eLayaway, Inc. EMPLOYMENT AGREEMENT CHIEF MARKETING OFFICER and VICE-CHAIRMAN
eLayaway,
Inc.
CHIEF
MARKETING OFFICER and VICE-CHAIRMAN
Agreement
made as of this 5th day of
September, 2009, by and between ▇▇▇▇▇▇ ▇▇▇▇▇ (“Executive”) and eLayaway, Inc.
(“eLayaway” or, the “Company”).
PREAMBLE
The Board
of Directors of the Company recognizes Executive’s potential contribution to the
growth and success of the Company and desires to assure the Company of
Executive’s employment in an executive capacity as Chief Marketing Officer and
Vice-Chairman and to compensate him therefor. Executive wants to be
employed by the Company and to commit himself to serve the Company on the terms
herein provided.
NOW,
THEREFORE, in consideration of the foregoing and of the respective covenants and
agreements of the parties, the parties agree as follows:
1.
Definitions
“Benefits”
shall mean all the fringe benefits approved by the Board from time to time and
established by the Company for the benefit of executives generally and/or for
key executives of the Company as a class, including, but not limited to, regular
holidays, vacations, absences resulting from illness or accident, health
insurance, disability and medical plans (including dental and prescription
drug), group life insurance, and pension, profit-sharing and stock bonus plans
or their equivalent.
“Board”
shall mean the Board of Directors of the Company, together with an executive
committee thereof (if any), as the same shall be constituted from time to
time.
“Cause”
shall mean (i) gross negligence in the performance of the material
responsibilities of the Executive’s office or position, (ii) willful misconduct
in performance and discharge of the Executive’s material duties or that is
otherwise materially injurious to the Company’s business, (iii) conviction of or
a plea of no contest to a felony or Executive’s incapacity due to alcoholism or
substance abuse or (iv) a material and intentional breach by Executive of his
principal obligations under this Agreement not remedied within fifteen (15)
business days after receipt of written notice from the Company.
“Change
of Control” shall mean the occurrence of one or more of the following four
events:
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(1)
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Any
Person becomes a beneficial owner (as such term is defined in Rule 13d-3
promulgated under the Exchange Act) directly or indirectly of securities
representing 51% or more of the total number of votes that may be cast for
the election of directors of the
Company;
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(2)
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Within
eighteen months after a merger, consolidation, liquidation or sale of
assets involving the Company, or a contested election of a Company
director, or any combination of the foregoing, the individuals who were
directors of the Company immediately prior thereto shall cease to
constitute a majority of the Board;
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(3)
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Within
eighteen months after a tender offer or exchange offer for voting
securities of the Company, the individuals who were directors of the
Company immediately prior thereto shall cease to constitute a majority of
the Board; or
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(4)
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A
Reorganization.
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(5)
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A
sale of all or substantially all of the assets of the
Company.
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“Chief
Executive Officer” shall mean the individual having responsibility to the Board
for direction and management of the executive and operational affairs of the
Company and who reports and is accountable only to the Board.
“Company”
shall mean eLayaway, Inc., a Florida corporation.
“Competitive
Business Activity” shall mean the development, sale and marketing of a payment
process that enables the consumer to structure a pre-payment plan to pay a
merchant in full before the merchandise is delivered.
“Disability”
shall mean a written determination by an independent physician mutually
agreeable to the Company and Executive (or, in the event of Executive’s total
physical or mental disability, Executive’s legal representative) that Executive
is physically or mentally unable to perform his duties of Chief Marketing
Officer and Vice-Chairman under this Agreement and that such disability can
reasonably be expected to continue for a period of six (6) consecutive months or
for shorter periods aggregating one hundred and eighty (180) days in any
twelve-(12)-month period.
“Exchange
Act” shall mean the Securities Exchange Act of 1934.
“Executive”
shall mean ▇▇▇▇▇▇ ▇▇▇▇▇ and, if the context requires, his heirs, personal
representatives, and permitted successors and assigns.
”Executive
Stock” shall mean the 884,686 shares of common stock, no par value, and the
3,615,314 stock options, $0.25 exercise price, of eLayaway, issued to
Executive.
“Performance
Year” shall mean each twelve-month period of employment under this Agreement
commencing upon the date of this Agreement.
