Blueprint





 











Exhibit 10.1



 



EXECUTIVE EMPLOYMENT AGREEMENT


 


This
Employment Agreement (this
“Agreement”) is made as of
the 16th
day of March, 2017, by and between Exactus Inc (the
“Company”) and Kelley
Wendt (the “Employee”) and in light
of the following circumstances:


 


WHEREAS, Employee has provided
consulting services to Company as an independent financial advisor
pursuant to the terms of a “Financial Consulting Services
Agreement” (the “FCS Agreement”);


 


WHEREAS, it was and is the intent of the
parties that the term of Employee’s services under the FCS
Agreement would expire as of January 27, 2017; and


 


WHEREAS, Employee became a full time
employee of the Company effective as of February 1, 2017 (the
“Effective
Date”); and


 


WHEREAS, Company desires to employ
Employee under the terms and conditions set forth in this Agreement
and the Employee desires to be so employed by the
Company;


 


NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein set forth, and other good
and valuable consideration the sufficiency and receipt of which is
hereby acknowledged, the parties covenant and agree as
follows:


 

1. Employment.

 


The
Company agrees to employ Employee, and Employee hereby accepts
employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the Effective
Date and ending on the date that this Agreement is terminated
pursuant to Section 6 hereof (the “Employment
Period”).

 

2. Term.

 


The
term of this Agreement shall commence on the Effective Date and
shall continue for two (2) years (the “Initial Term”), and, upon
the expiration of the Initial Term and annually thereafter, this
Agreement shall automatically renew for successive one (1) year
terms (each a “Renewal Term”), unless,
at least thirty (30) days prior to the expiration of the Initial
Term or a Renewal Term, either party gives to the other party
written notice that this Agreement shall not be renewed, in which
case the term shall expire on the last date of the Initial Term or
the Renewal Term in which such notice is given. The Initial Term
and all Renewal Terms, if any, shall together constitute the
“Term”
of this Agreement.

 

3. Position
and Duties.

 

(a) During
the Employment Period, Employee shall serve as its Chief Financial
Officer and shall report to the Company’s Chairman and Chief
Executive Officer. In this capacity, Employee shall render such
services to the Company as the Company may from time to time
direct.

 

(b) During
the Employment Period, Employee shall devote her best efforts and
her full business time and attention (except for permitted vacation
periods and reasonable periods of illness or other incapacity) to
the business and affairs of the Company. Employee shall perform her
duties, responsibilities and functions to the Company hereunder to
the best of her abilities in a diligent, trustworthy, professional
and efficient manner and shall comply with the Company’s
policies and procedures now in effect or as they may be revised or
amended from time to time in the Company’s discretion. During
the Employment Period, Employee shall not serve as an employee,
officer, director, manager, trustee or the equivalent of, or
otherwise perform services for compensation for, any entity other
than the Company without the prior written consent of the Company,
which consent may be given or withheld in the Company’s sole
discretion. Notwithstanding the foregoing, Employee shall be
permitted to continue to perform financial consulting services to
Employee’s pre-existing clients for whom she had provided
significant financial consulting services at any time in the two
(2) years preceding the Effective Date (the “Pre-Existing
Clients”), provided, and only for so long as, such services
for the Pre-Existing Clients do not raise or present a
conflict-of-interest, or the reasonable appearance thereof, or
otherwise interfere with her employment hereunder, in each case as
determined by the Company at its discretion. Nothing contained in
this Agreement shall prohibit Employee from serving as an officer
or director of, or otherwise participating in, purely educational,
welfare, social, religious and civic organizations, in each case so
long as such activities do not interfere with Employee’s
employment hereunder.


 




 


 








 





 

4. Compensation
and Benefits.

 

(a) Annual
Base Salary. Beginning on the first regularly-scheduled
pay-period following the date this Agreement is fully executed by
both parties, the Company shall pay to the Employee an annual gross
base salary (the “Annual Base Salary”) less
applicable tax withholdings and such other deductions as required
by law or agreed to by the parties. Employee’s initial Annual
Base Salary shall be $90,000, payable in equal monthly
installments, in arrears, or otherwise in accordance with
applicable state law and the Company’s normal pay practices
or as may be adjusted from time to time. The Company shall review
Employee’s compensation at least annually and may adjust
Employee’s Annual Base Salary during the Employment Period to
reflect the performance of the Company and to recognize and fairly
compensate Employee for the reasonable value of the services
rendered for and/or on behalf of the Company by Employee pursuant
to this Agreement.

 

(b) Benefits.
During the Employment Period, Employee shall be entitled to
participate in such health and welfare benefits plans of the
Company that are generally available to senior executives of the
Company, provided that such participation would not result in
non-compliance of any such benefit plan with applicable laws
governing such plans. Any participation by Employee in any plan
sponsored or provided by the Company shall be subject to and
governed by the terms and conditions of such plans, as the same may
be amended from time to time. Employee shall be entitled to up to
twenty-five (25) days paid vacation for each year of the
Term.

 

(c) Expense
Reimbursement. The Company shall reimburse Employee for all
normal and customary business expenses reasonably incurred by
Employee in the proper performance of her duties under this
Agreement. With respect to this reimbursement, Employee shall
comply with the Company’s policies regarding documentation
and submittal of expenses incurred.

 

5. Performance
Bonus and Stock Option Grant

 

(a)           
In addition to the Annual Base Salary and benefits provided under
Section 4 of this Agreement, Company shall provide Employee with an
opportunity to earn additional performance-based compensation, at
the sole discretion of the Company, up to an amount equal to 60%
the Annual Base Salary amount, based upon and contingent upon
Employee meeting certain performance expectations or milestones as
established by the Company from time to time (the
“Performance Bonus”).

 

(b)           
In addition to the Annual Base Salary and Performance Bonus,
Employee shall be eligible to participate in the Company’s
stock incentive plan and receive such grants, if any, awarded by
the Company’s Compensation Committee.

 


 




 


 








 





 

6. Termination.

 


Subject
to the provisions hereof concerning the survival of post-employment
covenants and obligations, this Agreement and Employee’s
employment hereunder may be terminated as follows:

 

(a) Expiration.
This Agreement and Employee’s employment hereunder shall
terminate immediately upon the expiration of the Initial Term or
any Renewal Term in which either party gives notice of non-renewal
pursuant to Section 2 of this Agreement and, thereafter, Employee
shall not be entitled to any compensation or benefits from the
Company; provided, however, that any rights and/or benefits
Employee may have under employee benefit plans and/or programs of
the Company shall be determined in accordance with terms and
conditions of such plans and programs then in effect.

 

(b) Termination by the Company
for Cause. The
Company shall have the right to terminate Employee’s
employment under this Agreement at any time for Cause, which
termination shall be effective immediately. For purposes of this
Agreement, “Cause” shall include: (i)
unauthorized use or disclosure of the Company’s confidential
information or trade secrets; (ii) material breach of any agreement
between Employee and the Company, including this Agreement; (iii)
material failure to comply with the Company’s policies or
rules; (iv) conviction of, or plea of “guilty” or
“no contest” to, a felony under the laws of the United
States or any state thereof, or any crime of moral turpitude; (v)
intentional failure to perform Employee’s duties or refusal
to abide by or comply with the directives of the Company; (vi)
willful dishonesty, fraud, misconduct, or gross negligence with
respect to the business or affairs of the Company that, in the
reasonable judgment of the Company, adversely affects the
operations or reputation of the Company; or (vii) refusal or
failure to cure any conflict-of-interest or appearance thereof, as
provided in Section 3(b), after no less than five (5) days notice
by the Company of such conflict.

 

(c) Termination
by Company Without Cause. Employee’s employment
hereunder may also be terminated without Cause or reason by the
Company upon two (2) months’ written notice to the Employee.
In the event Employee’s employment under this Agreement is
terminated without Cause, Employee shall be entitled to all
compensation earned through the date of termination. The Company
may, at its election, provide Employee with Employee’s salary
in an amount equivalent to that due over the applicable notice
period in lieu of allowing the Employee to continue to provide
services throughout the required notice period. However, at the
Company’s direction, Employee shall continue to diligently
and faithfully serve the Company during the notice period,
including assisting in the transition of her duties to another
employee. If Company terminates Employee’s employment under
this Subsection, Employee shall have no right to receive any
further compensation or benefits under this Agreement. To reflect
the performance of the Company and to recognize and fairly
compensate Employee for the reasonable value of her services
rendered to the Company, the Company may adjust the length of the
notice period and/or compensation under this Paragraph 6(c);
provided, however, that any such adjustment will not be effective
or binding unless memorialized by a written modification to this
Agreement signed by all parties hereto.

 

(d) Employee’s
Termination/Resignation. Employee may terminate her
employment hereunder by providing the Company with two (2)
months’ written notice of her intention to resign. The
Company may provide Employee with Employee’s salary in an
amount equivalent to that due over the applicable notice period in
lieu of allowing the Employee to continue her employment throughout
the required notice period. If Employee terminates her employment
under this Section she shall have no right to receive any further
compensation or benefits under this Agreement.

