**EMPLOYMENTAGREEMENT**

 

This**EMPLOYMENT AGREEMENT** (the “***Agreement***”) is effective as of May ___, 2018 (“the EffectiveDate”), by and between FRELII, INC. (the “***Company”***), and Jayson Uffens (“***Executive***”).

 

**WHEREAS**,the Company is engaged in the business of offering web based subscriptions for diet and wellness plans based on genetic data (the“***Company Business***”);

 

**WHEREAS**,the Company desires to employ Executive and Executive desires to be employed by the Company;

 

**WHEREAS**,the Company and Executive desire to enter into this Agreement to set forth the rights, duties, benefits and obligations with respectto the employment of Executive by the Company under the terms and conditions herein provided.

 

**NOW,THEREFORE**, in consideration of Executive’s employment with the Company, and the mutual and respective covenants andagreements of the parties herein contained, and other good and valuable consideration present but not specifically set forth,the parties hereto agree as follows:

 

1.**Employment**. The Company hereby agrees to employ Executive as Chief Technology Officer, and Executive hereby agrees to beemployed by the Company, on the terms and conditions set forth herein. This Agreement and Executive’s employment hereundercommenced on or about May 15, 2018 (the “***Start Date***”), and shall continue for a period of two years,unless sooner terminated in accordance with the provisions of Section 6 hereof (the “***Term***”). The Termwill thereafter automatically extend for successive one-year periods, but Executive’s employment may at any time be terminatedin accordance with the provisions of Section 6 hereof.

 

2.**Duties and Responsibilities**. Executive shall serve as Chief Technology Officer and shall report to the Board of Directors(the “***Board***”) and its designees. Executive shall have the duties and responsibilities that are commensuratewith that position, as well as such other duties as may be assigned to Executive by the Board from time to time. Executive shalldevote such effort and time as the Executive and Company jointly deem appropriate to the business and affairs of the Company.Executive shall follow the direction of the Board and their designees, and shall perform all duties and responsibilities of theposition that he holds, as those duties and responsibilities may change from time to time. Executive shall comply with the Company’sstandards, policies and procedures in effect on the date of this Agreement and as they may change from time to time.

 

3.**Compensation and Related Matters.**

 

(a)**Stock**. As compensation for his services as Chief Technology Officer, Executive shall receive 300,000 restricted CommonStock shares of the Company for every year of his employment hereunder in addition to his compensation for serving as a directorof the Company. Executive shall also be eligible to participate in the Company’s incentive stock option plan as in effectfrom time to time. The Company may grant Executive additional stock options, restricted stock units or other awards under theCompany’s common stock incentive plan based on individual and Company performance criteria to be established by the Board.

 

Executive:_____

Company:_____

 

 

(b)**Expense Reimbursement**. The Company will reimburse Executive for reasonable business expenses in accordance with the Company’sstandard expense account and reimbursement policies.

 

4.**Representations and Warranties of Executive**. In order to induce the Company to employ Executive, Executive hereby representsand warrants to the Company as follows:

 

(a)**Binding Agreement**. This Agreement has been duly executed and delivered by Executive and constitutes a legal, valid andbinding obligation of Executive and is enforceable against Executive in accordance with its terms.

 

(b)**No Violations of Law**. The execution and delivery of this Agreement and the other agreements contemplated hereby by Executivedo not, and the performance by Executive of his obligations under this Agreement and the other agreements contemplated herebywill not, violate any term or provision of any law, or any writ, judgment, decree, injunction, or similar order applicable toExecutive.

 

(c)**Litigation**. Executive is not involved in any proceeding, claim, lawsuit, or investigation alleging wrongdoing by Executivebefore any court or public or private arbitration board or panel or governmental department, commission, board, bureau, agencyor instrumentality.

 

(d)**No Conflicting Obligations.** Executive is not under, or bound to be under in the future, any obligation to any person orentity that is or would be inconsistent or in conflict with this Agreement or would prevent, limit, or impair in any way the performanceby him of his obligations hereunder, including but not limited to any duties owed to any former employers not to compete or useor disclose confidential information. Executive represents and agrees that he will not disclose to the Company or use on behalfof the Company any confidential information or trade secrets belonging to a third party, including any former employer. Executivefurther represents and agrees that he has returned, or will return before his last day of employment with his current employer,all property belonging to Executive’s current and previous employers, including but not limited to all confidential information.

 

(e)**Past Criminal Violations.** Executive represents and warrants that he has not within the past ten (10) years been convictedof any misdemeanor, other than a minor traffic infraction; and has never at any time been convicted of any felony.

