EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of the 9th day of January 2013
(the “Effective Date”), by and between Be Active Holdings, Inc., a Delaware corporation, with an address at 220 West
30th Street, 2nd Floor, New York, NY 10001, and David Wolfson (“Executive”).
W I T N E S S E T H:
Executive desires to be employed by the Company as its Chief Financial Officer and the Company wishes to employ Executive in such
in consideration of the foregoing recitals and the respective covenants and agreements of the parties contained in this document,
the Company and Executive hereby agree as follows:
Employment and Duties. The Company agrees to employ and Executive agrees to serve as
the Company's Chief Financial Officer. The duties and responsibilities of Executive shall include the duties and responsibilities
as the Board of Directors may from time to time reasonably assign to Executive.
devote substantially all of his working time and efforts during the Company's normal business hours to the business and affairs
of the Company and its subsidiaries and to the diligent and faithful performance of the duties and responsibilities duly assigned
to him pursuant to this Agreement.
Term. The term of this Agreement shall commence on the Effective Date and shall continue
for a period of two (2) years and shall be automatically renewed for successive one (1) year periods thereafter unless either party
provides the other party with written notice of his or its intention not to renew this Agreement at least three (3) months prior
to the expiration of the initial term or any renewal term of this Agreement, as applicable. “Employment Period” shall
mean the initial two (2) year term plus renewal periods, if any.
Place of Employment. Executive's services shall be performed in the state of New York
or at such other locus as Executive and the Board of Directors shall mutually agree from time to time. The parties acknowledge,
however, that Executive may be required to travel in connection with the performance of his duties hereunder.
Base Salary. For all services to be rendered by Executive pursuant to this Agreement,
the Company agrees to pay Executive during the Employment Period an initial base salary (the "Base Salary") at an annual
rate of $80,000. The Base Salary shall be paid in periodic installments in accordance with the Company's regular payroll practices.
Bonuses. During the Employment Period, Executive shall be entitled to an annual bonus
(the “Annual Bonus”) if the Company meets or exceeds criteria adopted by the Compensation Committee of the Board of
Directors (the “Compensation Committee”) (or by the independent members of the Board of
Directors, if there is no Compensation Committee) for earning Bonuses. Bonuses shall be paid by the Company to Executive
promptly after determination that the relevant targets have been met, it being understood that the attainment of any financial
targets associated with any bonus shall not be determined until following the completion of the Company’s annual audit and
public announcement of such results, which shall in no event occur later than March 15th of any calendar year. The
“Target Bonus” for Executive shall be established by the Compensation Committee with respect to each calendar year
during the Employment Period. The Compensation Committee may provide for lesser or greater percentage Bonus payments for Executive
upon achievement of partial or additional criteria established or determined by the Compensation Committee from time to time.
Severance Payments. Upon termination of Executive’s employment prior to expiration
of the Employment Period unless Executive’s employment is terminated for Cause or Executive terminates his employment without
Good Reason, Executive shall be entitled to be paid such Base Salary, Bonus and coverage under any Benefit Plans (the “Separation
Payment”) as Executive would have been entitled had his employment or this Agreement not been terminated for twelve (12)
months from the date of termination (the “Separation Period”).
Equity Awards. Executive shall be eligible for such grants of awards under the Company’s
2013 Equity Incentive Plan (or any successor or replacement plan adopted by the Board of Directors and approved by the stockholders
of the Company) (the “Plan”) as the Compensation Committee may from time to time determine (the “Share Awards”).
Share Awards shall be subject to the applicable Plan terms and conditions, provided, however, that Share Awards shall be subject
to any additional terms and conditions as are provided herein or in any award certificate(s), which shall supersede any conflicting
provisions governing Share Awards provided under the Plan.
Clawback Rights. The Annual Bonus shall be subject to the Company Clawback Rights (as
defined below). “Company Clawback Rights” shall be defined as follows: In the event that the Company shall restate
or revise any previously announced prior period earnings or other results as from which any Annual Bonus to Executive shall have
been determined, any Annual Bonus resulting from such earnings or results shall be adjusted to retroactively take into account
the restated or revised earnings or results, and any excess Annual Bonus resulting from such restated or revised earnings or results
shall be immediately surrendered to the Company. The Company shall have the right to take any and all action to effectuate the
Company Clawback Rights without further action by Executive, by way of setoff.
Expenses. Executive shall be entitled to prompt reimbursement by the Company for all
reasonable ordinary and necessary travel, entertainment, and other expenses incurred by Executive while employed (in accordance
with the policies and procedures established by the Company for its senior executive officers) in the performance of his duties
and responsibilities under this Agreement; provided, that Executive shall properly account for such expenses in accordance with
Company policies and procedures.
