This Confidentiality Agreement involves
Title: EMPLOYMENT, CONFIDENTIALITY AND NON-COMPETE AGREEMENT
EMPLOYMENT, CONFIDENTIALITY AND NON-COMPETE AGREEMENT
THIS EMPLOYMENT, CONFIDENTIALITY AND NON-COMPETE AGREEMENT (this “Agreement” ) is entered into between Jason Harvison ( “Employee” ) and Elevate Credit Service, LLC , a Delaware limited liability company ( “Company” or “Employer” ) collectively referred to as the “Parties,” with an “Effective Date” of May 1, 2014.
1. Employee’s Duties . Employee shall dedicate all of his or her working time, skill and attention to the business of Company and other entities within the Elevate Group (as defined below), agrees to remain loyal to Elevate Group, and not to engage in any conduct that creates a conflict of interest to, or damages the reputation of, any entity within the Elevate Group. Employee understands that he or she will be placed in a position of special trust and confidence concerning the interests of Company and other entities within the Elevate Group. The specific position(s) and duties assigned to Employee may be altered by Company in its sole discretion. Employee will work diligently to perform the duties of any position to which he or she is assigned in a reasonable, timely and professional manner, and shall comply with all applicable policies and rules of Company. Employee’s duties are understood to include one or more of the following: (a) developing goodwill for the benefit of the Elevate Group; (b) assisting in development of strategies and other intellectual property; and (c) helping to identify business opportunities for the Elevate Group.
2. Employee’s Employment .
2.1 Term . Employee’s employment will commence on the Effective Date, and will continue until terminated in accordance with this Agreement. The termination of Employee’s employment shall not affect any obligation that expressly extends beyond, or is not contingent upon, continued employment, including the obligations in Section 3.2 and Section 4 .
2.2 Termination . Employee’s employment may be terminated as follows:
2.2.1 Termination without Cause prior to a Change in Control . If Employer terminates Employee’s employment without Cause (as defined below) prior to a Change in Control (as defined below), then Employer shall pay Employee severance pay in an amount equal to the base salary that would be payable to Employee over the period commencing on the date of termination and ending twelve (12) months thereafter (the “Severance Period” ), which severance pay shall be paid during the Severance Period in equal installments as set forth in Section 2.3.1 .
2.2.2 Termination after a Change in Control . If Employer terminates Employee’s employment with Employer without Cause, or Employee terminates his or her employment with Employer for Good Reason (as defined below), following the effective date of a Change in Control, then Employer shall pay Employee severance pay in an amount equal to the base salary that would be payable to Employee over the Severance Period, which severance pay shall be paid during the Severance Period in equal installments as set forth in Section 2.3.1 .
2.2.3 Termination with Cause . If Employer terminates Employee’s employment with Employer with Cause, then Employer shall pay any base salary earned by Employee through the date of termination plus any other amounts required to be paid pursuant to applicable law. No severance pay shall be applicable.
2.2.4 Certain Definitions . For purposes of this Agreement, the following terms shall have the following meanings:
A. The term “Cause” shall mean:
(i) Failure of Employee to be present for work and duties as set forth herein for ten (10) or more consecutive business days (except during vacation and periods of illness as set forth herein) without giving prior written notice to the President of Company and receiving approval of the President of Company or the CEO or the Board of Directors ( “Board” ) of Elevate Credit, Inc., a Delaware corporation ( “EC” ) for such absence;
(ii) Employee’s conviction for a felony offense or commission by Employee of any act abhorrent to the community that the President of Company or the CEO or the Board consider materially damaging to or tending to discredit the reputation of Employer, EC, any affiliate or subsidiary of EC, or any of their respective successors and assigns (collectively, the “Elevate Group” );
(iii) Dishonesty, fraud, willful misconduct, unlawful discrimination or theft on the part of Employee (whether within the workplace or elsewhere);
(iv) Employee’s using for his or her own benefit or the benefit of any third party any material, non-public information, confidential information or proprietary information of any entity within the Elevate Group, or willfully or negligently divulging any such information to third parties without the prior written consent of the President of Company or the CEO or the Board of EC, or any violation by Employee of any of his or her obligations under Section 4 ;
(v) Employee’s use, possession, or distribution of illegal substances or being under the influence of alcohol or illegal substances in the workplace. Employee may consume alcohol reasonably and responsibly, if he or she so chooses, at legitimate business events and functions where alcohol is legally available; and
(vi) The determination by the President of Company or the CEO or the Board of EC that Employee has continually failed or refused, after written notice of and a reasonable opportunity to cure such failure or refusal, to perform the duties of Employee’s position in a satisfactory manner, in accordance with the policies, standards, regulations, instructions, or directions of Employer as they currently exist or as they may be reasonably modified from time to time.
