Exhibit 10.24
EMPLOYMENT AGREEMENT
THIS EMPLOYMENTAGREEMENT("Agreement")ismadeandenteredinto asofAugust 12, 2014(the"Effective Date"),byandbetweenUBL Interactive,aDelaware Corporation (the"Company"),and Paul Donlan,anindividual("Executive").The Company and Executive are sometimes referred to herein asa"party"orcollectively as the"parties."
RECITALS
WHEREAS, ExecutiveiswillingtobeemployedbytheCompanyandprovide servicestotheCompanyunderthetermsand conditions stated herein,asof August 12, 2014 (the “Start Date”); and
WHEREAS, theCompanyandExecutivenowmutuallydesiretoenterintothisAgreementas approvedbytheBoard.
NOW, THEREFORE,inconsiderationoftheforegoing,ofthemutualcovenantsand agreementsherein contained,andforother good andvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, theparties, intending tobelegallybound, agree asfollows:
1. EmploymentandDuties
1.1 Employment. TheCompanyhereby agrees toemployExecutiveasPresident, International & Global PartnersandExecutiveherebyacceptssuchemploymentas oftheStart Datepursuantto the terms, covenants and conditions set forth herein. Executive shall reportdirectly to the Chief ExecutiveOfficer("CEO")of the Company.
1.2 Duties. ExecutiveshallhavetheoverallresponsibilityasthePresident, International & Global Partnersof theCompany, andshallperformalldutiesand responsibilitiesand have such powers which are commonly incidentto the offices and positions held by him,as well as any additional responsibilities and authority as may be from time totime assigned or delegatedto him by the CEO andthe Company’s Board of Directors (the “Board”). Executive shall perform the dutiesassigned to him to the best ofhisability andin a manner satisfactory to the Company.
1.3 TimeandEfforts. Executive willdevotehisfullbusinesstime,efforts,attention,andenergiestothebusiness of the Company andto the performanceof Executive's duties hereunder during the Term (as defined below), and willnot engage in any other business, professionor occupationfor compensation orotherwise which would conflictor interfere with the performanceof such services, either directly orindirectly, without the prior written consent ofthe Company; provided that, nothing herein shallpreclude Executive from (i) continuingtoserve on any board of directors ortrustees of any"notfor profit" organization, (ii) beinginvolved in charitable activities, or (iii) managing his personal and family passive investments; provided,further that, in each case, and in the aggregate, such activities shall notmaterially conflict with or interfere with the performance of Executive's duties hereunder or conflict with his duty of loyalty and/or fiduciary duties owed to the Company.
2. Term
Unless earlierterminatedasprovidedinSection5,theCompanyshallemployExecutiveinthe capacitysetforthhereinforaterm commencing on the Start Date andending on December 31, 2015. Such period, as may be terminated earlier or extended, to be referred to herein as the"Term".
3. Compensation
As compensationfortheservicestoberenderedbyExecutiveforandonbehalfofthe Companyhereunder,Executiveshallbe entitledto the following:
3.1 BaseSalary.Executiveshall receiveanannualbasesalaryof$165,000, with potential for a 7.5% increase every 12 months commencing January 1, 2015, subject to certain performance milestones to be established by the Board with such increase to be in the Board’s sole discretion.Salarypaymentsshallbesubjecttoallapplicablefederal and state withholding, payroll,and othertaxes, and all applicable deductions for benefitsas may be requiredby lawor Executive's authorization.
3.2 Bonus. InadditiontoBaseSalary,Executiveshallbeeligibletoreceiveoneormore cashbonuses of a $25,000 or an amounttobedeterminedby the Board, (for a 6 month period) in its sole discretionbasedon performance criteria to be determined by the Board, which shall be based upon the Executives individual performance as well as the Company’s overall performance during the Term.Any suchbonus or bonuses shall be subject to all applicable federal and state withholding, payroll and othertaxes,and allapplicable deductions for benefits as may be required by law.