Other Benefits. During the term of this Agreement, Executive shall be eligible to participate
in incentive, savings, retirement (401(k)), and welfare benefit plans, including, without limitation, health, medical, dental,
vision, life (including accidental death and dismemberment) and disability insurance plans (collectively, "Benefit Plans"),
in substantially the same manner and at substantially the same levels as the Company makes such opportunities available to the
Company's managerial or salaried executive employees. The Company shall pay one hundred (100%) percent of the cost of individual
and dependent coverage for Executive and his dependents.
Vacation. During the term of this Agreement, Executive shall be entitled to accrue,
on a pro rata basis, twenty (20) paid vacation days per year. Vacation shall be taken at such times as are mutually convenient
to Executive and the Company and no more than ten (10) consecutive days shall be taken at any one time without the advance approval
of the Board of Directors.
Equity Incentive Plan. Executive shall be eligible for such additional grants of awards
under the Equity Incentive Plan as the Compensation Committee or the Board of Directors may from time to time determine
Termination of Employment.
If Executive dies during the Employment Period, this Agreement and Executive’s employment with the Company shall automatically
terminate and the Company shall have no further obligations to Executive or his heirs, administrators or executors with respect
to compensation and benefits accruing thereafter, except for the obligation to pay to Executive’s heirs, administrators or
executors any earned but unpaid Base Salary and vacation pay, unpaid pro rata annual bonus through the date of death and
reimbursement of any and all reasonable expenses paid or incurred by Executive in connection with and related to the performance
of his duties and responsibilities for the Company during the period ending on the termination date. The Company shall deduct,
from all payments made hereunder, all applicable taxes, including income tax, FICA and FUTA, and other appropriate deductions.
In the event that, during the term of this Agreement Executive shall be prevented from performing his duties and responsibilities
hereunder to the full extent required by the Company by reason of Disability (as defined below), this Agreement and Executive’s
employment with the Company shall automatically terminate and the Company shall have no further obligations or liability to Executive
or his heirs, administrators or executors with respect to compensation and benefits accruing thereafter, except for the obligation
to pay Executive or his heirs, administrators or executors any earned but unpaid Base Salary, unpaid pro rata annual bonus
and unused vacation days accrued through Executive’s last date of Employment with the Company and reimbursement of any and
all reasonable expenses paid or incurred by Executive in connection with and related to the performance of his duties and responsibilities
for the Company during the period ending on the termination date. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate deductions through the last date of Executive’s
employment with the Company. For purposes of this Agreement, “Disability” shall mean a physical or mental disability
that prevents the performance by Executive, with or without reasonable accommodation, of his duties and responsibilities hereunder
for a period of not less than an aggregate of three (3) months during any twelve (12) consecutive months.
(1) At any time
during the Employment Period, the Company may terminate this Agreement and Executive’s employment hereunder for Cause. For
purposes of this Agreement, “Cause” shall mean: (a) the willful and continued failure of Executive to perform substantially
his duties and responsibilities for the Company (other than any such failure resulting from Executive’s death or Disability)
after a written demand by the Board of Directors for substantial performance is delivered to Executive by the Company, which specifically
identifies the manner in which the Board of Directors believes that Executive has not substantially performed his duties and responsibilities,
which willful and continued failure is not cured by Executive within thirty (30) days of his receipt of such written demand; (b)
the conviction of, or plea of guilty or nolo contendere to, a felony, (c), violation of Sections 14 or 15 of this Agreement,
or (d) fraud, dishonesty or gross misconduct which is materially and demonstratively injurious to the Company. Termination under
clauses (b), (c) or (d) of this Section 13(c)(1) shall not be subject to cure.
(2) Upon termination
of this Agreement for Cause, the Company shall have no further obligations or liability to Executive or his heirs, administrators
or executors with respect to compensation and benefits thereafter, except for the obligation to pay Executive any earned but unpaid
Base Salary and vacation pay, and reimbursement of any and all reasonable expenses paid or incurred by Executive in connection
with and related to the performance of his duties and responsibilities for the Company during the period ending on the termination
date. The Company shall deduct, from all payments made hereunder, all applicable taxes, including income tax, FICA and FUTA, and
other appropriate deductions.
(d) Good Reason.
