Exhibit 10.5


 


EMPLOYMENT AGREEMENT


 


THIS EMPLOYMENT
AGREEMENT (this “Agreement”) is dated as of December [*], 2021 (the “Effective Date”)
and is entered into by and between Jesse Sutton (the “Executive”) and Pish Posh Baby LLC (the “Company”).
The Company and the Executive shall be referred to herein as the “Parties.”


 



RECITALS


 


WHEREAS,
the Company is currently in the process of reincorporating as a corporation and completing a capital raise (the “Recapitalization”)
pursuant to a Securities Purchase Agreement dated November 30, 2020 (the “SPA”). It is further anticipates the
Company will become a publicly traded company (such occurrence a “Going Public Event”);


 


WHEREAS,
upon the Effective Date, the Company desires to employ the Executive as its Chairman of the Board and Chief Executive Officer, and the
Executive desires to be employed by the Company as its Chairman of the Board and Chief Executive Officer effective as of the Effective
Date; and


 


WHEREAS,
the Company and the Executive desire to state in writing the terms and conditions of their agreement and understandings with respect to
the employment of the Executive on and after the Effective Date.


 


NOW, THEREFORE,
in consideration of the mutual promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:


 


ARTICLE I.


 


SERVICES
TO BE PROVIDED BY EXECUTIVE


  


A.       Position
and Responsibilities. The Executive shall serve in the position of Chief Executive Officer, and shall perform services for the
Company as requested or as needed to perform the Executive’s job. The duties of the Executive shall be those duties which can reasonably
be expected to be performed by a person in such position. Upon the Recapitalization, the Executive shall also serve as the Chairman of
the Board of Directors of the Company (the “Board”), without any additional compensation, as long as the Executive
continues to serve as its Chief Executive Officer. At all times during the Term (as defined below), the Executive shall report exclusively
to, and be subject to the direction and supervision of, the Board. Prior to the Recapitalization all references to the Board shall apply
to the Manager(s) of the Company


 


B.       Performance.
The Executive’s principal place of employment shall be in Lakewood, NJ. During the Executive’s employment with the Company,
the Executive shall devote such of the Executive’s time, energy, skill and reasonable best efforts as is necessary to the performance
of the Executive’s duties hereunder in a manner that will faithfully and diligently further the business and interests of the Company,
and shall exercise reasonable best efforts to perform the Executive’s duties in a diligent, trustworthy, good faith and business-like
manner, all for the purpose of advancing the business of the Company. It is anticipated that the Executive will devote no more than 20
hours per week to the Company. The Executive shall at all times act in a manner consistent with the Executive’s position.


 




    	 



     


    

  


ARTICLE II.


 


COMPENSATION
FOR SERVICES


  


As compensation
for all services the Executive will perform under this Agreement, the Company will pay the Executive, and the Executive shall accept as
full compensation, the following:


 


A.       Base
Salary. The Company shall pay the Executive a monthly salary of $15,000.00 ($180,000, annually) (“Base Salary”)
for serving as CEO. The Company shall pay the Base Salary in accordance with the normal payroll policies of the Company and subject to
required withholdings. The Executive’s Base Salary will be reviewed by the Board on an annual basis for increase. Additionally,
upon a Going Public Event the Base Salary will be increased to $20,000.00 monthly ($240,000, annually) beginning with the first day of
the month following the Going Public Event.


 


B.       Bonuses.


 


i.       The
Executive may also be eligible to receive annual performance bonuses (each, a “Performance Bonus”), as may be
in effect from time to time in the discretion of the Board, for each year of employment, based on the extent to which performance criteria/financial
results for the applicable year have been met, which Performance Bonuses are expected to be paid on or before March 15th of
the year following the year to which such Performance Bonus relates. Notwithstanding the foregoing, to be eligible to receive the Performance
Bonus for a calendar year, the Executive must remain employed through the payment date of such bonus. All performance/financial criteria
shall be established reasonably and in good faith by the Board, after consultation with the Executive, on an annual basis. The evaluation
of the Company’s performance, as measured by the applicable performance criteria and the awarding of any bonuses shall be determined
reasonably and in good faith by the Board.