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“Person”
shall mean any natural person, incorporated entity, limited or general
partnership, limited liability company, business trust, association, agency
(governmental or private), division, political sovereign, or subdivision or
instrumentality, including those groups identified as “persons” in
§§ 13(d)(3) and 14(d)(2) of the Exchange Act.
“Reorganization”
shall mean any transaction, or any series of transactions consummated in a
12-month period, pursuant to which any Person acquires (by merger, acquisition,
or otherwise) all or substantially all of the assets of the Company or the then
outstanding equity securities of the Company and the Company is not the
surviving entity, the Company being deemed surviving if and only if the majority
of the Board of Directors of the ultimate parent of the surviving entity were
directors of the Company prior to its organization.
“Territory”
shall mean any state of the United States and any equivalent section or area of
any country in which the Company has revenue-producing customers or
activities.
“Vice-Chairman”
shall mean the individual designated by the Board from time to time as its
vice-chairman.
2.
Position,
Responsibilities, and Term of Employment.
2.01 Position.
Executive shall serve as Vice-Chairman, and Chief Marketing Officer of the
Company. In this capacity Executive shall, subject to the bylaws of the
Company, and to the direction of the Board, serve the Company by performing such
duties and carrying out such responsibilities as are normally related to the
position of Vice-Chairman and Chief Marketing Officer in accordance with the
standards of the industry in which the Company carries on its business.
The Board shall either vote, or recommend to the shareholders of the Company, as
appropriate, that during the term of employment pursuant to this
Agreement: (i) Executive be nominated for election as a director
at each meeting of shareholders held for the election of directors and be
nominated for election as Vice-Chairman; (ii) Executive be elected to and
continued in the office of Chief Marketing Officer of the Company;
(iii) Executive be elected to and continued on the Board of Directors of
each wholly-owned subsidiary of the Company, (iv) if the Board or any of
the Company’s wholly-owned subsidiaries’ Board of Directors shall appoint an
executive committee (or similar committee authorized to exercise the general
powers of the Board), Executive be elected to and continued on such committee;
and (v) the Company shall not confer on any other officer authority,
responsibility, powers or prerogatives superior or equal to the authority,
responsibility, prerogatives and powers vested in Executive
hereunder.
2.02 Reporting.
Executive, in his capacity as Chief Marketing Officer of the Company, will
report directly to the Board.
2.03 Time
and Efforts Covenant. Executive will, to the best of his ability, devote
such time and efforts as are necessary to the performance of his duties for the
Company and its wholly-owned subsidiaries.
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2.04 Executive’s
Commitment. During Executive’s employment with the Company, Executive will
not undertake or engage in any other employment, occupation or business
enterprise inconsistent with his obligations under this Agreement except for
Executive’s service in an executive or board position with organizations, and
their respective subsidiaries and/or affiliates, as approved and added to this
document as an Addendum. Subject to the foregoing, Executive agrees not to
acquire, assume, or participate in, directly or indirectly, any position,
investment, or interest in the Territory adverse or antagonistic to the Company,
its business or prospects, financial or otherwise, or take any action towards
any of the foregoing. The provisions of this Section shall not prevent Executive
from owning shares of any entity engaging in Competitive Business Activity, so
long as such shares (i) do not constitute more than 5% of the outstanding
equity of such competitor, and (ii) are regularly traded on a national
securities exchange or quoted for trading by the NASDAQ Stock
Market.
2.05 Relocation.
Executive’s place of employment will not be located outside the Tallahassee,
Florida area.
2.06 Post-Employment
Noncompetition and Nonsolicitation Covenant. For a period of two (2) years
subsequent to Executive’s voluntary withdrawal from employment with the Company
(except for such withdrawal pursuant to a Change in Control or due to
Constructive Discharge), or a Termination by the Company for Cause, Executive
will not without the express prior written approval of the Board (i) engage in
Competitive Business Activity in the Territory either on Executive’s own behalf
or that of any other business organization, (ii) directly or indirectly, in one
or a series of transactions, recruit, solicit or otherwise induce or influence
any proprietor, partner, stockholder, lender, director, officer, employee, sales
agent, joint venturer, investor, lessor, supplier, customer, agent,
representative or any other person which has a business relationship with the
Company or had a business relationship with the Company within the
twenty-four-(24) month period preceding the date of the incident in question, to
discontinue, reduce, or modify such employment, agency or business relationship
with the Company, or (iii) employ or seek to employ or cause any business
organization engaged in Competitive Business Activity to employ or seek to
employ any person or agent who is then (or was at any time within six months
prior to the date the Executive or such business employs or seeks to employ such
person) employed or retained by the Company or its affiliates.