(1) At any time
during the term of this Agreement, subject to the conditions set forth in Section 13(e)(2) below, Executive may terminate this
Agreement and Executive’s employment with the Company for “Good Reason.” For purposes of this Agreement, “Good
Reason” shall mean the occurrence of any of the following events: (A) the assignment, without Executive’s consent,
to Executive of duties that are significantly different from, and that result in a substantial diminution of, the duties that
he assumed on the Effective Date; (B) the assignment, without Executive’s consent, to Executive of a title that is different
from and subordinate to the title of Chief Financial Officer; (C) any termination of Executive’s employment by the Company
within twelve (12) months after a Change of Control, other than a termination for Cause, death or Disability; or (D) material
breach by the Company of this Agreement.
shall not be entitled to terminate this Agreement for Good Reason unless and until he shall have delivered written notice to the
Company of his intention to terminate this Agreement and his employment with the Company for Good Reason, which notice specifies
in reasonable detail the circumstances claimed to provide the basis for such termination for Good Reason, and the Company shall
not have eliminated the circumstances constituting Good Reason within thirty (30) days of its receipt from Executive of such written
(3) In the event
that Executive terminates this Agreement and his employment with the Company for Good Reason, the Company shall pay or provide
to Executive (or, following his death, to Executive’s heirs, administrators or executors): (A) any earned but unpaid Base
Salary, unpaid pro rata annual bonus and unused vacation days accrued through Executive’s last day of employment with
the Company; (B) continued coverage, at the Company’s expense, under all Benefits Plans in which Executive was a participant
immediately prior to his last date of employment with the Company, or, in the event that any such Benefit Plans do not permit coverage
of Executive following his last date of employment with the Company, under benefit plans that provide no less coverage than such
Benefit Plans, for a period of twelve (12) months following the termination of employment; (C) reimbursement of any and all reasonable
expenses paid or incurred by Executive in connection with and related to the performance of his duties and responsibilities for
the Company during the period ending on the termination date; (D) the Base Salary, as in effect immediately prior to Executive’s
termination hereunder, and any bonuses earned, during the remainder of the Employment Period; and (E) if such termination for Good
Reason occurs following a Change of Control, such Base Salary, Bonus and coverage under any Benefit Plans as Executive would have
been entitled had his employment or this Agreement not been terminated for Good Reason, for the Separation Period. All payments
due hereunder shall be payable according to the Company’s standard payroll procedures. The Company shall deduct, from all
payments made hereunder, all applicable taxes, including income tax, FICA and FUTA, and other appropriate deductions.
“Good Reason” by Executive. At any time during the term of this Agreement, Executive shall be entitled to terminate
this Agreement and Executive’s employment with the Company without Good Reason by providing prior written notice of at least
thirty (30) days to the Company. Upon termination by Executive of this Agreement or Executive’s employment with the Company
without Good Reason, the Company shall have no further obligations or liability to Executive or his heirs, administrators or executors
with respect to compensation and benefits thereafter, except for the obligation to pay Executive any earned but unpaid Base Salary,
unused vacation days accrued through Executive’s last day of employment with the Company and reimbursement of any and all
reasonable expenses paid or incurred by Executive in connection with and related to the performance of his duties and responsibilities
for the Company during the period ending on the termination date. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate deductions.
of Control. For purposes of this Agreement, “Change of Control” shall mean the occurrence of any one or more of
the following: (i) the accumulation, whether directly, indirectly, beneficially or of record, by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended) of 50% or more of the shares
of the outstanding Common Stock of the Company, whether by merger, consolidation, sale or other transfer of shares of Common Stock
(other than a merger or consolidation where the stockholders of the Company prior to the merger or consolidation are the holders
of a majority of the voting securities of the entity that survives such merger or consolidation), or (ii) a sale of all or
substantially all of the assets of the Company, provided, however, that the following acquisitions shall not constitute
a Change of Control for the purposes of this Agreement: (A) any acquisitions of Common Stock or securities convertible into Common
Stock directly from the Company, or (B) any acquisition of Common Stock or securities convertible into Common Stock by any employee
benefit plan (or related trust) sponsored by or maintained by the Company.
of Confidential Information. Executive recognizes, acknowledges and agrees that he has had and will continue to have access
to secret and confidential information regarding the Company, its subsidiaries and their respective businesses (“Confidential
Information”), including but not limited to, its products, methods, formulas, patents, sources of supply, customer dealings,
data, know-how, trade secrets and business plans, provided such information is not in or does not hereafter become part of the
public domain, or become known to others through no fault of Executive. Executive acknowledges that such information is of great
value to the Company, is the sole property of the Company, and has been and will be acquired by him in confidence. In consideration
of the obligations undertaken by the Company herein, Executive will not, at any time, during or after his employment hereunder,
reveal, divulge or make known to any person, any information acquired by Executive during the course of his employment, which
is treated as confidential by the Company, and not otherwise in the public domain. The provisions of this Section 14 shall survive
the termination of Executive’s employment hereunder.
affirms that he does not possess and will not rely upon the protected trade secrets or confidential or proprietary information
of any prior employer(s) in providing services to the Company or its subsidiaries.