 


ii.       The
Executive shall also receive $25,000 bonus upon a Going Public Event, provided Executive is still employed at the time of the Going Public
Event.


 


iii.       Upon
the closing of a capital raise of equity of at least $5,000,000, with a minimum pre-money valuation of the Company of at least $35,000,000
the Executive shall receive a bonus of $100,000 in cash and an equity grant equal to one percent (1%) of the equity of the Company pre
the closing of such capital raise. Such equity will be granted as options, RSUs, other agreements as determined by the Board and the Executive
to reasonably minimize the tax implications of such grant to the Executive.


 




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C.       Equity
Compensation. As soon as administratively practicable following the Closing Date (as defined in the SPA) (and in all events no
later than thirty (30) days after the Closing Date), the Company shall grant the Executive an award of restricted stock units that represent,
in the aggregate, five percent (5%) of the Company’s issued and outstanding common stock at a $6,000,000 valuation (“Common
Stock”) determined on a fully diluted basis as of the date of grant (the “RSUs”). The RSUs shall
be subject to the terms and conditions of the Company’s employee stock option plan (the “ESOP”) and of
an award agreement that shall provide, among other things, that, (A) one-third (1/3rd) of the RSUs shall vest on January 2,
2023; (B) one-third (1/3rd) of the RSUs shall vest on the later of January 2, 2023 or the Going Public Event, provided, that,
the Executive’s employment with the Company is not terminated by the Company for Cause prior to the Going Public Event, and (C)
one-third (1/3rd) of the RSUs shall vest on the later of January 2, 2023 or the first anniversary of the Going Public Event,
provided, that, the Executive’s employment with the Company is not terminated by the Company for Cause prior to the first anniversary
of the Going Public Event; provided, that, in any case, (D)(1) all unvested RSUs shall immediately vest upon a Change in Control (as defined
in the ESOP); and (2) all vested RSUs shall be converted into shares of Common Stock on the first to occur of the following: (x) a Change
in Control (as defined in the ESOP) and (y) the termination of the Executive’s employment for any reason other than by the Company
for Cause.


 


The Executive shall
be eligible to receive additional equity awards, granted on an annual basis under the ESOP, as the Company may, in its sole discretion,
determine appropriate.


 


D.       Other
Expenses. The Company agrees that, during the Executive’s employment, it will promptly reimburse the Executive for out-of-pocket
expenses reasonably incurred in connection with the Executive’s performance of the Executive’s services hereunder, upon the
presentation by the Executive of an itemized accounting of such expenditures, with supporting receipts, provided that the Executive submits
such expenses for reimbursement in compliance with the Company’s expense reimbursement policies. Reimbursement shall be in compliance
with the Company’s expense reimbursement policies and, if applicable, Article V, Section I(ii).


 


E.       Paid
Time Off. The Executive shall be eligible for four (4) weeks of vacation and five (5) additional days of paid time off in accordance
with the Company’s policy, as in effect from time to time. The Executive may not carry over any accrued vacation or paid time off
from year to year, and no such accrued vacation or paid time off shall be paid to the Executive upon the termination of the Executive’s
employment for any reason, other than as provided in Article III, Section B, below.


 


F.       Indemnification.
The Company agrees to indemnify, defend and hold harmless the Executive to the maximum amount permitted by law against any losses, claims,
damages, liabilities, fines, settlements, judgements and/or expenses (including any legal or other expenses reasonably incurred in investigating
or defending any action or claim in respect thereof) (collectively, “Losses”) related to any Proceeding (as defined below)
to which the Executive may become subject. Specifically, and not in limitation of the foregoing, the Company agrees to indemnify, defend
and hold harmless the Executive against any Losses related to any Proceeding to which the Executive may become subject resulting from
or arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any registration statement
or prospectus or any amendment thereof or supplement thereto, (ii) any omission or alleged omission of a material fact required to be
stated in any registration statement or prospectus or any amendment thereof or supplement thereto or necessary to make the statements
therein not misleading, or (iii) any violation by the Company arising under or related to compliance with any state or Federal securities
law, including the Securities Act of 1933 as amended or the Securities Exchange Act of 1934 as amended. In this regard, the Company agrees
that any registration statement or prospectus or any amendment thereof or supplement thereto filed on behalf Company will comply in all
material respects with the requirements of any and all applicable securities laws.


 




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For purposes of this section,
“Proceeding” means any threatened, pending, or completed action, suit or proceeding, or any inquiry, hearing or investigation,
whether civil, criminal, administrative, investigative or other, in which Executive may be or may have been involved, including, without
limitation, any threatened, pending, or completed action, suit or proceeding by or in the right of the Company.


 


ARTICLE III.


 


TERM; TERMINATION


  


A.       Term
of Employment. This Agreement’s stated term and employment relationship created hereunder will begin on the Effective Date
and will remain in effect for two (2) years (the “Term”). Unless previously terminated by either party this
Agreement will renew for an additional year, upon the completion of the then in effect Term. Each such additional year shall be included
in the definition of Term. The Executive shall resign as a member of the Board upon termination if requested by the Company.


 


B.       Termination.
Either party may terminate the Executive’s employment at any time upon written notice; provided that the Company and the Executive
will be required to provide the other at least thirty (30) days’ advance written notice of a termination without Cause (as defined
below) or the Executive’s voluntary resignation without Good Reason (as defined below), respectively. The date of the Executive’s
termination shall be the date stated in the notice of termination. Upon termination of the Executive’s employment, the Company shall
pay the Executive (i) any unpaid Base Salary accrued through the date of termination, (ii) any accrued and unpaid paid time off or similar
pay to which the Executive is entitled as a matter of law or Company policy, (iii) any amounts due to the Executive under the terms of
the Benefit Plans, and (iv) any unreimbursed expenses properly incurred prior to the date of termination (the “Accrued Obligations”).


 




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(i)       Expiration
of the Agreement; Termination for Cause or Voluntary Resignation without Good Reason. In the event the Executive voluntarily resigns
without Good Reason, the Company may, in its sole discretion, shorten the notice period and determine the date of termination without
any obligation to pay the Executive any additional compensation other than the Accrued Obligations and without triggering a termination
of the Executive’s employment without Cause. In addition, in the event this Agreement expires, the Company terminates the Executive’s
employment for Cause, or the Executive voluntarily resigns without Good Reason, the Company shall have no further liability or obligation
to the Executive under this Agreement other than the Accrued Obligations. The Accrued Obligations shall be payable in a lump sum within
the time period required by applicable law, and in no event later than thirty (30) days following the Executive’s employment termination
date. For purposes of this Agreement, “Cause” means a termination of employment because of: (a) the Executive’s
failure or refusal to perform the duties of the Executive’s position in a manner causing material detriment to the Company; (b)
the Executive’s willful misconduct with regard to the Company or its business, assets or executives (including, without limitation,
his fraud, embezzlement, intentional misrepresentation, misappropriation, conversion or other act of dishonesty with regard to the Company);
(c) the Executive’s commission of an act or acts constituting a felony or any crime involving fraud or dishonesty as determined
in good faith by the Company; (d) the Executive’s breach of a fiduciary duty owed to the Company; (e) any material breach of this
Agreement or any other agreement with the Company; or (f) any injury, illness or incapacity which shall wholly or continuously disable
the Executive from performing the essential functions of the Executive’s position for any successive or intermittent period of at
least twelve (12) months. In each such event listed above, if the circumstances are curable, the Company shall give the Executive written
notice thereof which shall specify in reasonable detail the circumstances constituting Cause, and there shall be no Cause with respect
to any such circumstances if cured by the Executive within thirty (30) days after such notice.


