Exhibit
10.28


 


INDEMNIFICATION
AGREEMENT


 


This
Indemnification Agreement (“Agreement”) is entered into as of the 9th day of October 2022 by and between
Altitude International Holdings, Inc. a New York corporation (the “Company”), and Gabriel Jaramillo (“Indemnitee”).


 


RECITALS


 


A.
The Company and Indemnitee recognize the challenges in obtaining liability insurance at the necessary level required for coverage of
a pre-NASDAQ Company for the Company’s directors and officers, the significant increases in cost of such insurance and the general
reductions in the coverage of such insurance.


 


B.
The Company and Indemnitee further recognize, currently, the substantial increase in corporate litigation in general, subjecting directors
and officers to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely
limited.


 


C.
The Company desires to attract and retain the services of highly qualified individuals, such as Indemnitee, to serve the Company and,
in part, in order to induce Indemnitee to continue to provide services to the Company, wishes to provide for the indemnification and
advancing of expenses to Indemnitee to the maximum extent permitted by law.


 


D.
In view of the considerations set forth above, the Company desires that Indemnitee be indemnified by the Company as set forth herein.


 


NOW,
THEREFORE, the Company and Indemnitee hereby agree as follows:


 


AGREEMENT


 


1.
Indemnification.


 


(a)
Indemnification of Expenses. The Company shall indemnify Indemnitee to the fullest extent permitted by law if Indemnitee was or
is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in,
any threatened, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to the institution of any such action, suit, proceeding or alternative
dispute resolution mechanism, whether civil, criminal, administrative, investigative or other (hereinafter a “Claim”)
by reason of (or arising in part out of) any event or occurrence related to the fact that Indemnitee is or was a director or officer
of the Company, or any subsidiary of the Company, or is or was serving at the request of the Company as a director, officer, employee,
agent or fiduciary of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action or inaction
on the part of Indemnitee while serving in such capacity (hereinafter an “Indemnifiable Event” ) against any and all
expenses (including attorneys’ fees and all other costs, expenses and obligations incurred in connection with investigating, defending,
being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in, any such action,
suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or investigation), losses, claims, damages, liabilities,
judgments, fines, penalties and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval
shall not be unreasonably withheld) of such Claim and any federal, state, local or foreign taxes imposed on Indemnitee as a result of
the actual or deemed receipt of any payments under this Agreement, including all interest, assessments and other charges paid or payable
in connection with or in respect of such Expenses (collectively, hereinafter “Expenses”) if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and, with respect
to any criminal action, suit or proceeding, Indemnitee had no reasonable cause to believe Indemnitee’s conduct was unlawful.


 




    	 



    	 



    

 


(b)
Mandatory Payment of Expenses. Notwithstanding any other provision of this Agreement other than Section 7 hereof, to the extent
that Indemnitee has been successful on the merits or otherwise, including, without limitation, the dismissal of a Claim without prejudice,
in defense of any Claim referred to in Section (1)(a) hereof or in the defense of any Claim, issue or matter therein, Indemnitee shall
be indemnified against all Expenses incurred by Indemnitee in connection therewith.


 


2.
Expenses; Indemnification Procedure.


 


(a)
Advancement of Expenses. The Company shall pay all Expenses incurred by Indemnitee in connection with the investigation, defense,
settlement, or appeal of any civil or criminal Claim referenced in Section 1(a) hereof in advance of the final disposition of such Claim.
Indemnitee shall deliver to the Company an Undertaking, substantially in the form of Exhibit A hereto, whereby Indemnitee undertakes
to repay such amounts advanced only if, and to the extent that, it shall ultimately be determined that Indemnitee is not entitled to
be indemnified by the Company as authorized hereby. The advances to be made hereunder shall be paid by the Company to Indemnitee following
a request therefor, but in any event no later than thirty (30) days after receipt by the Company of written demand from Indemnitee for
such advances.