(c) In the
event that Executive’s employment with the Company terminates for any reason, Executive shall deliver forthwith to the Company
any and all originals and copies, including those in electronic or digital formats, of Confidential Information.
Non-Competition and Non-Solicitation.
agrees and acknowledges that the Confidential Information that Executive has already received and will receive is valuable to the
Company and that its protection and maintenance constitutes a legitimate business interest of the Company, to be protected by the
non-competition restrictions set forth herein. Executive agrees and acknowledges that the non-competition restrictions set forth
herein are reasonable and necessary and do not impose undue hardship or burdens on Executive. Executive also acknowledges that
the products and services developed or provided by the Company, its affiliates and/or its clients or customers are or are intended
to be sold, provided, licensed and/or distributed to customers and clients in and throughout the United States (the “Territory”)
(to the extent the Company comes to operate, either directly or through the engagement of a distributor or joint or co-venturer,
or sell a significant amount of its products and services to customers located, in areas other than the United States during the
term of the Employment Period, the definition of Territory shall be automatically expanded to cover such other areas), and that
the Territory, scope of prohibited competition, and time duration set forth in the non-competition restrictions set forth below
are reasonable and necessary to maintain the value of the Confidential Information of, and to protect the goodwill and other legitimate
business interests of, the Company, its affiliates and/or its clients or customers.
hereby agrees and covenants that he shall not, without the prior written consent of the Company, directly or indirectly, in any
capacity whatsoever, including, without limitation, as an employee, employer, consultant, principal, partner, shareholder, officer,
director or any other individual or representative capacity (other than a holder of less than two (2%) percent of the outstanding
voting shares of any publicly held company), or whether on Executive's own behalf or on behalf of any other person or entity or
otherwise howsoever, during the Employment Period and thereafter to the extent described below, within the Territory:
own, manage, operate, control, be employed by, consult for, participate in, or be connected in any manner with the ownership, management,
operation or control of any business in competition with the business of the Company;
solicit or hire, or attempt to recruit, solicit or hire, any employee, or independent contractor of the Company to leave the employment
(or independent contractor relationship) thereof, whether or not any such employee or independent contractor is party to an employment
in any manner to solicit or accept from any customer of the Company, with whom the Company had significant contact during Executive’s
employment by the Company (whether under this Agreement or otherwise), business of the kind or competitive with the business done
by the Company with such customer or to persuade or attempt to persuade any such customer to cease to do business or to reduce
the amount of business which such customer has customarily done or might do with the Company, or if any such customer elects to
move its business to a person other than the Company, provide any services (of the kind or competitive with the business of the
Company) for such customer, or have any discussions regarding any such service with such customer, on behalf of such other person;
with any relationship, contractual or otherwise, between the Company and any other party, including, without limitation, any supplier,
distributor, co-venturer or joint venturer of the Company to discontinue or reduce its business with the Company or otherwise interfere
in any way with the business of the Company.
With respect to the
activities described in Paragraphs (1), (2), (3) and (4) above, the restrictions of this Section 15(b) shall continue during the
Employment Period, during the Separation Period and until one (1) year following the termination of this Agreement or of Executive’s
employment with the Company (including upon expiration of this Agreement), whichever occurs later, unless this Agreement or Executive’s
employment was terminated by Executive for Good Reason or by Company without Cause.
anything to the contrary in this Agreement, if Executive is a “specified employee” within the meaning of Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”) and “specified employee” within the
meaning of Section 409A of the Code and any final regulations and guidance promulgated thereunder (“Section 409A”)
at the time of Executive’s termination, then only that portion of the severance and benefits payable to Executive pursuant
to this Agreement, if any, and any other severance payments or separation benefits which may be considered deferred compensation
under Section 409A (together, the “Deferred Compensation Separation Benefits”), which (when considered together)
do not exceed the Section 409A Limit (as defined herein) may be made within the first six (6) months following Executive’s
termination of employment in accordance with the payment schedule applicable to each payment or benefit. For these purposes, each
severance payment is hereby designated as a separate payment and will not collectively be treated as a single payment. Any portion
of the Deferred Compensation Separation Benefits in excess of the Section 409A Limit otherwise due to Executive on or within the
six (6) month period following Executive’s termination will accrue during such six (6) month period and will become payable
in a lump sum payment on the date six (6) months and one (1) day following the date of Executive’s termination of employment.
