Employee shall forfeit all rights to both the Milestone 1 Earnout Payment and the Milestone 2 Earnout Payment.

(c) The treatment of Earnout Payments upon a termination of Employee's employment by BCS without Cause, or upon Employee's death or Disability, shall be governed by the applicable provisions of the Merger Agreement and Section 7 of this Agreement.

5.5 Forfeiture and Redistribution. In the event that Employee forfeits any unpaid earnout share pursuant to Section 5.4 above, the forfeited amount shall be redistributed on a pro rata basis (based on relative allocation percentages) among the remaining Founder Earnout Participants who are still employed by BCS (or a subsidiary of BCS) on the applicable Measurement Date, in accordance with the terms and procedures set forth in the Merger Agreement. By way of example, if Employee holds a 40.00% allocation and forfeits Employee's Milestone 2 share, the forfeited amount of $660,000 would be redistributed between the remaining two Founder Earnout Participants in proportion to their respective allocation percentages among themselves. For the avoidance of doubt, if all three (3) Founder Earnout Participants have departed from BCS's employment (whether by voluntary resignation or termination for Cause) prior to a Measurement Date, the earnout consideration attributable to that Earnout Milestone shall not be payable to any person and shall be permanently forfeited.

5.6 No Acceleration. Except as may be expressly provided in the Merger Agreement (including in connection with a Change of Control, as defined therein), no Earnout Payment shall be accelerated, and BCS shall have no obligation to make any Earnout Payment prior to (a) its good-faith determination that the applicable Earnout Milestone has been achieved in accordance with the criteria and procedures set forth in the Merger Agreement, and (b) its verification that Employee has satisfied the continued employment requirement set forth in Section 5.4. Employee shall have no right to demand or receive any advance, partial payment, or estimate of any Earnout Payment prior to the date on which such Earnout Payment is determined to be due and payable under the Merger Agreement.

5.7 Merger Agreement Controls. The terms and conditions of the earnout, including the precise definitions and calculation methodologies for the Earnout Milestones, the procedures for the determination of achievement, the timing of Earnout Payments, any dispute resolution procedures applicable to earnout determinations, the treatment of Earnout Payments upon a Change of Control or termination without Cause, and BCS's good-faith operation covenant with respect to the Codelaunch product line, are set forth in and governed by the Merger Agreement. In the event of any inconsistency or conflict between the provisions of this Section 5 and the terms of the Merger Agreement with respect to the earnout consideration, the terms of the Merger Agreement shall control. Employee acknowledges that Employee has received, reviewed, and is familiar with the earnout provisions of the Merger Agreement.

5.8 Good-Faith Operation Covenant. BCS hereby covenants to operate the Codelaunch product line in good faith and in the ordinary course consistent with its integration plan, with the intent to achieve the Earnout Milestones. Notwithstanding the foregoing, BCS shall retain reasonable business discretion over all operational decisions relating to the Codelaunch product line, including without limitation decisions regarding pricing, packaging, discounting, staffing, resource allocation, product roadmap, feature prioritization, go-to-market strategy, marketing, sales channel management, and customer support. BCS shall have no obligation to operate the Codelaunch product line as a standalone business, to maintain any particular level of investment in the Codelaunch product line, or to take any action solely for the purpose of achieving the Earnout Milestones. The parties acknowledge that BCS's integration of the Codelaunch product line into BCS's broader platform and product suite may affect the manner in which the Codelaunch product line is operated, marketed, and sold, and that such integration activities shall not, in and of themselves, constitute a breach of this good-faith operation covenant. The specific contours and limitations of BCS's good-faith operation covenant are set forth in the Merger Agreement, which shall govern in all respects.

SECTION 6 — EMPLOYEE BENEFITS

6.1 Benefit Plans. Employee shall be eligible to participate in all employee benefit plans, programs, policies, and arrangements that BCS makes available to its similarly situated employees generally, including medical, dental, and vision insurance, life insurance, disability insurance, retirement plans (including any 401(k) plan), and any other welfare or fringe benefit plans, in each case subject to the terms, conditions, and eligibility requirements of such plans as in effect from time to time. BCS reserves the right, in its sole discretion, to modify, amend, or terminate any benefit plan at any time, subject to applicable law. Nothing in this Agreement shall be construed to require BCS to establish or maintain any particular benefit plan or program.

6.2 Paid Time Off. Employee shall be entitled to paid time off ("PTO") in accordance with BCS's PTO policies as in effect from time to time. As of the Effective Date, BCS's PTO policy provides for a minimum of twenty (20) days of PTO per calendar year for employees at Employee's level, which includes vacation, personal days, and sick leave. PTO accrual, carryover, and usage shall be governed by BCS's PTO policies, and Employee shall schedule PTO in a manner that is consistent with Employee's duties and responsibilities and with BCS's operational needs.

6.3 Expense Reimbursement. BCS shall reimburse Employee for all reasonable and documented out-of-pocket business expenses incurred by Employee in connection with the performance of Employee's duties hereunder, in accordance with BCS's expense reimbursement policies and procedures as in effect from time to time. Employee shall submit expense reports and supporting documentation within the time periods required by BCS's policies. All reimbursements shall be made in accordance with BCS's standard reimbursement schedule and, to the extent required by Section 409A, shall be made no later than the last day of the calendar year following the calendar year in which the expense was incurred.

SECTION 7 — TERMINATION OF EMPLOYMENT

7.1 Termination by BCS Without Cause. BCS may terminate Employee's employment at any time without Cause by providing written notice to Employee. In the event of such a termination, Employee shall be entitled to receive the following: (a) any accrued but unpaid Base Salary through the effective date of termination, payable on the next regular payroll date or as required by applicable law; (b) reimbursement for any outstanding business expenses properly incurred and documented prior to the date of termination, in accordance with Section 6.3 and BCS's expense reimbursement policies; and (c) any vested rights or benefits under applicable employee benefit plans, programs, and arrangements, in accordance with the terms of such plans (collectively, the "Accrued Obligations"). The treatment of the Earnout Payments upon a termination of Employee's employment by BCS without Cause is addressed in Section 5.4 of this Agreement and the Merger Agreement. For the avoidance of doubt, a termination of Employee's employment by BCS without Cause shall not result in forfeiture of any Earnout Payment associated with an Earnout Milestone for which the applicable Measurement Date has already occurred and the Earnout Milestone has been determined to have been achieved prior to the effective date of termination; however, Employee shall forfeit any Earnout Payment with respect to any Earnout Milestone for which the applicable Measurement Date occurs after the effective date of termination, except as otherwise provided in the Merger Agreement. Any additional severance, separation pay, or benefits that may be payable to Employee upon a termination without Cause, if any, shall be governed exclusively by the terms of the Merger Agreement or any separate written severance or separation agreement entered into between BCS and Employee.

7.2 Termination by BCS for Cause. BCS may terminate Employee's employment for Cause (as defined in Section 7.5 below) immediately upon delivery of written notice to Employee specifying the grounds for such termination. In the event of a termination for Cause, Employee shall be entitled to receive only the Accrued Obligations, and Employee shall immediately and irrevocably forfeit all unpaid Earnout Payments pursuant to Section 5.4 of this Agreement, regardless of whether any Measurement Date has occurred. Employee shall not be entitled to any severance, separation pay, or other compensation in connection with a termination for Cause, except as may be required by applicable law.

7.3 Voluntary Resignation by Employee. Employee may voluntarily resign Employee's employment at any time by providing BCS with not less than thirty (30) days' prior written notice (or such shorter notice period as BCS may agree in writing). During the notice period, Employee shall continue to perform Employee's duties and cooperate with BCS in transitioning Employee's responsibilities, unless BCS elects to waive the notice period or any portion thereof and to accelerate Employee's last day of employment. In the event of a voluntary resignation, Employee shall be entitled to receive only the Accrued Obligations. Employee shall forfeit all unpaid Earnout Payments associated with Earnout Milestone Measurement Dates occurring after the effective date of resignation, in accordance with Section 5.4 of this Agreement. For the avoidance of doubt, Employee shall retain the right to receive any Earnout Payment associated with an Earnout Milestone for which the applicable Measurement Date has already occurred and the Earnout Milestone has been determined to have been achieved prior to the effective date of resignation.

7.4 Death or Disability. Employee's employment with BCS shall terminate automatically upon Employee's death. BCS may terminate Employee's employment upon Employee's Disability (as defined in Section 7.6 below) by providing written notice to Employee (or Employee's legal representative). In the event of a termination due to death or Disability, Employee (or Employee's estate or legal representative, as applicable) shall be entitled to receive the Accrued Obligations. The treatment of Earnout Payments in the event of Employee's death or Disability shall be governed by the Merger Agreement, and Employee is encouraged to review the applicable provisions of the Merger Agreement regarding such treatment.