3.3 EquityCompensation. Executivemay,asdetermined bytheBoardinits discretion,receivegrantsofstockoptions,restrictedstockorotherequity-relatedawards fromthe Company's variousequity compensation plans,subject to the terms and conditionsthereof. Notwithstanding the foregoing, Executive shall receive, subject to (i) Board approval, and (ii) compliance with the Company’s equity incentive plan (the “Plan”), the following equity compensation pursuant to the Plan:
● Options to purchase 250,000 shares of the Company’s common stock upon execution of this Agreement;
● Options to purchase 250,000 shares of the Company’s common stock at December 31, 2014;
● Options to purchase 250,000 shares of the Company’s common stock at June 30, 2015; and
● Options to purchase 250,000 shares of the Company’s common stock at December 31, 2015;
3.4 Compensation Committee.Anybonusandanyequityconsiderationtobeprovidedto Executiveshallbereviewedanddeterminedby the Company’s Compensation Committee (the “Committee”) for purposes of compliance withthe requirements of Section 162(m)of theInternalRevenue Code of 1986, asamended(the"Code").
3.5 Expenses. TheCompanyshallreimburseExecutiveforallreasonablebusiness expenses incurredbyExecutiveintheperformanceofhisduties,providedthat Executiveprovides adequate documentation required by law and by thepolicies and procedures ofthe Company, as adopted and amended from time to time,provided that inno event shallExecutive submit any required documentation later than sixty (60) days after the end of the calendar year in whichsuch expense was incurred. Any such reimbursementshall be made as soonas reasonably practicable.
3.6 Vacation.ExecutiveshallbeentitledtoaccrueFour (4)weeksofpaidvacationeachyearpursuanttothe termsand provisions of the Company's vacationleave policies as in effect from time to time.
3.7 Benefits. Executive shallbeentitledtoparticipateinandreceiveallbenefitsmade availablebytheCompanytoitsexecutiveofficers, subjectto and on a consistent basis with the terms, conditions andoveralladministration of such plans andarrangements.
4. Confidential Information;Non-Compete;Non-Solicitation
4.1 ConfidentialInformation. Executiveacknowledges that,duringthecourseofhis employment,hewillhaveaccesstoandwillreceiveinformationwhichconstitutestradesecrets,isofa confidential nature, is of significantvaluetothe Company and/orisa foundationon which the business of theCompany is predicated.With respect to allsuchConfidential Information (as definedhereafter), Executive agrees, duringthe Term andthereafter,not todisclose such Confidential Informationtoany person other thanan employee,counsel,or advisor of theCompany or aperson towhomdisclosureis reasonablynecessary or appropriate in connection with the performance by Executive of his duties hereunder nor touse such Confidential Information for any purposeotherthantheperformanceofhis dutieshereunder. For purposes of this Agreement, the term"ConfidentialInformation"includes all data or material(regardless of form) with respect to the Company or any of its assets, prospects, business activities,officers, directors, employees,borrowers, orclientswhich is: (a) atrade secret,as definedbythe Uniform Trade SecretsAct; (b)provided, disclosed, or delivered to Executive by the Company, anyofficer, director, employee, agent, attorney, accountant, consultant, or other person or entityemployed bytheCompanyin anycapacity,anyclient,borrower, advisor, orbusiness associate of the Company, orany publicauthority having jurisdiction over theCompany orany business activity conductedby the Company; or (c) produced, developed,obtained or preparedby or on behalf ofExecutive or theCompany (whether or notsuchinformationwasdeveloped in theperformance ofthis Agreement).Notwithstanding the foregoing, the term"ConfidentialInformation" shall not include any information, data, or material which, at the time of disclosure or use, was generally available tothe public other than by abreach of thisAgreement, was availableto the party towhom disclosed on a non-confidentialbasis by disclosure or access provided by the Company or a third partywithout breaching anyobligationsof the Company or suchthird party, orwas otherwisedeveloped or obtained legally andindependently by the person to whom disclosed without abreach ofthis Agreement. This Section 4.1shall not precludeExecutive from disclosingConfidential Information ifcompelled to do so bylaw or valid legal process,provided that ifExecutivebelieves Executive isso compelledby law orvalid legal process, Executive will notify the Company inwriting sufficiently in advance of any suchdisclosureto allowthe Companythe opportunitytodefend, limit,orotherwise protect itsinterests against suchdisclosure unless suchnoticeis prohibited bylaw. The rightsandobligations of theparties underthis paragraph shall survive the expiration or termination of this Agreement for any reason.