B. The term “Change in Control” shall mean:
(i) A merger or consolidation involving EC as a consequence of which those persons who held all of the equity shares of EC immediately prior to such merger or consolidation do not hold either directly or indirectly a majority of the equity shares of EC (or, if applicable, the surviving company of such merger or consolidation) after the consummation of such merger or consolidation;
(ii) A transfer, in a single transaction or a series of related transactions, of voting or beneficial control of a majority of EC’s then outstanding equity shares to persons who do not own prior to the transaction or series of transactions any equity interests of EC; or
(iii) The sale of all or substantially all of the assets of EC to any person or “group” of persons (other than to any person who owns a majority or more of the equity shares of EC, or to a subsidiary of EC, or to an entity whose equity interests are owned directly or indirectly either by EC or by any person who owns directly or indirectly a majority or more of the equity shares of EC).
For purposes of clarification, the mere incorporation of Employer from its current limited liability company structure shall not be deemed to be a Change of Control. Further, a sale of Company or all or substantially all of the assets or outstanding equity securities of Company to, or any merger with, Think Finance, Inc., a Delaware corporation ( “TF” ), or any of its affiliates or subsidiaries, shall not be deemed to be a Change of Control.
C. The term “Good Reason” shall mean:
(i) Employer shall substantially diminish the responsibilities of Employee (other than in connection with Employee’s availability by reason of disability or otherwise); or
(ii) Employer shall reduce the base salary of Employee.
2.2.5 Offset of Severance Pay . Notwithstanding the provisions of Section 2.2.1 and Section 2.2.2 , if (a) Employer terminates Employee’s employment without Cause, (b) TC Loan Service, LLC or any of its affiliates or subsidiaries ( “TCLS” ) offers Employee employment effective as of the date of such termination with a base salary at least as much as Employee’s most recent base salary with Employer and with a title and general job responsibilities substantially similar to Employee’s responsibilities with Employer and (c) Employee does not accept such offer, then Employer shall not have any obligation to pay Employee any severance pay pursuant to either Section 2.2.1 or Section 2.2.3 .
2.2.6 Change of Employer . Employee hereby acknowledges and agrees that he is not entitled to (a) any severance or (b) receive a loan from TCLS to exercise options to purchase equity securities of TF as a result of the termination of his employment agreement with TCLS effective as of the Effective Date.
2.3 Compensation . Company shall provide Employee with compensation in the form of wages and benefits, subject to adjustment in the discretion of Company.
2.3.1 Base Salary . As compensation for services rendered under this Agreement, Employee shall be entitled to receive from Company an aggregate minimum base salary of Three Hundred and Fifty Thousand Dollars ($350,000) per annum for each twelve (12) month period from the date hereof. The Base Salary to be paid to Employee shall be paid $13,461.54 bi-weekly in accordance with Company’s payroll policies be less all applicable withholding or taxes which may be adjusted at the sole discretion of Company. Employee authorizes Company to make any deductions from his or her compensation, including from the final paycheck, that are deemed necessary by Company to comply with state or federal laws on withholdings, to compensate for property not returned, or to recover any advances paid to Employee.
2.3.2 Discretionary Bonus . Employee shall be eligible for a bonus of 50% of base salary as determined by the Board. Any bonus is discretionary and not earned or accrued until paid and shall be paid less any applicable withholdings or taxes.
2.3.3 Paid Time Off . Employee shall be entitled to four (4) weeks paid time off per annum.
2.3.4 Employee Benefit Plans . Employee shall be entitled to participate in Employer’s employee benefit plans.
2.3.5 Bonus Advance .
A. Employee acknowledges that he has received an advance payment of bonuses that could be awarded pursuant to Section 2.3.2 . Accordingly, if Employee is awarded a bonus at any time after the Effective Date, then the amount of such bonus shall be deemed to have already been paid to, and received by, Employee.
B. As of the Effective Date, the total amount of such advance payment of bonuses less the amount of bonuses actually awarded to Employee was equal to Fifty Thousand Dollars ($50,000). Accordingly, after Employee has been awarded at least Fifty Thousand Dollars ($50,000) of bonuses after the Effective Date, then this Section 2.3.5 shall automatically terminate.