Notwithstanding the foregoing, nothing herein shall prevent the Executive from
providing a letter of recommendation to an executive with respect to a future
employment opportunity.
2.07 Confidential
Information. Executive recognizes and acknowledges that the Company’s
trade secrets and proprietary information and know-how, as they may exist from
time to time and to the extent they are unique to and internally developed by
the Company (“Confidential Information”), are valuable assets of the Company’s
business, access to and knowledge of which are essential to the performance of
Executive’s duties hereunder. Executive will not, during or after the term
of his employment by the Company, in whole or in part, disclose such secrets,
information or know-how to any Person for any reason or purpose whatsoever, nor
shall Executive make use of any such property for his own purposes or for the
benefit of any Person (except the Company) under any circumstances during or
after the term of his employment, provided, however, that after
the term of his employment these restrictions shall not apply to such secrets,
information and know-how which are then in the public domain (provided that
Executive was not responsible, directly or indirectly, for such secrets,
information or processes entering the public domain without the Company’s
consent) or which derive from Executive’s relationship with other business
entities in which Executive has an ownership interest. Executive shall
have no obligation hereunder to keep confidential any Confidential Information
if and to the extent disclosure of any thereof is specifically required by law;
provided, however, that
in the event disclosure is required by applicable law, the Executive shall
provide the Company with prompt notice of such requirement, prior to making any
disclosure, so that the Company may seek an appropriate protective order.
Executive agrees to hold as the Company’s property all memoranda, books, papers,
letters, customer lists, processes, computer software, records, financial
information, policy and procedure manuals, training and recruiting procedures
and other data, and all copies thereof and therefrom, in any way relating to the
Company’s business and affairs, whether made by him or otherwise coming into his
possession, and on termination of his employment, or on demand of the Company at
any time, to deliver the same to the Company.
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Executive shall use his best efforts to
prevent the removal of any Confidential Information from the premises of the
Company, except as required in his normal course of employment by the
Company. Executive shall use his best efforts to cause all persons or
entities to whom any Confidential Information shall be disclosed by him
hereunder to observe the terms and conditions set forth herein as though each
such person or entity was bound hereby.
2.08 Records,
Files. All records, files, drawings, documents, equipment and the like
relating to the business of the Company which are prepared or used by Executive
during the term of his employment under this Agreement shall be and shall remain
the sole property of the Company.
2.09 Equitable
Relief. Executive acknowledges that his services to the Company are of a
unique character which gives them a special value to the Company.
Executive further recognizes that material and intentional violations by
Executive of any one or more of the provisions of this Section 2 may give
rise to losses or damages for which the Company cannot be reasonably or
adequately compensated in an action at law and that such material and
intentional violations may result in irreparable and continuing harm to the
Company. Executive agrees that, in addition to any other remedy which the
Company may have at law and equity, including the right to withhold any payment
of compensation under Section 3 of this Agreement, the Company shall be
entitled to injunctive relief to restrain any material and intentional
violation, actual or threatened, by Executive of the provisions of Section 2 of
this Agreement.
2.10 (a) Executive
agrees promptly to disclose and deliver to the Company any and all, and hereby
assigns, transfers, and sets over to the Company Executive’s entire and
exclusive right, title, and interest, including rights in the nature of patent
rights, trademark rights, copyrights, trade secrets, or design rights, in and to
any and all, improvements, inventions, developments, discoveries, works of
authorship, innovations, systems, techniques, ideas, processes, programs,
listings, and other things that may be of assistance to the Company, whether
patentable or unpatentable, relating to or arising out of any development,
service, or product of, or pertaining in any manner to the business of, the
Company whether conceived, developed, or learned by Executive, alone or with
others, during or after normal business hours, while employed by the Company
(collectively, “Work Products”). The foregoing assignment includes,
without limitation, all such rights in the United States of America and
throughout the world, and in and to any letters patent, applications for letters
patent, any division, reissue, extension, continuation, or continuation-in-part
thereof, or any copyright or trademark registrations that may be granted and
issued for such Work Products. Executive hereby authorizes and requests
the Commissioner of Patents and Trademarks or other appropriate government
official to issue any such Letters Patent or registrations to the Company, its
successors, and assigns. It is expressly understood that Work Products
does not include any and all, improvements, inventions, developments,
discoveries, works of authorship, innovations, systems, techniques, ideas,
processes, programs, listings, and other things developed for the benefit of
Enterprises during normal business hours while Executive is employed by
Enterprises.