4.2 Non-Competition. Aspartoftheconsiderationforthecompensationandbenefitstobe paidtoExecutivehereunder,andin orderto protectthe Confidential Information, business goodwill, and business opportunities of theCompany, Executiveagrees that, during theTermand fora period of one(1) yearafter the termination of Executive's employmentand this Agreement, he willnot, directly or indirectly, engagein or become interested financially in, as aprincipal, employee, partner, contractor, shareholder,agent, manager,owner, advisor, lender, guarantor,officer, or director,any business(other thantheCompany)thatis engagedin an industry related to the Company’s industryand/orrelated products; provided, however, that Executive shall beentitled tocontinueto invest in stocks,bonds, or other securitiesinany such business (without otherwise participating in suchbusiness) if: (a) such stocks, bonds, or other securities are listed on any United States securities exchangeor arepublicly traded in anoverthe counter market; and such investment does notexceed, inthe case ofany capital stockof any one issuer,five percent of the issuedand outstandingcapital stock,or in thecaseof bonds or othersecurities, five percent of theaggregate principal amountthereof issuedand outstanding; or (b) such investment iscompletely passiveand no controlor influence overthemanagementorpolicies of such business is exercised.
4.3 Non-Solicitation. Executive agreesthathewillnot,atanytimeduringtheTerm,orat anytimewithintwo( 2)years aftertheterminationofhis employment, forhisown accountor benefitor for the accountor benefit of anyother person, firm or entity, directlyor indirectly, solicit for employment any employeeof the Company (orany person whowasan employeeof theCompany in the 90-day period before such solicitation) or induceany employee ofthe Company (orany person whowas anemployeeof the Companyinthe 90-day period before such inducement) to terminatehis employment with theCompany. Notwithstanding theabove,the restrictions relating to persons employedinthe 90-day periodreferenced inthe parentheticals inthe immediately preceding sentence shall notapply toa personwho wasa party toan employment agreementwith theCompany and who terminates his employmentfor Good Reason oristerminated by the Company without Cause. The rightsand obligationsof the partiesunderthisSection 4.3shall survive the expirationor termination of this Agreement for any reason.
4.4 Proprietary Matters. Executiveexpresslyagrees thatanyandallimprovements, inventions,discoveries, processes,orknow-howthataregeneratedorconceivedbyExecutive during the Term,whether conceived during Executive's regularworking hoursor otherwise, will be the sole and exclusive property of the Company. Whenever requested by the Company (either during the Term or thereafter), Executivewill assignor execute any and allapplications, assignments and/or other documents, and doall thingswhich the Company reasonablydeems necessary or appropriate, in order to permit the Company to: (a) assign and convey, or otherwisemake available tothe Company, the sole andexclusive right,title, andinterest inandtosaid improvements,inventions, discoveries, processes or know-how;or (b) apply for, obtain,maintain, enforceanddefendpatents, copyrights, trade names, or trademarks of the UnitedStates or of foreign countries forsaid improvements, inventions, discoveries, processes,or know-how. However, the improvements, inventions, discoveries, processes, or know-howgenerated or conceived byExecutiveand referredto in this Section 4.4 (exceptthose which may be included in the patents,copyrights, or registered trade names or trademarks ofthe Company) will not be exclusive property of the Company at any time after having been disclosedor revealed orhaveotherwise become availableto thepublic or to athird party onanon-confidential basisother than by abreachof this Agreement, or after theyhave been independentlydeveloped or discussed withouta breach ofthis Agreement by athird party who hasno obligationto theCompany.
TherightsandobligationsofthepartiesunderthisSection4.4shallsurvivetheexpirationor termination ofthisAgreement for any reason.