 


(b)
Notice/Cooperation by Indemnitee. Indemnitee shall, as a condition precedent to Indemnitee’s right to be indemnified under
this Agreement, give the Company notice in writing as soon as practicable of any Claim made against Indemnitee for which indemnification
or advancement will or could be sought under this Agreement. Notice to the Company shall be directed to the General Counsel of the Company
at the address shown on the signature page of this Agreement (or such other address as the Company shall designate in writing to Indemnitee).
The failure to promptly notify the Company of the commencement of the action, suit or proceeding, or of Indemnitee’s request for
indemnification, will not relieve the Company from any liability that it may have to Indemnitee hereunder or otherwise, except to the
extent the Company is actually and materially prejudiced in its defense of such action, suit or proceeding as a result of such failure
or delay, and any such failure or delay shall not constitute a waiver by Indemnitee of any rights under this Agreement or otherwise.
To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request therefor including such documentation
and information as is reasonably available to Indemnitee and is reasonably necessary to enable the Company to determine whether and to
what extent Indemnitee is entitled to indemnification.


 


(c)
Procedure. Any indemnification and advances of Expenses provided for in Section 1 and Section 2 of this Agreement shall be paid
by the Company to Indemnitee within thirty (30) days after receipt of written request from Indemnitee for such indemnification or advances
along with appropriate written documentation verifying such Expenses, but in any event no later than forty-five (45) days after receipt
of such request. If the Company believes that Indemnitee has not met the standards of conduct which make it permissible under applicable
law for the Company to indemnify Indemnitee for the Expenses claimed, the Company may file an action in the Court of Chancery of the
State of Delaware to obtain a declaratory judgment that Indemnitee is not entitled under applicable law to receive indemnification or
advancement from the Company (hereinafter a “Declaratory Action”). If the Company files a Declaratory Action, Indemnitee
shall be entitled to receive interim payments of Expenses pursuant to Subsection 2(a) including Expenses incurred in defending a Declaratory
Action unless and until the Court of Chancery of the State of Delaware issues an order or judgment that Indemnitee is not entitled under
applicable law to receive indemnification or advancement from the Company. If the Court of Chancery of the State of Delaware issues an
order or judgment in a Declaratory Action that Indemnitee is not entitled under applicable law to receive indemnification or advancement
from the Company, the Company shall have no further obligation under this Agreement, the Company’s Certificate of Incorporation,
the Company Bylaws or any other applicable law, statute or rule to provide indemnification or advances of Expenses to Indemnitee and
Indemnitee shall be responsible for repaying all such amounts previously advanced to Indemnitee as provided in Section 2(a).


 




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(d)
No Presumptions. For purposes of this Agreement, the termination of any Claim by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is
not permitted by applicable law. In addition, neither the failure of the Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel, or its stockholders) to have made a determination that indemnification
of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct required by applicable law,
nor an actual determination by the Company (including its Board of Directors, any committee or subgroup of the Board of Directors, independent
legal counsel, or its stockholders) that Indemnitee has not met such applicable standard of conduct, shall create a presumption that
Indemnitee has or has not met the applicable standard of conduct.


 


(e)
Burden of Proof. In a Declaratory Action, the burden of proof shall be on the Company to establish that Indemnitee is not entitled
to indemnification or advances.


 


(f)
Notice to Insurers. If, at the time of the receipt by the Company of a notice of a Claim pursuant to Section 2(b) hereof, the
Company has insurance in effect which may cover all or any portion of such Claim, the Company shall give prompt notice of the commencement
of such Claim to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take
all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Claim
in accordance with the terms of such policies. Notwithstanding the foregoing, the Company shall
not be obligated to indemnify the Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments,
fines, ERISA excise taxes and penalties, and amounts paid in settlement) for which payment is actually made to or on behalf of Indemnitee
under a valid and collectible insurance policy of D&O Insurance, or under a valid and enforceable indemnity clause, by-law or agreement.


 


(g)
Selection of Counsel. In the event the Company shall be obligated hereunder to pay the Expenses of any Claim, the Company shall
be entitled to assume the defense of such Claim with counsel approved by Indemnitee, which approval shall not be unreasonably withheld,
upon the delivery to Indemnitee of written notice of its election so to do. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any
fees of counsel subsequently incurred by Indemnitee with respect to the same Claim. Notwithstanding the Company’s assumption of
the defense of any Claim, the Company shall be obligated to pay the Expenses of any Claim if (A) the employment of counsel by Indemnitee
has been previously authorized by the Company, (B) the Company shall have reasonably concluded that there is a conflict of interest between
the Company and Indemnitee in the conduct of any such defense such that Indemnitee needs to be separately represented, or (C) the Company
shall not continue to retain counsel to defend such Claim, then the fees and expenses of counsel retained by Indemnitee shall be at the
expense of the Company. The Company shall have the right to conduct such defense as it sees fit in its sole discretion, including the
right to settle any Claim against Indemnitee without the consent of the Indemnitee; provided, that in no event shall the Company have
the right to settle any Claim that imposes non-monetary penalties on Indemnitee without the prior written consent of Indemnitee which
may be granted or withheld in Indemnitee’s sole discretion.


 




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3.
Additional Indemnification Rights; Nonexclusivity.


 


(a)
Scope. The Company hereby agrees to indemnify Indemnitee to the fullest extent permitted by law, notwithstanding that such indemnification
is not specifically authorized by the other provisions of this Agreement, the Company’s Certificate of Incorporation, the Company’s
Bylaws or by statute. In the event of any change after the date of this Agreement in any applicable law, statute or rule which expands
the right of a Delaware corporation to indemnify a member of its Board of Directors or an officer, employee, agent or fiduciary, it is
the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits afforded by such change. In the event
of any change in any applicable law, statute or rule which narrows the right of a Delaware corporation to indemnify a member of its Board
of Directors or an officer, employee, agent or fiduciary, such change, to the extent not otherwise required by such law, statute or rule
to be applied to this Agreement, shall have no effect on this Agreement or the parties’ rights and obligations hereunder except
as set forth in Section 7(a) hereof.


 


(b)
Nonexclusivity. The indemnification provided by this Agreement shall be in addition to any rights to which Indemnitee may be entitled
under the Company’s Certificate of Incorporation, its Bylaws, any agreement, any vote of stockholders or disinterested directors,
the General Corporation Law of the State of Delaware, or otherwise. The indemnification provided under this Agreement shall continue
as to Indemnitee for any action Indemnitee took or did not take while serving in an indemnified capacity even though Indemnitee may have
ceased to serve in such capacity.


 


4.
No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any Claim
made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, Certificate of
Incorporation, Bylaw or otherwise) of the amounts otherwise indemnifiable hereunder.


 


5.
Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for
a portion of Expenses incurred in connection with any Claim, but not, however, for the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled.


 


6.
Mutual Acknowledgement. Both the Company and Indemnitee acknowledge that in certain instances, Federal law or applicable public
policy may prohibit the Company from indemnifying its directors, officers, employees, agents, or fiduciaries under this Agreement or
otherwise. Indemnitee understands and acknowledges that the Company has undertaken or may be required in the future to undertake with
the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination
of the Company’s right under public policy to indemnify Indemnitee.


 




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7.
Exceptions. Any other provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms
of this Agreement:


 


(a)
Excluded Action or Omissions. To indemnify (i) any Claim by or in the right of the Company as to which Indemnitee shall have been
adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware or such other court
in which such Claim was brought, shall determine upon application that despite the adjudication of liability, in view of all the circumstances
of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses such court shall deem proper, or (ii) any other
acts, omissions or transactions from which Indemnitee may not be relieved of liability under applicable law;


 


(b)
Claims Initiated by Indemnitee. To indemnify or advance expenses to Indemnitee with respect to Claims initiated or brought voluntarily
by Indemnitee and not by way of defense, except (i) with respect to Claims brought to establish or enforce a right to indemnification
or advancement under this Agreement or any other agreement or insurance policy or under the Company’s Certificate of Incorporation
or Bylaws, as now or hereafter in effect relating to Claims for Indemnifiable Events, (ii) in specific cases if the Board of Directors
has approved the initiation or bringing of such Claim, or (iii) as otherwise required under Section 145 of the Delaware General Corporation
Law, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advance expense payment or insurance
recovery, as the case may be;


 


(c)
Claims Under Section 16(b). To indemnify Indemnitee for Expenses and the payment of profits arising from the purchase and sale
by Indemnitee of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, or any similar successor
statute.


 


(d)
Disgorgement of Profits and Bonuses Pursuant to Section 304. To indemnify Indemnitee for (i) any bonus or other incentive-based
or equity-based compensation received by Indemnitee or (ii) any profits arising from the sale of securities made by Indemnitee that Indemnitee
is required pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 to reimburse to the Company.


 


8.
Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company
against Indemnitee, Indemnitee’s estate, spouse, heirs, executors or personal or legal representatives after the expiration of
five (5) years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished
and deemed released unless asserted by the timely filing of a legal action within such five-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action, such shorter period shall govern.


 


9.
Construction of Certain Phrases.


 


(a)
For purposes of this Agreement, references to the “Company” shall include, in addition to the resulting corporation, any
affiliate, subsidiary, joint venture, constituent corporation (including any constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees,
agents or fiduciaries, so that if Indemnitee is or was a director, officer, employee, agent or fiduciary of such constituent corporation,
or is or was serving at the request of such constituent corporation as a director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions
of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation
if its separate existence had continued.


 




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(b)
For purposes of this Agreement, references to “other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan; and references to “serving at the
request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company which imposes
duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its
participants or its beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not
opposed to the best interests of the Company” as referred to in this Agreement.


 


10.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original.


 


11.
Binding Effect; Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be enforceable by
the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, and personal and legal representatives.
The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all, or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory
to Indemnitee, expressly 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 such succession had taken place. This Agreement shall continue in effect with respect to Claims relating
to Indemnifiable Events regardless of whether Indemnitee continues to serve as a director, officer, employee, agent or fiduciary of the
Company or of any other enterprise at the Company’s request.


 


12.
Notice. All notices and other communications required or permitted hereunder shall be in writing, shall be effective when given,
and shall in any event be deemed to be given (a) fifteen (15) days after deposit with the U.S. Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (b) upon delivery, if delivered by hand, (c) one business day after the business
day of deposit with Federal Express or similar overnight courier, freight prepaid, or (d) one day after the business day of delivery
by facsimile transmission with confirmation of receipt, if delivered by facsimile transmission, with a mandatory written copy by first
class mail, postage prepaid, or Express Courier, and shall be addressed if to Indemnitee, at the Indemnitee address as set forth beneath
Indemnitee signatures to this Agreement and if to the Company at the address of its principal corporate offices (attention: Secretary)
or at such other address as such party may designate by ten days’ advance written notice to the other party hereto.


 


13.
Consent to Jurisdiction. The Company and Indemnitee each hereby irrevocably consent to the jurisdiction of the courts of the State
of Florida for all purposes in connection with any action which arises out of or relates to this Agreement and agree that any action
instituted under this Agreement shall be commenced, prosecuted and continued only in the Courts of the State of Florida in and for St.
Lucie County, which shall be the exclusive and only proper forum for adjudicating such a claim.


 


14.
Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest
extent possible, the provisions of this Agreement (including, without limitations, each portion of this Agreement containing any provision
held to be invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or unenforceable.


 




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15.
Choice of Law. This Agreement shall be governed by and its provisions construed and enforced in accordance with the laws of the
State of Florida, as applied to contracts between Florida residents, entered into and to be performed entirely within the State of Florida,
without regard to the conflict of laws principles thereof.


 


16.
Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee who shall execute all documents required and shall do all acts that may be necessary to secure
such rights and to enable the Company effectively to bring suit to enforce such rights.


 


17.
Amendment and Termination. No amendment, modification, termination or cancellation of this Agreement shall be effective unless
it is in writing signed by both the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.


 


18.
Integration and Entire Agreement. This Agreement sets forth the entire understanding between the parties hereto and supersedes
and merges all previous written and oral negotiations, commitments, understandings and agreements relating to the subject matter hereof
between the parties hereto.


 


19.
No Construction as Employment Agreement. Nothing contained in this Agreement shall be construed as giving Indemnitee any right
to be retained in the employ of the Company or any of its subsidiaries.


 


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


 


	 	ALTITUDE
    INTERNATIONAL HOLDINGS, INC.
	 	 	 
	 	Signature:	/s/
    Gregory Breunich
	 	By:	Gregory
    Breunich
	 	Title:	Chairman


 


	AGREED
    TO AND ACCEPTED BY:	 
	 	 	 
	Signature:	/s/
    Gabriel Jaramillo	 
	By:	Gabriel Jaramillo	 
	Title:	Executive
    Vice President, Director of Tennis and Director	 


 




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