7.5 Definition of "Cause." For purposes of this Agreement, "Cause" shall mean any one or more of the following:

(a) Employee's material breach of this Agreement or any other written agreement between Employee and BCS or any of its subsidiaries, including any restrictive covenant agreement, confidentiality agreement, intellectual property assignment agreement, or the Merger Agreement, which breach, if capable of cure, remains uncured for a period of fifteen (15) calendar days after BCS delivers written notice to Employee specifying the nature of such breach in reasonable detail;

(b) Employee's conviction of, or entry of a plea of guilty or nolo contendere to, (i) a felony under federal or state law, or (ii) any crime involving fraud, dishonesty, embezzlement, theft, misappropriation, or moral turpitude, regardless of whether such crime is classified as a felony or misdemeanor;

(c) Employee's willful misconduct or gross negligence in the performance of Employee's duties under this Agreement that causes or is reasonably likely to cause material harm to BCS, its business, reputation, or prospects;

(d) Employee's material violation of any written policy of BCS or its subsidiaries, including the employee handbook, code of conduct, anti-harassment and anti-discrimination policies, information security policies, insider trading policies, or data privacy policies, which violation, if capable of cure, remains uncured for a period of fifteen (15) calendar days after BCS delivers written notice to Employee specifying the nature of such violation;

(e) Employee's continued refusal or failure to perform lawful directives of BCS's management that are consistent with Employee's position and duties, after written notice from BCS specifying the directives in question and a reasonable opportunity (not to exceed ten (10) business days) to cure such refusal or failure; or

(f) Employee's breach of any fiduciary duty owed to BCS, including the duty of loyalty and the duty of care.

For the avoidance of doubt, the determination of whether "Cause" exists shall be made by BCS's Board of Directors (or a committee thereof) in good faith, and BCS shall provide Employee with written notice of the specific grounds for a Cause termination. With respect to any ground for Cause that is subject to a cure period under this Section 7.5, Employee shall be afforded the opportunity to cure as specified above before BCS may terminate Employee's employment for Cause on such ground.

7.6 Definition of "Disability." For purposes of this Agreement, "Disability" shall mean Employee's inability, due to physical or mental illness, injury, or incapacity, to perform the essential functions of Employee's position, with or without reasonable accommodation (as defined under the Americans with Disabilities Act of 1990, as amended), for a period of ninety (90) consecutive calendar days or one hundred twenty (120) calendar days in any twelve (12)-month period, as determined by BCS in good faith based on competent medical evidence. BCS may require Employee to submit to an examination by a physician mutually agreed upon by BCS and Employee (or Employee's legal representative) to determine whether a Disability exists. BCS's determination of Disability shall be subject to and consistent with all applicable federal, state, and local laws, including the Americans with Disabilities Act and the Family and Medical Leave Act.

SECTION 8 — CONFIDENTIALITY

8.1 Confidential Information. Employee acknowledges that, in the course of Employee's employment with BCS, Employee will have access to, become acquainted with, and, in some cases, participate in the development of confidential and proprietary information belonging to BCS, its subsidiaries, and its affiliates. As used in this Agreement, "Confidential Information" means all non-public information, in any form or medium, that relates to the business, operations, products, services, technology, finances, or strategies of BCS or its subsidiaries, including, without limitation: (a) trade secrets; (b) customer and prospect lists, customer data, and customer relationship information; (c) product plans, product roadmaps, feature specifications, and technical documentation; (d) source code, object code, algorithms, data structures, and software architecture; (e) financial information, projections, budgets, and pricing models; (f) business strategies, marketing plans, competitive analyses, and go-to-market strategies; (g) employee information, compensation data, and personnel records; (h) vendor and supplier information, terms, and pricing; (i) information relating to pending or contemplated transactions, including mergers, acquisitions, divestitures, and financing activities; and (j) any other information that BCS designates as confidential or that, by its nature, would reasonably be understood to be confidential. Confidential Information shall include information received by BCS from third parties under an obligation of confidentiality.

8.2 Non-Disclosure Obligation. During the term of Employee's employment and at all times thereafter, Employee shall not, directly or indirectly, disclose, publish, disseminate, communicate, use, or permit the use of any Confidential Information, except (a) as required in the faithful performance of Employee's duties for BCS, (b) as expressly authorized in writing by BCS, (c) as required by applicable law, regulation, or legal process (provided that Employee shall, to the extent permitted by law, give BCS prompt written notice of any such requirement so that BCS may seek a protective order or other appropriate remedy), or (d) to Employee's personal legal, tax, or financial advisors who have a need to know such information and who are bound by confidentiality obligations no less restrictive than those set forth in this Agreement. Employee shall take all reasonable precautions to protect the confidentiality of Confidential Information and to prevent its unauthorized disclosure or use.

8.3 Return of Materials. Upon the termination of Employee's employment for any reason, or at any time upon BCS's request, Employee shall promptly return to BCS all documents, materials, files, records, notebooks, electronic storage media, devices (including laptops, mobile phones, and tablets), and any other property of BCS or its subsidiaries in Employee's possession, custody, or control that contain or relate to Confidential Information. Employee shall permanently delete all electronic copies of Confidential Information from Employee's personal devices, cloud storage accounts, and any other systems or media not owned or controlled by BCS. Employee shall certify in writing, upon BCS's request, that Employee has complied with this Section 8.3.

8.4 Defend Trade Secrets Act Notice. Employee is hereby notified that, in accordance with the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), an individual 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 filed in a lawsuit or other proceeding, provided such filing is made under seal. Additionally, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer's trade secrets to the attorney and use the trade secret information in the court proceeding if the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.

SECTION 9 — INTELLECTUAL PROPERTY; WORK PRODUCT

9.1 Assignment of Work Product. Employee acknowledges and agrees that all inventions, discoveries, improvements, innovations, designs, works of authorship, methodologies, processes, techniques, formulas, software (including source code and object code), databases, data compilations, documentation, and other intellectual property and proprietary rights conceived, created, developed, or reduced to practice by Employee, either solely or jointly with others, during the term of Employee's employment, whether during or outside of working hours, that (a) relate to the actual or anticipated business, research, or development activities of BCS or any of its subsidiaries, (b) result from the use of BCS's or its subsidiaries' resources, facilities, equipment, or information, or (c) are created within the scope of Employee's employment (collectively, "Work Product"), shall be and are hereby assigned to BCS and shall be the sole and exclusive property of BCS. To the extent any Work Product constitutes a "work made for hire" under the United States Copyright Act (17 U.S.C. § 101 et seq.), Employee acknowledges that such Work Product is a work made for hire and that BCS is the author thereof. To the extent any Work Product does not qualify as a work made for hire, Employee hereby irrevocably assigns and transfers to BCS all right, title, and interest in and to such Work Product, including all patents, copyrights, trademarks, trade secrets, and other intellectual property rights therein.

9.2 Cooperation. Employee shall, during and after the term of Employee's employment, execute all documents, instruments, and applications, and take all actions, as may be reasonably requested by BCS to evidence, perfect, register, record, or defend BCS's ownership of the Work Product, including executing patent applications, copyright registrations, trademark applications, assignments, declarations, and other documents. Employee hereby irrevocably appoints BCS and its officers and agents as Employee's attorney-in-fact (which appointment is coupled with an interest) to execute any such documents and take any such actions on Employee's behalf if Employee is unable or unwilling to do so. BCS shall reimburse Employee for reasonable out-of-pocket expenses incurred by Employee in complying with this Section 9.2 following termination of employment, upon submission of appropriate documentation.

9.3 Prior Inventions. Employee has listed on Exhibit A attached hereto all inventions, discoveries, improvements, and works of authorship that Employee conceived, created, or developed prior to the Effective Date and that Employee wishes to exclude from the scope of the assignment set forth in Section 9.1 (collectively, "Prior Inventions"). If no Prior Inventions are listed on Exhibit A, Employee represents that there are no Prior Inventions. Employee shall not incorporate any Prior Invention into any Work Product without BCS's prior written consent, and if Employee does incorporate any Prior Invention into any Work Product with BCS's written consent, Employee hereby grants to BCS a non-exclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide, sublicensable, and transferable license to make, have made, use, sell, offer for sale, import, reproduce, distribute, modify, create derivative works of, publicly display, and publicly perform such Prior Invention as part of or in connection with such Work Product.

9.4 Moral Rights. To the fullest extent permitted by applicable law, Employee hereby irrevocably waives and agrees never to assert any and all moral rights (including rights of attribution, integrity, disclosure, and withdrawal) that Employee may have in or with respect to any Work Product, whether arising under any applicable law of any country or international treaty.

SECTION 10 — RESTRICTIVE COVENANTS

10.1 Non-Competition. Employee acknowledges that, by virtue of Employee's position with BCS and Employee's access to Confidential Information, trade secrets, customer relationships, and specialized knowledge regarding BCS's business, Employee is in a position to cause significant competitive harm to BCS. Employee further acknowledges that the restrictive covenants set forth in this Section 10 are ancillary to and part of this otherwise enforceable Agreement, including the at-will employment relationship, the compensation and benefits provided hereunder, the Earnout Payments, and the grant of RSUs, and that BCS's provision of such compensation, benefits, Earnout Payments, and equity constitutes adequate consideration for Employee's agreement to the restrictive covenants herein.

During the term of Employee's employment with BCS and for a period of twelve (12) months following the termination of Employee's employment for any reason (the "Non-Compete Period"), Employee shall not, directly or indirectly, whether as an employee, consultant, independent contractor, officer, director, partner, member, owner, investor, advisor, or in any other capacity, engage in, own, manage, operate, control, participate in, perform services for, or otherwise assist any business, enterprise, or entity that directly competes with BCS's developer-tools product line, including the former Codelaunch platform and any successor or derivative products thereof, within the United States. Notwithstanding the foregoing, passive ownership of less than two percent (2%) of the outstanding equity securities of a publicly traded company shall not be deemed to violate this Section 10.1. This non-competition covenant shall be enforceable to the maximum extent permitted by the Texas Business and Commerce Code, Chapter 15 (Covenants Not to Compete), and any other applicable law.