4.5 Injunctive Relief.ExecutiveacknowledgesandagreesthatanyviolationofSections4.1,4.2,4.3or4.4of this Agreementwould result inirreparable harmto the Company and,therefore, agrees that, in theevent of an actual, suspected, or threatened breach ofSections4.1, 4.2,4.3 or 4.4 of this Agreement, the Company shallbe entitled to aninjunction restraining Executive from committing or continuing such actual, suspectedorthreatenedbreach. The parties acknowledge and agree thatthe right to suchinjunctive relief shall becumulativeand shall not be inlieu of, or be construed asa waiver of the Company'sright topursue, anyother remedies towhich it maybe entitled inlaw orin equity. Thepartiesagreethatforpurposes ofSections4.1,4.2, 4.3and 4.4of this Agreement, theterm"Company"shall include theCompany andits affiliates.
5. Termination
Executive's employment bytheCompanyandthisAgreementmaybeterminatedbeforethe expirationoftheTerm,withoutbreachofthisAgreement,in accordance with theprovisions set forth below:
5.1 Termination by the Company for Cause. TheCompanymay terminateExecutive's employmentandthisAgreementforCause(asdefinedbelow),butonlyafter:(i)giving Executive written notice of the failure or conduct which the Company believes to constitute Cause; and (ii) with respectto elements (a)through(g) below, providing Executivea reasonable opportunity, and in no eventmore than twenty (20) days, to cure such failure or conduct, unlessthe Board determines in its good faith judgmentthat such failureor conduct is not reasonably capableof being cured.In the event Executive doesnot cure the alleged failure or conduct within the time frame providedfor suchcure by the Company,the Company shall send him written noticespecifying the effective date oftermination. The failurebytheCompanytoset forth in the notice referenced inthis Section 5.1 any fact or circumstancewhich contributestoa showing of Causeshallnotwaiveany rightof theCompany to assert, or preclude theCompanyfrom asserting,such fact or circumstance inenforcing its rights hereunder. For purposes of this Agreement, the term"Cause"means:
(a) conviction of a felony or a crime involving fraud or moral turpitude; or
(b) theft, material act of dishonesty or fraud, intentional falsification of any employment or Corporation records, or commission of any criminal act which impairs participant’s ability to perform appropriate employment duties for the Corporation; or
(c) intentional or reckless conduct or gross negligence materially harmful to the Corporation, including violation of a non-competition or confidentiality agreement; or
(d) willful failure to follow lawful instructions of the person or body to which participant reports; or
(e) gross negligence or willful misconduct in the performance Executive’s assigned duties; or
(f) breach of a material provision of this Agreement; or
(g) gross negligence or willful misconduct in the performance of the Executive’s assigned duties.
If theCompanyterminatesExecutive'semploymentforCause, thenExecutiveshallbeentitledto receivethepaymentsandbenefitssetforthinSection 6.1 below.
The CompanymaysuspendExecutivewithpaypendinganinvestigationauthorizedbytheCompany oragovernmentalauthorityoradetermination whetherExecutivehas engaged in actsor omissions constituting Cause, and suchpaid suspension shall notconstitute Good Reason or atermination of Executive’s employment.
5.2 Terminationby theCompany WithoutCause.TheCompanymay terminatetheemploymentofExecutiveandthisAgreement atanytimeduringthe Term ofthis Agreement without Cause bygiving Executive written notice of such termination, to be effective thirty(30) days following the givingof such written notice, inwhich case Executiveshall receive the compensation,severance, andbenefit continuationrequiredby Section 6.3 below.
5.3 Termination by theCompanyDue toInabilitytoPerformor Death. Executive'semploymentand thisAgreementmaybeterminatedbytheCompanyas follows:
(a) To theextentpermittedbylaw,uponthirty(30)days'noticetoExecutiveinthe eventofExecutive'sInabilitytoPerform. Forthis purpose, theterm"InabilitytoPerform"means andshallbedeemedto haveoccurred ifExecutivehas beendetermined under the Company's long term disability plan tobeeligible for long-term disability benefits or, inthe eventthe Companydoes notmaintain such a planor in theabsenceof Executive's participation in or application for benefits under such a plan, such termshall mean the inability ofExecutive, despite any reasonable accommodation requiredby law, due to bodily injury or disease or any other physical or mental incapacity, to perform the services requiredhereunder fora periodof ninety (90)consecutive days; or
(b) Immediately uponthedeathofExecutive.