 

Executive:_____

Company:_____

 

 

**5.Restrictive Covenants.**

 

(a)**Confidentiality Critical**. The parties agree that the business in which the Company is engaged is highly sales-orientedand the goodwill established between Executive and the Company’s customers and potential customers is a valuable and legitimatebusiness interest worthy of protection under this Agreement. Executive acknowledges and agrees that developing and maintainingbusiness relationships is an important and essential business interest of the Company. Executive further recognizes that, by virtueof his employment by the Company, he will be granted otherwise prohibited access to confidential and proprietary data of the Companywhich is not known to its competitors and which has independent economic value to the Company and that he will gain an intimateknowledge of the Company’s business and its policies, customers, employees and trade secrets, and of other confidential,proprietary, privileged, or secret information of the Company and its customers (“***Customers*** ”) (collectively,all such nonpublic information is referred to as “***Confidential Information***”).

 

ThisConfidential Information includes, but is not limited to data relating to the Company’s marketing and servicing programs,procedures and techniques; business, management and personnel strategies; the criteria and formulae used by the Company in pricingits products, loss control and information management services; the Company’s products and services; the Company’scomputer system and software; lists of prospects; customer lists; the identity, authority and responsibilities of key contactsat accounts of Customers; and the composition and organization of Customers’ business. Executive recognizes and admits thatthis Confidential Information constitutes valuable property of the Company, developed over a long period of time and at substantialexpense, and worthy of protection. Executive acknowledges and agrees that only through his employment with the Company could hehave the opportunity to learn this Confidential Information.

 

(b)**Confidential Information**. Executive shall not at any time (for any reason), directly or indirectly, for himself or on behalfof any other person or entity, (A) disclose to any person or entity (except to employees or other representatives of the Companywho need to know such Confidential Information to the extent reasonably necessary for Executive to perform his duties under thisAgreement or such employees or representatives to perform their duties on behalf of the Company, and except as required by law)any Confidential Information, including, without limitation, business or trade secrets of, or products or methods or techniquesused by, the Company, or any Confidential Information whatsoever concerning the Customers, (B) use, directly or indirectly, forhis own benefit or for the benefit of another (other than a Customer) any of such Confidential Information, or (C) assist anyother person or entity in connection with any action described in either of the foregoing clauses (A) and (B).

 

(c)**Noninterference with Employees**. Executive further agrees that the Company has expended considerable time, energy and resourcesinto training its other employees (“Co-Workers”). As a result, during his employment with the Company and for a periodof eighteen (18) months thereafter, Executive shall not, for any reason, directly or indirectly, for himself or on behalf of anyother person or entity, (A) induce or attempt to induce any Co-Worker to terminate employment with the Company, (B) interferewith or disrupt the Company’s relationship with any of the Co-Workers, (C) solicit, entice, hire, cause to hire, or takeaway any person employed by the Company at that time or during the eighteen (18) month period preceding Executive’s lastday of employment with the Company, or (D) assist any other person or entity in connection with any action described in any ofthe foregoing clauses (A) through (C).

 

Executive:_____

Company:_____

 

 

(d)**Non-competition**. Executive further agrees with the Company to the following provisions, all of which Executive acknowledgesand agrees are necessary to protect the Company’s legitimate business interests. Executive covenants and agrees with theCompany that:

 

(i)Unless otherwise agreed between the parties, Executive shall not, during his employment with the Company and for a period of twelve(12) months thereafter, either directly or indirectly, engage in, render service or other assistance to, or sell products or services,or provide resources of any kind, whether as an owner, partner, shareholder, officer, director, employee, consultant or in anyother capacity, whether or not for consideration, to any person, corporation, or any entity, whatsoever, that owns, operates orconducts a business that competes, in any way, with the Company Business (as defined at the start of this Agreement), other thanthe ownership of 5% or less of the shares of a public company where Executive is not active in the day-to-day management of suchcompany. With respect to the post employment application of this Section 5(d)(i), the restrictions shall extend only to thosespecific states, territories, or provinces where the Company conducts business on the day that Executive’s employment withthe Company terminates and with which Executive had substantial contacts during his employment with the Company.

 

(ii)Executive shall not, during his employment with the Company and for a period of twelve (12) months thereafter, either directlyor indirectly, (A) solicit, call on or contact any Customer of the Company with whom Executive has had material contact duringhis employment with the Company for the purpose or with the effect of offering any products or services of any kind offered bythe Company at that time or during his employment with the Company, (B) request or advise any present or future vendors or suppliersto the Company to cancel any contracts, or curtail their dealings, with the Company, or (C) assist any other person or entityin connection with any action described in any of the foregoing clauses (A) through (B).