10.2 Non-Solicitation of Employees. During the term of Employee's employment with BCS and for a period of eighteen (18) months following the termination of Employee's employment for any reason (the "Employee Non-Solicit Period"), Employee shall not, directly or indirectly, whether on Employee's own behalf or on behalf of any other person or entity: (a) solicit, recruit, hire, engage, or induce, or attempt to solicit, recruit, hire, engage, or induce, any person who is then employed by BCS or any of its subsidiaries to leave the employ of BCS or such subsidiary; or (b) encourage or assist any other person or entity in soliciting, recruiting, hiring, engaging, or inducing any such employee to leave the employ of BCS or its subsidiaries. This restriction shall apply to all employees of BCS and its subsidiaries, regardless of whether such employee reports to Employee or works in Employee's department, and shall include employees who were employed by BCS or its subsidiaries at any time during the six (6)-month period preceding Employee's termination of employment.

10.3 Non-Solicitation of Customers. During the term of Employee's employment with BCS and for a period of twelve (12) months following the termination of Employee's employment for any reason (the "Customer Non-Solicit Period"), Employee shall not, directly or indirectly, whether on Employee's own behalf or on behalf of any other person or entity, solicit, contact, or service, or attempt to solicit, contact, or service, any customer or prospective customer of BCS or its subsidiaries with whom Employee had material contact, about whom Employee obtained Confidential Information, or for whom Employee performed services during the last twelve (12) months of Employee's employment, for the purpose of (a) selling or providing products or services that are competitive with BCS's products or services, or (b) inducing or encouraging such customer or prospective customer to reduce or cease doing business with BCS or its subsidiaries.

10.4 Reasonableness; Blue Pencil. Employee acknowledges and agrees that the restrictions set forth in this Section 10, including their scope, duration, and geographic area, are reasonable and necessary to protect BCS's legitimate business interests, including BCS's Confidential Information, trade secrets, customer relationships, goodwill, and investment in Employee's training and development, and that BCS would suffer irreparable harm if Employee were to breach any such restriction. Employee further acknowledges that the restrictions will not impose an undue hardship on Employee and will not deprive Employee of the ability to earn a livelihood. If any court of competent jurisdiction determines that any restriction in this Section 10 is unreasonable or unenforceable in any respect, the court is hereby requested and authorized to reform such restriction by modifying its scope, duration, or geographic area to the minimum extent necessary to render it valid and enforceable, rather than invalidating the restriction in its entirety, consistent with the intent of the parties and applicable law, including the "blue pencil" doctrine under Texas law.

10.5 Remedies. Employee acknowledges that any breach of the restrictive covenants set forth in this Section 10 would cause irreparable harm to BCS for which monetary damages alone would be an inadequate remedy. Accordingly, in addition to any other remedies available at law or in equity, BCS shall be entitled to seek temporary, preliminary, and permanent injunctive relief to enforce the provisions of this Section 10, without the necessity of posting a bond or proving actual damages. The remedies set forth in this Section 10.5 shall be in addition to, and not in lieu of, any other remedies available to BCS under this Agreement, at law, or in equity.

SECTION 11 — REPRESENTATIONS AND WARRANTIES OF EMPLOYEE

11.1 Employee Representations. Employee hereby represents and warrants to BCS as follows:

(a) Employee has the full legal right, power, and authority to enter into this Agreement and to perform Employee's obligations hereunder, and this Agreement constitutes the legal, valid, and binding obligation of Employee, enforceable against Employee in accordance with its terms;

(b) The execution, delivery, and performance of this Agreement by Employee will not conflict with, result in a breach of, or constitute a default under any agreement, arrangement, or understanding to which Employee is a party or by which Employee is bound, including any prior or existing employment agreement, consulting agreement, non-competition agreement, non-solicitation agreement, confidentiality agreement, or other restrictive covenant;

(c) Employee is not bound by, and is not subject to, any non-competition, non-solicitation, or similar restrictive covenant or agreement with any prior employer or other third party that would be violated by Employee's employment with BCS or the performance of Employee's duties hereunder, or that would in any way restrict or impair Employee's ability to perform Employee's obligations under this Agreement;

(d) All information provided by Employee to BCS in connection with Employee's employment, including information provided during the due diligence process for the Merger, in any employment application, resume, or background check, and in any discussions or correspondence with BCS, is true, accurate, and complete in all material respects; and

(e) Employee has not been the subject of any legal proceeding, investigation, or disciplinary action by any governmental authority, regulatory body, or professional organization that would materially affect Employee's ability to perform Employee's duties under this Agreement.

SECTION 12 — INDEMNIFICATION

12.1 Indemnification by BCS. BCS shall indemnify, defend, and hold harmless Employee, in Employee's capacity as an officer, director, or employee of BCS or any subsidiary of BCS, to the fullest extent permitted under applicable law (including, without limitation, the General Corporation Law of the State of Delaware) and the certificate of incorporation and bylaws of BCS, as the same may be amended from time to time, against any and all losses, damages, liabilities, costs, claims, judgments, settlements, fines, penalties, and expenses (including reasonable attorneys' fees, court costs, and expenses of investigation) that Employee incurs or becomes subject to arising out of, relating to, or in connection with Employee's service in such capacity, whether asserted during or after the term of Employee's employment. BCS shall advance expenses (including attorneys' fees) incurred by Employee in connection with any such proceeding to the maximum extent permitted by applicable law, subject to Employee's undertaking to repay such advances if it is ultimately determined that Employee is not entitled to indemnification. The indemnification and advancement of expenses provided under this Section 12 shall be in addition to, and not in limitation of, any rights to indemnification, advancement of expenses, or insurance coverage to which Employee may be entitled under any separate indemnification agreement, directors' and officers' liability insurance policy, or applicable law.

SECTION 13 — SECTION 409A COMPLIANCE

13.1 General. This Agreement is intended to comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations and other interpretive guidance issued thereunder (collectively, "Section 409A"), and shall be interpreted, construed, and administered in a manner consistent with such intent. To the extent that any provision of this Agreement is ambiguous as to its compliance with or exemption from Section 409A, such provision shall be read in a manner that is consistent with such compliance or exemption, as applicable.

13.2 Specified Employee Delay. Notwithstanding any provision of this Agreement to the contrary, to the extent that any payment or benefit under this Agreement constitutes "nonqualified deferred compensation" within the meaning of Section 409A and is payable to Employee upon Employee's "separation from service" (as defined in Section 409A), and Employee is a "specified employee" (as defined in Section 409A and determined in accordance with BCS's established methodology) at the time of Employee's separation from service, such payment or benefit shall not be made or provided until the earlier of (a) the first business day following the expiration of the six (6)-month period measured from the date of Employee's separation from service, or (b) the date of Employee's death. Any payments or benefits that are delayed pursuant to this Section 13.2 shall be accumulated and paid or provided in a single lump sum on the first business day following the end of such six (6)-month period (or upon Employee's earlier death), without interest, and any remaining payments or benefits shall continue to be paid or provided in accordance with the normal schedule and terms set forth in this Agreement.

13.3 Separate Payments. For purposes of Section 409A, each separately identified amount payable under this Agreement, and each installment payment in a series of installment payments, shall be treated as a separate payment within the meaning of Treasury Regulation Section 1.409A-2(b)(2). Neither BCS nor Employee shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A.

13.4 Expense Reimbursements. To the extent that any reimbursement of expenses or in-kind benefits under this Agreement constitutes "nonqualified deferred compensation" within the meaning of Section 409A, (a) the amount of expenses eligible for reimbursement or in-kind benefits provided in one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits in any other calendar year, (b) such reimbursement shall be made on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (c) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

SECTION 14 — MISCELLANEOUS

14.1 Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Texas, without giving effect to any choice of law or conflict of laws rules, provisions, or principles (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas. Notwithstanding the foregoing, the enforceability of the restrictive covenants set forth in Section 10 shall be governed by the Texas Business and Commerce Code, Chapter 15 (Covenants Not to Compete), and applicable Texas case law.

14.2 Jurisdiction and Venue. The parties irrevocably agree that any action, suit, or proceeding arising out of, relating to, or in connection with this Agreement or the transactions contemplated hereby, or any dispute between the parties relating to Employee's employment or the termination thereof, shall be brought exclusively in the state courts of the State of Texas sitting in Dallas County, Texas, or the United States District Court for the Northern District of Texas, Dallas Division. Each party hereby irrevocably submits to the exclusive personal jurisdiction and venue of such courts for purposes of any such action, suit, or proceeding and irrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court or any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.

14.3 Entire Agreement. This Agreement, together with the Merger Agreement, the Plan, the RSU Award Agreement, and any other agreements or instruments expressly referenced herein, constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, and warranties, whether oral or written, between the parties with respect to such subject matter. Employee acknowledges that, in entering into this Agreement, Employee has not relied upon any representation, warranty, promise, or statement of BCS or any of its representatives that is not set forth in this Agreement or the Merger Agreement.

14.4 Amendment and Waiver. This Agreement may not be amended, modified, supplemented, or otherwise changed except by a written instrument duly executed by both BCS and Employee. No waiver by any party of any breach or default of any provision of this Agreement shall be effective unless in writing and signed by the party giving such waiver. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision or a continuing waiver of the same provision, nor shall any single or partial exercise of any right, power, or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.

14.5 Severability. If any provision of this Agreement (or any portion thereof) is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such provision shall be modified by such court to the minimum extent necessary to make it valid and enforceable, and the remaining provisions of this Agreement shall continue in full force and effect and shall not be affected, impaired, or invalidated in any way. It is the intention of the parties that the court would enforce the covenants and restrictions contained in this Agreement to the fullest extent permitted by applicable law.