5.4 Termination by Executive for Good Reason. ExecutivemayterminatehisemploymentandthisAgreementat.any timeforGoodReason(asdefinedbelow).Atermination of employment and this Agreementby Executive for GoodReason shall entitle Executive to payments and otherbenefits as specified inSection 6.3. For purposes of this Agreement,the term"GoodReason"means, subject to the notice and cure provisions herein, anyof the following actions if taken without Executive'sprior writtenconsent: (a) the material reduction of the Executive’s authority, duties and responsibilities, or the assignment to the Executive of duties materially and adversely inconsistent with the Executive’s position or positions with the Company; (b) the failure by the Company to continue to provide the Executive with benefits substantially similar to those enjoyed by the Executive prior to such failure;or (c) anyotheraction orinaction that constitutes amaterial breach bythe Company of this Agreement. To exercise the option to terminate employment for Good Reason, Executive must provide written notice to the Company ofExecutive's belief that Good Reason exists withinsixty (60)days of the initial existence ofthe Good Reason condition, and that notice shalldescribe inreasonable detail the condition(s) believed toconstitute GoodReason. The Company thenshall have thirty (30) days to remedy the Good Reason condition(s).Ifnot remedied within that 30-day periodoriftheCompanynotifies Executive that it does not intend to curesuch condition(s) before theend of that 30-day period, Executivemay submit a noticeof termination to the Company; provided, however, that the notice of termination invoking Executive's optionto terminateemployment for Good Reason must be given no laterthan onehundred(100)days after the date the Good Reason condition first arose; otherwise, Executive shall bedeemed to have accepted the condition(s), or the Company's correctionof suchcondition(s),that may have given rise to the existence of GoodReason.
5.5 Termination by Executive Without Good Reason. Executive mayalsoterminatehis employmentandthisAgreementwithoutGoodReasonbyprovidingatleastninety(90)days'writtennoticeof suchtermination to the Company. In theevent of aterminationpursuant to this Section 5.5, Executive shall be entitled to payments and other benefits as specified in Section 6.1 below. At the Company's option, the Company may accelerate the date of Executive's termination of employment by paying to Executive the Base Salary and value of the benefits that Executive would have received during the period by which the date of termination is so accelerated and such acceleration shall not change the characterization of the termination by Executive as a terminationwithout Good Reason.
5.6 Return ofConfidentialInformationandCompanyProperty.Upon termination ofExecutive'semploymentforanyreason,ExecutiveshallimmediatelyreturnallConfidential Information andother Companypropertyto the Company.
6. Effect ofTermination
6.1 Termination bytheCompanyforCauseorTerminationby ExecutiveWithoutGoodReason.IntheeventExecutive'semploymentandthisAgreementare terminated pursuant to Sections
5.2 or5.5above:
(a) The CompanyshallpaytoExecutive,orhisrepresentatives,onthedateof terminationofemploymentonlythatportionof the Base Salaryprovidedin Section 3.1 that hasbeen accruedthrough thedate oftermination,any accrued but unpaid vacation pay provided inSection 3.6, any accrued benefits provided in Section3.7, and any expense reimbursements due and owing to Executive asof the dateof termination; and
(b) Executive shallnotbeentitledto:(i)anyothersalaryorcompensation;(ii)any bonuspursuanttoSection3.2;(iii) any equityconsideration pursuant to Section 3.3; nor(iv) any benefits pursuantto Section 3.7;and
6.2 Termination bytheCompanyDuetoExecutive’sInabilitytoPerformorDeath. IntheeventExecutive'semploymentandthisAgreement are terminated pursuant to Section 5.3above, the Companyshall pay to Executive, or his representatives, all of the following:
(a) The payments,ifany,referredtoinSection6.1(a)aboveasofthedateoftermination;and
(b) Subject tocompliancewithSection409AoftheCode,abonusforsuchyearasmaybedeterminedbythe Board in itssole discretion.This amount shall bepaidinthe form ofalump sum, less applicable statutory deductions andwithholdings, as soon as practicableafter the date of termination, butno later than3 months; and
