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EMPLOYMENT AGREEMENT


 


This Employment Agreement is entered into as of the 1st day of November, 2010, between Xnergy, Inc., 


a California corporation with its principal offices located in Carlsbad, California (“Xnergy” or the 


“Company”), and D. Jason Davis (“Employee”).


 


In consideration of the mutual covenants contained in this Agreement, the Company and Employee 


agree as follows:


 







1. Employment.


 







During the term of this Agreement, as defined in Sections 2 and 4 of this Agreement, the Company 


shall employ Employee, and Employee hereby accepts such employment by the Company, in 


accordance with the terms and conditions set forth in this Employment Agreement.


 







(a) Position and Duties. Employee shall serve as the President and Chief Executive Officer 


(CEO) of the Company. Employee shall perform all duties, services and responsibilities and 


have such authority and wers for and on behalf of, the Company as are customary and 


appropriate for such positions and as are established from time to time


 


by, or in accordance with procedures established by, the Company’s Board of Directors.


 


Employee shall be accountable to, and shall only report to the Company’s Board of


 


Directors in connection with the performance of his duties, services and responsibilities


 


and the exercise of his authority and power hereunder. The Board of Directors shall


 


remain the same as prior to the acquisition and until such time as AEGY acquires a


 


controlling interest in the Company and thereafter shall remain the same until the


 


shareholders of the Company vote a change. HOTI and its subsidiaries, affiliates, and


 


directors, agree that when AEGY acquires a controlling interest in the Company they


 


will, for a period of five years from the date of this Agreement unless terminated as


 


provided in Paragraph 4, vote their shares of AEGY stock consistent with the provisions


 


set forth in subsection (c) below. During Employee's employment with the Company, the


 


Company shall never appoint a co-CEO, co-President, or anyone else that has equal or


 


greater authority in the Company than Employee.


 







(b) Performance. Employee shall perform the duties called for under this Agreement


 


to the best of his ability and shall devote all of his business time, energies, efforts and


 


skill to such duties during the term of his employment. Employee shall be based at, and


 


be expected to perform his duties at, the Company offices in San Diego and at other


 


geographic locations as required, and shall include reasonable travel incidental to the


 


performance of his duties under this Employment Agreement.


 


c) Additional Duties. The Company agrees that within eighteen (18) months of the date of


 


Closing of the acquisition of all of the issued and outstanding stock of the Company by


 


Healthcare of Today, Inc., ownership of the outstanding stock of Xnergy will be transferred to


 


Alternative Energy Partners, Inc. (“AEGY”) and Xnergy will become a wholly-owned subsidiary


 


of AEGY. The parties acknowledge that their intent is that, in addition to his duties hereunder to


 


the Company which shall continue, Employee shall be appointed to the Board of Directors of


 


AEGY and as its President and CEO, in which capacity he will assume responsibility for the


 







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overall management of AEGY's current and future renewable energy, energy business operations,


 


opportunities, divisions and acquisitions and shall be compensated as described in Addendum A


 


of this Agreement for serving in those positions, reporting to the Board of Directors of AEGY.


 


The Board of Directors of the Company shall be made up of five members, one of whom shall be


 


Employee at all times during his employment by the Company under this Agreement, one of


 


whom shall be Joey Patalano at all times during his employment by the Company under a similar


 


employment agreement with the Company, two of whom shall be appointed at all times by


 


Healthcare of Today, Inc. and the fifth of whom shall be nominated and appointed by the other


 


four members and shall serve as the Chairman of the Board of Directors.


 







2. Term.


 







Subject to Section 4 of this Agreement, the term of Employee’s employment under this


 


Agreement shall begin on the date of the Closing of the acquisition of all of the issued and


 


outstanding stock of the Company by Healthcare of Today, Inc. (“Healthcare”), pursuant to the


 


Acquisition Agreement between the Company, its shareholders and Healthcare dated September


 


30, 2010, and shall continue for an initial term of sixty (60) months and shall be renewed


 


annually thereafter for successive 12 month terms, unless modified, amended or terminated by


 


the parties as provided herein.


 







3. Compensation, Expenses and Benefits.


 







As full compensation for Employee’s performance of his duties pursuant to this Agreement, the


 


Company shall pay Employee during the term of this Agreement, and Employee shall accept as


 


full payment for such performance, the following aggregate amounts and benefits:


 







(a) Salary. As salary for Employee’s services to be rendered under this Agreement, the


 


Company shall pay Employee an aggregate salary, payable monthly in arrears, based on the


 


following schedule:


 







$300,000 per year, payable every two weeks to coincide with Xnergy's current


 


payroll system and third party Direct Deposit for the preceding two weeks.


 







(b) Bonus. The Company may pay Employee a bonus, in such amount and at such time


 


as shall be determined by the Company’s Board of Directors or its Compensation Committee and


 


any bonus to which Employee may be entitled to under any Executive Officer Bonus Plan now


 


or hereafter in effect. The Board of Directors of the Company or the Compensation Committee


 


shall review Employee’s salary and bonus at least once a year to determine the amount, if any, of


 


Employee’s salary increase and discretionary bonus.


 







(c) Business Expenses. The Company shall pay or reimburse Employee for all


 


reasonable, ordinary and necessary travel expenses including airfare, car rental and lodging,


 


cellular phone, Internet access, entertainment, meals, and other out-of-pocket expenses incurred


 


by Employee in connection with the Company’ businesses, for which Employee submits


 


appropriate receipts and which are consistent with Company policy or have been authorized by


 


the Company’ Boards of Directors.


 












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(d) Benefits. Employee shall be eligible to participate in all fringe benefits that he is


 


currently enjoying as an employee of the Company, including but without limitation the


 


following: major medical and dental insurance, life insurance, any 401(k) plan, retirement plans


 


and other employee benefit plans, applicable to other similar employees of the Company, when


 


and if adopted and made available during the term of this Agreement to employees with similar


 


periods of service, subject to any eligibility or other requirements for participating in such fringe


 


benefits and to the actual existence of the respective plans.


 







(e) Options and Stock Benefits. In addition to the compensation otherwise provided for


 


herein, Employee shall be entitled to receive the stock options and stock benefits described in


 


Addendum A.


 







(f) Indemnification; Directors and Officers Insurance. The Company shall, to the fullest


 


extent authorized or permitted by applicable state law, defend, indemnify and hold Employee, his


 


heirs, executors, administrators and other legal representatives, harmless from and against any


 


and all claims, suits, debts, causes of action, proceedings or other actions, at law or in equity,


 


including costs and reasonable attorney fees which any person or entity may have had, now has


 


or may in the future have with respect to Employee’s service to the Company as an officer,


 


employee or agent thereof. This provision shall survive the termination of this agreement.


 







(g) Vacation. Employee is eligible for vacation in accordance with existing Company


 


policy which is that after five (5) years of service an employee receives fifteen (15) days of paid


 


vacation time each calendar year. Only one week of vacation may be accrued or carried over


 


from one calendar year to another, with a maximum of twenty (20) days of paid vacation being


 


allowed to be accrued at any one time over one calendar year.


 







4. Termination.


 







(a) Death. Employee’s employment under this Employment Agreement shall terminate


 


immediately upon Employee’s death.


 







(b) Disability. Employee’s employment under this Employment Agreement shall terminate at the


 


Company’s option, immediately upon notice to Employee given after Employee’s “total


 


disability”, but no earlier than the later of (i) the day after six (6) consecutive months during


 


which Employee suffers from a “total disability” and (ii) the day that Employee is eligible to


 


begin receiving disability benefits under the insurance policy or its equivalent provided in


 


Section 3 of this Agreement, assuming such condition continues, all, if permitted by such


 


insurance policy or its equivalent, as determined by a doctor chosen by the Company and a


 


doctor chosen by Employee, if necessary, a doctor mutually chosen by such doctors. Employee


 


shall continue to receive compensation pursuant to Section 3 during the period prior to the


 


termination of Employee’s employment pursuant to this Section 4 (b), less any disability benefits


 


Employee receives pursuant to the insurance policy or its equivalent provided by Section 3 with


 


respect to such period. There shall be no deduction for disability benefits received by Employee


 


if Employee pays the premiums on such disability insurance policy.


 

















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(c) With Cause - Employer. The Company shall have the right, upon written notice to


 


Employee, to terminate Employee’s employment under this Employment Agreement for “cause”.


 


Such termination shall be effective immediately upon Employee’s receipt of such written notice.


 


“Cause” means only the following: a) breach by Employee of any Confidentiality Agreement by


 


and between Employee and the Company, but only if such breach has a material adverse effect


 


on the Company, b) failure to perform his duties under this Employment Agreement, c) gross


 


neglect, gross abuse of office amounting to fraud or (d) any conviction of a felony provided that


 


failure to perform his duties under this Employment Agreement, gross neglect, and gross abuse


 


of office amounting to fraud shall constitute “cause” only if Employee fails to correct or fails to


 


terminate such actions to the satisfaction of the Board of Directors of the Company, with


 


Employee not participating in any discussions or vote thereon within thirty (30) days after


 


written notice of such “cause” from the Company to the Employee.


 







(d) Without Cause - Company. The Company shall have the right, upon written notice to the


 


Employee, to terminate Employee’s employment under this Employment Agreement without


 


“cause”. Such termination shall be effective thirty days after the receipt of such notice.


 







(e) Without Cause – Employee. The Employee shall have the right, upon written notice to the


 


Company, to terminate Employee’s employment under this employment Agreement without


 


“cause”.


 







5. Effects of Termination.


 







(a) If Employee’s employment under this Employment Agreement is terminated


 


pursuant to Sections 4 (a), 4(b), or 4 (c) or if Employee resigns pursuant to Section 4 (e), the


 


Company’s obligations under this Employment Agreement, including obligations under Section


 


3, shall end except for the Company’s obligations to: (i) reimburse Employee (or his estate) for


 


all out of pocket expenses incurred and unpaid pursuant to Section 3 of this Agreement and all


 


accrued and unpaid vacation leave and other benefits actually due pursuant to Section 3 through


 


the date of termination; and (ii) pay to Employee all salary and bonus compensation pursuant to


 


Section 3 through the effective date of termination.


 







(b) Notwithstanding anything to the contrary in this Employment Agreement or any


 


other agreement between the parties, if Employee’s employment is terminated pursuant to


 


Section 4 (d), in addition to providing the benefits described in Section 5 (a):


 












(i) The Company shall pay and/or provide to Employee all


 


compensation, expenses, rights and benefits provided under Section 3 hereof for a


 


period of twenty-four months after such termination as if termination by the


 


Company pursuant to Section 4 (d) had not occurred;


 


(ii) Employee shall not be bound by the terms of Sections 6 and 7 of


 


this Agreement after two years from the termination date;


 


(iii) Employee shall be fully vested in all stock options provided to him


 


by the Company.


 







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(iv) All payments due and not paid for the acquisition of Company


 


become due upon date of termination;


 


(c) In the event Employee terminates Employee’s employment pursuant to Section 4(e)


 


of this Agreement, employee shall forfeit any and all outstanding and unpaid


 


consideration then due to employee pursuant to any Merger Agreement or Acquisition


 


Agreement entered into by and between Employee and employer or any parent


 


company of employer unless Employee "voluntarily" terminates his employment with


 


the Company because the Company has significantly reduced his authority to run the


 


Company or has transferred him to an office located outside of the greater San Diego


 


area.


 


6. Solicitation of Employees and Consultants.


 







(a) Provided that the Company is not in default under this Employment Agreement,


 


including but not limited to Section 3 of this Agreement, then upon termination of Employee’s


 


employment with the Company under this Agreement, with cause by the Company or without


 


cause by the Employee, then Employee shall not, for a period of two (2) years following the date


 


of such termination:


 







(i) Solicit or attempt to hire any person who is then employed by the


 


Company or its subsidiaries or who, to Employee’s knowledge, was employed by


 


the Company or its subsidiaries at any time during the year before the termination


 


of Employee’s employment with the Company under this Agreement; or


 







(ii) Encourage any such person to terminate his employment


 


with the Company or its subsidiaries.


 







7. Covenant Not to Compete.


 







Provided that the Company is not in default under this Employment Agreement, including but


 


not limited to Section 3 of this Agreement, then upon termination of Employee’s employment


 


with the Company under this Agreement with cause by the Company or without cause by the


 


Employee, for a period of three (3) years following the date of such termination, Employee shall


 


not:


 







(a), within a one hundred (100) mile radius of any customer of Company whose


 


principal place of business is located in California, Nevada or Arizona at the time of


 


such termination, directly or indirectly, himself, or through or for an individual, person


 


or entity wherever located engage in the business of marketing, selling or distributing


 


any product or service which the Company was then marketing, selling or distributing


 


at the time of such termination; or


 







(b) contact, solicit or otherwise do business with any customer of Company at the time


 


of such termination; provided, that Employee may own, for investment purposes only,


 


up to 3% of the stock of any publicly traded business or fund engaged in the business of


 


marketing, selling or distributing any product or service which the Company was then


 







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marketing, selling or distributing at the time of such termination, whose stock is either


 


listed on a national stock exchange or on The NASDAQ National Market (if Employee


 


is not otherwise affiliated with such business).


 







8. Return of Documents.


 







Upon termination of Employee's employment with the Company for any reason, all documents,


 


procedural manuals, guides, specifications, plans, drawings, designs and similar materials,


 


diaries, records, customer lists, notebooks, and similar repositories of or containing confidential


 


information, including all copies thereof, then in Employee’s possession or control, whether


 


prepared by Employee or others, shall be left with, or forthwith returned by Employee to, the


 


Company.


 


9. Company’ Remedies.


 







Employee acknowledges and agrees that the covenants and undertakings contained in Sections


 


1(b), 6, 7 and 8 of this Agreement relate to matters which are of a special, unique and


 


extraordinary character and that a violation of any of the terms of such Sections will cause


 


irreparable injury to the Company, the amount of which will be difficult, if not impossible, to


 


estimate or determine and which cannot be adequately compensated. Therefore, Employee


 


agrees that the Company, in addition to any other available remedies under applicable law and


 


subject to Paragraph 17 of this Agreement, shall be entitled, as a matter of course, to an


 


injunction, restraining order or other equitable relief from any court of competent jurisdiction,


 


restraining any violation or threatened violation of any such terms by Employee and such other


 


persons as the court shall order, but only after Employee shall be given at least five (5) days


 


written notice of Company's request for such equitable relief and an opportunity to present his


 


position to the Court of competent jurisdiction located in San Diego County, California.


 


10. Employee’s Remedies.


 







Employee’s remedy against the Company for breach of this Agreement and/or wrongful


 


termination of his employment is the collection of any compensation due him as provided in


 


Sections 3 and 5 and such other remedies as are available to Employee under law or in equity,


 


subject to Paragraph 17 of this Agreement.


 


11. Assignment.


 







The Company shall not be required to make any payment under this Agreement to any assignee


 


or creditor of Employee, other than to Employee's legal representative or his estate on death or


 


disability. Employee’s obligations under this Agreement are personal and may not be assigned,


 


delegated or transferred in any manner and any attempt to do so shall be void. Employee, or his


 


legal representative, shall have no rights by way of anticipation or otherwise to assign or


 


otherwise dispose of any right of Employee under this Agreement. The Company may not assign


 


this Agreement without Employee’s consent. This Agreement shall be binding upon, and shall


 


inure to the benefit of, the Company, Employee and their permitted successors and assigns.


 


12. Company’ Obligations Unfunded.


 







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Except for any benefits under any benefit plan of the Company that are required by law or by


 


express agreement to be funded, it is understood that the Company’ obligations under this


 


Agreement are not funded, and it is agreed that the Company shall not be required to set aside or


 


escrow any monies in advance of the due date of the payment of such monies to Employee.


 







13. Notices.


 







(a) To Employee. Any notice to be given under this Agreement by the Company to Employee


 


shall be deemed to be given if delivered to Employee in person or three business days after


 


mailed to him by certified or registered mail, postage prepaid, return receipt requested, to:












D. Jason Davis


 


11235 Deprise Cove


 


San Diego, CA 92010


 







or at such other address as Employee shall have advised the Company in writing.


 







(b) To the Company. Any notice to be given by Employee to the Company shall be deemed to be


 


given three business days after mailed by certified or registered mail, postage prepaid, return


 


receipt requested, to:


 


Xnergy, Inc.


 


2721 Loker Avenue West


 


Carlsbad, CA 92010


 







With a copy to:


 


Healthcare of Today, Inc.


 


1365 N. Courtenay Parkway, Suite A


 


Merritt Island, FL 32953


 


Attention: Robert Hipple, General Counsel


 







or at such other address as the Company shall have advised Employee in writing.


 







14. Amendments.


 







This Agreement shall not be amended, in whole or in part, except by an agreement in writing signed


 


by the Company and Employee.


 







15. Entire Agreement.


 







This Agreement constitutes the entire agreement between the parties with respect to the subject


 


matter of this Agreement and all prior agreements or understandings, oral or written, are merged in


 


this Agreement and are of no further force or effect (except for the parties’ Acquisition Agreement


 


dated as of September 30, 2010 which remains in full force and effect). The parties acknowledge


 


that they are not relying on any representations, express or implied, oral or written, (relating to any


 


aspect of Employee's current or future employment or otherwise), except for those stated in this


 







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Agreement. Employee further acknowledges that his sole rights and remedies with respect to any


 


aspect of his employment or termination of his employment are provided for in this Agreement.


 







16. Captions.


 







The captions of this Agreement are included for convenience only and shall not affect the


 


construction of any provision of this Agreement.


 







17. Arbitration .


 







The Parties agree that all questions or matters in dispute with respect to this Agreement shall be


 


submitted to arbitration on the following terms:


 


(a) It shall be a condition precedent to the right of any party to submit any matter to arbitration


 


pursuant to the provisions hereof, that any party intending to refer any matter to arbitration shall


 


have given not less than five business days’ prior written notice of its intention to do so to the


 


other party together with particulars of the matter in dispute. On the expiration of such five


 


business days the party who gave such notice may proceed to refer the dispute to arbitration as


 


provided for below.


 


(b) The party desiring arbitration shall appoint one arbitrator, and shall notify the other party of


 


such appointment, and the other party shall, within five business days after receiving such notice,


 


appoint an arbitrator, and the two arbitrators so named, before proceeding to act, shall, within


 


five business days of the appointment of the last appointed arbitrator, unanimously agree on the


 


appointment of a third arbitrator, to act with them and be chairman of the arbitration herein


 


provided for (and if both Parties agree in writing to drop their respective arbitrators then the


 


"chairman" shall serve as the sole arbitrator). If the other party shall fail to appoint an arbitrator


 


within five business days after receiving actual notice of the appointment of the first arbitrator,


 


then the proceeding may continue with only one arbitrator so appointed, and if the two arbitrators


 


appointed by the parties shall be unable to agree on the appointment of the chairman, the


 


chairman shall be appointed in accordance with the rules for commercial arbitration of the


 


American Arbitration Association. Except as specifically otherwise provided in this section, the


 


arbitration herein provided for shall be conducted in accordance with the rules for commercial


 


arbitration of the American Arbitration Association and shall be conducted in either San Diego


 


or Orange Counties in the State of California. The chairman, or in the case where only one


 


arbitrator is appointed, the single arbitrator, shall fix a time and place for the purpose of hearing


 


the evidence and representations of the parties, and he shall preside over the arbitration and


 


determine all questions of procedure not provided for by the rules for commercial arbitration of


 


the American Arbitration Association, or this section.


 


After hearing any evidence and representations that the parties may submit, the single arbitrator,


 


or the arbitrators, as the case may be, shall make an award and reduce the same to writing, and


 


deliver one copy thereof to each of the parties.


 


(c) The Parties agree that the award of a majority of the arbitrators, or in the case of a single


 


arbitrator, of such arbitrator, shall be final and binding upon each of them, and there shall be no


 


appeal from such award. Any such award may be filed thereafter in any court of competent


 







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jurisdiction in order to enforce the said award, and shall have the same force and effect as a


 


judgment in favor of the party in his favor the award was entered and against the other party to


 


the arbitration.


 


(d) Any award in the arbitration shall be limited to actual contractual damages, and there shall be


 


no award of consequential or punitive damages. Each party expressly waives and disclaims the


 


right to a jury trial relating to or arising out of this Agreement and expressly accepts the


 


arbitration procedure set forth herein as the sole means of resolving any disputes or


 


disagreements. The parties agree that the Arbitrator shall award the substantially prevailing


 


party his/its reasonable attorney's fees and costs incurred in the subject dispute, together with any


 


costs incurred (including any expert witness fees).


 


18. Severability.


 


All provisions, agreements, and covenants contained in this Agreement are severable, and in the


 


event any of them shall be held to be illegal, void or invalid by any competent court or under any


 


applicable law, such provision shall be changed to the extent reasonably necessary to make the


 


provision, as so changed, legal, valid and binding. If any provision of this Agreement is held illegal,


 


void or invalid in its entirety, the remaining provisions of this Agreement shall not in any way be


 


affected or impaired, but shall remain binding in accordance with their terms.


 







19. No Waiver.


 


No waiver of any provision of this Agreement shall be valid unless in writing and signed by the


 


party against whom enforcement of the waiver is sought. The waiver by either party of any breach


 


of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent


 


breach.


 







20. Consultation with Counsel.


 


Employee acknowledges that he has been given the opportunity to consult with his personal legal


 


counsel concerning all aspects of this Agreement and the Company has urged Employee to so


 


consult with such counsel.


 







21. Conflicts.


 


Employee represents and warrants that his execution, delivery and performance of this Agreement


 


will not (i) constitute a breach or violation of any agreement or arrangement to which he is a


 


party or by which the is bound; (ii) constitute a violation of any order, judgment or decree to


 


which he is a party; or (iii) require the consent of any third party.


 







22. Overall intent of Company/AEGY/HOTI management. It is the intent of the Company


 


(and AEGY when the Company becomes part of AEGY) to have the Employee oversee all of the


 


Company's, and AEGY's current and future renewable energy, energy business operations,


 


opportunities, divisions and acquisitions as CEO of AEGY. The Parties shall do this through


 


ecoLegacy, the Company, or AEGY as determined by Employee, in consultation with and


 


approval by the Company/AEGY's board of directors. All current and future energy producing


 


assets of the Company and AEGY, (and their respective affiliates, subsidiaries, sister companies


 


and divisions) shall be under the direction and control of Employee as CEO of AEGY during the


 


duration of his employment with the Company/AEGY. Further, all energy,


 







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HVAC/Plumbing/Electrical and/or facility services and construction related transactions and


 


operations (including mergers and acquisitions) will be under the direction of Employee as CEO


 


of AEGY, subject to AEGY's Board of Director's oversight and control.


 







23. HOTI’s agreement to be bound. While HOTI and AEGY are not Employee’s employer


 


Employee is entering into this Agreement based on statements and representations that have been


 


made by HOTI’s officers and/or directors. Accordingly, in the event Company does not honor any


 


of the terms of this Agreement, HOTI agrees to perform in Company’s stead.


 

















IN WITNESS WHEREOF, the Company and Employee have duly executed this Agreement as of


 


the date and year first above written.


 







Xnergy, Inc.


 


Company


 







By:


 







Its: _________________________________


 







D. Jason Davis


 












Employee


 







Agreed to, with respect to any undertakings specified as obligations of HOTI or Healthcare of


 


Today, Inc.


 







Healthcare of Today, Inc. (HOTI)


 


a California corporation.


 

















By:


 







Its: President and CEO


 

























































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ADDENDUM A – PERFORMANCE-BASED COMPENSATION


 







A. AEGY STOCK OPTION GRANT. Subject to the terms and conditions listed herein, and


 


upon Healthcare transferring its ownership of the Company to AEGY and Employee becoming a


 


member of the Board of Directors and the President and CEO of AEGY, AEGY shall issue stock


 


options to Employee annually for the calendar years 2011, 2012, 2013, 2014, and 2015, to


 


purchase common shares of AEGY stock (the “AEGY Stock Options”), up to an aggregate value


 


of $398,005 each calendar year, at an exercise price of US$0.001 per share under a stock option


 


plan to be adopted and approved by AEGY (the “Plan”).


 







AEGY’s Board of Directors or an independent compensation committee appointed by its Board


 


of Directors, shall determine the performance result criteria upon which the Stock Options shall


 


be granted, vest, and become exercisable under the Plan. In the event the conditions set forth by


 


the Board of Directors, or an independent compensation committee appointed by the Board of


 


Directors, are met, the Company shall issue the AEGY Stock Options upon completion, in form


 


satisfactory to AEGY, of the conditions to the grant of the Options


 







B. CONDITIONAL STOCK GRANT. In the event the 2010 annual audited consolidated


 


earnings before income tax (“EBIT”) of Xnergy and ecoLegacy is not less than US $3.5 million,


 


based on generally accepted accounting principles consistently applied and in form required by


 


Regulation S-X issued under the Securities and Exchange Act of 1934, Healthcare of Today, Inc.


 


shall issue to Employee 43,781 restricted, unregistered common shares of Healthcare of Today,


 


Inc. (“Healthcare”) stock (“Healthcare Performance Shares”), as valued in Section 2.1 of that


 


certain Acquisition Agreement executed by and between Xnergy and Healthcare on the 30th day


 


of September, 2010. In the event the conditions set forth herein are met, the Healthcare


 


Performance Shares shall be issued to Employee either as free trading shares or subject to a


 


piggy-back registration requirement in the event HOTI is not then trading publicly, if the 2010


 


annual audited consolidated earnings before income tax (EBIT) of the Company and ecoLegacy


 


are equal to or greater than $3.5 million, based on generally accepted accounting principles


 


consistently applied. The Performance Shares shall be issued, if earned, on completion of the


 


audit of the Company and ecoLegacy for the calendar year ended December 31, 2010, but no


 


later than April 30, 2011.


 







EBIT shall be exclusive of any parent or affiliate company pro-rata burden and/or SG&A fees


 


taxed against the company’s income and of any income, net revenues or other operations of any


 


subsequent acquisition of AEGY, Xnergy or ecoLegacy.


 







C. HEALTHCARE CONDITIONAL STOCK OPTION GRANT. Healthcare shall issue to


 


Employee options to purchase up to 1,592,020 common shares of Healthcare stock (the


 


“Healthcare Stock Options”) to be issued at Closing of the Acquisition Agreement and at an


 


exercise price of US$1.00 per share and vesting and exercisable annually based on the annual


 


consolidated EBIT of the Company and ecoLegacy commencing for the calendar years 2011


 


through 2015, as follows:


 







Consolidated EBIT Options Vesting and


 












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(no less than): Exercisable Each Year


 







$ 3,500,000 199,003


 


$ 4,200,000 238,803


 


$ 5,040,000 318,404


 


$ 6,048,000 398,005


 


$ 7,260,000 477,606


 


$ 8,712,000 557,207


 







Annual Minimum Vesting. Stock Options equaling not less than 199,003 shares, valued at


 


US$1.00 shall vest and become exercisable for each of the calendar years 2011, 2012, 2013 and


 


2014, provided that annual consolidated EBIT of Xnergy and ecoLegacy, as defined in Section


 


1.4 of the Acquisition Agreement, is not less than US$3,500,000 in any year. Any and all Stock


 


Options not vested and exercised before December 31, 2017 shall expire.


 







EBIT shall be exclusive of any parent or affiliate company pro-rata burden and/or SG&A fees


 


taxed against the company’s income and of any income, net revenues or other operations of any


 


subsequent acquisition of AEGY, Xnergy or ecoLegacy


 





























































































































































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