 


(ii)       Termination
Without Cause or for Good Reason. In the event the Executive’s employment is terminated by the Company without Cause or
by the Executive for Good Reason at any time, the Executive shall receive, subject to the execution and timely return by the Executive
of a release of claims in the form to be delivered by the Company, which release shall, by its terms, be irrevocable no later than the
sixtieth (60th) day following his employment termination date, (a) severance pay in an aggregate amount equal to the Executive’s
Base Salary for six (6) months, less applicable payroll deductions and tax withholdings, payable in accordance with the normal payroll
policies of the Company over a six (6) month period, as applicable, with the first such payment being paid to the Executive on the Company’s
first regular pay date on or after the sixtieth (60th) day following his employment termination date; plus (b) the Performance
Bonus, if any, for the year of the Executive’s termination, subject, as applicable, to achievement of the performance metrics for
such year and payable on the date such Performance Bonus would have been paid had the Executive remained actively employed. For purposes
of this Agreement, “Good Reason” means a termination of employment because of: (x) a materially adverse diminution
in the Executive’s role or responsibilities without the Executive’s consent, provided that the Parties agree that it shall
not be considered a diminution in the Executive’s role or responsibilities if he ceases serving as CEO provided he remains Chairman;
or (y) any material breach of this Agreement by the Company or any other agreement with the Executive. In each such event listed above,
the Executive shall give the Company written notice thereof within thirty (30) days following the first occurrence of such event, which
notice shall specify in reasonable detail the circumstances constituting Good Reason, and there shall be no Good Reason with respect to
any such circumstances if cured by the Company within thirty (30) days after such notice or, if such event is not cured by the Company,
the Executive terminates his employment with the Company no later than sixty (60) days following the first occurrence of such event.


 




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ARTICLE IV.


 


RESTRICTIVE
COVENANTS


 


A.       Confidentiality.


 


(i)       Confidential
Information. During the Executive’s employment with the Company, the Company shall grant the Executive otherwise prohibited
access to its trade secrets and confidential information which is not known to the Company’s competitors or within the Company’s
industry generally, which was developed by the Company over a long period of time and/or at its substantial expense, and which is of great
competitive value to the Company, and access to the Company’s customers and clients. For purposes of this Article IV, the
“Company” shall also include its parents, subsidiaries and affiliates. For purposes of this Agreement,


 


“Confidential
Information” includes any trade secrets or confidential or proprietary information of the Company, including, but not limited
to, the following: methods of operation, products, inventions, services, processes, equipment, know-how, technology, technical data, policies,
strategies, designs, formulas, developmental or experimental work, improvements, discoveries, research, plans for research or future products
and services, corporate transactions, database schemas or tables, software, development tools or techniques, training procedures, training
techniques, training manuals, business information, marketing and sales methods, plans and strategies, competitors, markets, market surveys,
techniques, production processes, infrastructure, business plans, distribution and installation plans, processes and strategies, methodologies,
budgets, financial data and information, customer and client information, prices and costs, fees, customer and client lists and profiles,
employee, customer and client nonpublic personal information, supplier lists, business records, product construction, product specifications,
audit processes, pricing strategies, business strategies, marketing and promotional practices, management methods and information, plans,
reports, recommendations and conclusions, information regarding the skills and compensation of employees and contractors of the Company,
and other business information disclosed to the Executive by the Company, either directly or indirectly, in writing, orally, or by drawings
or observation. “Confidential Information” does not include, and there shall be no obligation hereunder with
respect to, information that (a) is generally available to the public on the date of this Agreement or (b) becomes generally available
to the public other than as a result of a disclosure not otherwise permissible hereunder.


 


(ii)       No
Unauthorized Use or Disclosure. The Executive acknowledges and agrees that Confidential Information is proprietary to and a trade
secret of the Company and, as such, is a special and unique asset of the Company, and that any disclosure or unauthorized use of any Confidential
Information by the Executive will cause irreparable harm and loss to the Company. The Executive understands and acknowledges that each
and every component of the Confidential Information (a) has been developed by the Company at significant effort and expense and is sufficiently
secret to derive economic value from not being generally known to other parties, and (b) constitutes a protectable business interest of
the Company. The Executive acknowledges and agrees that the Company owns the Confidential Information. The Executive agrees not to dispute,
contest, or deny any such ownership rights either during or after the Executive’s employment with the Company. The Executive agrees
to preserve and protect the confidentiality of all Confidential Information. The Executive agrees that the Executive shall not during
the period of the Executive’s employment with the Company and thereafter, directly or indirectly, disclose to any unauthorized person
or use for the Executive’s own account any Confidential Information without the Company’s consent. Throughout the Executive’s
employment with the Company thereafter: (a) the Executive shall hold all Confidential Information in the strictest confidence, take all
reasonable precautions to prevent its inadvertent disclosure to any unauthorized person, and follow all Company policies protecting the
Confidential Information; and (b) the Executive shall not, directly or indirectly, utilize, disclose or make available to any other person
or entity, any of the Confidential Information, other than in the proper performance of the Executive’s duties.


 




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(iii)       Return
of Property and Information. Upon the termination of the Executive’s employment for any reason, the Executive shall immediately
return and deliver to the Company any and all Confidential Information, software, devices, cell phones, personal data assistants, credit
cards, data, reports, proposals, lists, correspondence, materials, equipment, computers, hard drives, papers, books, records, documents,
memoranda, manuals, e-mail, electronic or magnetic recordings or data, including all copies thereof, which belong to the Company or relate
to the Company’s business and which are in the Executive’s possession, custody or control, whether prepared by the Executive
or others. If at any time after termination of the Executive’s employment the Executive determines that the Executive has any Confidential
Information in the Executive’s possession or control, the Executive shall immediately return to the Company all such Confidential
Information in the Executive’s possession or control, including all copies and portions thereof.


 


B.       Restrictive
Covenants. In consideration for (i) the Company’s promise to provide Confidential Information to the Executive, (ii) the
substantial economic investment made by the Company in the Confidential Information and goodwill of the Company, and/or the business opportunities
disclosed or entrusted to the Executive, (iii) access to the Company’s customers and clients, and (iv) the Company’s employment
of the Executive pursuant to this Agreement and the compensation and other benefits provided by the Company to the Executive, to protect
the Company’s Confidential Information and business goodwill of the Company, the Executive agrees to the following restrictive covenants:


 


(i)       Non-Solicitation.
The Executive agrees that during the Term and for a period of twelve (12) months following the Executive’s termination (the “Restricted
Period”), other than in connection with the Executive’s duties under this Agreement, the Executive shall not, and
shall not use any Confidential Information to, directly or indirectly, either as a principal, manager, agent, employee, consultant, officer,
director, stockholder, partner, investor or lender or in any other capacity, and whether personally or through other persons:


 


(a)       Solicit
business from, attempt to conduct business with, or conduct business with any client, customer, or prospective client or customer of the
Company with whom the Company conducted business or solicited within the final twelve (12) months prior to the Executive’s termination,
and who or which: (A) the Executive contacted, called on, serviced, did business with, or had contact with during the Executive’s
employment or that the Executive attempted to contact, call on, service, or do business with during the Executive’s employment;
or (B) that the Executive became acquainted with or dealt with, for any reason, as a result of the Executive’s employment. This
restriction applies only to business that is in the scope of services or products provided by the Company; or


 




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(b)       Hire,
solicit for employment, induce or encourage to leave the employment of the Company, or otherwise cease their employment or other relationship
with the Company, on behalf of itself or any other individual or entity, any employee, independent contractor or any former employee or
independent contractor of the Company whose employment or contractor relationship ceased less than twelve (12) months earlier.


 


(ii)       Mutual
Non-Disparagement. During the Executive’s employment with the Company and any time thereafter, the Executive shall not make,
publish, or otherwise transmit any false, disparaging or defamatory statements, whether written or oral, regarding the Company and any
of its employees, executives, agents, investors, procedures, investments, products, policies, or services. The Board and the Company’s
named executive officers will not make or publish any statement, written or verbal, to any person or entity, including in any forum or
media, or take any action, in disparagement of the Executive, including negative references to or about the Executive’s services,
policies, practices, documents, methods of doing business, strategies, or objectives, or take any other action that may disparage the
Executive to the general public. However, nothing in this Article IV, Section B(ii) shall prohibit: (1) the Executive, any member
of the Board or any named executive officer of the Company from testifying truthfully in response to a subpoena or participating in any
governmental proceeding; (2) the Executive from engaging in any criticism or other statements made internally within the Company on a
need-to-know basis, and provided such criticism or other statement is not presented in a disruptive or insubordinate manner, concerning
Company’s performance or nonperformance; and (3) any named executive officer or member of the Board from engaging in any criticism
or other statements made internally within the Company on a need-to-know basis concerning the Executive’s performance or nonperformance
of the Executive’s duties or responsibilities for the Company.


 


C.       No
Interference. Notwithstanding any other provision of this Agreement, (i) the Executive may disclose Confidential Information when
required to do so by a court of competent jurisdiction, by any governmental agency having authority over the Executive or the business
of the Company or by any administrative body or legislative body (including a committee thereof) with jurisdiction to order the Executive
to divulge, disclose or make accessible such information; and (ii) nothing in this Agreement is intended to interfere with the Executive’s
right to (a) report possible violations of state or federal law or regulation to any governmental or law enforcement agency or entity;
(b) make other disclosures that are protected under the whistleblower provisions of state or federal law or regulation; (c) file a claim
or charge with the Equal Employment Opportunity Commission (“EEOC”), any state human rights commission, or any
other governmental agency or entity; or (d) testify, assist, or participate in an investigation, hearing, or proceeding conducted by the
EEOC, any state human rights commission, any other governmental or law enforcement agency or entity, or any court. For purposes of clarity,
in making or initiating any such reports or disclosures or engaging in any of the conduct outlined in subsection (ii) above, the Executive
may disclose Confidential Information to the extent necessary to such governmental or law enforcement agency or entity or such court,
need not seek prior authorization from the Company, and is not required to notify the Company of any such reports, disclosures or conduct.


 




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D.       Defend
Trade Secrets Act. The Executive is hereby notified in accordance with the Defend Trade Secrets Act of 2016 that the Executive
will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is
made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney solely for the
purpose of reporting or investigating a suspected violation of law, or is made in a complaint or other document that is filed under seal
in a lawsuit or other proceeding. If the Executive files a lawsuit for retaliation against 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 files any document containing the trade secret under seal, and does not disclose the trade secret,
except pursuant to court order.


 


E.       Tolling.
If the Executive violates any of the restrictions contained in this Article IV, the Restricted Period shall be suspended and shall
not run in favor of the Executive from the time of the commencement of any violation until the time when the Executive cures the violation
to the satisfaction of the Company.


 


F.       Remedies.
The Executive acknowledges that the restrictions contained in Article IV of this Agreement, in view of the nature of the Company’s
business and the Executive’s position with the Company, are reasonable and necessary to protect the Company’s legitimate business
interests and that any violation of Article IV of this Agreement would result in irreparable injury to the Company. In the event
of a breach by the Executive of Article IV of this Agreement, then the Company shall be entitled to a temporary restraining order
and injunctive relief restraining the Executive from the commission of any breach. Such remedies shall not be deemed the exclusive remedies
for a breach or threatened breach of this Article IV but shall be in addition to all remedies available at law or in equity, including
the recovery of damages from the Executive, the Executive’s agents, any future employer of the Executive, and any person that conspires
or aids and abets the Executive in a breach or threatened breach of this Agreement.


 


G.       Reasonableness.
The Executive hereby represents to the Company that the Executive has read and understands, and agrees to be bound by, the terms of this
Article IV. The Executive acknowledges that the scope and duration of the covenants contained in this Article IV are fair
and reasonable in light of (i) the nature and wide geographic scope of the operations of the Company’s business; (ii) the Executive’s
level of control over and contact with the Company’s business; and (iii) the amount of compensation, trade secrets and Confidential
Information that the Executive is receiving in connection with the Executive’s employment by the Company.


 


H.       Reformation.
If any of the aforesaid restrictions are found by a court of competent jurisdiction to be unreasonable, or overly broad as to geographic
area or time, or otherwise unenforceable, the Parties intend for the restrictions herein set forth to be modified by the court making
such determination so as to be reasonable and enforceable and, as so modified, to be fully enforced. By agreeing to this contractual modification
prospectively at this time, the Company and the Executive intend to make this provision enforceable under the law or laws of all applicable
jurisdictions so that the entire agreement not to compete and this Agreement as prospectively modified shall remain in full force and
effect and shall not be rendered void or illegal.


 




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I.       No
Previous Restrictive Agreements. The Executive represents that, except as disclosed to the Company, the Executive is not bound
by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential
or proprietary information in the course of the Executive’s employment with the Company or to refrain from competing, directly or
indirectly, with the business of such previous employer or any other party. The Executive further represents that the Executive’s
performance of all the terms of this Agreement and the Executive’s work duties for the Company do not and will not breach any agreement
to keep in confidence proprietary information, knowledge or data acquired by the Executive in confidence or in trust prior to the Executive’s
employment with the Company. The Executive shall not disclose to the Company or induce the Company to use any confidential or proprietary
information or material belonging to any previous employer or others.


 


ARTICLE V.


 


MISCELLANEOUS
PROVISIONS


  


A.       Governing
Law. The Parties agree that this Agreement shall be governed by and construed under the laws of the State of Delaware. In the
event of any dispute regarding this Agreement, the Parties hereby irrevocably agree to submit to the exclusive jurisdiction of the federal
and state courts situated in New Castle County, Delaware, and the Executive agrees that he shall not challenge personal or subject matter
jurisdiction in such courts. The Parties also hereby waive any right to trial by jury in connection with any litigation or disputes under
or in connection with this Agreement.


 


B.       Headings.
The paragraph headings contained in this Agreement are for convenience only and shall in no way or manner be construed as a part of this
Agreement.


 


C.       Severability.
In the event that any court of competent jurisdiction holds any provision in this Agreement to be invalid, illegal or unenforceable in
any respect, the remaining provisions shall not be affected or invalidated and shall remain in full force and effect.


 


D.       Reformation.
In the event any court of competent jurisdiction holds any restriction in this Agreement to be unreasonable and/or unenforceable as
written, the court may reform this Agreement to make it enforceable, and this Agreement shall remain in full force and effect as reformed
by the court.


 


E.       Entire
Agreement. This Agreement constitutes the entire agreement between the Parties, and fully supersedes any and all prior agreements,
understanding or representations between the Parties pertaining to or concerning the subject matter of this Agreement, including, without
limitation, the Executive’s employment with the Company. No oral statements or prior written material not specifically incorporated
in this Agreement shall be of any force and effect, and no changes in or additions to this Agreement shall be recognized, unless incorporated
in this Agreement by written amendment, such amendment to become effective on the date stipulated in it. Any amendment to this Agreement
must be signed by all parties to this Agreement. The Executive acknowledges and represents that in executing this Agreement, the Executive
did not rely, and has not relied, on any communications, promises, statements, inducements, or representation(s), oral or written, by
the Company, except as expressly contained in this Agreement. The Parties represent that they relied on their own judgment in entering
into this Agreement.


 




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F.       Waiver.
No waiver of any breach of this Agreement shall be construed to be a waiver as to succeeding breaches. The failure of either of the Parties
to insist in any one or more instances upon performance of any terms or conditions of this Agreement shall not be construed as a waiver
of future performance of any such term, covenant or condition but the obligations of either of the Parties with respect thereto shall
continue in full force and effect. The breach by one of the Parties to this Agreement shall not preclude equitable relief or the obligations
of the other.


 


G.       Modification.
The provisions of this Agreement may be amended, modified or waived only with the prior written consent of the Company and the Executive,
and no course of conduct or failure or delay in enforcing the provisions of this Agreement shall be construed as a waiver of such provisions
or affect the validity, binding effect or enforceability of this Agreement or any provision hereof.


 


H.       Assignment.
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors and permitted
assigns. The Executive may not assign this Agreement to a third party. The Company may assign its rights, together with its obligations
hereunder, to any affiliate and/or subsidiary of the Company or any successor thereto or any purchaser of substantially all of the assets
of the Company.


 


I.         Code
Section 409A.


 


(i)       To
the extent (a) any payments to which the Executive becomes entitled under this Agreement, or any agreement or plan referenced herein,
in connection with the Executive’s termination of employment with the Company constitute deferred compensation subject to Section
409A of the Code; (b) the Executive is deemed at the time of his separation from service to be a “specified employee” under
Section 409A of the Code; and (c) at the time of the Executive’s separation from service the Company is publicly traded (as defined
in Section 409A of Code), then such payments (other than any payments permitted by Section 409A of the Code to be paid within six (6)
months of the Executive’s separation from service) shall not be made until the earlier of (x) the first day of the seventh month
following the Executive’s separation from service or (y) the date of the Executive’s death following such separation from
service. Upon the expiration of the applicable deferral period described in the immediately preceding sentence, any payments which would
have otherwise been made during that period (whether in a single sum or in installments) in the absence of this Article V, Section
I shall be paid to the Executive or the Executive’s beneficiary in one lump sum, plus interest thereon at the Delayed Payment
Interest Rate computed from the date on which each such delayed payment otherwise would have been made to the Executive until the date
of payment. For purposes of the foregoing, the “Delayed Payment Interest Rate” shall mean the national average
annual rate of interest payable on jumbo six (6) month bank certificates of deposit, as quoted in the business section of the most recently
published Sunday edition of The New York Times preceding the Executive’s separation from service.


 




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(ii)       To
the extent any benefits provided under Article II, Sections B, F or G or Article III, Section B(ii) above are otherwise
taxable to the Executive, such benefits shall, for purposes of Section 409A of the Code, be provided as separate in-kind payments of those
benefits, and the provision of in-kind benefits during one calendar year shall not affect the in-kind benefits to be provided in any other
calendar year.


 


(iii)       In
the case of any amounts payable to the Executive under this Agreement, or under any plan of the Company, that may be treated as payable
in the form of “a series of installment payments,” as defined in Treas. Reg. §1.409A-2(b)(2)(iii), the Executive’s
right to receive such payments shall be treated as a right to receive a series of separate payments for purposes of Treas. Reg. §1.409A-2(b)(2)(iii).


 


(iv)       It
is intended that this Agreement comply with or be exempt from the provisions of Section 409A of the Code and the Treasury Regulations
and guidance of general applicability issued thereunder, and in furtherance of this intent, this Agreement shall be interpreted, operated,
and administered in a manner consistent with such intent.


 


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IN WITNESS WHEREOF,
the Company and the Executive have caused this Agreement to be executed on the date first set forth above, to be effective as of that
date.


 


	Company	 	Executive
	 	 	 
		 	/s/ Jesse Sutton
	1/12/2022