(c) For aterminationduetoInabilitytoPerformonly,andprovidedthatExecutive orhisrepresentativesignsaRelease(asdefinedin Section 17), thenthe Companyshallpay Executive a severance equalto six (6) monthsof Executive's Base Salary at the time oftermination. Thisseverance amountshall be paidtoExecutive inequalregular installments over thesix(6) month period pursuant tothe Company's regular payroll periods, lessapplicable statutory deductions and tax withholdings. The first installment shall be paidto Executive onthe first payroll period afterthe date of termination andafter the effectivedate of theRelease; and
6.3 Termination bytheCompanyWithoutCauseorbyExecutiveforGoodReason. In theevent Executive'semploymentisterminatedpursuant to Sections 5.2 or 5.4above during the Protection Period, the Company shallpay Executive onthedateof termination thepayments referred to in Section6.l (a)above, andprovided that Executive signsa Release(as definedinSection 17), Executive shall also receiveallof the following:
(a) Subject tocompliancewithSection409AoftheCode,aseverancepackage equaltoone yearof Executive'sBaseSalaryimmediatelyprior tosuch termination or resignation. This severance amountshall be paidto Executivein equalregular installments overa12-month period pursuant to the Company's regular payroll periods, less applicable statutorydeductions and tax withholdings. Thefirstinstallment shallbe paid to Executive on the first payroll period after the date ofte1mination andafterthe effectivedateof the Release;and
(b) Subject tocompliancewithSection409AoftheCode, abonusforsuchyearasmaybedeterminedbytheBoardin itssole discretion. This amountshall be paidin theformof a lumpsum,lessapplicablestatutory deductions andwithholdings,as soon as practicable after the date of termination, butno later than March 15 of the year immediately following the yearin which the date of termination occurs; and
(c) Unless otherwiseprovidedintheequityawardagreement or the Plan, allstockoptions andotherincentiveawardsheldbyExecutive willbecome fullyvested andimmediatelyexercisable andall restrictionson anyrestricted stockheld by Executive willbe removed; provided, however,Executive shall not be released from the black-out periods for the next financial quarter following the date of termination or Exchange Act, tradingobligations typically required for an executive in thisposition.
7. Successors andAssigns
This Agreementispersonalinnature,andneither thisAgreementnoranypartofanyobligation herein shall be assignable by Executive. The Company shall be entitled toassign this Agreement to anyaffiliate of the Company or any person or entity that assumes the ownership and control of the business ofthe Company. ThisAgreement shall inureto the benefit of and shall bebinding uponthe parties andtheirsuccessors and assigns.
8. Severability
Should anyterm,provision,covenantorconditionofthisAgreementbeheld tobevoidor invalid,thesameshallnotaffectany other term,provision, covenant or condition of this Agreement, butsuch remainder shall continue infull force and effect as thougheach such voidedterm, provision, covenant, or condition is not contained herein.
9. Governing Law andVenue
This AgreementshallbegovernedbyandconstruedinaccordancewiththelawsoftheStateof North Carolina,excludingits choice-of-law principles. Subjectto Sections4.5 and 10, and without in any way limitingthe applicabilityof binding arbitration,eachof the parties submits totheexclusive jurisdiction ofanystate or federal courtsitting inCharlotte, North Carolinain any actionor proceeding arising out of or relating to thisAgreementand further agrees that all claims in respect of the actionor proceeding maybeheard and determined in anysuchcourt totheextentthat anycourtproceeding is necessaryinconnection with Sections 4.5 and 10, and further agreesnotto bring any action or proceeding arising outofor relating tothis Agreement in anyother court. Each oftheparties agrees that afinal judgment inanyaction or proceeding so brought shall be conclusive andmay beenforced by suit on the judgment or in any other mannerso provided by law.
10. Section Headings
The sectionheadingshereinareinsertedonlyasamatterofconvenienceandreferenceandin nowaydefine, limit or describe thescope of this Agreement or the intent of any provisionshereof.