 

(iii)During his employment with the Company, Executive shall not own, or permit ownership by Executive’s spouse or any minorchildren under the parental control of Executive, directly or indirectly, an amount in excess of five percent (5%) of the outstandingshares of stock of a corporation, or five percent (5%) of any business venture of any kind, which operates or conducts a businessthat competes, in any way, with the Company.

 

(iv)Company acknowledges that Executive currently maintains an ownership interest in _______________________________________(“_______”) and that Executive provides technology and management services to _____________.  None of Executive’s duties with ________________ orits affiliates nor Executive’s ownership of ________________________  shall constitute competition with the Companyfor the purposes of this section 5(d).

 

Executive:_____

Company:_____

 

 

(e)**Non-disparagement**. At any time during or after Executive’s employment with the Company, Executive shall not disparagethe Company or any shareholders, directors, officers, employees, or agents of the Company. During and after Executive’semployment with the Company, neither the Company nor its directors or officers shall disparage Executive to third parties.

 

(f)**Understandings.**

 

(i)The provisions of this Section 5 shall be construed as an agreement independent of any other claim. The existence of any claimor cause of action of Executive against the Company, whether predicated on Executive’s employment or otherwise, shall notconstitute a defense to the enforcement by the Company of the terms of Section 5 of this Agreement. Executive waives any rightto a jury trial in any litigation relating to or arising from this Section 5.

 

(ii)Executive acknowledges and agrees that the covenants and agreements contained herein are necessary for the protection of the Company’slegitimate business interests and are reasonable in scope and content. Executive agrees that the restrictions contained in thisSection 5 are reasonable and will not unduly restrict him in securing other employment or income in the event his employment withthe Company ends. Executive acknowledges and agrees that he executed this Agreement on or before his first day of employment withthe Company.

 

(g)**Injunctive Relief**. Executive acknowledges and agrees that any breach by him of any of the covenants or agreements containedin this Section 5 would give rise to irreparable injury and would not be adequately compensable in damages. Accordingly, Executiveagrees that the Company may seek and obtain injunctive relief against the breach or threatened breach of any of the provisionsof this Agreement in addition to any other legal or equitable remedies available.

 

(h)**Reformation and Survival**. The Company and Executive agree and stipulate that the agreements and covenants contained inthis Agreement and specifically of this Section 5 are fair and reasonable in light of all of the facts and circumstances of therelationship between them. The Company and Executive agree and stipulate that Executive has hereby agreed to be bound to the obligations,restrictions and covenants of this Section 5 as a condition to his employment and in consideration of his compensation, stockoption grant, restricted stock unit grant, severance terms, and all other terms and provisions of this Agreement. The Companyand Executive acknowledge their awareness, however, that in certain circumstances courts have refused to enforce certain agreementsnot to compete. The Company and Executive agree that, if any term, clause, subpart, or provision of this Agreement is for anyreason adjudged by a Court of competent jurisdiction to be invalid, unreasonable, unenforceable or void, the same will be treatedas severable, and shall be modified to the extent necessary to be legally enforceable to the fullest extent permitted by applicablelaw, and that such modification will not impair or invalidate any of the other provisions of this Agreement, all of which willbe performed in accordance with their respective terms. Thus, in furtherance of, and not in derogation of, the provisions of thisSection 5, the Company and Executive agree that in such event, this Section 5 shall be deemed to be modified or reformed to restrictExecutive’s conduct to the maximum extent (in terms of time, geography, and business scope) that the court shall determineto be enforceable. The provisions of this Section 5 shall survive the termination of this Agreement and Executive’s resignationor termination of employment, regardless of the reason and whether voluntary or involuntary.

 

Executive:_____

Company:_____

 

 

6.**Termination**.

 

(a)**Termination By The Company With Cause**. The Company has the right, in its reasonable determination at any time during theTerm, to terminate Executive’s employment with the Company for Cause (as defined below) by giving written notice to Executiveas described in this Section 6(a). Prior to the effectiveness of termination for Cause under clause (i), (ii), (iii) or (iv) inthe next-following paragraph, Executive shall be given thirty (30) calendar days’ prior written notice from the Company,specifically identifying the reasons which are alleged to constitute Cause for any termination pursuant to the aforementionedclauses, and an opportunity to cure in the event Executive disputes such allegations; *provided*, *however*, that theCompany shall have no obligation to continue to employ Executive following such thirty (30) calendar day notice period unlessExecutive has cured the condition giving rise to the Cause. The Company’s termination of Executive’s employment forCause under clause (v) or (vi) of the next-following paragraph shall be effective immediately upon the Company’s writtennotice to Executive. If the Company terminates Executive’s employment for Cause, the Company’s obligation to Executiveshall be limited solely to the payment of unpaid Base Salary accrued up to the effective date of termination plus any accruedbut unpaid benefits to the effective date of termination, and any unpaid bonus earned in accordance with the then applicable bonusplan or program to the effective date of termination.