14.6 Assignment. Employee may not assign, delegate, or transfer this Agreement or any of Employee's rights, obligations, or interests hereunder without the prior written consent of BCS, and any purported assignment, delegation, or transfer in violation of this Section 14.6 shall be null and void. BCS may freely assign this Agreement and all of its rights and obligations hereunder to any successor to all or substantially all of BCS's business or assets (whether by merger, consolidation, sale, acquisition, or otherwise) or to any affiliate of BCS, without Employee's consent; provided that any such assignee shall assume and agree to be bound by all of BCS's obligations under this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns.

14.7 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and effective upon: (a) personal delivery, (b) the date sent by confirmed electronic mail (with a copy sent by another method specified herein), (c) one (1) business day after deposit with a nationally recognized overnight courier service (prepaid, with tracking), or (d) three (3) business days after deposit in the United States mail, certified or registered, postage prepaid, return receipt requested, in each case addressed as follows:

If to BCS:

Brightfield Cloud Services Inc. 4200 Westgrove Boulevard, Suite 1100 Irving, Texas 75038

Attn: Harold Ostrander, General Counsel

Email: hostrander@brightfieldcloud.com

If to Employee:

[Insert Employee's Address] [Insert City, State, ZIP Code]

Email: [Insert Email Address]

With a copy to (during the transition period only):

Calderwood & Harkness LLP 2000 McKinney Avenue, Suite 3400 Dallas, Texas 75201

Attn: Beatrice Holloway

Email: bholloway@calderwoodharkness.com

Either party may change its address for notice purposes by giving written notice of such change to the other party in accordance with this Section 14.7.

14.8 Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Counterparts may be delivered by facsimile, electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000), or other electronic transmission method, and any counterpart so delivered shal

