Exhibit 10.1
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT
THIS
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (the
“Agreement”) is effective as of the 4 th day
of November, 2008, by and between, Disaboom, Inc., a Colorado
corporation (the “Employer” or “Company”)
and John Walpuck (the “Executive”) and amends and
restates the Executive Employment Agreement previously entered into
between the parties effective as of April 2, 2007 (the
“Original Agreement”).
RECITALS
WHEREAS,
the Executive has agreed to assume additional responsibilities with
the Company and the parties desire to amend and restate the terms
of the Original Agreement.
WHEREAS,
in order to effect the foregoing, Employer and the Executive wish
to enter into this Agreement on the terms and conditions set forth
below.
AGREEMENT
NOW,
THEREFORE , in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the
parties agree to amend and restate the Original Agreement as
follows:
ARTICLE 1
TERM OF EMPLOYMENT
1.1
Term . The term of employment
hereunder shall commence as of the effective day first written
above and shall continue for a period of three years from that date
(the “Initial Term”).
1.2
Renewal; Non-Renewal Benefits to Executive .
At the end of the term of this Agreement, and on each
anniversary thereafter, the term of Executive’s employment
shall be automatically extended one additional year(each an
“Additional Term”) unless at least 30 days prior to
such anniversary, the Executive shall have delivered to the
Employer written notice that the term of the Executive’s
employment hereunder will not be extended. The Employer shall have
the right to provide such non-renewal notice to Executive, on the
same terms and conditions.
1.3
Prior Agreements . The Executive
and Employer agree that the Original Agreement and any and all
prior employment agreements and understandings between the
Executive and Employer related to Executive’s employment be
and hereby are cancelled and are of no further force or effect and
that no amounts are due and owing to the Executive under any such
agreement. Notwithstanding the foregoing the option agreement
between the parties dated April 2, 2007 is not terminated or
amended by this Agreement and shall continue in full force and
effect.
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ARTICLE 2
DUTIES OF THE EXECUTIVE
2.1
Duties . The Executive shall be employed with
the titles of Chief Executive Officer, President, and interim Chief
Financial Officer and with responsibilities and authorities as are
customarily performed by such officers including, but not limited
to those duties as may from time to time be assigned to Executive
by the Board of Directors of Employer. Executive’s
responsibilities and authorities for operating policies and
procedures are subject to the general direction and control of the
Board of Directors of the Company. Executive agrees and
acknowledges that during the term of this Agreement the Company may
retain a new Chief Financial Officer and that any change in
Executive’s duties as a result of hiring such shall not be
construed as a breach of this Agreement or in any way a change in
duties reflecting a termination of the Executive.
2.2
Extent of Duties . Executive shall devote all of
his working time, efforts, attention and energies to the business
of the Employer.
ARTICLE 3
COMPENSATION OF THE EXECUTIVE
3.1
Salary . As compensation for services rendered
under this Agreement, the Executive will receive an annual salary
of $200,000 per year, which shall be his base compensation.
Executive’s salary is payable in accordance with
Employer’s normal business practices.
3.2
Annual Bonus . Executive shall also be eligible
for an annual bonus equal to an amount as reviewed and approved by
the Company’s Compensation Committee, which shall be based on
the condition of Employer’s business and results of
operations, the Compensation Committee’s evaluation of
Executive’s individual performance for the relevant period,
and the satisfaction of goals that may be established by the
Compensation Committee and/or the Board of Directors of the
Employer. Any annual bonus shall be paid in the Compensation
Committee’s and Board of Director’s
discretion.
3.3
Benefits . Executive shall be entitled to
vacation and holidays as customarily extended to executive
employees. Executive shall be entitled to participate in all of
Employer’s employee benefit plans and employee benefits,
including any retirement, pension, profit-sharing, stock option,
insurance, hospital or other plans and benefits which now may be in
effect or which may hereafter be adopted, it being understood that
Executive shall have the same rights and privileges to participate
in such plans and benefits as any other executive employee during
the term of this Agreement. Participation in any benefit plans
shall be in addition to the compensation otherwise provided for in
this Agreement.