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(b) The
parties intend that the Company have the sole and exclusive right, title, and
interest in such Work Products and Prior Art. Executive acknowledges and agrees
that all Work Products and Prior Art will be and remain the exclusive property
of the Company and that Executive will, upon the request of the Company, and
without further compensation, do all lawful things requested by the Company to
ensure the Company’s ownership of the Work Products and Prior Art, including,
without limitation, the execution of all documents requested by the Company to
assign and transfer to the Company and its assigns all of Executive’s right,
title, and interest in the Work Products and Prior Art, if any, and to enable
the Company to file and obtain patents, copyrights, and other proprietary rights
in the United States and foreign countries relating to the Work Products and
Prior Art. Executive hereby appoints the Company as Executive’s
attorney-in-fact to execute all documents relating to such registrations,
applications, and assignments. The provisions of this Section 2.10 will
survive the expiration or termination of this Agreement for any
reason.
3.
Compensation.
3.01 Annual
Compensation. The Company shall pay to Executive for the services to be
rendered hereunder a base salary as shown on Exhibit A hereto
(“Annual Compensation”). There shall be an annual review for merit by the
Board and an increase as deemed appropriate to reflect the value of services by
Executive. At no time during his employment with the Company shall
Executive’s annual base salary fall below his Annual Compensation. In
addition, if the Board increases Executive’s Annual Compensation at any time
during his employment with the Company, such increased Annual Compensation shall
become a floor below which Executive’s compensation shall not fall at any future
time during his employment with the Company and shall become his Annual
Compensation.
Executive’s salary shall be payable in
periodic installments in accordance with the Company’s usual practice for
similarly situated executives of the Company.
3.02 Incentive
Compensation. In addition to his Annual Compensation, Executive shall be
entitled to receive incentive compensation in such amounts as are determined by
the Board from time to time (“Incentive Compensation”) up to $100,000 per
annum. Additional Incentive Compensation is outlined in Exhibit B.
The Board shall add additional Incentive Compensation as it desires and said
additions shall be attached as an addendum to this Agreement. Any
Incentive Compensation which is not deductible in the opinion of the Company’s
counsel, under § 162(m) of the Internal Revenue Code of 1986 shall be
deferred and paid, without interest, in the first year or years when and to the
extent such payment may be deducted, Executive’s right to such payment being
absolute so long as Executive remains employed by the Company, subject only to
the provisions of Section 2.09.
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3.03 Participating
in Benefits. Executive shall be entitled to all Benefits for as long as
such Benefits may remain in effect and/or any substitute or additional Benefits
made available in the future to similarly situated Executives of the Company,
subject to and on a basis consistent with the terms, conditions and overall
administration of such Benefits adopted by the Company. Benefits paid to
Executive shall not be deemed to be in lieu of other compensation to Executive
hereunder as described in this Section 3.
3.04 Specific
Benefits.
During Executive’s employment with the
Company:
(a) Executive
shall be entitled to four (4) weeks of paid vacation time per year, to be taken
at times mutually acceptable to the Company and Executive.
(b) The
Company shall provide fully paid accident and health insurance for Executive and
Executive’s spouse and children with limits and extent of coverage no less than
that provided to other executives of the Company.
(c) Executive
shall be entitled to sick leave benefits during his employment in accordance
with the customary policies of the Company for its executive officers, but in no
event less than one (1) month per year.
(d) In
addition to the vacation provided pursuant to Section 3.04(a) hereof, Executive
shall be entitled to not less than ten (10) paid holidays (other than weekends)
per year, generally on such days on which the New York Stock Exchange is closed
to trading.
(e) Executive
shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by him (in accordance with the policies and procedures established by
the Board for the similarly situated executives of the Company) in performing
services hereunder.
(f)
Executive shall be eligible to participate during his employment in
Benefits not inconsistent or duplicative of those set forth in this Section 3.04
as the Company shall establish or maintain for its executives
generally.