11. Compliance withSection409AoftheCode
Notwithstanding anythinghereintothecontrary,(a)ifatthetimeofExecutive'sterminationofemploymentwiththeCompanyExecutiveisa"specifiedemployee" as suchterm is defined inSection 409A of the Code and the regulationsthereunder, and thedeferralof the commencement of any paymentsor benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent anyaccelerated oradditional tax under Section 409Aofthe Code,then theCompanywill defer the commencement ofthepayment ofany suchpayments or benefits hereunder (without anyreduction in such payments orbenefitsultimately paid orprovided to Executive) until thedatethatissix (6)months following Executive's termination ofemployment with theCompany(or the earliest date asis permitted under Section409A of theCode) and (b)if any other payments of money or other benefitsdue to Executive hereundercould cause the applicationofan accelerated or additional tax under Section409A of theCode,suchpayments or other benefits shallbe deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, orotherwise such payment or other benefits shallbe restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or additional tax. In the eventthatpayments under this Agreement are deferred pursuant to this Section 12 inordertoprevent any acceleratedtax oradditional tax under Section 409A ofthe Code, then such payments shall be paid at thetime specified under this Section 12 without any interest thereon. The Company shall consult withExecutive in good faith regarding theimplementation of thisSection 12; provided thatneitherthe Companynorany of itsemployees or representatives shallhave any liability toExecutivewith respect thereto. Notwithstandinganything to the contrary herein, a termination of employment shall not be deemedtohave occurred for purposes of any provision of this Agreement providing for the payment of amounts orbenefits upon or following a termination ofemployment unless such termination isalso a "Separation from Service"as such termis defined in Section409A of theCodeand the regulationsand guidance promulgated thereunder and, for purposes of any such provision of this Agreement, referencesto a "resignation," "termination," "terminationof employment," or like termsshall mean Separation from Service. For purposes of Section 409A of the Code, each payment made under this Agreement shall bedesignated asa"separate payment" within themeaning of the Section409A of theCode. Notwithstanding anythingtothecontrary herein,except to theextentany expense, reimbursement or in-kind benefit provided pursuant to this Agreement does not constitute a"deferralof compensation" within the meaning of Section 409A of theCode: (x) theamountof expenseseligible forreimbursement or in-kind benefits provided to Executive during any calendar year wiII not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to Executive in any othercalendar year, (y)the reimbursements for expenses forwhich Executive isentitled to be reimbursed shallbe made onor before thelast day ofthe calendar year following the calendar year in which the applicable expense is incurred, and (z) the right to payment or reimbursement or in-kind benefits hereunder may not beliquidated or exchanged for any other benefit.
12. Entire Agreement
This Agreementcontainstheentireagreementofthe partiesrelatingtothesubjectmatter hereof,andthisAgreementsupersedesand replacesinall respects all written and verbal communication between the Parties with respect to any employment, compensation, bonus or other terms. Further, the parties hereto havemadeno agreements, representations,or warrantiesrelating tothesubject matter ofthis Agreement that are not set forthotherwise herein. In thisregard,each of theparties representsandwarrants to the other partythat such partyis not relying on any promises or representations that do not appear inwriting herein.Each of theparties further agrees andunderstands thatthisAgreement canbeamended or modified only by a written agreement signedby allparties.
13. Notice
All noticesrequiredorpermittedunderthisAgreementshallbeinwritingandshallbedeemed effective:(a)upondelivery, if delivered in person; (b) upon delivery to FederalExpressor other similar courier service, marked fornext daydelivery,addressed as setforth below;(c)upon deposit inUnited States Mailif sent by registered or certified mail, returnreceipt requested, addressed asset forth below; or (d)upon being sentby facsimiletransmission, provided anoriginalis mailed the same day by registered orcertified mail, returnreceipt requested:
| | IftotheCompany: | UBL Interactive, Inc. |
| | | Attn: ChiefExecutive Officer |
| | | 6701 Carmel Road, Suite 202 |
| | | Charlotte, North Carolina 28226 |
| | | |
| | Ifto Executive: | Paul Donlan |
| | | __________________ |
| | | __________________ |
14. Attorneys'Fees
In theeventthatanypartyshallbringanactionorproceedinginconnectionwiththe performance, breachor interpretationof this Agreement, then the prevailing party in any such action or proceeding,as determinedby the arbitrator,court, or other body having jurisdiction, shall be entitled to recover from the losingparty all reasonablecosts andexpenses ofsuch action or proceeding, including reasonable attorneys' fees, court costs, costs of investigation, expert witness fees, and other costs reasonably related to such actionor proceeding.