 

Asused in this Agreement, the term “***Cause***” shall mean and include (i) Executive’s abuse of alcoholor controlled substance that materially affects Executive’s performance of Executive’s duties under this Agreement;(ii) a willful act of fraud, dishonesty or breach of fiduciary duty on the part of Executive with respect to the business or affairsof the Company; (iii) material failure by Executive to comply with applicable laws and regulations or professional standards relatingto the business of the Company; (iv) material failure by Executive to satisfactorily perform his duties hereunder, a materialbreach by Executive of this Agreement, or Executive engaging in conduct that materially conflicts with the best interests of theCompany or that may materially harm the Company’s reputation; (v) Executive being subject to an inquiry or investigationby a governmental authority or self-regulatory organization such that the existence of such inquiry or investigation is reasonablylikely to result in damage to the Company’s business interests, licenses, reputation or prospects; or (vi) Executive’sbeing convicted of a felony or a misdemeanor involving moral turpitude.

 

Executive:_____

Company:_____

 

 

(b)**Termination by The Company Without Cause**. The Company shall have the right, at any time during the Term, to terminate Executive’semployment with the Company without Cause by giving written notice to Executive, which termination shall be effective thirty (30)calendar days from the date of such written notice. The Company may provide thirty (30) days’ pay in lieu of notice. Ifthe Company terminates Executive’s employment without Cause, the Company’s obligation to Executive shall be limitedsolely to (i) unpaid Base Salary plus any accrued but unpaid benefits to the effective date of termination, any unpaid bonus earnedin accordance with the then applicable bonus plan or program to the effective date of termination; (ii) if there is no unpaidbonus earned for the year of termination, an amount equal to the product of 100% of Executive’s Base Salary multiplied bya fraction, the numerator of which is the number of days he is employed by the Company during the year in which the terminationoccurs and the denominator of which is 365 and, if the date of termination occurs prior to the date on which the annual bonus,if any, for the immediately preceding year would otherwise be paid, an amount equal to the annual bonus that would have been paidto Executive for such immediately preceding year, based on the actual achievement of applicable performance goals and withoutregard to whether Executive is employed on the date the bonus otherwise would have been paid; (iii) severance in an amount equalto Executive’s then-current Base Salary for a period of eighteen (18) months; (iv) if Executive is eligible for and timelyelects COBRA coverage for health insurance coverage, payment of Executive’s COBRA premiums for the health insurance coveragefor himself and his eligible dependents for a period of up to eighteen (18) months, payments to be made on a monthly basis whenthe premiums are due, and in the event of the death of Executive before the expiration of such eighteen (18)-month period, theCompany shall, for the remainder of such period, continue to pay the COBRA premiums for the Executive’s dependents (includinghis spouse, if any) who were receiving COBRA coverage at the time of his death; and (v) the pro-rata share of . Executive’srights with regard to equity incentive awards, including stock options and restricted stock units, shall be governed by separateapplicable agreements entered into between Executive and the Company; *provided, however*, any stock options awarded to Executiveunder this Agreement shall immediately vest upon termination of Executive by the Company without Cause. As a condition to hisreceipt of the post-employment payments and benefits under clauses (ii), (iii) and (iv) of the third sentence of this Section6(b), Executive must be in compliance with Section 5 of this Agreement, and must execute, return, not rescind and comply witha general release of claims agreement in favor of the Company and related entities and individuals, within the timeframe and ina form to be prescribed by the Company. The amount described in clause (ii) of the third sentence of this paragraph shall be paidon the ninetieth (90th) calendar day after the date of Executive’s termination of employment, and the severance describedin clause (iii) of the third sentence of this paragraph shall be paid in equal installments according to the normal payroll schedule,the first payment to Executive to be made on the next scheduled payroll date that occurs on or after the ninetieth (90th) dayafter the date of Executive’s termination of employment, provided that, in the case of amounts described in clauses (ii)and (iii) of the third sentence of this Section 6(b), the Company has received the signed general release of claims agreementand Executive has not rescinded such agreement within the rescission period set forth in such agreement. Executive shall haveno duty to mitigate damages under this Section 6(b) during the applicable severance period and, in the event Executive shall subsequentlyreceive income from providing Executive’s services to any person or entity, including self-employment income, or otherwise,then no such income shall in any manner offset or otherwise reduce the payment obligations of the Company hereunder.

 

Notwithstandinganything herein to the contrary, this Section 6(b) shall not apply if Executive’s employment is terminated by the Companyor a succeeding entity without Cause upon or within one year of a Change of Control at any time during the Term as described inSection 7 hereof. In such case, Section 7 of this Agreement shall control.

 

Executive:_____

Company:_____

 

 

(c)**Termination by Executive for Good Reason.** Executive has the right, in his reasonable determination at any time during theTerm, to terminate his employment with the Company for Good Reason (as defined in this Section 6(c) below) by giving written noticeto the Company as described in this Section 6(c) below. Prior to the effectiveness of termination for Good Reason, within thirty(30) calendar days following the existence of a condition constituting Good Reason, Executive shall provide written notice tothe Company specifically identifying the reason or reasons which are alleged to constitute Good Reason, and an opportunity tocure within a period of not less than thirty (30) days; *provided*, *however*, that Executive shall have no obligationto continue his employment with the Company following such thirty (30) calendar day notice period unless the Company cures theevent(s) giving rise to Executive’s Good Reason notice. As used in this Section 6(c), the term ***“Good Reason***” shall mean (i) a material diminution in Executive’s authority, duties or responsibilities; (ii) requiringExecutive to move his place of employment more than 75 miles from his place of employment prior to such move; or (iii) a materialbreach by the Company of this Agreement; provided that in any such case Executive has not consented thereto. In addition to theforegoing requirements, in no event shall an Executive’s termination of his employment be considered for Good Reason unlesssuch termination occurs within two (2) years following the initial existence of one of the conditions specified in clauses (i),(ii) and (iii) of the preceding sentence.

 

IfExecutive terminates his employment for Good Reason, the Company’s obligation to Executive shall be limited solely to (i)unpaid Base Salary plus any accrued but unpaid benefits to the effective date of termination, any unpaid bonus earned in accordancewith the then applicable bonus plan or program to the effective date of termination; (ii) if there is no unpaid bonus earned forthe year of termination, an amount equal to the product of 100% of Executive’s Base Salary multiplied by a fraction, thenumerator of which is the number of days he is employed by the Company during the year in which the termination occurs and thedenominator of which is 365 and, if the date of termination occurs prior to the date on which the annual bonus, if any, for theimmediately preceding year would otherwise be paid, an amount equal to the annual bonus that would have been paid to Executivefor such immediately preceding year, based on the actual achievement of applicable performance goals and without regard to whetherExecutive is employed on the date the bonus otherwise would have been paid; (iii) severance in an amount equal to Executive’sthen-current Base Salary for a period of eighteen (18) months; and (iv) if Executive is eligible for and timely elects COBRA coveragefor health insurance coverage, payment of Executive’s COBRA premiums for the health insurance coverage for himself and hiseligible dependents for a period of up to eighteen (18) months, payments to be made on a monthly basis when the premiums are due,and in the event of the death of Executive before the expiration of such eighteen (18)-month period, the Company shall, for theremainder of such period, continue to pay the COBRA premiums for the Executive’s dependents (including his spouse, if any)who were receiving COBRA coverage at the time of his death. Executive’s rights with regard to equity incentive awards, includingstock options and restricted stock units, shall be governed by separate applicable agreements entered into between Executive andthe Company. As a condition to his receipt of the post-employment payments and benefits under clauses (ii), (iii) and (iv) ofthe first sentence of this Section 6(c), Executive must be in compliance with Section 5 of this Agreement, and must execute, return,not rescind and comply with a general release of claims agreement in favor of the Company and related entities and individuals,within the timeframe and in a form to be prescribed by the Company. The amount described in clause (ii) of the first sentenceof this paragraph shall be paid on the ninetieth (90th) calendar day after the date of Executive’s termination of employment,and the severance described in clause (iii) of the first sentence of this paragraph shall be paid in equal installments accordingto the normal payroll schedule, the first payment to Executive to be made on the next scheduled payroll date that occurs on orafter the ninetieth (90th) day after the date of Executive’s termination of employment, provided that, in the case of amountsdescribed in clauses (ii) and (iii) of the first sentence of this Section 6(c), the Company has received the signed general releaseof claims agreement and Executive has not rescinded such agreement within the rescission period set forth in such agreement. Executiveshall have no duty to mitigate damages under this Section 6(c) during the applicable severance period and, in the event Executiveshall subsequently receive income from providing Executive’s services to any person or entity, including self-employmentincome, or otherwise, then no such income shall in any manner offset or otherwise reduce the payment obligations of the Companyhereunder.

 

Executive:_____

Company:_____

 

 

Notwithstandinganything herein to the contrary, this Section 6(c) shall not apply if Executive terminates his employment with the Company ora succeeding entity for Good Reason upon or within one year of a Change of Control at any time during the Term as described inSection 7 hereof. In such case, Section 7 of this Agreement shall control.

 

Executivehas the right, at any time during the Term, to terminate his employment with the Company without Good Reason (as defined above)by giving written notice to the Company, which termination shall be effective sixty (60) calendar days from the date of such writtennotice. If Executive terminates his employment without Good Reason, the Company’s obligation to Executive shall be limitedsolely to the payment of unpaid Base Salary accrued up to the effective date of termination plus any accrued but unpaid bonusand benefits.

 

(d)**Termination Upon Disability**. The Company shall have the right, at any time during the Term, to terminate Executive’semployment if, during the term hereof, Executive becomes physically or mentally disabled, whether totally or partially, as evidencedby the written statement of a competent physician licensed to practice medicine in the United States who is mutually acceptableto the Company and Executive, so that Executive is unable to perform the essential functions of his job duties hereunder, withor without reasonable accommodation, for (i) a period of three (3) consecutive months; or (ii) for shorter periods aggregatingninety (90) calendar days during any twelve-month period. If the Company terminates Executive’s employment under this Section6(d), the Company’s obligation to Executive shall be limited solely to the payment of unpaid Base Salary to the effectivedate of termination, plus any accrued but unpaid benefits to the effective date of termination, any unpaid bonus earned in accordancewith the then applicable bonus plan or program to the effective date of termination and, if there is no unpaid, earned bonus forthe year in which the termination occurs, an amount equal to the product of 100% of Executive’s Base Salary multiplied bya fraction, the numerator of which is the number of days he is employed by the Company during the year in which the terminationoccurs and the denominator of which is 365. In addition, all unvested stock awards held by Executive, including stock optionsdescribed in Section 3(b) and any other subsequent awards, shall become fully vested should the Executive be terminated upon disability.

 

Executive:_____

Company:_____

 

 

(e)**Termination upon Death**. If Executive dies during the Term, this Agreement shall terminate, except that Executive’ssurviving spouse (or if there is no surviving spouse, his estate) shall be entitled to receive the Base Salary and other accruedbenefits earned up to the date of Executive’s death.

 

7.**Change of Control**.

 

(a)Anything in this Agreement to the contrary notwithstanding, if, upon or within one year of a Change of Control (as defined below)occurring at any time during the Term, the Company or a succeeding entity terminates Executive without Cause (as defined above)or Executive terminates his employment for Good Reason (as defined in Section 6(c) above), the Company or the succeeding entity’sobligation to Executive shall be (i) unpaid Base Salary, bonus and benefits accrued up to the effective date of termination, (ii)if there is no unpaid bonus earned for the year of termination, an amount equal to the product of 100% of Executive’s BaseSalary multiplied by a fraction, the numerator of which is the number of days he is employed by the Company during the year inwhich the termination occurs and the denominator of which is 365 and, if the date of termination occurs prior to the date on whichthe annual bonus, if any, for the immediately preceding year would otherwise be paid, an amount equal to the annual bonus thatwould have been paid to Executive for such immediately preceding year, based on the actual achievement of applicable performancegoals and without regard to whether Executive is employed on the date the bonus otherwise would have been paid, (iii) a lump sumpayment equal to Executive’s then-current Base Salary for a period of thirty-six (36) months, and (iv) if Executive is eligiblefor and timely elects COBRA coverage for health insurance coverage, payment of Executive’s COBRA premiums for health insurancecoverage for himself and his eligible dependents for a period of up to eighteen (18) months, payments to be made on a monthlybasis when the premiums are due, and in the event of the death of Executive before the expiration of such eighteen (18)-monthperiod, the Company shall, for the remainder of such period, continue to pay the COBRA premiums for the Executive’s dependents(including his spouse, if any) who were receiving COBRA coverage at the time of his death. In the event of a without Cause Changeof Control termination or a without Good Reason Change of Control termination, each as described herein, the payments in thisSection 7(a) shall be in lieu of, and not in addition to, any severance pay or benefits set forth in Sections 6(b) or 6(c), whichevermay apply. Notwithstanding anything to the contrary contained herein or in any award agreement between Executive and the Company,in the event of a Change of Control (as defined below), (i) all unvested stock awards held by Executive, including stock optionsdescribed in Section 3(b) and any other subsequent awards, shall become fully vested upon the Change of Control and, if applicable,immediately exercisable; (ii) each such award, and each already vested award described in Section 3(b), which is a stock optionshall continue to be exercisable for the remainder of its term; and (iii) with respect to any award that is subject to the attainmentof performance objectives or specified performance criteria, such performance objectives and criteria shall be deemed satisfiedat the target level and any performance period shall be deemed to end as of the date of the Change of Control. As a conditionto his receipt of the post-employment payments and benefits under this Section 7(a), other than the vesting of awards describedin the preceding sentence, Executive must be in compliance with Section 5 of this Agreement, and must execute, return, not rescindand comply with a release of claims agreement in favor of the Company, related entities and individuals and the succeeding entity,within the timeframe and in a form to be prescribed by the Company or a succeeding entity. The severance amount described in clauses(ii) and (iii) of the first sentence of this paragraph shall be paid in a lump sum on the ninetieth (90th) day after the dateof Executive’s termination of employment (but in any event not later than March 15 of the year following the year in whichExecutive’s employment terminates), provided that the Company has received the signed general release of claims agreementand Executive has not rescinded such agreement within the rescission period set forth in such agreement.

 

Executive:_____

Company:_____

 

 

(b)**Change of Control Defined.** For purposes of this Agreement, a “Change of Control” shall mean the occurrenceof a “change in the ownership,” a “change in the effective control” or a “change in the ownershipof a substantial portion of the assets” of the Company during the Term, as determined in accordance with this Section 7(b).In determining whether an event shall be considered a “change in the ownership,” a “change in the effectivecontrol” or a “change in the ownership of a substantial portion of the assets” of the Company, the followingprovisions shall apply:

 

(i)A “change in the ownership” of the Company shall occur on the date on which any one person, or more than one personacting as a group acquires ownership of stock of the Company that, together with stock held by such person or group, constitutesmore than 50% of the total fair market value or total voting power of the stock of the Company, as determined in accordance withTreasury Regulation § 1.409A-3(i)(5)(v). If a person or group is considered either to own more than 50% of the total fairmarket value or total voting power of the stock of the Company, or to have effective control of the Company within the meaningof clause (ii) of this Section 7(b), and such person or group acquires additional stock of the Company, the acquisition of additionalstock by such person or group shall not be considered to cause a “change in the ownership” of the Company.

 

(ii)A “change in the effective control” of the Company shall occur on either of the following dates:

 

(A)The date on which any one person, or more than one person acting as a group acquires (or has acquired during the 12-month periodending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company possessing 40%or more of the total voting power of the stock of the Company, as determined in accordance with Treasury Regulation § 1.409A-3(i)(5)(vi).If a person or group is considered to possess 40% or more of the total voting power of the stock of the Company, and such personor group acquires additional stock of the Company, the acquisition of additional stock by such person or group shall not be consideredto cause a “change in the effective control” of the Company; or

 

Executive:_____

Company:_____

 

 

(B)The date on which a majority of the members of the Board is replaced during any 12-month period by directors whose appointmentor election is not endorsed by a majority of the members of the Board before the date of the appointment or election, as determinedin accordance with Treasury Regulation § 1.409A-3(i)(5)(vi).

 

(iii)A “change in the ownership of a substantial portion of the assets” of the Company shall occur on the date on whichany one person, or more than one person acting as a group acquires (or has acquired during the 12-month period ending on the dateof the most recent acquisition by such person or persons) assets from the Company that have a total gross fair market value equalto or more than 40% of the total gross fair market value of all of the assets of the Company immediately before such acquisitionor acquisitions, as determined in accordance with Treasury Regulation § 1.409A-3(i)(5)(vii). A transfer of assets shall notbe treated as a “change in the ownership of a substantial portion of the assets” when such transfer is made to anentity that is controlled by the shareholders of the Company, as determined in accordance with Treasury Regulation § 1.409A-3(i)(5)(vii)(B).

 

Inall cases, the determination of whether a Change of Control has occurred shall be made in accordance with Section 409A of theInternal Revenue Code of 1986, as amended (the “***Code***”), and the regulations, notices and other guidanceof general applicability issued thereunder.

 

8.**Code Section 409A**. Notwithstanding anything herein to the contrary, if any payments to be made, or benefits to be provided,to Executive hereunder are subject to the requirements of Code Section 409A and the Company determines that Executive is a “specifiedemployee” as defined in Code Section 409A as of the date of the termination, then, to the extent such payments or benefitsdo not satisfy the separation pay exemption described in Treasury Regulation § 1.409A-1(b)(9)(iii) or any other exemptionavailable under Section 409A of the Code (the “Non-Exempt Payments”), the amount of such Non-Exempt Payments shallnot be paid or commence earlier than the date that is six months after the termination. Any Non-Exempt Payment not made duringthe six-month period shall be paid in a lump sum payment on the first day of the seventh month following termination. For purposesof Code Section 409A, any reference to Executive’s termination of employment in this Agreement shall be deemed to be a referenceto Executive’s “separation from service” (within the meaning of Treasury Regulation § 1.409-1(h), applyingthe default terms thereof), and any installment payments provided to Executive pursuant to this Agreement shall be treated asa series of separate payments.

 

9.**Successors; Assignment, Etc.; Third Party Beneficiaries**.

 

(a)Executive consents to and the Company shall have the right to assign this Agreement to its successors or assigns. All covenantsor agreements hereunder shall inure to the benefit of and be enforceable by or against its successors or assigns. The terms “successors”and “assigns” shall include, but not be limited to, any succeeding entity upon a Change of Control.

 

(b)Neither this Agreement nor any of the rights or obligations of Executive under this Agreement may be assigned or delegated exceptas provided in the last sentence of this Section 9(b). This Agreement and all rights of Executive hereunder shall inure to thebenefit of and be enforceable by, and shall be binding upon, Executive’s personal or legal representatives, executors, administrators,successors, heirs, distributees, devisees, and legatees. If Executive should die while any amounts would still be payable to himhereunder had he continued to live, then all such amounts (unless otherwise provided herein) shall be paid in accordance withthe terms of this Agreement to his surviving spouse, or if there is no surviving spouse, to Executive’s estate.

 

Executive:_____

Company:_____

 

 

10.**Notice**. For purposes of this Agreement, all notices and other communications provided for in this Agreement shall be inwriting and shall be deemed to have been duly given when delivered in person or when mailed by United States registered or certifiedmail, return receipt requested, first-class postage prepaid, addressed as follows:

 

 

orto such other address as any party may have furnished to the other in writing in accordance with this Section 10, except thatnotices of any change of address shall be effective only upon actual receipt.

 

11.**Miscellaneous**. No provision of this Agreement may be modified, waived, or discharged unless such waiver, modification,or discharge is agreed to in writing signed by Executive and such officers as may be specifically designated by the Board. Nowaiver by either party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such otherparty shall be deemed a waiver of any similar or dissimilar condition or provision at the same or any other time. No agreementsor representations (whether oral or otherwise, express or implied) with respect to the subject matter of this Agreement have beenmade by either party which are not set forth expressly in this Agreement or which are not specifically referred to in this Agreement.If any term, clause, subpart, or provision of this Agreement is for any reason adjudged to be invalid, unreasonable, unenforceableor void, the same will be treated as severable, shall be modified to the extent necessary to be legally enforceable to the fullestextent permitted by applicable law, and will not impair or invalidate any of the other provisions of this Agreement, all of whichwill be performed in accordance with their respective terms. The validity, interpretation, construction, and performance of thisAgreement shall be governed by the laws of the State of Indiana.

 

12.**Validity**. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or futurelaw or court decision, and if the rights or obligations of the Company and Executive will not be materially and adversely affectedthereby, (a) such provision shall be fully severable from this Agreement, (b) this Agreement shall be construed and enforced asif such illegal, invalid, or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this Agreementshall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by itsseverance herefrom, and (d) in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically asa part of this Agreement a legal, valid, and enforceable provision as similar to the terms and intent of such illegal, invalid,or unenforceable provision as may be possible.

 

Executive:_____

Company:_____

 

 

13.**Counterparts**. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original butall of which together shall constitute one and the same instrument.

 

14.**Litigation**. The parties agree that the exclusive venue for any litigation commenced by the Company or Executive relatingto this Agreement shall be the state courts located in Utah County, Utah, or the United States District Court, District of Utah.The parties waive any rights to object to venue as set forth herein, including any argument of inconvenience for any reason.

 

15.**Entire Agreement**. This Agreement constitutes (i) the binding agreement between the parties and (ii) represents the entireagreement between the parties and supersedes all prior agreements relating to the subject matter contained herein. All prior negotiationsconcerning Executive’s employment with the Company have been merged into this Agreement and are reflected in the terms herein.

 

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Executive:_____

Company:_____

 

** **

**INWITNESS WHEREOF**, the parties have duly executed and delivered this Agreement as of the Effective Date.

 

 

Executive:_____

Company:_____