eLayaway, Inc. EMPLOYMENT AGREEMENT CHIEF EXECUTIVE OFFICER and CHAIRMAN
eLayaway,
Inc.
CHIEF
EXECUTIVE OFFICER and 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 Executive Officer and
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.
“Chairman”
shall mean the individual designated by the Board from time to time as its
chairman.
“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 Executive
Officer and 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 1,866,961 shares of common stock, no par value, and the
2,633,039 stock options, $0.25 exercise price, of eLayaway, issued to
Executive.
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“Performance
Year” shall mean each twelve-month period of employment under this Agreement
commencing upon the date of this Agreement.
“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.
2. Position,
Responsibilities, and Term of Employment.
2.01 Position. Executive
shall serve as Chairman, and Chief Executive 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 Chairman and Chief Executive 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 Chairman; (ii) Executive be
elected to and continued in the office of Chief Executive 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 Executive 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, and/or other companies
Executive currently has ownership, management responsibilities and/or other
relationships with, as approved and added to this document in Exhibit
B. 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.
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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.
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.
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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.
(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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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.
11
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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Title:
Vice-Chairman
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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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$7,000
per month commencing September 1, 2009. Balance 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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(B)
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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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(C)
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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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(D)
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Incentive
Compensation as follows:
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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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(E)
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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
Exhibit
B
Between
▇▇▇▇▇▇▇ ▇▇▇▇▇ and eLayaway, Inc.
Section
2.04 Executive’s
Commitment.
The
Executive is also involved in various roles for the following
entities:
Triadium Holdings, LLC
Travel Gateway Solutions,
LLC
▇▇▇▇ ▇▇▇▇▇▇ Center For Childhood
Services, Inc.
14
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)
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$6,250
per month commencing September 1, 2009. Balance shall be
accrued until the Company has received $0.5 million in funding or any
significant event as determined by the board of
directors;
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(B)
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$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;
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(C)
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$120,000
per year commencing after the Company has received $2 million in funding
from its PPM and/or any other source of
funding;
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(D)
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Incentive
Compensation as follows:
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a.
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$25,000
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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$50,000
upon Company obtaining in excess of $3 million in revenue with an EBITDA
in excess of 35%.
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15
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c.
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$100,000
upon Company obtaining in excess of $5 million in revenue with an EBITDA
in excess of 40%.
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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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|||||||
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100,000,000
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183,999,999
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1.00 | % | ||||
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184,000,000
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229,999,999
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1.50 | % | ||||
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230,000,000
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275,999,999
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2.00 | % | ||||
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276,000,000
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unlimited
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2.50 | % | ||||
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a.
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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.
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(F)
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Termination,
based on Section 4 of this Agreement, shall be as
follows:
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a.
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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:
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i.
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Termination
payment as stated in Section 4.
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b.
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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:
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i.
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Termination
payment at two times the rate stated in Section
4.
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c.
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If
the Company has raised $3 million or more, under any investment vehicle(s)
during the Executive’s employment, then the following
applies:
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i.
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Termination
payment at three times the rate stated in Section
4.
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Amendment Agreed:
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▇▇▇▇▇▇
▇▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇
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Vice-Chairman
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16