All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable
to each payment or benefit. Notwithstanding anything herein to the contrary, if Executive dies following termination but prior
to the six (6) month anniversary of Executive’s date of termination, then any payments delayed in accordance with this paragraph
will be payable in a lump sum as soon as administratively practicable after the date of Executive’s death and all other Deferred
Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit.
It is the intent of this Agreement to comply with the requirements of Section 409A so that none of the severance payments and benefits
to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted
to so comply. The Company and Executive agree to work together in good faith to consider amendments to this Agreement and to take
such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition
prior to actual payment to Executive under Section 409A.
For purposes of this Agreement, “Section
409A Limit” will mean the lesser of two (2) times: (i) Executive’s annualized compensation based upon the annual
rate of pay paid to Executive during the Company’s taxable year preceding the Company’s taxable year of Executive’s
termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any IRS guidance issued with respect
thereto; or (ii) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the
Code for the year in which Executive’s employment is terminated.
acknowledges that the services to be rendered by him under the provisions of this Agreement are of a special, unique and extraordinary
character and that it would be difficult or impossible to replace such services. Furthermore, the parties acknowledge that monetary
damages alone would not be an adequate remedy for any breach by Executive of Section 14 or Section 15 of this Agreement. Accordingly,
Executive agrees that any breach or threatened breach by him of Section 14 or Section 15 of this Agreement shall entitle the Company,
in addition to all other legal remedies available to it, to apply to any court of competent jurisdiction to seek to enjoin such
breach or threatened breach. The parties understand and intend that each restriction agreed to by Executive hereinabove shall be
construed as separable and divisible from every other restriction, that the unenforceability of any restriction shall not limit
the enforceability, in whole or in part, of any other restriction, and that one or more or all of such restrictions may be enforced
in whole or in part as the circumstances warrant. In the event that any restriction in this Agreement is more restrictive than
permitted by law in the jurisdiction in which the Company seeks enforcement thereof, such restriction shall be limited to the extent
permitted by law. The remedy of injunctive relief herein set forth shall be in addition to, and not in lieu of, any other rights
or remedies that the Company may have at law or in equity.
(b) Neither Executive
nor the Company may assign or delegate any of their rights or duties under this Agreement without the express written consent of
the other; provided, however, that the Company shall have the right to delegate its obligation of payment of all
sums due to Executive hereunder, provided that such delegation shall not relieve the Company of any of its obligations hereunder.
(c) This Agreement
constitutes and embodies the full and complete understanding and agreement of the parties with respect to Executive’s employment
by the Company, supersedes all prior understandings and agreements, whether oral or written, between Executive and the Company,
and shall not be amended, modified or changed except by an instrument in writing executed by the party to be charged. The invalidity
or partial invalidity of one or more provisions of this Agreement shall not invalidate any other provision of this Agreement. No
waiver by either party of any provision or condition to be performed shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same time or any prior or subsequent time.
(d) This Agreement
shall inure to the benefit of, be binding upon and enforceable against, the parties hereto and their respective successors, heirs,
beneficiaries and permitted assigns.
(e) The headings
contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation
of this Agreement.
(f) All notices,
requests, demands and other communications required or permitted to be given hereunder shall be in writing and shall be deemed
to have been duly given when personally delivered, sent by registered or certified mail, return receipt requested, postage prepaid,
or by reputable national overnight delivery service (e.g. Federal Express) for overnight delivery to the party at the address set
forth in the preamble to this Agreement, or to such other address as either party may hereafter give the other party notice of
in accordance with the provisions hereof. Notices shall be deemed given on the sooner of the date actually received or the third
business day after deposited in the mail or one business day after deposited with an overnight delivery service for overnight delivery.
(g) This Agreement
shall be governed by and construed in accordance with the internal laws of the State of New York without reference to principles
of conflicts of laws and each of the parties hereto irrevocably consents to the jurisdiction and venue of the federal and state
courts located in the County and State of New York.
(h) This Agreement
may be executed simultaneously in two (2) or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one of the same instrument. The parties hereto have executed this Agreement as of the date set forth above.
represents and warrants to the Company, that he has the full power and authority to enter into this Agreement and to perform his
obligations hereunder and that the execution and delivery of this Agreement and the performance of his obligations hereunder will
not conflict with any agreement to which Executive is a party.
[Signature page follows
WITNESS WHEREOF, Executive and the Company have caused this Executive Employment Agreement to be executed as of the date first
BE ACTIVE HOLDINGS,
Name and Title: