Employment Agreement (the “Agreement”) is made and entered into as of June 17, 2019 (the “Effective
Date”), by and between Xxxxxxx Xxxxxxxxxxx, an individual (the “Executive”), and Akerna Corp., a
corporation formed in the State of Delaware with its principal place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxx #000, Xxxxxx,
Xxxxxxxx 00000, (the “Company”) (each individually, “Party,” collectively, the “Parties”).
the Company was created as the result of a merger between MTech Acquisition Holdings, Inc. (“MTech”) and its
wholly-owned subsidiary, MJ Freeway LLC (“MJ Freeway”) (the “Merger”);
Executive has served as the Chief Executive Officer of MJ Freeway;
the Company desires to retain the services of Executive as the Chief Executive Officer of the Company and the Executive desires
to provide such services to the Company; and
in light of the foregoing, the Company and Executive desire to memorialize their employment relationship on the terms, conditions
and covenants set forth in this Agreement.
THEREFORE, in consideration of the foregoing, the mutual covenants contained herein and other good and valuable consideration,
the receipt of which the Parties hereby acknowledge, Executive and the Company agree as follows:
prior employment agreements, oral or written, by and between Executive and MJ Freeway, including that certain “Employee
Covenant Agreement” dated July 23, 2014, are cancelled, and, as of the Effective Date of this Agreement, are of no further
force or effect, provided, however, that nothing herein shall impair any rights of Executive under any compensation, employee
benefit or equity rights plan, program or arrangement.
acknowledges that, as of the Effective Date, except as set forth in this Agreement, she
is not entitled to any severance pay or similar benefits from MJ Freeway pertaining,
in any way, to her employment with MJ Freeway, of from any of MJ Freeway’s successors
or assigns, or from the Company.|
of the Effective Date, Executive agrees to be employed by the Company in the position of Chief Executive Officer, and the Executive
shall be the senior-most executive of the Company. Executive’s first day of work for the Company will be the date the merger
of MTech and MJ Freeway closes (the “Closing Date”). Executive shall directly report to the Board of Directors
of the Company (including any designated committee thereof, the “Board of Directors”), and all employees of
the Company shall report to Executive or her designee(s). In her capacity as the Company’s Chief Executive Officer, Executive
shall act as the Company’s principal executive officer, and in such capacity shall undertake the duties and responsibilities
customary to that position, subject to the oversight of the Board of Directors. Executive acknowledges Executive’s and the
Company’s public reporting obligations associated with Executive’s status as the principal executive officer of the
Company under applicable securities laws, rules and regulations, and Executive shall use Executive’s efforts to comply with
all such reporting obligations that are her personal responsibility (including filings related to beneficial ownership of the
Company’s securities under Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”));
provided that the Company agrees to provide the Executive with assistance and support with respect to all such filings
(including making such filings on the Executive’s behalf).
Company and the Board of Directors, respectively, shall take such action as may be necessary to appoint or elect the Executive
as a member of the Board of Directors as of the Closing Date. Thereafter, the Company shall cause the nominating and corporate
governance committee of the Board of Directors (or comparable committee) (the “Nominating Committee”) to nominate
Executive to serve as a member of the Board of Directors each year the Executive’s term of Board of Directors service is
to be slated for reelection to the Board of Directors. If the Company’s stockholders vote in favor of the Nominating Committee’s
nomination of Executive to serve as a member of the Board of Directors, Executive agrees to serve in such capacity.
At-Will Employment. Executive’s employment is at-will. Subject to Section 7, this means that either Executive or
the Company may terminate the employment at any time for any reason or no reason. This Agreement will commence on the Effective
Date and continue in effect until terminated in accordance with the terms and conditions set forth in Section 7 (the “Employment
Executive’s Effort. Executive shall devote substantially all of her working time, skill and attention to her position
and to the business and interests of the Company; provided, that nothing herein shall preclude Executive, (i) subject to
prior approval of the Board of Directors, from serving on the boards of directors of other for-profit companies or from serving
on industry committees and/or groups, (ii) serving on the board of directors of the National Cannabis Industry Association, serving
as a mentor to entrepreneurs, serving as an advisor to the Canopy Cannabis Accelerator and being a member of YPO, and (iii) from
engaging in charitable activities including serving on the boards of directors of non-profit organizations, so long as, in each
case, and in the aggregate, such service and management does not conflict with the performance of Executive’s duties hereunder.
Executive may be requested to serve as a member the Board of Directors and on the boards of directors of Company subsidiaries,
in each case for no additional compensation. The Company may apply for and obtain and maintain at its own sole expense a key person
life insurance policy in the name of Executive together with other executives of the Company in an amount deemed sufficient by
the Board of Directors, the beneficiary of which shall be the Company. Executive shall submit to physical examinations and answer
reasonable questions in connection with the application and, if obtained, the maintenance of, as may be required, such insurance
Executive’s Location. The principal place of the Executive’s employment shall be at 0000 Xxxxxxxx Xxxxxx, Xxxxx
#000, Xxxxxx, Xxxxxxxx 00000. Executive may be required to travel on Company business during the Employment Term.
Representations. Executive hereby represents and warrants to the Company that: (i) Executive has full power and capacity
to execute and deliver, and to perform, all of Executive’s obligations under this Agreement; (ii) upon execution and delivery
of this Agreement, this Agreement will be the valid and binding obligation of Executive, enforceable against Executive in accordance
with its terms; and (iii) Executive is not now under any obligation by contract, agreement or understanding to any person, business,
or other entity, that is inconsistent, or in conflict, with this Agreement or that would prevent Executive from performing her
obligations hereunder. Executive also agrees that she will immediately inform the Company of any such restrictions. The Company
represents and warrants to the Executive that the Company has the authority to enter into this Agreement with Executive, the person
signing this Agreement has the authority of the Company to enter into this Agreement on behalf of the Company, and that all corporate
formalities necessary to bind the Company (including Board of Director approval of this Agreement) have been accomplished.
Salary. The Company shall pay the Executive an annual base salary in the amount of
Two Hundred Fifty Thousand Dollars ($250,000),payable on a biweekly basis or otherwise
in accordance with the Company’s standard policies. The Base Salary shall be subject
to (i) review at least annually by the Board of Directors for increase, but not decrease,
and (ii) automatic increase by an amount equal to $50,000 from its then current level
on the date upon which the Company’s aggregate, gross consolidated trailing twelve
month (TTM) revenue equals the product of (x) two multiplied by (y) the Company’s
aggregate, gross consolidated trailing twelve month (TTM) revenue as the Closing Date.
The base salary as determined herein and increased from time to time shall constitute
“Base Salary” for purposes of this Agreement.|
In addition to the Base Salary, the Executive shall be eligible for an annual bonus
(the “Annual Bonus”) with respect to each fiscal year ending during
the Executive’s employment. Executive’s target annual cash bonus shall be
in the amount of one hundred percent (100%) of Executive’s Base Salary (the “Target
Bonus”) with the opportunity to earn greater than the Target Bonus upon achievement
of above target performance. The amount of the Annual Bonus shall be determined by the
Board of Directors on the basis of fulfillment of the objective performance criteria
established in the reasonable discretion of the Board of Directors, after prior consultation
with Executive. The performance criteria for any particular fiscal year shall be set
no later than ninety (90) days after the commencement of the relevant fiscal year. The
Parties acknowledge and agree that, for the 2019 fiscal year, the Annual Bonus shall
be determined based upon the following four (4) budget components, each of which scales
linearly between achieving 75% to 100%, and greater than 100% with respect to the Platform
Recurring Revenue and Government Recurring Revenue budget components respectively, of
the applicable fiscal year’s budget for each such component (with 50% of the Target
Bonus payable upon achievement of 75% of budget, 100% of the Target Bonus payable upon
achievement of budget (and, with respect to the Platform Recurring Revenue and Government
Recurring Revenue budget components, with 200% of each weighted portion of the Target
Bonus payable upon achievement of 125% of the corresponding component of budget, with
linear interpolation between points)):|
||Percentage Weighting of|| |
||Executive’s Base Salary|| |
||Platform Recurring Revenue||
||Government Recurring Revenue||
TARGET BONUS (i) – (iv): 100% of Executive’s Base Salary
Annual Bonus for a fiscal year shall be paid within thirty (30) days following issuance of the Company’s annual audited
financial statements for the applicable year, but in no event later than two and half months following the last day of the year
to which such Annual Bonus relates, subject to Executive’s employment with the Company on such last day, which is the day
when any such Annual Bonus is earned, except as provided in Section 7 hereof. No portion of the Annual Bonus shall be prorated
based upon the date of the Closing Date.
Award. Within ten (10) days following the Closing Date, the Company shall pay the Executive a cash bonus in a single lump
sum of $95,000.00.
Equity Awards. In addition, in the first fiscal quarter of each year during the Employment Term (or more frequently), the
Company shall grant Executive an equity-based incentive award with a grant date fair value determined by the Compensation Committee
of the Board (the “Annual Award”). The Annual Award shall be subject to such terms and conditions (including
vesting conditions) that are no less favorable to the Executive than any other executive or employee of the Company.
Benefits. During the Executive’s employment at the Company, the Executive shall be entitled to participate in all employee
benefit plans, practices, and programs maintained by the Company, as in effect from time to time (collectively, “Employee
Benefit Plans”), on a basis which is no less favorable than is provided to other similarly situated executives of the
Company, to the extent consistent with applicable law and the terms of the applicable Employee Benefit Plans. The Company reserves
the right to amend or cancel any Employee Benefit Plans at any time in its sole discretion, subject to the terms of such Employee
Benefit Plans and applicable law.
Paid Time Off; Holidays. During the Employment Term, the Executive shall be entitled to no less than four (4) weeks’
paid vacation per calendar year and paid holidays in accordance with the Company’s policies for executive officers as such
policies may exist from time to time. The Company shall give Executive credit for vacation days she accrued during her employment
with MJ Freeway but has not used as of the date she begins employment with the Company.
Expenses. The Executive shall be entitled to reimbursement for all reasonable out-of-pocket business, entertainment, and travel
expenses incurred by the Executive in connection with the performance of the Executive’s duties hereunder and in accordance
with the Company’s expense reimbursement policies and procedures. In addition, during the Executive’s employment with
the Company, the Company shall pay the costs of the Executive’s YPO membership up to a maximum amount of $10,000.
Fees. The Company shall reimburse up to $10,000 of the Executive’s reasonable counsel fees incurred in connection with
the negotiation and documentation of this Agreement, which shall be paid within thirty (30) days following the Effective Date.
and D&O. If Executive is made or threatened to be made a party to or a participant in any actual, threatened, pending,
or completed action, claim, suit, investigation or proceeding of any type, the Company shall indemnify, defend, and hold Executive
harmless to the maximum extent authorized or permitted by applicable law, by its Articles of Incorporation, By-Laws, and all other
organizational documents of the Company, as the foregoing may be amended from time to time to provide broader protection, and
including, any and all expenses (including advancement and payment of attorneys’ fees) and losses arising out of or relating
to any of Executive’s actual or alleged acts, omissions, negligence or active or passive wrongdoing, including, the advancement
of expenses Executive incurs. In all events, without limiting the foregoing, the Company shall provide Executive with indemnification
on terms no less favorable than provided to any other executive officer or director of the Company. Such indemnification shall
continue even if Executive has ceased to be a director, officer, equityholder, or employee of the Company and shall inure to the
benefit of Executive’s heirs, executors and administrators. Further, the party that prevails in litigation or arbitration
over any controversy, dispute or claim which arises out of or relates to this Agreement, any other agreement or arrangement between
Executive and the Company, Executive’s employment with the Company, or the termination thereof, shall be reimbursed for
any and all costs and expenses (including attorneys’ fees) incurred by the prevailing party in connection with litigation
or arbitration over such controversy, dispute or claim. In addition, during Executive’s employment with the Company and
while potential liability exists (but in no event less than six years thereafter), the Company or any successor to the Company
shall purchase and maintain, at its own expense, directors’ and officers’ liability insurance providing coverage to
Executive on terms that are no less favorable than the coverage provided to other directors and officers of Company (but in no
event less than a reasonable amount of coverage). The provisions of this Section 6(i) shall survive the termination of this Agreement
and Executive’s employment with the Company.
Termination of Employment. The Executive’s at-will employment hereunder may be terminated by the Company with or
without Cause, or by the Executive with or without Good Reason.
of Cause. For purposes of this Agreement, “Cause” shall mean:
willful failure to perform her duties (other than any such failure resulting from incapacity due to physical or mental illness);
willful failure to comply with a lawful directive of the Board of Directors; or
willful engagement in illegal conduct, or gross misconduct, which, in each case, is materially injurious to the Company; or
actions by Executive constituting embezzlement, misappropriation, or fraud, whether or not related to the Executive’s employment
with the Company; or
conviction of or plea of guilty or nolo contendere to a crime that constitutes a felony (or state law equivalent) or a crime that
constitutes a misdemeanor involving moral turpitude; or
material breach of any material obligation under this Agreement;
that the Company hereby acknowledges and agrees that Executive’s engagement in, or facilitation of, business in or with
respect to the marijuana industry shall not constitute “Cause” hereunder.
in the case of an event of Cause described in clauses (i), (ii) and (vi) of this Section 7(a) (each, a “Cause Capable
of Cure”), the Company cannot terminate Executive for Cause unless the Company has provided written notice to Executive
of the existence of the circumstances providing grounds for termination for a Cause Capable of Cure, and Executive has had at
least thirty (30) calendar days from the date on which such notice is provided to cure such circumstances; provided however,
that, if the Company expects irreparable injury from a delay of thirty (30) calendar days, the Company may give the Executive
notice of such shorter period within which to cure as is reasonable under the circumstances. Notwithstanding the foregoing provisions
of this Section 7(a), any action or inaction taken by the Executive based upon the Executive’s reasonable reliance on advice
of counsel to the Company or the direction of the Board of Directors shall not form the basis for Cause. A termination of employment
will not be considered a termination with Cause unless the Board of Directors, within one hundred twenty (120) days following
the date upon which the Board knows of the condition giving rise to Cause, notifies the Executive in writing of its intent to
terminate her employment with Cause.
of Good Reason. For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following,
in each case during the Employment Term without the Executive’s written consent:
reduction in the Executive’s Base Salary or Target Bonus percentage;
relocation of Executive’s principal place of employment by more than twenty five (25) miles;
material breach by the Company of any material provision of this Agreement or any other material agreement between the Company
adverse change in Executive’s title, duties, responsibilities or authority (other than temporarily while Executive is physically
or mentally incapacitated or as required by applicable law), except a change in title after a “Change in Control”
(as defined below) shall not be considered Good Reason.);
Company’s failure to obtain an agreement from any successor to the Company following a Change in Control to assume and agree
to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no succession
had taken place; or
purported termination of Executive’s employment that is not effected in accordance with the applicable provisions of this
termination of employment will not be considered a termination with Good Reason unless (x) the Executive, within ninety (90) days
following the occurrence of the condition giving rise to Good Reason, notifies the Company in writing of her intent to terminate
with Good Reason; (y) the Company fails to cure such condition within thirty (30) days after being so notified; and (z) the Executive
actually terminates no later than thirty (30) days after the end of such thirty (30)-day cure period.
for Cause or Without Good Reason. Upon termination of Executive’s employment for Cause or by Executive without Good
Reason, the Company shall have no further obligation or liability to Executive under this Agreement, other than for:
accrued but unpaid Base Salary and accrued but unused vacation which shall be paid on the date required by applicable law;
Annual Bonus earned and awarded for the fiscal year preceding that in which termination occurs, but unpaid on the date of termination
(the “Prior Year Bonus”), except that in the event of Executive’s termination pursuant to this Section
7(c), any such Annual Bonus for a year shall be awarded and payable in accordance with Section 6(b) hereof, subject to Executive’s
employment with the Company on the last day of the year to which the Annual Bonus relates;
for unreimbursed business expenses properly incurred by the Executive, which shall be subject to and paid in accordance with the
Company’s expense reimbursement policy, and provided that such expenses and required substantiation and documentation
are submitted within thirty (30) days following termination;
employee benefits, if any, to which the Executive may be entitled under the Company’s employee benefit plans as of the Termination
Date; provided that, in no event shall the Executive be entitled to any payments in the nature of severance or termination
payments except as specifically provided herein; and
amounts otherwise required to be paid or provided by law.
amounts descripted in Sections 7(c)(i) through 7(c)(v) are referred to herein collectively as the “Accrued Amounts.”
due to Death or Disability Upon termination of this Agreement solely as a result of the death or Disability of Executive,
Executive or her estate shall receive:
Accrued Amounts; and
one-time pro rata share (through the termination date) of the Target Bonus amount for the year in which such termination occurred,
payable within thirty (30) days following the date of termination of employment (the “Pro-Rated Bonus”).
purposes of this Agreement, “Disability” shall mean the physical or mental illness or incapacity (including as a result
of abuse of alcohol or other drugs or controlled substances) of Executive which results in Executive being unable to substantially
perform the duties and services required to be performed under this Agreement, subject to the requirements of applicable disability
discrimination laws, for a period of (i) one hundred twenty (120) consecutive days or longer, or (ii) one hundred eighty (180)
days in any three hundred sixty (360) consecutive day period, as determined by the Board of Directors in good faith.
Without Cause or With Good Reason. The Employment Term and the Executive’s employment hereunder may be terminated by
the Company without Cause or by the Executive with Good Reason. In the event of such termination, in addition to the rights under
Section 6(c), the Executive shall be entitled to the following:
cash severance payment equal to the Base Salary (at the highest rate in effect during the twelve (12) month period preceding the
date of such termination of employment), payable in equal monthly installments for the twelve (12) month period immediately following
the Termination Date;
Pro-Rated Bonus through the date of termination;
of the lock up period imposed by that certain Lock Up Agreement Executive executed in connection with the Merger with respect
to fifty percent (50%) of the shares of Company stock that were owned by Executive prior to the Merger; and
the extent permitted by applicable law, payment by the Company of Executive’s group health insurance (COBRA) premium for
a period of twelve (12) months following the Executive’s termination under this Section 7(e), provided the Executive
continues to be eligible for COBRA for that entire period of time.
Without Cause or With Good Reason in Connection with Change in Control. In the event of Executive’s termination without
Cause or resignation with Good Reason, occurs within the period beginning sixty (60) days before and ending twelve (12) months
following the occurrence of a Change in Control (as defined below) of the Company, Executive shall, in addition to the payments
and benefits described in Section 7(e), also be entitled to a one-time cash severance payment in an amount equal to the Base Salary
(at the highest rate in effect during the twelve (12) month period preceding the date of such termination of employment), payable
in a single lump sum within sixty (60) days following the date of such termination of employment.
and other applicable entitlements provided under this Section 7(e)(ii), (iii) and (iv) and Section 7(f) are subject to the Executive’s
compliance with Section 9, Section 10 and Section 11 of this Agreement and her execution of a general release of claims and covenant
not to xxx in a form annexed hereto as Exhibit A (the “Release”), such Release becoming effective within
thirty (30) days following the Termination Date, and Executive not revoking the Release.
purposes of this Agreement, the term “Change in Control” means the occurrence of any one or more of the following
events (it being agreed that, with respect to paragraphs (A) and (B) of this definition below, a “Change in Control”
shall not be deemed to have occurred if the applicable third party acquiring the Company is an “affiliate” of the
Company within the meaning of Rule 405 promulgated under the Securities Act of 1933, as amended):
acquisition (whether directly from the Company or otherwise) of fifty percent (50%) or more of the Company’s then outstanding
shares of stock by any “Person” (as that term is used for purposes of Section 13(d) or 14(d) of the Exchange
Act or more than one Person acting as a group, immediately after which such Person or group has “Beneficial Ownership”
(within the meaning of Rule 13d-3 promulgated under the Exchange Act).
who, as of the Effective Date constitute the entire Board of Directors (the “Incumbent Directors”) cease for
any reason, including without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute
at least a majority of the entire Board of Directors; provided that any individual becoming a director of the Company subsequent
to the Effective Date shall be considered an Incumbent Director if such person’s election or nomination for election was
approved by a vote of at least fifty percent (50%) of the Incumbent Directors; but provided further, that any such individual
whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of
members of the Board of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a “Person”
(as that term is used for purposes of Section 13(d) or 14(d) of the Exchange Act) other than the Board of Directors, including
by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation, shall not be considered
an Incumbent Director.
by the Board of Directors and, if required, stockholders of the Company, or execution by the Company of any definitive agreement
with respect to, or the consummation of (it being understood that the mere execution of a term sheet, memorandum of understanding
or other non-binding document shall not constitute a Change of Control):
merger, consolidation or reorganization involving the Company, where either or both of the events described in paragraphs (A)
and (B) above would be the result;
liquidation or dissolution of, or appointment of a receiver, rehabilitator, conservator or similar person for, or the filing by
a third party of an involuntary bankruptcy against, the Company; or
agreement for the sale or other disposition of all or substantially all of the assets of the Company to any Person or more than
one Person acting as a group (other than a transfer to a subsidiary of the Company).
of Termination. Any termination of the Executive’s employment hereunder by the Company or by the Executive (other than
termination on account of the Executive’s death) shall be communicated by written notice of termination (“Notice
of Termination”) to the other Party hereto in accordance with this Agreement. The Notice of Termination shall specify:
termination provision of this Agreement relied upon;
the extent applicable, the facts and circumstances claimed to provide a basis for termination of the Executive’s employment
under the provision so indicated; and
applicable Termination Date.
Duties after Receipt of Notice of Termination for Cause. Subject to the Company affording Executive a reasonable ability to
cure a purported Cause Capable of Cure, after the Company gives Executive notice of termination for Cause and prior to termination
of employment becoming effective, the Company may, in its sole discretion: (i) require that Executive absent herself from the
office; and (ii) require that Executive perform no work, provided that Executive shall continue to be paid her Base Salary
during such period of time.
Date. The Executive’s “Termination Date” shall be:
the Executive’s employment hereunder terminates on account of the Executive’s death, the date of the Executive’s
the Executive’s employment hereunder is terminated on account of the Executive’s Disability, the date that it is determined
that the Executive has a Disability;
the Company terminates the Executive’s employment hereunder for Cause, the date the Notice of Termination is delivered to
the Executive or, if applicable, the last date of the Cause Capable of Cure period;
the Company terminates the Executive’s employment hereunder without Cause, the date specified in the Notice of Termination;
the Executive terminates her employment hereunder with or without Good Reason, the date specified in the Executive’s Notice
of All Other Positions. Immediately upon the effective date of any termination of Executive’s employment with the Company
for any reason, Executive shall be deemed to have resigned automatically from membership on the Board of Directors or the board
of directors of any affiliate of the Company and from any and all offices Executive holds at the Company or any affiliate of the
Mitigation. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation
of the amounts payable to the Executive under any of the provisions of this Agreement, nor shall the amount of any payment hereunder
be reduced by any compensation earned by the Executive as a result of employment by a subsequent employer.
Cooperation. The Parties agree that certain matters in which the Executive will be involved during the Executive’s
employment by the Company may necessitate the Executive’s cooperation in the future. Accordingly, following the termination
of Executive’s employment for any reason, to the extent reasonably requested by the Company, the Executive shall cooperate
with the Company in connection with matters arising out of the Executive’s service to the Company; provided that, the Company
shall make reasonable efforts to minimize disruption of the Executive’s other activities. It is expressly agreed that non-compliance
with a request for cooperation services by the Executive for good reason, including ill health or prior commitments, shall not
constitute a breach or violation of this Agreement. The Company shall reimburse the Executive for reasonable expenses incurred
in connection with such cooperation. In addition, the Company shall pay the Executive an hourly fee, in an amount determined by
dividing Executive’s Base Salary as in effect on the date of termination by 2,000, for services rendered by Executive in
complying with this Section 8; provided that no such payment shall be required by the Company during the Employment Term
or during any period in which severance is being paid to the Executive pursuant to Section 7(e) hereof.
purposes of this Agreement, “Confidential Information” is and shall be trade secrets, knowledge, data or other
confidential, secret or proprietary information of the Company relating to trade secrets, discoveries, inventions, products and
product development, processes, practices, methods, techniques, knowledge, know-how, information relating to governmental relations,
technical or other data, designs, formulas, test data, customer and supplier lists, business plans, marketing or manufacturing
plans and strategies, and product pricing strategies or other subject matter pertaining to any business of the Company or any
of its clients, customers, consultants, licensees, subsidiaries or affiliates, that, in any case, is not otherwise generally available
to the public or has not been disclosed by the Company to others not subject to confidentiality agreements, which Executive may
produce, obtain or otherwise learn of during the course of Executive’s employment and/or association with the Company, and
whether produced, obtained, or learned of prior to, as of or following the date hereof.
all times both during the Executive’s employment with the Company and thereafter, the Executive shall keep confidential
and agrees not to deliver, reproduce, disclose or in any way willfully allow any such Confidential Information to be delivered
to or used by any third parties for any purpose (including any purpose harmful to the interests of the Company) except: (i) while
employed by the Company and solely in the business of and for the benefit of the Company; (ii) when required to do so by a court
of competent jurisdiction, by any governmental agency having supervisory authority over the business of the Company, or by any
administrative body or legislature body (including a committee thereof) with jurisdiction to order the Company to divulge, disclose
or make accessible such information; (iii) with the specific direction, authorization or consent of a duly authorized representative
of the Company; or (iv) for the purpose of disclosing the post-employment restrictions in this Agreement to any potential new
the termination of Executive’s employment with the Company, Executive shall promptly surrender and deliver to the Company
all records, materials, equipment, drawings, documents, lab notes and books and data of any nature (electronic or otherwise) describing,
including or pertaining to any Confidential Information, and Executive will not take with her any description containing or pertaining
to any Confidential Information which Executive may produce or obtain during the course of her services. The terms of this paragraph
shall survive termination of this Agreement. Notwithstanding the foregoing, Executive may retain her personal contacts, personal
compensation data, agreements relating to the Executive’s equity rights and, subject to prior approval by the Company, which
approval shall not be unreasonably withheld, any documents reasonably needed for tax return preparation purposes.
of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016 (“DTSA”).
Notwithstanding any other provision of this Agreement:
Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade
made (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and
(2) solely for the purpose of reporting or investigating a suspected violation of law; or
made in a complaint or other document filed under seal in a lawsuit or other proceeding.
the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose
the Company’s trade secrets to the Executive’s attorney and use the trade secret information in the court proceeding
if the Executive:
any document containing trade secrets under seal; and
not disclose trade secrets except pursuant to court order.
herein shall prevent Executive from making a report, or bringing a claim, to any governmental agency, including the U.S. Equal
Employment Opportunity Commission, the National Labor Relations Board, the U.S. Department of Justice, or the Attorney General
of the State of Colorado.
Executive and the Company agree that this covenant regarding confidential information is a reasonable covenant under the circumstances
and further agree that if in the opinion of any court of competent jurisdiction, such covenant is not reasonable in any respect,
such court shall have the right, power and authority to excise or modify such provision or provisions of this covenant as to the
court shall appear not reasonable and to enforce the remainder of the covenant as so amended.
Work Made for Hire; Assignment. The Executive acknowledges that, by reason of being employed by the Company at the relevant
times, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made
for hire” as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by the Company. To the extent that
the foregoing does not apply, the Executive hereby irrevocably assigns to the Company, for no additional consideration, the Executive’s
entire right, title, and interest in and to all Work Product and Intellectual Property Rights therein, including the right to
xxx, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all
rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the
Company’s rights, title, or interest in any Work Product or Intellectual Property Rights so as to be less in any respect
than that the Company would have had in the absence of this Agreement.
and Non-Solicitation; Non-Disparagement. Executive acknowledges and recognizes the highly competitive nature of the
businesses of the Company and its subsidiaries and accordingly agrees as follows:
the Executive’s employment with the Company and for a period of one (1) year from the date of termination of Executive’s
employment for any reason, the Executive shall not, anywhere within the United States either as principal, agent, employee, consultant,
partner, officer, director, shareholder, or in any other individual or representative capacity, own, manage, finance, operate,
control or otherwise engage or participate in any manner or fashion in an employment, business or other activity engaged in the
business of selling, producing or distributing supply chain technology for the cannabis industry. The post-employment restriction
contained in this section shall not apply in the State of California. Notwithstanding the foregoing, nothing herein shall prohibit
the Executive from being a passive owner of not more than five percent (5%) of the equity securities of a publicly traded company
engaged in competition with the Company.
Executive further agrees that, during the Executive’s employment with the Company and for a period of one (1) year from
the date of termination of Executive’s employment for any reason, the Executive shall not, directly or indirectly, either
as a principal, agent, employee, consultant, partner, officer, director, shareholder, or in any other individual or representative
capacity, on the Executive’s behalf or any other persons or entity other than the Company or its affiliates, (i) solicit
or induce, or attempt to solicit or induce, directly or indirectly, any customer or prospective customer of the Company with whom
the Executive has had personal contact within the twelve (12) month period prior to the Executive’s termination date, or
(ii) solicit or induce, or attempt to solicit or induce, directly or indirectly any person who is, or during the twelve (12) month
period prior to the Executive’s termination date was, an employee or agent of, or consultant to, the Company or any of its
affiliates, to terminate its, his or her relationship therewith, or (iii) hire or engage any person who is, or during the twelve
(12) month period prior to the Executive’s termination date was, an employee, agent of or consultant to the Company or any
of its affiliates (other than an individual whose employment or service was involuntarily terminated by the Company). Notwithstanding
the foregoing, the provisions of this Section 11(b) shall not be violated by (A) general advertising or solicitation not specifically
targeted at Company-related persons or entities, (B) the Executive serving as a reference, upon request, for any employee of the
Company, or (C) actions taken by any person or entity with which the Executive is associated if the Executive is not personally
involved in the matter and has not identified such Company-related person or entity for soliciting or hiring.
understands that the provisions of this Section may limit Executive’s ability to earn a livelihood in a business similar
to the business of the Company but Executive nevertheless agrees and hereby acknowledges that (i) such provisions do not impose
a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions
contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the
general public, (iv) such provisions are not unduly burdensome to Executive, and (v) the consideration provided hereunder is sufficient
to compensate Executive for the restrictions contained in this Section.
a judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained
in this Agreement is an unenforceable restriction against the Executive, the provisions of this Agreement shall not be rendered
void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially
determine or indicate to be enforceable. Alternatively, if any court or arbitrator of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding
shall not affect the enforceability of any of the other restrictions contained herein.
the Employment Term and for the two year period following the Termination Date, the Executive agrees not to make public statements
or communications that disparage the Company. During the Employment Term and for the two year period following the Termination
Date, the Company agrees that it shall, and that its directors and executive officers shall not make public statements or communications
that disparage Executive. The foregoing shall not be violated by truthful statements made in response to legal process, required
governmental testimony or filings, or administrative or arbitral proceedings (including depositions in connection with such proceedings).
Jury Trial Waiver / Arbitration.
PARTIES EXPRESSLY AND KNOWINGLY WAIVE ANY RIGHT TO A JURY TRIAL IN THE EVENT ANY ACTION ARISING UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR THE EXECUTIVE’S EMPLOYMENT WITH THE COMPANY IS LITIGATED OR HEARD IN ANY COURT.
Parties agree that this Agreement, and all matters or disputes relating to the validity, construction, performance or enforcement
hereof, and all matters relating to the to the Executive’s employment hereunder or the termination of such employment (whether
or not based on contract, tort or upon any federal, state or local statute, including but not limited to claims asserted under
the Age Discrimination in Employment Act, as amended, Title VII of the Civil Rights Act of 1964, as amended, any state Fair Employment
Practices Act, and/or the Americans with Disabilities Act, as amended), shall be resolved exclusively through mediation/arbitration
by the American Arbitration Association (“AAA”) in the County of Arapahoe, Colorado in accordance with the
AAA’s Employment Arbitration Rules and Mediation Procedures.
terms of this Agreement shall be governed and construed under the laws of the State of Colorado, except for the arbitration provision
which shall be governed by the Federal Arbitration Act.
the event of a breach or threatened breach of Sections 9, 10, or 11 of this Agreement, the Executive hereby consents and agrees
that the Company shall be entitled to seek from the arbitrator, in addition to other available remedies, a temporary or permanent
injunction or other equitable relief against such breach or threatened breach, without the necessity of showing any actual damages
or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The
aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available
forms of relief.
action or proceeding by either of the Parties to enforce the arbitration provision of
this Agreement shall be brought only in a state or federal court located in the State
of Colorado, having jurisdiction over the County of Arapahoe. The Parties hereby irrevocably
submit to the non-exclusive jurisdiction of such courts and waive the defense of inconvenient
forum to the maintenance of any such action or proceeding in such venue.|
Obligations. Upon (a) voluntary or involuntary termination of the Executive’s employment pursuant to Section 7 or
(b) the Company’s advance written request at any time during the Executive’s employment, the Executive
shall, subject to Section 9(c), use her reasonable efforts to: (i) provide or return to the Company any and all Company
property, including keys, key cards, access cards, identification cards, security devices, employer credit cards, network
access devices, computers, cell phones, smartphones, PDAs, pagers, fax machines, equipment, speakers, webcams, manuals,
reports, files, books, compilations, work product, e-mail messages, recordings, tapes, disks, thumb drives or other removable
information storage devices, hard drives, negatives and data and all Company documents and materials belonging to the Company
and stored in any fashion, including those that constitute or contain any Confidential Information or Work Product, that are
in the possession or control of the Executive, whether they were provided to the Executive by the Company or any of its
business associates or created by the Executive in connection with her employment by the Company; and (ii) delete or destroy
all copies of any such documents and materials not returned to the Company that remain in the Executive’s possession or
control, including those stored on any non-Company devices, networks, storage locations, and media in the Executive’s
possession or control.
Publicity. Subject to Section 11(e), the Executive hereby irrevocably consents to any and all uses and displays, by the
Company and its agents, representatives and licensees, of the Executive’s name, voice, likeness, image, appearance, and
biographical information for the exclusive purpose to further the Company’s business. The Company agrees to indemnify, defend
and hold the Executive harmless from any and all claims or causes of action, established or otherwise, arising from or relating
to the Company’s use of the Executive’s name, voice, likeness, image, appearance, and/or biographical information.
Entire Agreement. Unless specifically provided herein, this Agreement contains all of the understandings and representations
between the Executive and the Company pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings,
agreements, representations and warranties, both written and oral, with respect to such subject matter. The Parties warrant that,
in agreeing to the terms of this Agreement, they have not relied upon any oral statements or upon any written statements not contained
in this Agreement. The Parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence
in legal proceedings alleging breach of the Agreement. Whenever in this Agreement the word “including” is used, it
shall be deemed to be for purposes of identifying only one or more of the possible alternatives, and the entire provision in which
such word appears shall be read as if the phrase “including without limitation” were actually used in the text.
Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification
is agreed to in writing and signed by the Executive and the Company. No waiver by either of the Parties of any breach by the other
Party hereto of any condition or provision of this Agreement to be performed by the other Party hereto shall be deemed a waiver
of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay
by either of the Parties in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other
or further exercise thereof or the exercise of any other such right, power, or privilege.
Severability. Should any provision of this Agreement be held by a court or arbitrator of competent jurisdiction to be enforceable
only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not
affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the Parties with
any such modification to become a part hereof and treated as though originally set forth in this Agreement.
Parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement
in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision,
deleting any or all of the offending provision, adding additional language to this Agreement, or by making such other modifications
as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent permitted
Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of
them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and if such provision
or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable
provisions had not been set forth herein.
Captions. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and
no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute one and the same instrument. Facsimile and .pdf signatures of this Agreement shall be
considered originals for purposes of this Agreement.
Tolling. Should the Executive violate any of the terms of the restrictive covenant obligations articulated herein, the
obligation at issue will run from the first date on which the Executive ceases to be in violation of such obligation.
Section 409A. The Parties intend for the payments and benefits under this Agreement to be exempt from Section 409A of the
Internal Revenue Code of 1986, as amended, (“Section 409A”) or, if not so exempt, to be paid or provided in
a manner which complies with the requirements of such section, and intend that this Agreement shall be construed and administered
in accordance with such intention. For purposes of the limitations on nonqualified deferred compensation under Section 409A, each
payment of compensation under this Agreement shall be treated as a separate payment of compensation. Without limiting the foregoing
and notwithstanding anything contained herein to the contrary, if the Executive is deemed on the date of termination to be a “specified
employee” within the meaning of that term under Section 409A(a)(2)(B), then with regard to any payment or the provision
of any benefit that is considered deferred compensation under Section 409A payable on account of a “separation from service,”
such payment or benefit shall not be made or provided until the date which is the earlier of (A) the expiration of the six (6)-month
period measured from the date of such “separation from service” of Executive, and (B) the date of Executive’s
death, to the extent required under Section 409A. Upon the expiration of the foregoing delay period, all payments and benefits
delayed pursuant to this Section 21 (whether they would have otherwise been payable in a single sum or in installments in the
absence of such delay) shall be paid or reimbursed to Executive in a lump sum, and any remaining payments and benefits due under
this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. Any form of the
word “termination” (e.g., “terminated”) with respect to the Executive’s employment, shall mean a
separation from service within the meaning of Section 409A and the regulations thereunder. To the extent that reimbursements or
other in-kind benefits under this Agreement constitute “nonqualified deferred compensation” for purposes of Section
409A, (A) all expenses or other reimbursements hereunder shall be made on or prior to the last day of the taxable year following
the taxable year in which such expenses were incurred by the Executive, (B) any right to reimbursement or in-kind benefits shall
not be subject to liquidation or exchange for another benefit, and (C) no such reimbursement, expenses eligible for reimbursement,
or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits
to be provided, in any other taxable year. Notwithstanding any other provision of this Agreement to the contrary, in no event
shall any payment under this Agreement that constitutes “nonqualified deferred compensation” for purposes of Section
409A be subject to offset by any other amount unless otherwise permitted by Section 409A.
Successors and Assigns. This Agreement is personal to the Executive and shall not be assigned by the Executive. Any purported
assignment by the Executive shall be null and void from the initial date of the purported assignment. The Company may assign this
Agreement to any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) as well as to any purchaser
of all or substantially all of the Company’s assets; provided that the Company shall require such successor to expressly
assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place. Subject to the foregoing, this Agreement shall inure to the benefit of the Company and
permitted successors and assigns.
Notice. Notices and all other communications provided for in this Agreement, including in the Release annexed hereto as
Exhibit A, shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested,
or by overnight carrier to the Parties at the addresses set forth below (or such other addresses as specified by the Parties by
to the Company:
Xxxxxxxx Xxxxxx, Xxxxx #000 Xxxxxx, Xxxxxxxx 00000
Chairperson, Board of Directors
a copy to (which will not constitute notice) to:
Xxxxxxxx & Schole, LLP
Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxxx, XX 00000
Xxxxx Xxxxxxxx, Esq.
to the Executive:
the address shown in the books and records of the Company;
to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt.
Withholding. The Company shall have the right to withhold from any amount payable hereunder any Federal, state, and local
taxes in order for the Company to satisfy any withholding tax obligation it may have under any applicable law or regulation.
Survival. Upon the expiration or other termination of this Agreement, the respective rights and obligations of the Parties
hereto shall survive such expiration or other termination to the extent necessary to carry out the intentions of the Parties under
ACKNOWLEDGMENT OF FULL UNDERSTANDING. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT SHE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY
ENTERS INTO THIS AGREEMENT. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT SHE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT
WITH AN ATTORNEY OF HER CHOICE BEFORE SIGNING THIS AGREEMENT.
WITNESS WHEREOF, the Parties hereto have executed this Employment Agreement as of the date first above written.
||/s/ XXXXXXX XXXXXXXXXXX
||/s/ Xxxx Xxx Xxxxxxx|
||Xxxx Xxx Xxxxxxx|
||Chief Financial Officer|
RELEASE AND COVENANT NOT TO XXX
ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT:
Xxxxxxxxxxx (“Executive”), on Executive’s own behalf and on behalf of Executive’s descendants,
dependents, heirs, executors and administrators and permitted assigns, past and present, in consideration for the amounts payable
and benefits to be provided to Executive under the employment agreement (the “Agreement”) made and entered
into as of June 17, 2019 (the “Effective Date”), by and between Executive and Akerna Corp. (the “Company”)
(each individually, “Party,” collectively, the “Parties”), does hereby covenant not to xxx
or pursue any litigation or arbitration against, and waives, releases and discharges the Company, its parents, subsidiaries, affiliates,
divisions, assigns, predecessors, insurers, successors, and the past and present employees, officers, directors, insurers, attorneys,
representatives and agents thereof, both individually and in their business capacities, and their employee benefit plans and programs
and their administrators and fiduciaries (collectively, the “Releasees”), from any and all claims, demands,
rights, judgments, defenses, actions, charges or causes of action whatsoever, of any and every kind and description, whether known
or unknown, accrued or not accrued, that Executive ever had, now has or shall or may have or assert as of the date of this General
Release and Covenant Not to Xxx against the Releasees relating to her employment with the Company or service as a member of the
Board of Directors of the Company or the termination thereof or her service as an officer or member of the Board of Directors
of any subsidiary or affiliate of the Company or the termination of such service, including, without limiting the generality of
the foregoing, any claims, demands, rights, judgments, defenses, actions, charges or causes of action related to employment or
termination of employment or that arise out of or relate in any way to the Age Discrimination in Employment Act of 1967 (the “ADEA,”
a law that prohibits discrimination on the basis of age), the Older Workers Benefit Protection Act, the National Labor Relations
Act, the Fair Labor Standards Act, the Civil Rights Act of 1964 and 1991, the Americans With Disabilities Act of 1990, the Rehabilitation
Act of 1973, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Employee Retirement Income Security
Act of 1974, the Equal Pay Act of 1963, the Consolidated Omnibus Budget Reconciliation Act of 1985, the Genetic Information Nondiscrimination
Act, the Family and Medical Leave Act, the Xxxxxxxx-Xxxxx Act of 2002, the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection
Act, the Colorado Anti-Discrimination Act, all as amended, and other Federal, state and local laws relating to discrimination
on the basis of age, sex or other protected class, Colorado occupational safety and health laws, Colorado wage hour and wage-payment
laws, Colorado equal pay laws, and all claims under Federal, state or local laws for quantum meruit, unjust enrichment, breach
of oral promise, wrongful discharge, tortious interference, injurious falsehood, defamation, negligent or intentional infliction
of emotional distress, invasion of privacy, and any other common law contract and tort claims; any claims for unpaid or lost benefits
or salary, bonus, vacation pay, severance pay, or other compensation; any claims for attorneys’ fees, costs, disbursements,
or other expenses; and any claims for damages or personal injury; provided, however, that nothing herein shall release
the Company from any of its obligations to Executive under the Employment Agreement or to pay the amounts and provide the benefits
upon which this General Release and Covenant Not to Xxx is conditioned, or any rights Executive may have to indemnification under
any charter or by-laws (or similar documents) of any member of the Releasees or any insurance coverage under any directors and
officers insurance or similar policies (including, without limitation, under Section 6(i) of the Agreement), or any rights Executive
may have as a member or holder of equity or other securities of the Company or its affiliates (including, without limitation the
awards granted under Sections 6(c) and 6(d) of the Agreement).
further agrees that this General Release and Covenant Not to Xxx xxx be pleaded by the Company as a full defense to any action,
suit or other proceeding covered by the terms hereof that is or may be initiated, prosecuted or maintained by Executive or Executive’s
heirs or assigns. Executive understands and confirms that Executive is executing this General Release and Covenant Not to Xxx
voluntarily and knowingly, but that this General Release and Covenant Not to Xxx does not affect Executive’s right to claim
otherwise under the ADEA.
furtherance of the agreements set forth above, Executive hereby expressly waives and relinquishes any and all rights under any
applicable statute, doctrine or principle of law restricting the right of any person to release claims that such person does not
know or suspect to exist at the time of executing a release, which claims, if known, may have materially affected such person’s
decision to give such a release. In connection with such waiver and relinquishment, Executive acknowledges that Executive is aware
that Executive may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those
that Executive now knows or believes to be true, with respect to the matters released herein. Nevertheless, it is the intention
of Executive to fully, finally and forever release all such matters, and all claims relating thereto, that now exist, may exist
or theretofore have existed, as specifically provided herein. The Parties hereto acknowledge and agree that this waiver shall
be an essential and material term of the release contained above. Nothing in this paragraph is intended to expand the scope of
the release as specified herein.
provision of this General Release and Covenant Not to Xxx should be read as preventing Executive from making a report to, filing
a charge or complaint with, or participating in any investigation or proceeding conducted by, any governmental agency, including
the Equal Employment Opportunity Commission, the National Labor Relations Board, the U.S. Department of Justice, or the Attorney
General of the State of Colorado, or a state or local fair employment practices agency. While Executive may participate in such
investigation or proceeding, Executive acknowledges and agrees that Executive waives Executive’s right to recover monetary
damages, of any kind, in such investigation or proceeding arising from, or in any way relating to, Executive’s employment
with, or separation from, the Company that may have arisen prior to Executive’s signing of this General Release and Covenant
Not to Xxx. Executive acknowledges that this Release prohibits Executive from pursuing any claims against the Company seeking
monetary relief for Executive and/or as a representative on behalf of others.
General Release and Covenant Not to Xxx shall be governed by and construed in accordance with the laws of the State of Colorado,
applicable to agreements made and to be performed entirely within such State without regard to principles of conflicts of laws.
the extent that Executive is forty (40) years of age or older, this paragraph shall apply. Executive acknowledges that Executive
has been offered a period of time of at least twenty-one (21) days to consider whether to sign this General Release and Covenant
Not to Xxx, and the Company agrees that Executive may cancel or revoke this General Release and Covenant Not to Xxx at any time
during the seven (7) days following the date on which this General Release and Covenant Not to Xxx has been signed by the Parties
to this General Release and Covenant Not to Xxx. In order to cancel or revoke this General Release and Covenant Not to Xxx, Executive
must deliver to the Company written notice stating that Executive is canceling or revoking this General Release and Covenant Not
to Xxx. If this General Release and Covenant Not to Xxx is timely cancelled or revoked, none of the provisions of this General
Release and Covenant Not to Xxx shall be effective or enforceable and the Company shall not be obligated to make certain payments
to Executive or to provide Executive with certain other benefits described in the Agreement, and all contracts and provisions
modified, relinquished or rescinded hereunder shall be reinstated to the extent in effect immediately prior hereto.
acknowledges and agrees that Executive has entered into this General Release and Covenant Not to Xxx knowingly and willingly and
has had ample opportunity to consider the terms and provisions of this General Release and Covenant Not to Xxx. Executive is hereby
advised to consult legal counsel prior to executive this General Release and Covenant Not to Xxx.
WITNESS WHEREOF, the undersigned has caused this General Release and
Not to Xxx to be executed on this _____ day of ________, 20__.