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3.4
Expenses .
a.
Executive shall be entitled to prompt reimbursement in accordance
with Company policy for all reasonable expenses incurred by
Executive in the performance of his duties hereunder.
b.
In addition to the base compensation, the Company shall pay
Executive $2,850 per month as a housing and travel allowance. The
parties agree and acknowledge that such allowance is subject to the
review and adjustment (including a reduction or termination) by the
Compensation Committee with such review to occur on the first
anniversary date of this Agreement.
3.5
Stock Options . Upon execution of this
Agreement, Executive and the Company shall concurrently execute an
option agreement in the form of Exhibit A, evidencing the grant of
an option to Executive to purchase 2,500,000 shares of Company
common stock, in accordance with the terms set forth in the option
agreement. During the term of Executive’s employment,
Executive will be eligible to be considered by the Compensation
Committee and the Board of Directors for the grant of additional
options to purchase a number of shares of the Company’s
common stock. The terms and conditions of such options, and the
number of shares subject to such option, shall be determined by the
Board of Directors in consultation with the Compensation
Committee.
ARTICLE 4
NON-COMPETITION; CONFIDENTIALITY
4.1
During the term of this Agreement, the Executive may make passive
investments in companies generally involved in the Internet
industry in which the Company operates, subject to the terms of
paragraph 4.3 hereof, and provided any such investment does not
exceed a 5% equity interest, unless Executive obtains a consent to
acquire an equity interest exceeding 5% by a vote of a majority of
the directors.
4.2
Except as provided in paragraphs 4.1 hereof, the Executive may not
participate in any business or other areas of business in which the
Company is engaged during the term of this Agreement except through
and on behalf of the Company. The Parties agree and confirm that
for the purposes of paragraph 4.3 below that the Company is
currently engaged in the business of operating web sites that
provide a community for people living with disabilities and provide
certain services and products for such persons.
4.3
During the term of this Agreement and for a period of two years
after the termination of this Agreement, the Executive shall not
own, manage, operate, control, be employed by, participate in, or
be connected in any manner with the ownership, management,
operation or control of any business which is directly engaged in
the type of business conducted by the Employer at the time this
Agreement terminates. In the event of the Executive’s actual
or threatened breach of this paragraph, the Employer shall be
entitled to a preliminary restraining order and injunction
restraining the Executive from violating its provisions. Nothing in
this Agreement shall be construed to prohibit the Employer from
pursuing any other available remedies for such breach or threatened
breach, including the recovery of damages from the Executive.
Executive agrees that this two year restriction is reasonable in
scope.
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4.4
Executive agrees that unless otherwise agreed to in writing between
Executive and Employer, upon request or at the time of leaving the
employ of Employer he will deliver to the Employer (and will not
keep in his possession, recreate, or deliver to anyone else) any
and all devices, books, records, files, forms, memoranda, letters,
notes, notebooks, papers, agreements, customer and supplier lists
and identities, customer information accounts, source codes, object
codes, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, flow-charts, blueprints, sketches,
materials, programs, equipment, other documents, writings,
recordable electronic media and similar materials or property, or
reproductions of any aforementioned items developed by him pursuant
to his employment with Employer or otherwise belonging to the
Employer, its successors, or assigns. Executive agrees that such
property is the exclusive property of Employer.
4.5
In the event that Executive leaves the employ of Employer,
Executive hereby grants consent to written notification by Employer
to his new employer about his rights and obligations under this
Agreement. A copy of such written notification will be provided to
Executive at the same time it is provided to his new
employer.
4.6
Executive agrees at all times during the term of his employment and
thereafter to hold in strictest confidence, and not to use, except
for the benefit of the Employer, or to disclose, make known,
divulge or communicate, directly or indirectly, to any person,
firm, corporation or other entity without the prior written
authorization of the Employer, any Confidential Information of the
Employer. Executive understands that all Confidential Information
is the sole and exclusive property of the Employer or of third
parties whose rights the Employer wishes to protect. Executive will
be vigilant in protecting all Confidential Information from
disclosure to unauthorized persons and will comply with all
rule