(g) The
Company shall have the option to maintain and be the owner and beneficiary of a
term life insurance policy payable on Executive’s death with a minimum policy
limit of one million dollars ($1,000,000) and Executive agrees to submit to any
physical examination, and otherwise to cooperate in any other procedures
required to obtain such policy. Executive represents he has no reason to
believe the Company cannot obtain such life insurance policy on an “unrated”
basis.
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(h) The
Company shall have the option to maintain and be the owner and beneficiary of a
disability insurance policy payable on Executive’s disability with a minimum
policy limit of one million dollars ($1,000,000) and Executive agrees to submit
to any physical examination, and otherwise to cooperate in any other procedures
required to obtain such policy. Executive represents he has no reason to
believe the Company cannot obtain such disability insurance policy on an
“unrated” basis
4.
Termination.
4.01 Termination
by the Company for Reasons Other Than Cause. If the Company terminates the
employment of Executive and such termination is not for Cause (a “Termination by
the Company for Reasons Other Than Cause”), then, the Company shall pay to
Executive an amount equal to Executive’s Annual Compensation at the time of such
termination plus (i) if the termination is during the first three years of this
Agreement, the annual cash portion of the Incentive Compensation that was paid
to him in the last Performance Year or (ii) if the termination is after the
first three years of this Agreement, the average of the annual cash portion of
the Incentive Compensation that was paid to him in the last three Performance
Years. Such amount shall be paid to Executive in no event later than sixty
(60) days after the date of such termination. To the extent that Executive
is not fully vested in Benefits from any pension or any other retirement plan or
program (whether tax qualified or not) maintained by the Company, the Company
shall obtain and pay the premium upon an annuity policy to provide Executive
with Benefits as though he had been fully vested on the date that his employment
terminated. Further, in the event of Termination by the Company for
Reasons Other Than Cause, the Company shall have no Call Option with respect to
Executive Stock.
4.02 Constructive
Discharge. If the Company (a) subjects Executive to a diminution in his
title(s), responsibilities, or in his then current Annual Compensation, (b)
fails to comply with the provisions of Section 3, (c) locates Executive’s
place of employment outside the Tallahassee, Florida area or (d) engages in any
material and intentional breach of the Company’s principal obligations under
this Agreement which is not remedied within fifteen (15) business days after
receipt of written notice from the Executive (a “Constructive Discharge”),
Executive may at his option terminate his employment and such termination shall
be considered to be a Termination by the Company for Reasons Other Than
Cause. Further, in the event of Constructive Discharge, the Company shall
have no Call Option with respect to Executive Stock.
4.03 Termination
by the Company for Cause. The Company shall have the right to terminate
the employment of Executive for Cause (a “Termination by the Company for
Cause”). Effective as of the date of Termination by the Company for Cause,
this Agreement, except for Sections 2.06 through 2.10, shall terminate and
no further payments of the Compensation described in Section 3 (except for such
remaining payments of Annual Compensation under Section 3.01 relating to periods
during which Executive was employed by the Company, Benefits which are required
by applicable law to be continued, and reimbursement of expenses incurred prior
to such termination under Section 3.04) shall be made.
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4.04 Change
of Control. If at any time during Executive’s employment at the Company
there is a Change of Control, Executive may at his option terminate his
employment and such termination shall be considered to be a Termination by the
Company for Reasons Other Than Cause. If such Change of Control involves
the sale of the Company for an amount in excess of $100 million dollars,
Executive shall be entitled to receive a one-time bonus equal to two and a half
percent (2.5%) of all amounts received by the Company or its shareholders in
excess of $100 million dollars. Further, in the event of termination by
the Executive for Change of Control, the Company shall have no Call Option with
respect to Executive Stock.
4.05 Termination
on Account of Executive’s Death. In the event of Executive’s death during
his employment at the Company, the Company shall pay to Executive’s beneficiary
or beneficiaries (or to his estate if he fails to make such a designation) an
amount equal to the remainder of his Annual Compensation for the year in which
he died plus a prorated amount of any Incentive Compensation which would have
been payable to Executive at the end of such year. Further, in the event
of Executive’s death, the Company shall have no Call Option with respect to
Executive Stock.