C. If Employee’s employment with Employer terminates for any reason prior to Employer being awarded at least Fifty Thousand Dollars ($50,000) of bonuses after the Effective Date, then Employee shall pay Employer an amount equal to the difference between (i) Fifty Thousand Dollars ($50,000) and (ii) the aggregate amount of bonuses awarded and paid to Employee after the Effective Date, within thirty (30) calendar days of the date of termination of Employee’s employment with Employer. Employer may offset any amounts due to Employee upon termination such as vacation pay from the amounts which would be due to Employer pursuant to this Section 2.3.5 C .
2.3.6 Loan to Exercise Vested Stock Option .
A. Upon termination of Employee’s employment for any reason other than for Cause, Employer will provide Employee with loans for up to two (2) years each for the sole purpose of allowing Employee to exercise the vested portion of any option to purchase stock of TF and/or EC granted to employee by TF and/or EC without an immediate cash payment to Employer. Any such loan shall (i) bear simple interest at the then-current Applicable Federal Rate, all of which shall be due and payable upon maturity of such loan, (ii) be secured by the shares purchased through exercise of the option and (iii) be full recourse to Employee. Upon receipt of the properly executed documentation to exercise the vested portion of the applicable option, Employer will offer to make loans to Employee. Each such loan shall be evidenced by a promissory note in favor of Employer and the Employer’s security interest in the shares purchased through exercise of the applicable option shall be evidenced by a pledge agreement, each in forma and substance satisfactory to Employer.
B. Notwithstanding the provisions of Section 2.3.6 A , this Section 2.3.6 shall automatically terminate and any loan outstanding shall become due and payable immediately prior to Employer filing a registration statement under the Securities Act of 1933, as amended, in connection with a firm commitment underwritten offering of its securities to the public.
3. Business Interests and Obligations .
3.1 Definitions . The following definitions are used herein:
3.1.1 Trade Secrets means all technical information and business information that generally facilitates the sale of products, increases revenues, or provides an advantage over the competition (hereinafter referred to collectively as “Proprietary Information” ) and is not generally known, and is identified as such.
3.1.2 Know-How means all factual knowledge and information related to any entity within the Elevate Group’s business which is not capable of precise, separate description but which, in
accumulated form, after being acquired, gives to the one acquiring it the ability to produce and market something which one would otherwise not have known how to produce and market with the same accuracy or precision necessary for commercial success, provided, however, that such knowledge and information is not in the public domain or readily available to any third party other than a limited number of persons who have agreed to keep that information secret.
3.1.3 Confidential Information means all information acquired by Employee in the course and scope of his or her employment that is designated by any entity within the Elevate Group as confidential or that any entity within the Elevate Group indicates through its policies, procedures, or other instructions should not be disclosed to anyone outside the Elevate Group except through controlled means. Confidential Information need not be a Trade Secret, Proprietary Information or Know-How to be protected under this Agreement.
3.1.4 Company Information means all Trade Secrets, Proprietary Information, Know-How and Confidential Information (recognizing that certain information and material will fall into multiple categories), including, without limitation, proposals, concepts, diagrams, models, ID’s or email addresses, client or projections and reports, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), software systems and processes and any information that is not readily available to the public, the information gathering techniques and processes of any entity within the Elevate Group, internally created client lists and associated data and pricing arrangements, and strategic plans, financial and personnel records, but not including information that is intentionally disclosed to the general public by any entity within the Elevate Group.
3.1.5 Intellectual Property means all compositions, articles of manufacture, processes, apparatus, and inventions; data, writings and other works of authorship (including, without limitation, software, protocols, rules, program codes, audiovisual effects created by program code, and documentation related thereto, drawings); mask works; and certain tangible items (including, without limitation, materials, samples, components, tools, and operating devices) related to any Elevate Group entity’s business; and
3.1.6 Intellectual Property Rights means patents, trademarks, copyrights, mask rights, Trade Secrets, and Know-How covering the Intellectual Property.
3.2 Ancillary Employee Covenants . Employee shall not, directly or indirectly; participate in the unauthorized use, disclosure or conversion of any Company Information. Specifically, Employee shall not use any Company Information for his or her sole benefit, or for the benefit of any competitor or in any other way that harms any Elevate Group entity or diminishes the value of any Company Information. Employee shall also use the specialized training, goodwill and contacts developed with any customers and contractors of any entity within the E