Exhibit 10.5





 


AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT


 


This Amended and Restated
Executive Employment Agreement (the “Agreement”), is made effective as of the Effective Date (as defined below), between AeroClean
Technologies, Inc. (“Company”), and Jason DiBona (“Executive”).


 


WHEREAS, Company and Executive
are parties to an Employment Agreement, dated November 1, 2020, as amended on May 1, 2021, pursuant to which Executive is employed as
the Chief Executive Officer (“CEO”) of Company (the “Original Employment Agreement”);


 


WHEREAS, in connection with
the transactions contemplated by that certain Agreement and Plan of Merger, dated as of the date hereof, entered into by and among Company,
Molekule, Inc., and certain other parties named therein (the “Merger Agreement”), Company and Executive desire to amend and
restate the Original Employment Agreement on the terms contained in this Agreement;


 


NOW, THEREFORE, in consideration
of the mutual promises, terms, provisions, and conditions contained herein, the parties agree as follows:


 


1.              Title
and Duties. Subject to the terms and conditions of this Agreement, Executive’s position with Company shall continue to be CEO,
reporting to Company’s Board of Directors (the “Board”). Executive accepts such continued employment upon the terms
and conditions set forth herein, and agrees to perform to the best of Executive’s ability the duties normally associated with such
position and as reasonably determined by the Board in its sole discretion. While serving as CEO hereunder, Executive shall devote substantially
all of Executive’s business time and energies to the business and affairs of Company and shall be subject to, and shall comply
in all material respects with, the policies of Company applicable to Executive. Notwithstanding the foregoing, Executive may: (i) serve
as a member of the board of directors of no more than two (2) other companies with the Board’s prior consent; (ii) engage in charitable,
professional trade association, civic, educational and religious activities, and (iii) manage personal and family investments, in each
case, to the extent such activities, whether individually or in the aggregate, do not materially interfere or conflict with the performance
of Executive’s duties and responsibilities to the Company and provided further that Executive’s services are not performed
for any company that competes with the Company, directly or indirectly. The Company has pre-approved the “Outside Activities”
listed on Exhibit A, and Executive shall provide an updated list of any such activities in the preceding clauses (i) – (iii)
to the Company on an annual basis.


 


2.              Term;
Termination. 


 


(a)            Term.
The terms of this agreement shall be effective as of the Closing Date (as defined in the Merger Agreement) (the “Effective Date”)
and shall continue until terminated hereunder by either party (such term of employment shall be referred to herein as the “Term”).
Executive’s employment with Company will be on an “at-will” basis, which means that Executive’s employment is
terminable by either Company or Executive at any time for any reason or no reason, with or without Cause, subject to the provisions of
Section 2 hereof. 


 


(b)            Termination
by Company. Notwithstanding anything else contained in this Agreement, Company may terminate Executive’s employment hereunder
as follows:


 


(i)                 For
Cause. Company may terminate Executive’s employment for Cause (as defined below) by written notice by Company to Executive
that Executive’s employment is being terminated for Cause, which termination shall be effective on the date of such notice or
such later date as specified in writing by Company, provided that if Executive has cured the circumstances giving rise to
Cause (as such cure right may be applicable pursuant to the terms and conditions set forth below) then such termination shall not be
effective.


 






    


     


    

  


(ii)              
Without Cause. Company may terminate Executive’s employment without Cause, by written notice by Company to Executive
that Executive’s employment is being terminated without Cause, which termination shall be effective on the date of such notice
or such later date as specified in writing by Company. 


 


For the purposes of this Agreement,
 “Cause” shall mean: (i) Executive’s conviction of (A) a felony or (B) any misdemeanor involving moral turpitude, deceit,
dishonesty or fraud; (ii) Executive’s willful failure or refusal to comply with lawful directions of the Board, which failure or
refusal continues for more than five (5) business days after written notice is given to Executive; (iii) material breach by Executive
of a material written Company policy or under this Agreement, provided Executive does not cure such breach within five (5) business days
after receiving written notice of the alleged breach; or (iv) misconduct by Executive that materially damages Company or any of its affiliates.
Except in the case of (ii) above, it is not necessary that Company’s finding of Cause occur prior to Executive’s termination
of service.


 


(c)          
Termination by Executive. Notwithstanding anything else contained in this Agreement, Executive may terminate Executive’s
employment at any time for any reason or no reason by written notice by Executive to Company that Executive is terminating Executive’s
employment, which termination shall be effective ninety (90) days after the date of such notice.


 


(d)           Termination
Due to Death or Disability. Notwithstanding anything else contained in this Agreement, Company may terminate Executive’s employment
due to Executive’s death or Disability (as defined below) by written notice, which termination shall be effective on the date of
such notice or such later date as specified in writing by Company. For purposes of this Agreement, “Disability” means Executive’s
failure to perform Executive’s duties or Executive’s absence as a result of Executive’s physical or mental disability
for a period of ninety (90) consecutive days or an aggregate of one hundred twenty (120) days in any twelve (12) month period, as determined
by Company.


 


3.              Compensation.


 


(a)           
Base Salary. While Executive is employed hereunder, Executive shall earn a base salary at the annual rate of three hundred
fifty thousand dollars ($350,000) (the “Base Salary”). The Base Salary shall be payable in substantially equal periodic installments,
at least on a monthly basis, in accordance with Company’s payroll practices as in effect from time to time. The Base Salary shall
be subject to adjustments from time to time by the Compensation Committee of the Board (the “Compensation Committee”), however,
the Base Salary shall at no time be adjusted below the Base Salary for the preceding year.


 


(b)          
Annual Bonus. Executive shall be eligible to receive an annual performance bonus (the “Annual Bonus”) for all
years in which Executive is employed by Company hereunder. The target Annual Bonus shall be equal to sixty percent (60%) of Executive’s
Base Salary (i.e., two hundred ten thousand dollars ($210,000)). The amount of Annual Bonus, if any, shall be determined by the Board
in its sole discretion, and may be based on factors such as Executive’s work performance, Company’s financial performance,
Company’s business forecasts, Company’s determination of Executive’s achievement of milestones for the applicable year,
and economic conditions generally. The Annual Bonus shall be paid to Executive no later than March 15th of the calendar year immediately
following the calendar year to which it pertains. Executive must be employed by Company at the time that the Annual Bonus is paid in order
to be eligible for such Annual Bonus.


 






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(c)            Benefits; Vacation; Principal Place of Business. Executive shall be entitled to participate in all benefit/welfare plans
and any vacation policy provided to employees at the same level as Executive, as in effect from time to time. If a medical insurance plan
is adopted by Company, Company will pay fifty percent (50%) of the cost of Executive’s participation premiums under such plan. Company
will reimburse Executive for lease payments on a company car in an amount up to six hundred fifty dollars ($650) per month for so long
as Company deems such company car to be necessary to Executive to carry out his duties under this Agreement. Executive understands that,
except when prohibited by applicable law, Company’s benefit plans and fringe benefits may be amended by Company from time to time
in its sole discretion. The Executive’s principal place of business is in Palm Beach Gardens, Florida, and he will not be required
to move his principal place of business to a new location that is greater than thirty (30) miles from his current principal place of business.


 


(d)            Reimbursement
of Expenses. Executive shall be entitled to receive prompt reimbursement for all reasonable business expenses incurred by Executive
in performing services hereunder, in accordance with the policies and procedures then in effect and established by Company for its senior
executive officers.


 


4.             
Termination Payments; Severance Benefits. 


 


(a)            Payment
of Accrued Obligations. Regardless of the reason for any employment termination hereunder, Company shall pay to Executive: (i) any
earned but unpaid Base Salary; and (ii) any unpaid expense reimbursements (the “Accrued Obligations”) promptly following
the effective date of termination, and otherwise within any timeframe required by law. Executive’s entitlement to other compensation
or benefits under any Company plan or policy shall be governed by and determined in accordance with the terms of such plan or policy,
except as otherwise specified in this Agreement. In the event of Company’s termination of Executive’s employment for Cause
or as a result of Executive’s death or Disability, or in the event of Executive’s termination of Executive’s employment
for any reason, Executive shall be eligible for the Accrued Obligations and shall not be eligible for any severance or severance-type
payments.


 


(b)            Severance
in the Event of Termination Without Cause. Subject to the terms and conditions of Section 4(d), in the event that Executive’s
employment hereunder is terminated by Company without Cause then, in addition to the Accrued Obligations, Company shall pay Executive:
(i) an amount equal to continuation of Executive’s monthly Base Salary for a twelve (12) months period, with such payments to be
made in accordance with Company’s normal payroll practices and schedules; and (ii) upon Executive’s timely election to continue
existing health benefits under COBRA, and consistent with the terms of COBRA and Company’s health insurance plan, Company will
continue to pay Company’s then-current dollar level of contribution towards the premiums of the Executive’s medical and dental
coverage as in effect on the date of such termination (including coverage for Executive’s eligible dependents, if applicable) (“COBRA
Premium”) through the period starting on the date of such termination and ending on the earliest to occur of (1) twelve (12) months
after such termination; (2) the date Executive becomes eligible for group health insurance coverage through a new employer; and (3) the
date Executive ceases to be eligible for COBRA continuation coverage for any reason, including plan termination (such period from such
termination through the earliest of (1) through (3), the “COBRA Premium Period”) ((i) and (ii), collectively, the “Severance
Benefits”). Executive will be responsible for timely paying any remaining portion of the COBRA Premiums in order to maintain COBRA
coverage during the COBRA Premium Period. In the event Executive becomes covered under another employer’s group health plan or
otherwise ceases to be eligible for COBRA during the COBRA Premium Period, Executive must immediately notify Company of such event. The
Severance Benefits are expressly subject to the conditions described above and in Section 4(d) below.


 






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(c)            Accelerated Vesting in Event of Termination without Cause Following Change of Control. Subject to the terms and conditions
of Section 4(d), in the event that a Change of Control (as defined below) occurs and within a period of one (1) year following the Change
of Control Company terminates Executive’s employment without Cause, then Executive automatically shall become vested in one hundred
percent (100%) of outstanding time-based equity awards granted to Executive by Company.


 


For purposes of this Section,
a “Change of Control” shall mean the occurrence of any of the following events: (i) Ownership. Any “Person”
(as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becomes the “Beneficial Owner”
(as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of Company representing fifty percent (50%) or more of
the total voting power represented by Company’s then outstanding voting securities (excluding for this purpose any such voting securities
held by Company, or any affiliate, parent or subsidiary of Company, or by any employee benefit plan of Company) pursuant to a transaction
or a series of related transactions which the Board does not approve; or (ii) Merger/Sale of Assets. (A) A merger or consolidation
of Company whether or not approved by the Board, other than a merger or consolidation which would result in the voting securities of Company
outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities
of the surviving entity or the parent of such corporation) at least fifty percent (50%) of the total voting power represented by the voting
securities of Company or such surviving entity or parent of such corporation, as the case may be, outstanding immediately after such merger
or consolidation; or (B) the sale or disposition by Company of all or substantially all of Company’s assets. Executive acknowledges
and agrees that the transactions contemplated by the Merger Agreement shall not constitute a Change of Control.


 


(d)           Conditions. Company shall not be obligated to provide Executive any payment, benefit and/or vesting described in Section
4(b) or Section 4(c) unless and until Executive has executed without revocation a separation agreement in a form acceptable to Company,
which must be signed by Executive, returned to Company and be enforceable and irrevocable no later than sixty (60) days following Executive’s
separation from service (the “Review Period”), and which shall include, at a minimum, the provision of separation pay and
benefits due from Company to Executive as applicable, a complete general release of claims against Company and its affiliated entities
and each of their officers, directors and employees, and standard terms relating to non-disparagement, confidentiality, cooperation and
the like. If Executive executes and does not revoke such agreement within the Review Period, then provision of payments, benefits and/or
vesting shall commence on the first (1st) regular payroll date following the Review Period, provided that if the last day of the
Review Period occurs in the calendar year following the year of termination, then the payment shall not commence until on or after January
2 of such subsequent calendar year. The first payment shall include in a lump sum all amounts that were otherwise payable to Executive
from the date of Executive’s separation from service through such first payment.


 


5.             Confidentiality, Non-Competition, Non-Solicitation and Inventions Assignment Agreement. Executive acknowledges that Executive
is party that certain Company’s Confidentiality, Non-Competition, Non-Solicitation and Inventions Assignment Agreement, attached
hereto as Exhibit B and incorporated by reference into this Agreement (the “Confidentiality Agreement”) and that the
Confidentiality Agreement shall continue in effect in accordance with its terms.


 






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6.             
Code Sections 409A and 280G. 


 


(a)            In
the event that the payments or benefits set forth in Section 4 constitute “non-qualified deferred compensation” subject to
Section 409A, then the following conditions apply to such payments or benefits:


 


(i)             
 Any termination of Executive’s employment triggering payment of benefits under Section 4 must constitute a “separation
from service” under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) before distribution of such benefits
can commence. To the extent that the termination of Executive’s employment does not constitute a separation of service under Section
409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h) (as the result of further services that are reasonably anticipated to be
provided by Executive to Company at the time Executive’s employment terminates), any such payments under Section 4 that constitute
deferred compensation under Section 409A shall be delayed until after the date of a subsequent event constituting a separation of service
under Section 409A(a)(2)(A)(i) of the Code and Treas. Reg. §1.409A-1(h). For purposes of clarification, this Section 6(a) shall not
cause any forfeiture of benefits on Executive’s part, but shall only act as a delay until such time as a “separation from
service” occurs.


 


(ii)              
Notwithstanding any other provision with respect to the timing of payments under Section 4 if, at the time of Executive’s
termination, Executive is deemed to be a “specified employee” of Company (within the meaning of Section 409A(a)(2)(B)(i) of
the Code), then limited only to the extent necessary to comply with the requirements of Section 409A, any payments to which Executive
may become entitled under Section 4 which are subject to Section 409A (and not otherwise exempt from its application) shall be withheld
until the first (1st) business day of the seventh (7th) month following the termination of Executive’s employment, at which time
Executive shall be paid an aggregate amount equal to the accumulated, but unpaid, payments otherwise due to Executive under the terms
of Section 4.


 


(b)            It is intended that each installment of the payments and benefits provided under Section 4 shall be treated as a separate “payment”
for purposes of Section 409A. Neither Company nor Executive shall have the right to accelerate or defer the delivery of any such payments
or benefits except to the extent specifically permitted or required by Section 409A.


 


(c)             Notwithstanding
any other provision of this Agreement to the contrary, this Agreement shall be interpreted and at all times administered in a manner
that avoids the inclusion of compensation in income under Section 409A, or the payment of increased taxes, excise taxes or other penalties
under Section 409A. The parties intend this Agreement to be in compliance with Section 409A. Executive acknowledges and agrees that Company
does not guarantee the tax treatment or tax consequences associated with any payment or benefit arising under this Agreement, including
but not limited to consequences related to Section 409A.


 


(d)          
If any payment or benefit Executive would receive under this Agreement, when combined with any other payment or benefit Executive
receives pursuant to a Change of Control (for purposes of this section, a “Payment”) would: (i) constitute a “parachute
payment” within the meaning of Section 280G the Code; and (ii) but for this sentence, be subject to the excise tax imposed by Section
4999 of the Code (the “Excise Tax”), then such Payment shall be either: (A) the full amount of such Payment; or (B) such
lesser amount (with cash payments being reduced before stock-based compensation) as would result in no portion of the Payment being subject
to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local employments taxes,
income taxes, and the Excise Tax, results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding
that all or some portion of the Payment may be subject to the Excise Tax.


 






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7.              
 General.


 


(a)             Notices.
Any notices, requests, demands and other communications provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by registered or certified mail, postage prepaid, return receipt
requested, to Executive at the last address Executive has filed in writing with Company or, in the case of Company, at its main offices,
attention of the Chairperson of the Board.


 


(b)            Waivers
and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written
document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be
or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement. Each such waiver or consent
shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver
or consent.


 


(c)            Assignment.
Company may assign its rights and obligations hereunder to any person or entity that succeeds to all or substantially all of Company’s
business or that aspect of Company’s business in which Executive is principally involved. Executive may not assign Executive’s
rights and obligations under this Agreement without the prior written consent of Company.


 


(d)            Governing
Law; Jury Waiver. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and
governed by the law of the state of Florida without giving effect to the conflict of law principles thereof. Any legal action or proceeding
with respect to this Agreement shall be brought in the courts of the State of Florida or the United States of America for the Southern
District of Florida. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its
property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. ANY ACTION, DEMAND, CLAIM OR COUNTERCLAIM
ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY A JUDGE ALONE AND EACH OF COMPANY AND EXECUTIVE WAIVES ANY RIGHT TO
A JURY TRIAL THEREOF.


 


(e)             Entire Agreement; Modifications and Amendments. This Agreement, together with the other agreements specifically referenced
herein, embodies the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes
all prior oral or written agreements and understandings relating to the subject matter hereof, including the Original Employment Agreement.
No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be
used to interpret, change or restrict, the express terms and provisions of this Agreement. The terms and provisions of this Agreement
may be modified or amended only by written agreement executed by the parties hereto.


 


(f)             Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.


 


(Signature page follows)


 






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IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first written above.


 


	Jason DiBona

                                                                                

                                                                                

                                                                                
	 	AEROCLEAN TECHNOLOGIES, INC.

                                                                                

                                                                                

                                                                                

                                                                                

	 	 	 
	/s/ Jason DiBona	 	By: /s/ Amin J. Khoury
	Signature	 	Name: Amin J. Khoury
	Date: October 3, 2022	 	Title: Chairman of the Board
	Address:	 	Date: October 3, 2022




 


(Signature page to Employment Agreement)


 






     


     


    

 


EXHIBIT A


 


OUTSIDE ACTIVITIES 


 






     


     


    

 


EXHIBIT B


 


CONFIDENTIALITY, NON-COMPETITION, NON-SOLICITATION,


AND INVENTIONS ASSIGNMENT AGREEMENT