Executive may designate one or more
beneficiaries for the purposes of this Section 4.05 by making a written
designation and delivering such designation to a Vice President or the Treasurer
of the Company. If Executive makes more than one such written designation,
the designation last received before Executive’s death shall
control.
4.06 Disability.
If Executive shall sustain a Disability, the Company shall continue to pay to
Executive while such Disability continues the full amount of his then current
Annual Compensation for the one-year period next succeeding the date upon which
such Disability shall have been so certified as well as a prorated amount of any
Incentive Compensation which would have been paid to Executive at the end of the
year. Thereafter, if Executive’s Disability shall continue, the employment
of Executive under this Agreement shall terminate and all obligations of
Executive shall cease and Executive shall be entitled to receive the Benefits,
if any, as may be provided by any insurance to which he may have become entitled
pursuant to Section 3.04 as well as the acceleration of the exercise date of any
incentive stock options granted prior to Executive’s Disability. Further,
in the event of termination by reason of Executive’s Disability, the Company
shall have no Call Option with respect to Executive Stock.
4.07 Executive
Stock Call Option.
(a) Prohibited
Transfer. Shares of Executive Stock subject to the Company Call
Option shall at all times be held subject to all of the conditions and
restrictions set forth in this Section 4.07, the provisions of which shall at
all times apply equally both to an original holder of Executive Stock and to
each and every subsequent holder of any record or beneficial interest in
Executive Stock as herein provided; and each holder of Executive Stock agrees
that such holder's becoming such a holder, by acceptance of a stock certificate
representing the Executive Stock, or any instrument of transfer of any interest
therein or otherwise, shall constitute such holder's agreement with the Company,
to be bound by the conditions and restrictions herein contained with respect to
the matters set forth in this Section 4.07. Executive may not directly or
indirectly, sell, assign, mortgage, hypothecate, transfer, pledge, create a
security interest in or lien upon, encumber, give, place in trust, or otherwise
voluntarily dispose of any shares of Executive Stock subject to the Company Call
Option (collectively a “Transfer”) and any purported Transfer of any certificate
representing shares of Executive Stock subject to the Company Call Option shall
be void and of no effect. The certificates representing shares of
Executive Stock subject to the Company Call Option shall bear a legend referring
to the foregoing restrictions.
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(b) Company
Call Option. The Company shall have the right to purchase sixty percent
(60%), rounded to the nearest share and decreasing by five percent (5%) each
calendar quarter, of the shares of Executive Stock upon Executive’s termination
of this Agreement or a Termination by the Company for Cause, provided, however,
that there shall be no Company Call Option if such termination by Executive is
due to Constructive Discharge, a Change of Control, Death, or Disability (the
“Company Call Option”). The Company Call Option shall be exercisable not
later than thirty (30) days after such termination by notice to Executive from
the Company.
(c) Closing. The
closing of any sale of shares of Executive Stock to the Company pursuant to
Section 4.07 shall take place within sixty (60) days after receipt by Executive
of notice of election to exercise as provided in Section 4.07(b). At the
closing, Executive shall deliver stock certificates for the shares of Executive
Stock being sold pursuant to Section 4.07 endorsed in blank, against payment of
the purchase price by the Company in legal tender of the United States, by
certified check or official bank check.
(d) The
number of shares of Executive Stock subject to the Company Call Option shall be
adjusted proportionally for any pro rata non-cash
distributions to holders of shares of common stock of the Company, including
without limitation, stock dividends, stock splits and securities issued in a
recapitalization.
5.
Stock Options.
Executive will participate in the Company’s 2009 Stock Option Plan and will be
eligible to participate at the level of other similarly situated executives in
any future stock incentive plans established by the Company.
6.
Indemnification. The
Company shall indemnify Executive and hold Executive harmless from and against
any claim, loss or cause of action arising from or out of Executive’s
performance as an officer, director or employee of the Company or in any other
capacity, including any fiduciary capacity, in which the Executive serves at the
request of the Company to the maximum extent permitted by applicable law.