15. AssistancewithClaims
Executive agreesthat,fortheperiodbeginningontheStart Date, andcontinuingfora reasonableperiodafterthetermination orexpirationofthisAgreementfor any reason,Executive will assist the Company inthe defense of any claimsthat maybemade against the Company and will assist the Company in theprosecution of any claims that may be made by the Company, to the extent suchclaims may relate to servicesperformed by Executive forthe Company.Executive agrees topromptly inform the Company ifExecutive becomes awareof any lawsuits orpotentialclaimsthat may be filed againsttheCompany. For all assistance occurring afterterminationofExecutive's employment by the Company, the Company agrees to provide reasonable compensationto Executive for such assistance.Executive also agrees topromptly inform theCompany if askedto assist in any investigation of the Company (or its actions) that may relate to services performed by Executive for the Company, regardless of whether a lawsuit has been filed againsttheCompany with respect tosuch investigation.
16. ReleaseofClaims
Executive shallnotbeentitledtoreceivetheseverancepayandbenefitsunderSections6.2, 6.3,and6.4,asapplicable,unless(a)Executiveexecutesand returnsto the Company a Release (as defined below) on or before the 50th day following the date of termination or such shorter time as may be prescribed inthe Release, (b) such Release shall not have been timelyrevokedby Executive, and (c) the date of termination constitutes a SeparationfromService, andprovided further, however,thatif Executive violates his continuing obligations under Sections 4.1 , 4.2, 4.3, or 4.4, Executive shall not be entitled to receive such severance pay or benefits and Executive shall immediately repay to the Company uponwritten demand any severance pay or benefitsthatalready have beenpaidto Executive. For purposes of this Agreement,the term"Release"means a waiver and release of claims by Executive in the form prescribedby the Company, which form may include, withoutlimitation, an agreement by Executivenot to disparage the Company, its affiliates, and other related persons or entities, but which formshall not include a release and waiver of claims for (i) indemnificationor for coverage under officer and director liability policies, ifapplicable, (ii) claims with respect to the reimbursement of business expensesor withrespect to benefitswhichare in eachcase to continue in effectafter termination or expirationof this Agreement inaccordance with the termsof this Agreement,(iii) claims he may have as a holder of options to acquire equity securities of the Company (which shallbegovernedby thedocuments by whichExecutive wasgranted such options) and (iv) claims hemay have as a stockholder of the Company.
17. Dodd-Frank ActandOtherApplicable LegalRequirements
Executive agrees(i)toabidebyanycompensationrecovery,recoupment, anti-hedging,orotherpolicyapplicabletoexecutivesoftheCompanyand itsaffiliates, as may be in effectfromtimetotime, as approved by the Board or aduly authorized committee thereof or as required by the Dodd-Frank Wall Street Reform andConsumer ProtectionAct of2010 (the"Dodd-Frank Act")orother applicable law, and(ii) that the termsand conditions ofthis Agreement shallbe deemed automaticallyamended as maybenecessary fromtimetotime toensurecompliance by Executive andthis Agreementwith such policies, theDodd-FrankAct, or other applicable law.
18. Counterparts
This Agreementmaybeexecutedinanynumberofcounterparts,eachof whichshallbe deemedtobean original, but all of which together shall constitute but one andthesame instrument.
EXECUTIVE HASBEENADVISEDTHATHESHOULDSEEKINDEPENDENTREVIEWANDADVICEFROMLEGALCOUNSELANDTAXADVISORSAS TO THE SCOPE AND POTENTIALTAXES WH ICH COULD ARISE FROM THE AGREEMENT.
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IN WITNESS WHEREOF,thisAgreementisexecutedasofthedayandyearfirstabove written.
| | UBL Interactive, Inc. |
| | | |
| | By: | /s/ Doyal Bryant |
| | | Name: Doyal Bryant |
| | | Title: CEO |
| | | |
| | Executive |
| | | |
| | By: | /s/ Paul Donlan |
| | | Name: Paul Donlan |
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