EMPLOYMENT AGREEMENT
Form for Founder Earnout Participant
Prepared by:
Calderwood & Harkness LLP 2000 McKinney Avenue, Suite 3400 Dallas, Texas 75201
Matter No.: 1042-00004
This form is to be completed separately for each of the following Founder Earnout Participants: [Insert Name of Employee]
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of July 22, 2023 (the "Effective Date"), by and between Brightfield Cloud Services Inc., a Delaware corporation ("Employer" or "BCS"), with its principal offices at 4200 Westgrove Boulevard, Suite 1100, Irving, Texas 75038, and [Insert Name of Employee] ("Employee").
RECITALS
WHEREAS, BCS, BCS DevTools Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of BCS ("Merger Sub"), and Codelaunch Labs, Inc., a Delaware corporation ("Codelaunch"), entered into that certain Agreement and Plan of Merger, dated as of June 1, 2023 (as the same may be amended, supplemented, or otherwise modified from time to time, the "Merger Agreement"), pursuant to which Merger Sub merged with and into Codelaunch, with Codelaunch surviving as a wholly owned subsidiary of BCS, with the merger (the "Merger") becoming effective on the Effective Date (the "Closing");
WHEREAS, Employee is a co-founder and key employee of Codelaunch and is designated as a "Founder Earnout Participant" under the Merger Agreement, and Employee's knowledge, skills, relationships, and expertise are critical to the successful integration and continued operation of the Codelaunch platform and related products within BCS;
WHEREAS, as a material condition and inducement to BCS's willingness to consummate the transactions contemplated by the Merger Agreement, Employee has agreed to enter into this Agreement and to continue employment with BCS (or a subsidiary thereof) on the terms and conditions set forth herein, and BCS would not have entered into or consummated the Merger without such agreement by Employee; and
WHEREAS, Employee acknowledges and agrees that a portion of the merger consideration payable under the Merger Agreement is in the form of earnout consideration (the "Earnout Payments"), the receipt of which is contingent upon, among other things, Employee's continued full-time employment with BCS through the applicable milestone measurement dates, as more particularly set forth in the Merger Agreement and this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
SECTION 1 — EMPLOYMENT; POSITION AND DUTIES
1.1 Employment. BCS hereby employs Employee, and Employee hereby accepts employment with BCS, effective as of the Effective Date, on the terms and conditions set forth in this Agreement. Employee's employment hereunder shall commence on the Effective Date and shall continue until terminated in accordance with Section 7 of this Agreement. Employee acknowledges that this Agreement supersedes any prior employment agreement, offer letter, or similar arrangement between Employee and Codelaunch with respect to the terms and conditions of Employee's employment, effective as of the Effective Date.
1.2 Position. Employee shall serve in the capacity of [Insert Title — e.g., Vice President, Engineering; Chief Technology Officer; or Vice President, Product] of BCS. In such capacity, Employee shall report directly to [Insert Reporting Manager — e.g., the Chief Technology Officer of BCS or the Senior Vice President, Engineering of BCS], or to such other person as BCS may designate from time to time in its reasonable discretion. Employee's title, reporting relationship, and organizational placement may be adjusted by BCS from time to time in connection with the integration of the Codelaunch business, organizational restructurings, or other legitimate business purposes; provided, however, that any material diminution of Employee's title, authority, or duties during the earnout period (as defined in Section 5) that is not consented to by Employee and that constitutes a constructive termination under the Merger Agreement shall be treated in accordance with the applicable provisions of the Merger Agreement.
1.3 Duties. Employee shall devote Employee's full business time, attention, skill, and best efforts to the performance of Employee's duties hereunder and to the furtherance of BCS's business interests. Employee shall perform such duties and responsibilities as are customarily associated with Employee's position and title and such additional duties as may be reasonably assigned by BCS from time to time, including duties related to the integration, development, maintenance, and commercialization of the Codelaunch platform, customer relationship management, and product strategy initiatives. Employee's principal place of work shall be BCS's offices located at 4200 Westgrove Boulevard, Suite 1100, Irving, Texas 75038, or such other location as BCS and Employee may mutually agree, including the former Codelaunch offices located at 1607 East 6th Street, Suite 300, Austin, Texas 78702, subject to reasonable travel requirements consistent with Employee's duties and BCS's business needs. Employee acknowledges that Employee's position may require travel to BCS offices, customer sites, conferences, and other locations from time to time.
1.4 Exclusive Service. During the term of Employee's employment with BCS, Employee shall not, without the prior written consent of BCS, engage in any other employment, business, consulting, or professional activity, whether or not such activity is pursued for gain, profit, or other pecuniary advantage, that (a) interferes or conflicts with Employee's duties and responsibilities to BCS, (b) creates an actual or potential conflict of interest with BCS, or (c) is competitive with BCS's business. Notwithstanding the foregoing, Employee may (i) serve on civic, charitable, educational, or professional boards or committees, (ii) manage Employee's personal investments, and (iii) engage in other passive activities, in each case so long as such activities do not materially interfere with Employee's duties under this Agreement and are not in conflict with the interests of BCS. Employee shall disclose to BCS any outside board service or material outside activities prior to commencing such service or activities.
SECTION 2 — AT-WILL EMPLOYMENT
2.1 At-Will. Employee's employment with BCS is and shall remain "at-will," meaning that either Employee or BCS may terminate the employment relationship at any time, with or without Cause (as defined in Section 7.5 below), and with or without advance notice or reason, subject to the provisions of this Agreement. The at-will nature of Employee's employment is not intended to and shall not alter, modify, or limit any rights to Earnout Payments, severance, or other compensation that may arise under this Agreement, the Merger Agreement, or any other written agreement between the parties. Nothing in this Agreement shall be construed as a guarantee of employment for any specific duration or as creating an implied or express contract of employment for a definite term.
2.2 No Modification of At-Will Status. The at-will nature of Employee's employment may not be modified, amended, or altered in any way except by a written agreement that is (a) signed by both Employee and either the Chief Executive Officer or the General Counsel of BCS, and (b) expressly states the specific intention to alter the at-will relationship established under this Agreement. No oral representations, promises, or course of dealing between the parties shall modify the at-will status of Employee's employment. No manager, supervisor, recruiter, or other representative of BCS, other than the Chief Executive Officer or General Counsel acting in writing as described above, has any authority to modify the at-will nature of Employee's employment.
SECTION 3 — COMPENSATION
3.1 Base Salary. In consideration of the services to be rendered by Employee under this Agreement, Employee shall receive an annualized base salary (the "Base Salary"), payable in substantially equal installments in accordance with BCS's standard payroll practices and subject to all applicable withholdings and deductions required by law. The applicable Base Salary for Employee shall be determined as follows:
[Insert applicable Base Salary: $____________ per year]
BCS may review and adjust the Base Salary from time to time in its sole discretion in connection with annual performance reviews, market adjustments, promotions, or other circumstances. Notwithstanding the foregoing, during the earnout period (i.e., the period commencing on the Effective Date and ending on July 22, 2025, or such later date as the final Earnout Milestone is determined under the Merger Agreement), the Base Salary shall not be reduced below the initial amount set forth above without Employee's prior written consent. For the avoidance of doubt, any increase in Base Salary during the earnout period or thereafter shall not obligate BCS to maintain such increased Base Salary in subsequent periods, except as otherwise provided by this Agreement or applicable law.
3.2 Annual Bonus. Employee shall be eligible to participate in BCS's annual incentive bonus program, if any, as in effect from time to time, on terms and conditions determined by BCS in its sole discretion, including the establishment of performance targets, the determination of whether such targets have been achieved, and the amount of any bonus award. Any annual bonus, if earned, shall be paid at the time bonuses are paid to other similarly situated BCS employees, but in no event later than March 15 of the calendar year following the calendar year in which the applicable performance period ends. Participation in any annual bonus program in one year shall not guarantee participation in, eligibility for, or any award under any bonus program in any subsequent year. Employee must be employed by BCS on the date any annual bonus is paid in order to earn and receive such bonus, except as otherwise required by applicable law.
3.3 Payroll Practices. All compensation payable to Employee under this Agreement, including Base Salary, any annual bonus, and any other forms of compensation, will be paid in accordance with BCS's normal payroll schedule and practices as in effect from time to time and will be subject to all applicable federal, state, local, and, if applicable, foreign tax withholdings and deductions required by law or authorized by Employee.
SECTION 4 — EQUITY COMPENSATION
4.1 Restricted Stock Unit Grant. Effective as of the Effective Date, BCS shall grant to Employee 50,000 restricted stock units ("RSUs") with respect to shares of BCS common stock, par value $0.001 per share, under the Brightfield Cloud Services Inc. 2021 Equity Incentive Plan (as may be amended from time to time, the "Plan"). The RSUs shall be subject to the terms and conditions of the Plan and a separate Restricted Stock Unit Award Agreement to be entered into by Employee and BCS substantially contemporaneously with this Agreement (the "RSU Award Agreement"). Employee's execution of this Agreement shall not be deemed to constitute acceptance of the RSU grant or the RSU Award Agreement; Employee must separately accept the RSU Award Agreement in accordance with BCS's equity administration procedures.
4.2 Vesting Schedule. Subject to Employee's continued employment with BCS (or a subsidiary of BCS) through each applicable vesting date, the RSUs shall vest over a four (4)-year period from the Effective Date, with a one (1)-year cliff vesting period, as follows:
(a) Cliff Vesting. Twenty-five percent (25%) of the RSUs (12,500 RSUs) shall vest on the first anniversary of the Effective Date (i.e., July 22, 2024), subject to Employee's continued employment with BCS (or a subsidiary of BCS) through such date.
(b) Quarterly Vesting. Following the cliff vesting date, the remaining seventy-five percent (75%) of the RSUs (37,500 RSUs) shall vest in twelve (12) equal quarterly installments of 3,125 RSUs each, vesting on the last day of each calendar quarter (or, if the applicable vesting date is not the last day of a calendar quarter, the nearest quarterly vesting date designated under the Plan's standard vesting schedule), over the thirty-six (36)-month period following the first anniversary of the Effective Date, subject to Employee's continued employment with BCS (or a subsidiary of BCS) through each such vesting date.
4.3 Termination of Vesting. Upon the termination of Employee's employment with BCS (and all subsidiaries of BCS) for any reason, vesting of any then-unvested RSUs shall immediately cease, and all unvested RSUs shall be automatically forfeited and canceled without consideration, except as may be otherwise expressly provided in the Plan, the RSU Award Agreement, or any written severance or separation agreement entered into between BCS and Employee. The treatment of vested but unsettled RSUs upon termination of employment shall be governed by the terms of the Plan and the RSU Award Agreement.
4.4 Plan Governs. The RSU grant described in this Section 4 is subject in all respects to the terms and conditions of the Plan and the RSU Award Agreement. In the event of any inconsistency or conflict between the provisions of this Section 4 and the terms of the Plan or the RSU Award Agreement, the terms of the Plan shall control with respect to matters governed by the Plan, and the terms of the RSU Award Agreement shall control with respect to matters governed by the RSU Award Agreement. Nothing in this Section 4 shall be construed to limit or modify BCS's rights under the Plan or the RSU Award Agreement, including with respect to adjustments, clawback, and administration.
SECTION 5 — EARNOUT CONSIDERATION
5.1 Earnout Entitlement. Employee is designated as a "Founder Earnout Participant" under Article VII of the Merger Agreement. Subject to the terms and conditions of the Merger Agreement and this Agreement, Employee shall be entitled to receive Employee's allocable share of the earnout consideration (the "Earnout Payments") upon the achievement of the earnout milestones described in the Merger Agreement and this Section 5 (collectively, the "Earnout Milestones"). Employee acknowledges and agrees that the Earnout Payments constitute a portion of the aggregate merger consideration payable under the Merger Agreement and that Employee's entitlement to any Earnout Payment is contingent upon, and subject to, both the achievement of the applicable Earnout Milestone and Employee's satisfaction of the continued employment requirement set forth in Section 5.4 below.
5.2 Earnout Milestones. The maximum aggregate earnout consideration payable to all Founder Earnout Participants under the Merger Agreement is Three Million Three Hundred Thousand Dollars ($3,300,000), which shall be allocated among the Earnout Milestones and the Founder Earnout Participants as follows:
(a) Milestone 1 (representing fifty percent (50%) of the aggregate earnout consideration, or $1,650,000): Milestone 1 shall be deemed achieved, and the corresponding Earnout Payments shall become payable to the eligible Founder Earnout Participants, if the Codelaunch platform (as defined in the Merger Agreement) reaches two hundred (200) or more enterprise customer accounts (as defined in the Merger Agreement) by the twelve (12)-month anniversary of the Closing Date (i.e., July 22, 2024) (the "Milestone 1 Measurement Date"). The determination of whether the Codelaunch platform has achieved two hundred (200) or more enterprise customer accounts shall be made by BCS in accordance with the methodology and procedures set forth in the Merger Agreement.
(b) Milestone 2 (representing fifty percent (50%) of the aggregate earnout consideration, or $1,650,000): Milestone 2 shall be deemed achieved, and the corresponding Earnout Payments shall become payable to the eligible Founder Earnout Participants, if the Codelaunch platform generates Eight Million Dollars ($8,000,000) or more in annual recurring revenue ("ARR") attributable to the Codelaunch product line (as calculated in accordance with the Merger Agreement) during the twenty-four (24)-month earnout period commencing on the Closing Date and ending on July 22, 2025 (the "Milestone 2 Measurement Date" and, together with the Milestone 1 Measurement Date, the "Measurement Dates"). For the avoidance of doubt, the ARR calculation shall be determined in accordance with the definitions, methodologies, and accounting principles set forth in the Merger Agreement, including any adjustments for customer churn, contract modifications, and revenue recognition standards.
5.3 Employee's Allocable Share. Employee's allocable share of the earnout consideration for each Earnout Milestone shall be determined on a pro rata basis based on Employee's percentage of the total equity held by all Founder Earnout Participants as of the Closing, as set forth in the allocation schedule below:
[Insert Employee's allocable percentage: ________%; maximum earnout share: $____________]
The foregoing allocation percentages shall be fixed as of the Closing Date and shall not be subject to adjustment, except in connection with the redistribution provisions set forth in Section 5.5 below. Each Earnout Payment, if and when earned, shall be payable to Employee within the timeframe specified in the Merger Agreement following BCS's determination that the applicable Earnout Milestone has been achieved, subject to all applicable tax withholdings and deductions.
5.4 Continued Employment Requirement. As a material condition to the receipt of any Earnout Payment, Employee must remain continuously employed on a full-time basis by BCS or any subsidiary of BCS from the Effective Date through the applicable Earnout Milestone Measurement Date. If Employee's employment with BCS and all subsidiaries of BCS terminates prior to the applicable Measurement Date — whether by Employee's voluntary resignation (including resignation for any reason) or by BCS for Cause (as defined in Section 7.5) — Employee shall immediately and irrevocably forfeit any and all right to receive the Earnout Payment associated with such Measurement Date (and any Earnout Payment associated with any subsequent Measurement Date for which Employee is no longer employed). For the avoidance of doubt:
(a) If Employee's employment terminates after the Milestone 1 Measurement Date but prior to the Milestone 2 Measurement Date (whether by voluntary resignation or termination for Cause), Employee shall retain the right to receive the Milestone 1 Earnout Payment (if Milestone 1 has been achieved), but shall forfeit all rights to the Milestone 2 Earnout Payment.
(b) If Employee's employment terminates prior to the Milestone 1 Measurement Date (whether by voluntary resignation or termination for Cause), Employee shall forfeit all rights to both the Milestone 1 Earnout Payment and the Milestone 2 Earnout Payment.
(c) The treatment of Earnout Payments upon a termination of Employee's employment by BCS without Cause, or upon Employee's death or Disability, shall be governed by the applicable provisions of the Merger Agreement and Section 7 of this Agreement.
5.5 Forfeiture and Redistribution. In the event that Employee forfeits any unpaid earnout share pursuant to Section 5.4 above, the forfeited amount shall be redistributed on a pro rata basis (based on relative allocation percentages) among the remaining Founder Earnout Participants who are still employed by BCS (or a subsidiary of BCS) on the applicable Measurement Date, in accordance with the terms and procedures set forth in the Merger Agreement. By way of example, if Employee holds a 40.00% allocation and forfeits Employee's Milestone 2 share, the forfeited amount of $660,000 would be redistributed between the remaining two Founder Earnout Participants in proportion to their respective allocation percentages among themselves. For the avoidance of doubt, if all three (3) Founder Earnout Participants have departed from BCS's employment (whether by voluntary resignation or termination for Cause) prior to a Measurement Date, the earnout consideration attributable to that Earnout Milestone shall not be payable to any person and shall be permanently forfeited.
5.6 No Acceleration. Except as may be expressly provided in the Merger Agreement (including in connection with a Change of Control, as defined therein), no Earnout Payment shall be accelerated, and BCS shall have no obligation to make any Earnout Payment prior to (a) its good-faith determination that the applicable Earnout Milestone has been achieved in accordance with the criteria and procedures set forth in the Merger Agreement, and (b) its verification that Employee has satisfied the continued employment requirement set forth in Section 5.4. Employee shall have no right to demand or receive any advance, partial payment, or estimate of any Earnout Payment prior to the date on which such Earnout Payment is determined to be due and payable under the Merger Agreement.
5.7 Merger Agreement Controls. The terms and conditions of the earnout, including the precise definitions and calculation methodologies for the Earnout Milestones, the procedures for the determination of achievement, the timing of Earnout Payments, any dispute resolution procedures applicable to earnout determinations, the treatment of Earnout Payments upon a Change of Control or termination without Cause, and BCS's good-faith operation covenant with respect to the Codelaunch product line, are set forth in and governed by the Merger Agreement. In the event of any inconsistency or conflict between the provisions of this Section 5 and the terms of the Merger Agreement with respect to the earnout consideration, the terms of the Merger Agreement shall control. Employee acknowledges that Employee has received, reviewed, and is familiar with the earnout provisions of the Merger Agreement.
5.8 Good-Faith Operation Covenant. BCS hereby covenants to operate the Codelaunch product line in good faith and in the ordinary course consistent with its integration plan, with the intent to achieve the Earnout Milestones. Notwithstanding the foregoing, BCS shall retain reasonable business discretion over all operational decisions relating to the Codelaunch product line, including without limitation decisions regarding pricing, packaging, discounting, staffing, resource allocation, product roadmap, feature prioritization, go-to-market strategy, marketing, sales channel management, and customer support. BCS shall have no obligation to operate the Codelaunch product line as a standalone business, to maintain any particular level of investment in the Codelaunch product line, or to take any action solely for the purpose of achieving the Earnout Milestones. The parties acknowledge that BCS's integration of the Codelaunch product line into BCS's broader platform and product suite may affect the manner in which the Codelaunch product line is operated, marketed, and sold, and that such integration activities shall not, in and of themselves, constitute a breach of this good-faith operation covenant. The specific contours and limitations of BCS's good-faith operation covenant are set forth in the Merger Agreement, which shall govern in all respects.
SECTION 6 — EMPLOYEE BENEFITS
6.1 Benefit Plans. Employee shall be eligible to participate in all employee benefit plans, programs, policies, and arrangements that BCS makes available to its similarly situated employees generally, including medical, dental, and vision insurance, life insurance, disability insurance, retirement plans (including any 401(k) plan), and any other welfare or fringe benefit plans, in each case subject to the terms, conditions, and eligibility requirements of such plans as in effect from time to time. BCS reserves the right, in its sole discretion, to modify, amend, or terminate any benefit plan at any time, subject to applicable law. Nothing in this Agreement shall be construed to require BCS to establish or maintain any particular benefit plan or program.
6.2 Paid Time Off. Employee shall be entitled to paid time off ("PTO") in accordance with BCS's PTO policies as in effect from time to time. As of the Effective Date, BCS's PTO policy provides for a minimum of twenty (20) days of PTO per calendar year for employees at Employee's level, which includes vacation, personal days, and sick leave. PTO accrual, carryover, and usage shall be governed by BCS's PTO policies, and Employee shall schedule PTO in a manner that is consistent with Employee's duties and responsibilities and with BCS's operational needs.
6.3 Expense Reimbursement. BCS shall reimburse Employee for all reasonable and documented out-of-pocket business expenses incurred by Employee in connection with the performance of Employee's duties hereunder, in accordance with BCS's expense reimbursement policies and procedures as in effect from time to time. Employee shall submit expense reports and supporting documentation within the time periods required by BCS's policies. All reimbursements shall be made in accordance with BCS's standard reimbursement schedule and, to the extent required by Section 409A, shall be made no later than the last day of the calendar year following the calendar year in which the expense was incurred.
SECTION 7 — TERMINATION OF EMPLOYMENT
7.1 Termination by BCS Without Cause. BCS may terminate Employee's employment at any time without Cause by providing written notice to Employee. In the event of such a termination, Employee shall be entitled to receive the following: (a) any accrued but unpaid Base Salary through the effective date of termination, payable on the next regular payroll date or as required by applicable law; (b) reimbursement for any outstanding business expenses properly incurred and documented prior to the date of termination, in accordance with Section 6.3 and BCS's expense reimbursement policies; and (c) any vested rights or benefits under applicable employee benefit plans, programs, and arrangements, in accordance with the terms of such plans (collectively, the "Accrued Obligations"). The treatment of the Earnout Payments upon a termination of Employee's employment by BCS without Cause is addressed in Section 5.4 of this Agreement and the Merger Agreement. For the avoidance of doubt, a termination of Employee's employment by BCS without Cause shall not result in forfeiture of any Earnout Payment associated with an Earnout Milestone for which the applicable Measurement Date has already occurred and the Earnout Milestone has been determined to have been achieved prior to the effective date of termination; however, Employee shall forfeit any Earnout Payment with respect to any Earnout Milestone for which the applicable Measurement Date occurs after the effective date of termination, except as otherwise provided in the Merger Agreement. Any additional severance, separation pay, or benefits that may be payable to Employee upon a termination without Cause, if any, shall be governed exclusively by the terms of the Merger Agreement or any separate written severance or separation agreement entered into between BCS and Employee.
7.2 Termination by BCS for Cause. BCS may terminate Employee's employment for Cause (as defined in Section 7.5 below) immediately upon delivery of written notice to Employee specifying the grounds for such termination. In the event of a termination for Cause, Employee shall be entitled to receive only the Accrued Obligations, and Employee shall immediately and irrevocably forfeit all unpaid Earnout Payments pursuant to Section 5.4 of this Agreement, regardless of whether any Measurement Date has occurred. Employee shall not be entitled to any severance, separation pay, or other compensation in connection with a termination for Cause, except as may be required by applicable law.
7.3 Voluntary Resignation by Employee. Employee may voluntarily resign Employee's employment at any time by providing BCS with not less than thirty (30) days' prior written notice (or such shorter notice period as BCS may agree in writing). During the notice period, Employee shall continue to perform Employee's duties and cooperate with BCS in transitioning Employee's responsibilities, unless BCS elects to waive the notice period or any portion thereof and to accelerate Employee's last day of employment. In the event of a voluntary resignation, Employee shall be entitled to receive only the Accrued Obligations. Employee shall forfeit all unpaid Earnout Payments associated with Earnout Milestone Measurement Dates occurring after the effective date of resignation, in accordance with Section 5.4 of this Agreement. For the avoidance of doubt, Employee shall retain the right to receive any Earnout Payment associated with an Earnout Milestone for which the applicable Measurement Date has already occurred and the Earnout Milestone has been determined to have been achieved prior to the effective date of resignation.
7.4 Death or Disability. Employee's employment with BCS shall terminate automatically upon Employee's death. BCS may terminate Employee's employment upon Employee's Disability (as defined in Section 7.6 below) by providing written notice to Employee (or Employee's legal representative). In the event of a termination due to death or Disability, Employee (or Employee's estate or legal representative, as applicable) shall be entitled to receive the Accrued Obligations. The treatment of Earnout Payments in the event of Employee's death or Disability shall be governed by the Merger Agreement, and Employee is encouraged to review the applicable provisions of the Merger Agreement regarding such treatment.
7.5 Definition of "Cause." For purposes of this Agreement, "Cause" shall mean any one or more of the following:
(a) Employee's material breach of this Agreement or any other written agreement between Employee and BCS or any of its subsidiaries, including any restrictive covenant agreement, confidentiality agreement, intellectual property assignment agreement, or the Merger Agreement, which breach, if capable of cure, remains uncured for a period of fifteen (15) calendar days after BCS delivers written notice to Employee specifying the nature of such breach in reasonable detail;
(b) Employee's conviction of, or entry of a plea of guilty or nolo contendere to, (i) a felony under federal or state law, or (ii) any crime involving fraud, dishonesty, embezzlement, theft, misappropriation, or moral turpitude, regardless of whether such crime is classified as a felony or misdemeanor;
(c) Employee's willful misconduct or gross negligence in the performance of Employee's duties under this Agreement that causes or is reasonably likely to cause material harm to BCS, its business, reputation, or prospects;
(d) Employee's material violation of any written policy of BCS or its subsidiaries, including the employee handbook, code of conduct, anti-harassment and anti-discrimination policies, information security policies, insider trading policies, or data privacy policies, which violation, if capable of cure, remains uncured for a period of fifteen (15) calendar days after BCS delivers written notice to Employee specifying the nature of such violation;
(e) Employee's continued refusal or failure to perform lawful directives of BCS's management that are consistent with Employee's position and duties, after written notice from BCS specifying the directives in question and a reasonable opportunity (not to exceed ten (10) business days) to cure such refusal or failure; or
(f) Employee's breach of any fiduciary duty owed to BCS, including the duty of loyalty and the duty of care.
For the avoidance of doubt, the determination of whether "Cause" exists shall be made by BCS's Board of Directors (or a committee thereof) in good faith, and BCS shall provide Employee with written notice of the specific grounds for a Cause termination. With respect to any ground for Cause that is subject to a cure period under this Section 7.5, Employee shall be afforded the opportunity to cure as specified above before BCS may terminate Employee's employment for Cause on such ground.
7.6 Definition of "Disability." For purposes of this Agreement, "Disability" shall mean Employee's inability, due to physical or mental illness, injury, or incapacity, to perform the essential functions of Employee's position, with or without reasonable accommodation (as defined under the Americans with Disabilities Act of 1990, as amended), for a period of ninety (90) consecutive calendar days or one hundred twenty (120) calendar days in any twelve (12)-month period, as determined by BCS in good faith based on competent medical evidence. BCS may require Employee to submit to an examination by a physician mutually agreed upon by BCS and Employee (or Employee's legal representative) to determine whether a Disability exists. BCS's determination of Disability shall be subject to and consistent with all applicable federal, state, and local laws, including the Americans with Disabilities Act and the Family and Medical Leave Act.
SECTION 8 — CONFIDENTIALITY
8.1 Confidential Information. Employee acknowledges that, in the course of Employee's employment with BCS, Employee will have access to, become acquainted with, and, in some cases, participate in the development of confidential and proprietary information belonging to BCS, its subsidiaries, and its affiliates. As used in this Agreement, "Confidential Information" means all non-public information, in any form or medium, that relates to the business, operations, products, services, technology, finances, or strategies of BCS or its subsidiaries, including, without limitation: (a) trade secrets; (b) customer and prospect lists, customer data, and customer relationship information; (c) product plans, product roadmaps, feature specifications, and technical documentation; (d) source code, object code, algorithms, data structures, and software architecture; (e) financial information, projections, budgets, and pricing models; (f) business strategies, marketing plans, competitive analyses, and go-to-market strategies; (g) employee information, compensation data, and personnel records; (h) vendor and supplier information, terms, and pricing; (i) information relating to pending or contemplated transactions, including mergers, acquisitions, divestitures, and financing activities; and (j) any other information that BCS designates as confidential or that, by its nature, would reasonably be understood to be confidential. Confidential Information shall include information received by BCS from third parties under an obligation of confidentiality.
8.2 Non-Disclosure Obligation. During the term of Employee's employment and at all times thereafter, Employee shall not, directly or indirectly, disclose, publish, disseminate, communicate, use, or permit the use of any Confidential Information, except (a) as required in the faithful performance of Employee's duties for BCS, (b) as expressly authorized in writing by BCS, (c) as required by applicable law, regulation, or legal process (provided that Employee shall, to the extent permitted by law, give BCS prompt written notice of any such requirement so that BCS may seek a protective order or other appropriate remedy), or (d) to Employee's personal legal, tax, or financial advisors who have a need to know such information and who are bound by confidentiality obligations no less restrictive than those set forth in this Agreement. Employee shall take all reasonable precautions to protect the confidentiality of Confidential Information and to prevent its unauthorized disclosure or use.
8.3 Return of Materials. Upon the termination of Employee's employment for any reason, or at any time upon BCS's request, Employee shall promptly return to BCS all documents, materials, files, records, notebooks, electronic storage media, devices (including laptops, mobile phones, and tablets), and any other property of BCS or its subsidiaries in Employee's possession, custody, or control that contain or relate to Confidential Information. Employee shall permanently delete all electronic copies of Confidential Information from Employee's personal devices, cloud storage accounts, and any other systems or media not owned or controlled by BCS. Employee shall certify in writing, upon BCS's request, that Employee has complied with this Section 8.3.
8.4 Defend Trade Secrets Act Notice. Employee is hereby notified that, in accordance with the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1833(b)), an individual 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 filed in a lawsuit or other proceeding, provided such filing is made under seal. Additionally, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer's trade secrets to the attorney and use the trade secret information in the court proceeding if the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.
SECTION 9 — INTELLECTUAL PROPERTY; WORK PRODUCT
9.1 Assignment of Work Product. Employee acknowledges and agrees that all inventions, discoveries, improvements, innovations, designs, works of authorship, methodologies, processes, techniques, formulas, software (including source code and object code), databases, data compilations, documentation, and other intellectual property and proprietary rights conceived, created, developed, or reduced to practice by Employee, either solely or jointly with others, during the term of Employee's employment, whether during or outside of working hours, that (a) relate to the actual or anticipated business, research, or development activities of BCS or any of its subsidiaries, (b) result from the use of BCS's or its subsidiaries' resources, facilities, equipment, or information, or (c) are created within the scope of Employee's employment (collectively, "Work Product"), shall be and are hereby assigned to BCS and shall be the sole and exclusive property of BCS. To the extent any Work Product constitutes a "work made for hire" under the United States Copyright Act (17 U.S.C. § 101 et seq.), Employee acknowledges that such Work Product is a work made for hire and that BCS is the author thereof. To the extent any Work Product does not qualify as a work made for hire, Employee hereby irrevocably assigns and transfers to BCS all right, title, and interest in and to such Work Product, including all patents, copyrights, trademarks, trade secrets, and other intellectual property rights therein.
9.2 Cooperation. Employee shall, during and after the term of Employee's employment, execute all documents, instruments, and applications, and take all actions, as may be reasonably requested by BCS to evidence, perfect, register, record, or defend BCS's ownership of the Work Product, including executing patent applications, copyright registrations, trademark applications, assignments, declarations, and other documents. Employee hereby irrevocably appoints BCS and its officers and agents as Employee's attorney-in-fact (which appointment is coupled with an interest) to execute any such documents and take any such actions on Employee's behalf if Employee is unable or unwilling to do so. BCS shall reimburse Employee for reasonable out-of-pocket expenses incurred by Employee in complying with this Section 9.2 following termination of employment, upon submission of appropriate documentation.
9.3 Prior Inventions. Employee has listed on Exhibit A attached hereto all inventions, discoveries, improvements, and works of authorship that Employee conceived, created, or developed prior to the Effective Date and that Employee wishes to exclude from the scope of the assignment set forth in Section 9.1 (collectively, "Prior Inventions"). If no Prior Inventions are listed on Exhibit A, Employee represents that there are no Prior Inventions. Employee shall not incorporate any Prior Invention into any Work Product without BCS's prior written consent, and if Employee does incorporate any Prior Invention into any Work Product with BCS's written consent, Employee hereby grants to BCS a non-exclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide, sublicensable, and transferable license to make, have made, use, sell, offer for sale, import, reproduce, distribute, modify, create derivative works of, publicly display, and publicly perform such Prior Invention as part of or in connection with such Work Product.
9.4 Moral Rights. To the fullest extent permitted by applicable law, Employee hereby irrevocably waives and agrees never to assert any and all moral rights (including rights of attribution, integrity, disclosure, and withdrawal) that Employee may have in or with respect to any Work Product, whether arising under any applicable law of any country or international treaty.
SECTION 10 — RESTRICTIVE COVENANTS
10.1 Non-Competition. Employee acknowledges that, by virtue of Employee's position with BCS and Employee's access to Confidential Information, trade secrets, customer relationships, and specialized knowledge regarding BCS's business, Employee is in a position to cause significant competitive harm to BCS. Employee further acknowledges that the restrictive covenants set forth in this Section 10 are ancillary to and part of this otherwise enforceable Agreement, including the at-will employment relationship, the compensation and benefits provided hereunder, the Earnout Payments, and the grant of RSUs, and that BCS's provision of such compensation, benefits, Earnout Payments, and equity constitutes adequate consideration for Employee's agreement to the restrictive covenants herein.
During the term of Employee's employment with BCS and for a period of twelve (12) months following the termination of Employee's employment for any reason (the "Non-Compete Period"), Employee shall not, directly or indirectly, whether as an employee, consultant, independent contractor, officer, director, partner, member, owner, investor, advisor, or in any other capacity, engage in, own, manage, operate, control, participate in, perform services for, or otherwise assist any business, enterprise, or entity that directly competes with BCS's developer-tools product line, including the former Codelaunch platform and any successor or derivative products thereof, within the United States. Notwithstanding the foregoing, passive ownership of less than two percent (2%) of the outstanding equity securities of a publicly traded company shall not be deemed to violate this Section 10.1. This non-competition covenant shall be enforceable to the maximum extent permitted by the Texas Business and Commerce Code, Chapter 15 (Covenants Not to Compete), and any other applicable law.
10.2 Non-Solicitation of Employees. During the term of Employee's employment with BCS and for a period of eighteen (18) months following the termination of Employee's employment for any reason (the "Employee Non-Solicit Period"), Employee shall not, directly or indirectly, whether on Employee's own behalf or on behalf of any other person or entity: (a) solicit, recruit, hire, engage, or induce, or attempt to solicit, recruit, hire, engage, or induce, any person who is then employed by BCS or any of its subsidiaries to leave the employ of BCS or such subsidiary; or (b) encourage or assist any other person or entity in soliciting, recruiting, hiring, engaging, or inducing any such employee to leave the employ of BCS or its subsidiaries. This restriction shall apply to all employees of BCS and its subsidiaries, regardless of whether such employee reports to Employee or works in Employee's department, and shall include employees who were employed by BCS or its subsidiaries at any time during the six (6)-month period preceding Employee's termination of employment.
10.3 Non-Solicitation of Customers. During the term of Employee's employment with BCS and for a period of twelve (12) months following the termination of Employee's employment for any reason (the "Customer Non-Solicit Period"), Employee shall not, directly or indirectly, whether on Employee's own behalf or on behalf of any other person or entity, solicit, contact, or service, or attempt to solicit, contact, or service, any customer or prospective customer of BCS or its subsidiaries with whom Employee had material contact, about whom Employee obtained Confidential Information, or for whom Employee performed services during the last twelve (12) months of Employee's employment, for the purpose of (a) selling or providing products or services that are competitive with BCS's products or services, or (b) inducing or encouraging such customer or prospective customer to reduce or cease doing business with BCS or its subsidiaries.
10.4 Reasonableness; Blue Pencil. Employee acknowledges and agrees that the restrictions set forth in this Section 10, including their scope, duration, and geographic area, are reasonable and necessary to protect BCS's legitimate business interests, including BCS's Confidential Information, trade secrets, customer relationships, goodwill, and investment in Employee's training and development, and that BCS would suffer irreparable harm if Employee were to breach any such restriction. Employee further acknowledges that the restrictions will not impose an undue hardship on Employee and will not deprive Employee of the ability to earn a livelihood. If any court of competent jurisdiction determines that any restriction in this Section 10 is unreasonable or unenforceable in any respect, the court is hereby requested and authorized to reform such restriction by modifying its scope, duration, or geographic area to the minimum extent necessary to render it valid and enforceable, rather than invalidating the restriction in its entirety, consistent with the intent of the parties and applicable law, including the "blue pencil" doctrine under Texas law.
10.5 Remedies. Employee acknowledges that any breach of the restrictive covenants set forth in this Section 10 would cause irreparable harm to BCS for which monetary damages alone would be an inadequate remedy. Accordingly, in addition to any other remedies available at law or in equity, BCS shall be entitled to seek temporary, preliminary, and permanent injunctive relief to enforce the provisions of this Section 10, without the necessity of posting a bond or proving actual damages. The remedies set forth in this Section 10.5 shall be in addition to, and not in lieu of, any other remedies available to BCS under this Agreement, at law, or in equity.
SECTION 11 — REPRESENTATIONS AND WARRANTIES OF EMPLOYEE
11.1 Employee Representations. Employee hereby represents and warrants to BCS as follows:
(a) Employee has the full legal right, power, and authority to enter into this Agreement and to perform Employee's obligations hereunder, and this Agreement constitutes the legal, valid, and binding obligation of Employee, enforceable against Employee in accordance with its terms;
(b) The execution, delivery, and performance of this Agreement by Employee will not conflict with, result in a breach of, or constitute a default under any agreement, arrangement, or understanding to which Employee is a party or by which Employee is bound, including any prior or existing employment agreement, consulting agreement, non-competition agreement, non-solicitation agreement, confidentiality agreement, or other restrictive covenant;
(c) Employee is not bound by, and is not subject to, any non-competition, non-solicitation, or similar restrictive covenant or agreement with any prior employer or other third party that would be violated by Employee's employment with BCS or the performance of Employee's duties hereunder, or that would in any way restrict or impair Employee's ability to perform Employee's obligations under this Agreement;
(d) All information provided by Employee to BCS in connection with Employee's employment, including information provided during the due diligence process for the Merger, in any employment application, resume, or background check, and in any discussions or correspondence with BCS, is true, accurate, and complete in all material respects; and
(e) Employee has not been the subject of any legal proceeding, investigation, or disciplinary action by any governmental authority, regulatory body, or professional organization that would materially affect Employee's ability to perform Employee's duties under this Agreement.
SECTION 12 — INDEMNIFICATION
12.1 Indemnification by BCS. BCS shall indemnify, defend, and hold harmless Employee, in Employee's capacity as an officer, director, or employee of BCS or any subsidiary of BCS, to the fullest extent permitted under applicable law (including, without limitation, the General Corporation Law of the State of Delaware) and the certificate of incorporation and bylaws of BCS, as the same may be amended from time to time, against any and all losses, damages, liabilities, costs, claims, judgments, settlements, fines, penalties, and expenses (including reasonable attorneys' fees, court costs, and expenses of investigation) that Employee incurs or becomes subject to arising out of, relating to, or in connection with Employee's service in such capacity, whether asserted during or after the term of Employee's employment. BCS shall advance expenses (including attorneys' fees) incurred by Employee in connection with any such proceeding to the maximum extent permitted by applicable law, subject to Employee's undertaking to repay such advances if it is ultimately determined that Employee is not entitled to indemnification. The indemnification and advancement of expenses provided under this Section 12 shall be in addition to, and not in limitation of, any rights to indemnification, advancement of expenses, or insurance coverage to which Employee may be entitled under any separate indemnification agreement, directors' and officers' liability insurance policy, or applicable law.
SECTION 13 — SECTION 409A COMPLIANCE
13.1 General. This Agreement is intended to comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations and other interpretive guidance issued thereunder (collectively, "Section 409A"), and shall be interpreted, construed, and administered in a manner consistent with such intent. To the extent that any provision of this Agreement is ambiguous as to its compliance with or exemption from Section 409A, such provision shall be read in a manner that is consistent with such compliance or exemption, as applicable.
13.2 Specified Employee Delay. Notwithstanding any provision of this Agreement to the contrary, to the extent that any payment or benefit under this Agreement constitutes "nonqualified deferred compensation" within the meaning of Section 409A and is payable to Employee upon Employee's "separation from service" (as defined in Section 409A), and Employee is a "specified employee" (as defined in Section 409A and determined in accordance with BCS's established methodology) at the time of Employee's separation from service, such payment or benefit shall not be made or provided until the earlier of (a) the first business day following the expiration of the six (6)-month period measured from the date of Employee's separation from service, or (b) the date of Employee's death. Any payments or benefits that are delayed pursuant to this Section 13.2 shall be accumulated and paid or provided in a single lump sum on the first business day following the end of such six (6)-month period (or upon Employee's earlier death), without interest, and any remaining payments or benefits shall continue to be paid or provided in accordance with the normal schedule and terms set forth in this Agreement.
13.3 Separate Payments. For purposes of Section 409A, each separately identified amount payable under this Agreement, and each installment payment in a series of installment payments, shall be treated as a separate payment within the meaning of Treasury Regulation Section 1.409A-2(b)(2). Neither BCS nor Employee shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A.
13.4 Expense Reimbursements. To the extent that any reimbursement of expenses or in-kind benefits under this Agreement constitutes "nonqualified deferred compensation" within the meaning of Section 409A, (a) the amount of expenses eligible for reimbursement or in-kind benefits provided in one calendar year shall not affect the expenses eligible for reimbursement or in-kind benefits in any other calendar year, (b) such reimbursement shall be made on or before the last day of the calendar year following the calendar year in which the expense was incurred, and (c) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
SECTION 14 — MISCELLANEOUS
14.1 Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Texas, without giving effect to any choice of law or conflict of laws rules, provisions, or principles (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas. Notwithstanding the foregoing, the enforceability of the restrictive covenants set forth in Section 10 shall be governed by the Texas Business and Commerce Code, Chapter 15 (Covenants Not to Compete), and applicable Texas case law.
14.2 Jurisdiction and Venue. The parties irrevocably agree that any action, suit, or proceeding arising out of, relating to, or in connection with this Agreement or the transactions contemplated hereby, or any dispute between the parties relating to Employee's employment or the termination thereof, shall be brought exclusively in the state courts of the State of Texas sitting in Dallas County, Texas, or the United States District Court for the Northern District of Texas, Dallas Division. Each party hereby irrevocably submits to the exclusive personal jurisdiction and venue of such courts for purposes of any such action, suit, or proceeding and irrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court or any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.
14.3 Entire Agreement. This Agreement, together with the Merger Agreement, the Plan, the RSU Award Agreement, and any other agreements or instruments expressly referenced herein, constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, and warranties, whether oral or written, between the parties with respect to such subject matter. Employee acknowledges that, in entering into this Agreement, Employee has not relied upon any representation, warranty, promise, or statement of BCS or any of its representatives that is not set forth in this Agreement or the Merger Agreement.
14.4 Amendment and Waiver. This Agreement may not be amended, modified, supplemented, or otherwise changed except by a written instrument duly executed by both BCS and Employee. No waiver by any party of any breach or default of any provision of this Agreement shall be effective unless in writing and signed by the party giving such waiver. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision or a continuing waiver of the same provision, nor shall any single or partial exercise of any right, power, or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
14.5 Severability. If any provision of this Agreement (or any portion thereof) is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such provision shall be modified by such court to the minimum extent necessary to make it valid and enforceable, and the remaining provisions of this Agreement shall continue in full force and effect and shall not be affected, impaired, or invalidated in any way. It is the intention of the parties that the court would enforce the covenants and restrictions contained in this Agreement to the fullest extent permitted by applicable law.
14.6 Assignment. Employee may not assign, delegate, or transfer this Agreement or any of Employee's rights, obligations, or interests hereunder without the prior written consent of BCS, and any purported assignment, delegation, or transfer in violation of this Section 14.6 shall be null and void. BCS may freely assign this Agreement and all of its rights and obligations hereunder to any successor to all or substantially all of BCS's business or assets (whether by merger, consolidation, sale, acquisition, or otherwise) or to any affiliate of BCS, without Employee's consent; provided that any such assignee shall assume and agree to be bound by all of BCS's obligations under this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns.
14.7 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and effective upon: (a) personal delivery, (b) the date sent by confirmed electronic mail (with a copy sent by another method specified herein), (c) one (1) business day after deposit with a nationally recognized overnight courier service (prepaid, with tracking), or (d) three (3) business days after deposit in the United States mail, certified or registered, postage prepaid, return receipt requested, in each case addressed as follows:
If to BCS:
Brightfield Cloud Services Inc. 4200 Westgrove Boulevard, Suite 1100 Irving, Texas 75038
Attn: Harold Ostrander, General Counsel
Email: hostrander@brightfieldcloud.com
If to Employee:
[Insert Employee's Address] [Insert City, State, ZIP Code]
Email: [Insert Email Address]
With a copy to (during the transition period only):
Calderwood & Harkness LLP 2000 McKinney Avenue, Suite 3400 Dallas, Texas 75201
Attn: Beatrice Holloway
Email: bholloway@calderwoodharkness.com
Either party may change its address for notice purposes by giving written notice of such change to the other party in accordance with this Section 14.7.
14.8 Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Counterparts may be delivered by facsimile, electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000), or other electronic transmission method, and any counterpart so delivered shal

EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT

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