The Company shall advance to Executive the reasonable costs and expenses of
investigating and/or defending any such claim, subject to receiving a written
undertaking from Executive to repay any such amounts advanced to Executive in
the event and to the extent of any subsequent determination by an agency of
competent jurisdiction that Executive was not entitled to indemnification
hereunder. In the event that Executive is or becomes a party to any action
or proceeding in respect of which indemnification may be sought hereunder,
Executive shall promptly notify the Company thereof. Following such
notice, the Company shall be entitled to participate therein and, to the extent
that it may wish, to assume the defense thereof with counsel satisfactory to
Executive in its reasonable judgment. After notice from the Company to
Executive of the Company's election to assume the defense of such Executive, the
Company will not be liable to Executive hereunder for any legal or other
expenses subsequently incurred by Executive in connection with the defense
thereof other than reasonable costs of investigation. Executive shall not
settle any action or claim against Executive without the prior written consent
of the Company except at such Executive's sole cost and
expense.
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7.
Left blank
intentionally.
8.
Miscellaneous.
8.01 Assignment.
This Agreement and the rights and obligations of the parties hereto shall bind
and inure to the benefit of each of the parties hereto and shall also bind and
inure to the benefit of any successor or successors of the Company in a
Reorganization, merger or consolidation and any assignee of all or substantially
all of the Company’s business and properties, but, except as to any such
successor of the Company, neither this Agreement nor any rights or benefits
hereunder may be assigned by the Company or Executive.
8.02 At
Will Employee. Executive is and will be at all times be an “at-will
employee” and his employment may be terminated by him or by the Company upon
sixty (60) days written notice at any time, for any reason or no reason, with or
without cause, subject to the provisions of Section 4.
8.03 Governing
Law. This Agreement shall be construed in accordance with and governed for
all purposes by the laws of the State of Florida.
8.04 Interpretation.
In case any one or more of the provisions contained in this Agreement shall, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
8.05 Notice.
Any notice herein required or permitted to be given shall be in writing and may
be sent by hand delivery or registered or certified mail, return receipt
requested, and shall be deemed to have been given: if by hand delivery, on the
date of delivery or if mailed, on the date indicated as the date of delivery or,
if refused, on the date of attempted delivery, on the return receipt. For
purposes hereof, the addresses of the parties hereto (until notice of a change
thereof is given as provided in this Section 7.05) shall be as
follows:
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To the Company:
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To Executive:
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eLayaway,
Inc.
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▇▇▇▇▇▇
▇▇▇▇▇
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▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
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▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇
▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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11
8.06 Amendment
and Waiver. This Agreement may not be amended, supplemented or waived
except by a writing signed by the party against which such amendment or waiver
is to be enforced. The waiver by any party of a breach of any provision of
this Agreement shall not operate to, or be construed as a waiver of, any other
breach of that provision or as a waiver of any breach of another
provision.
8.07 Binding
Effect. Subject to the provisions of Sections 4 & 7 hereof, this
Agreement shall be binding on the successors and assigns of the parties
hereto.
All obligations of Executive with
respect to any shares covered by this Agreement shall, as the context requires,
bind Executive’s spouse and the divorce or death of such spouse shall not
vitiate the binding nature of such obligation.
8.08 Survival
of Rights and Obligations. All rights and obligations of Executive or the
Company arising during the term of this Agreement shall continue to have full
force and effect after the termination of this Agreement unless otherwise
provided herein.
8.09 Section
Headings. The section headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
8.10 Entire
Agreement. This Agreement contains the entire understanding, and cancels
and supersedes all prior agreements, including any agreement in principle or
oral statement, letter of intent, statement of understanding or guidelines of
the parties hereto with respect to the subject matter hereof.
In witness whereof, on the date first
written above, the undersigned do hereby agree to the terms contained
herein.
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eLayaway,
Inc.
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By:
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
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||
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Title:
Chairman
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||
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇
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||
12
Exhibit
A
Between
▇▇▇▇▇▇ ▇▇▇▇▇ and eLayaway, Inc.
Section
3.01 Compensation.
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|
(A)
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$75,000
per year commencing September 1,
2009;
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|
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(B)
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$7,000
per month commencing September 1, 2009. Difference between (A) and
(B) shall be accrued until the Company has received $1 million in funding
from its Private Placement Memorandum (“PPM”) issued in September
2009;
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|
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(C)
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$100,000
per year commencing after the Company has received $2 million in funding
from its PPM;
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|
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(D)
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$120,000
per year commencing after the Company has received $3 million in funding
from its PPM;
|
|
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(E)
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Incentive
Compensation as follows:
|
|
|
a.
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$50,000
upon Company obtaining in excess of $2 million in revenue with an EBITDA
in excess of 30%.
|
|
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b.
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$100,000
upon Company obtaining in excess of $3 million in revenue with an EBITDA
in excess of 35%.
|
|
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c.
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$150,000
upon Company obtaining in excess of $5 million in revenue with an EBITDA
in excess of 40%.
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|
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(F)
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If
the controlling interest in the Company is sold to a third party, the
Executive shall get a bonus of 2.5% of the value paid in excess of $100
million.
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13
ADDENDUM
January
5, 2010
Section
4.01 - Modified to add last sentence as shown below:
Termination
by the Company for Reasons Other Than Cause. If the Company terminates the
employment of Executive and such termination is not for Cause (a “Termination by
the Company for Reasons Other Than Cause”), then, the Company shall pay to
Executive an amount equal to Executive’s Annual Compensation at the time of such
termination plus (i) if the termination is during the first three years of this
Agreement, the annual cash portion of the Incentive Compensation that was paid
to him in the last Performance Year or (ii) if the termination is after the
first three years of this Agreement, the average of the annual cash portion of
the Incentive Compensation that was paid to him in the last three Performance
Years. Such amount shall be paid to Executive in no event later than sixty
(60) days after the date of such termination. To the extent that Executive
is not fully vested in Benefits from any pension or any other retirement plan or
program (whether tax qualified or not) maintained by the Company, the Company
shall obtain and pay the premium upon an annuity policy to provide Executive
with Benefits as though he had been fully vested on the date that his employment
terminated. Further, in the event of Termination by the Company for
Reasons Other Than Cause, the Company shall have no Call Option with respect to
Executive Stock. See Exhibit A for full disclosure of the
compensation.
Exhibit A
– Revised as follows:
Section
3.01 Compensation.
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(A)
|
$7,000
per month commencing September 1, 2009. Balance shall be accrued
until the Company has received $1.25 million in
funding;
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|
|
(B)
|
$100,000
per year commencing after the Company has received $1.25 million in
funding from its PPM and/or any other source of
funding;
|
|
|
(C)
|
$120,000
per year commencing after the Company has received $2 million in funding
from its PPM and/or any other source of
funding;
|
|
|
(D)
|
Incentive
Compensation as follows:
|
|
|
a.
|
$50,000
upon Company obtaining in excess of $2 million in revenue with an EBITDA
in excess of 30%.
|
|
|
b.
|
$100,000
upon Company obtaining in excess of $3 million in revenue with an EBITDA
in excess of 35%.
|
|
|
c.
|
$150,000
upon Company obtaining in excess of $5 million in revenue with an EBITDA
in excess of 40%.
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14
|
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(E)
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If
the controlling interest in the Company is sold to a third party, the
Executive shall get a bonus as outlined in the chart
below:
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Sellng Price Range
|
||||||||
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100,000,000
|
183,999,999 | 1.00 | % | |||||
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184,000,000
|
229,999,999 | 1.50 | % | |||||
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230,000,000
|
275,999,999 | 2.00 | % | |||||
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276,000,000
|
unlimited
|
2.50 | % | |||||
|
|
a.
|
The
Executive shall, at his option, have the opportunity to convert the cash
payment associated with this bonus, into common stock of the Company at a
conversion rate of $1.15 per share. The $1.15 represents the last
price paid for stock as of the time of this
Agreement.
|
|
|
(F)
|
Termination,
based on Section 4 of this Agreement, shall be as
follows:
|
|
|
a.
|
If
the Company has raised $1 million but less than $2 million, under any
investment vehicle(s) during the Executive’s employment, then the
following applies:
|
|
|
i.
|
Termination
payment as stated in Section 4.
|
|
|
b.
|
If
the Company has raised $2 million but less than $3 million, under any
investment vehicle(s) during the Executive’s employment, then the
following applies:
|
|
|
i.
|
Termination
payment at two times the rate stated in Section
4.
|
|
|
c.
|
If
the Company has raised $3 million or more, under any investment vehicle(s)
during the Executive’s employment, then the following
applies:
|
|
|
i.
|
Termination
payment at three times the rate stated in Section
4.
|
Amendment
Agreed:
|
|
|
|
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▇▇▇▇▇▇▇
▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
Chairman
|
15