 


 




 


 








 





 

7. Nondisclosure
of Confidential Information.

 


Employee
acknowledges and agrees that in the course of her employment under
this Agreement, she will acquire and/or be given access to
information concerning the Company’s finances, business
practices, long-term and strategic plans, client information, and
similar matters, from which the Company derives independent value
and with respect to which the Company takes reasonable measures to
maintain as confidential (collectively, the “Confidential
Information”). The Confidential Information is and
shall remain the sole and exclusive property of the Company.
Employee may not at any time during the Employment Period or
thereafter, other than in the performance of her duties hereunder,
use or disclose or distribute to any person, corporation,
partnership, sole proprietorship, governmental agency,
organization, joint venture or other entity any of the
Company’s Confidential Information, except under compulsion
by any court, state or federal agency, or regulatory authority
having jurisdiction and the power to require disclosure of
information relating to Employee’s services for the Company
or the Company’s activities while Employee was employed.
Employee shall promptly notify the Company upon receipt of any
request from any court, agency, or authority, and, if permitted
under applicable law, shall not disclose the requested information
until such time as the Company has had an opportunity to take such
steps as are necessary to ensure protection of the confidentiality
and use of any requested information. Notwithstanding anything to
the contrary contained herein, the Confidential Information subject
to this Section 7 shall not include any information that: (i) is or
has become publicly available other than as a result of any act or
failure to act of Employee; (ii) was known to Employee, without an
obligation to keep it confidential, prior to her or her receipt of
such item of information from the Company or a customer or vendor
of the Company; or (iii) has legally and properly been received by
Employee from a third party through no breach of any agreement with
or duty to the Company or a customer or vendor of the Company and
without an obligation to keep it confidential.

 


(a)           The
parties acknowledge and agree that nothing contained in this
Agreement, including this Section 7, shall prohibit or be construed
as prohibiting the exercise of any right by Employee that Employee
cannot waive or forego under applicable laws or regulations.
Nothing in this Section 7, nor any other provision of this
Agreement, prohibit Employee or Company from reporting possible
violations of law or regulation to any governmental agency or
entity, including but not limited to the Department of Justice, the
Securities and Exchange Commission, the Congress, or any agency
Inspector General, or making other disclosures that are protected
under the whistleblower provisions of federal or state law or
regulation. Employee does not need the prior authorization of the
Company to make any such reports or disclosures and Employee is not
required to notify the Company that Employee has made such reports
or disclosures.

 

8. Return
of Company Property.

 


Immediately upon
the termination of Employee’s employment with the Company,
for any reason, or whenever requested by the Company, Employee
shall immediately deliver to the Company all property in
Employee’s possession or under Employee’s control
belonging to the Company including, but not limited to, all books,
records, paper and electronic files, customer lists, materials,
correspondence, supplies, keys, identification cards, computers,
telephones or other equipment, in reasonable condition, except for
ordinary wear and tear.

 

9. Non-Solicitation
of Customers.

 


During
the Employment Period and for a period of eighteen (18) months from
and after the date upon which Employee shall cease to be an
employee of the Company for any reason whatsoever (the
“Employment
Cessation Date”), Employee covenants and agrees that
Employee will not, except in the performance of her duties and
obligations to Company hereunder, for Employee’s benefit or
the benefit of another, solicit any person or entity to whom
Employee provided products or services on behalf of the Company, or
that Employee solicited to provide products or services on behalf
of the Company, in each case at any time during the twelve (12)
months immediately preceding the Employment Cessation Date (each a
“Customer”), for the
purpose of providing or offering to provide products or services to
such Customer that compete with the products or services offered or
provided by the Company at the time of such solicitation and at any
time during the twelve (12) months immediately preceding the
Employment Cessation Date.

 

10. Non-Solicitation
of Employees.

 


During
the Employment Period and for a period of twelve (12) years from
and after the Employment Cessation Date, Employee covenants and
agrees that Employee will not, for Employee’s benefit or for
the benefit of another, recruit, solicit for employment or hire any
person who (i) at the time of the recruitment, solicitation or
hiring is, and at any time during the twelve (12) month period
immediately preceding the Employment Cessation Date was, an
employee, agent, partner, officer, or director of the Company; and
(ii) with whom Employee had contact or about whom Employee obtained
knowledge, in each case by virtue of her employment with the
Company, for the purpose of obtaining employment or otherwise
contracting with Employee or another to engage in competition with
the Company.

 




 


 








 





 

11. Reasonableness,
Remedies, Tolling and Reformation.

 

(a) The
parties hereto acknowledge and agree that the covenants contained
in Sections 7, 9, and 10 of this Agreement (the “Restrictive Covenants”),
in light of nature of Employee’s employment by the Company
hereunder are reasonable and necessary for, without limitation, the
protection of the Company’s Confidential Information,
customer goodwill, trade secrets, customer lists, and the
significant investment of the Company in developing, maintaining
and expanding its business and goodwill.

 

(b) The
parties hereto acknowledge and agree that the Company will suffer
irreparable harm in the event of a breach of any of the provisions
of the Restrictive Covenants by Employee. Accordingly, the parties
agree that in the event of any breach or attempted or threatened
breach by Employee of any of the provisions of the Restrictive
Covenants, the Company shall be entitled to institute and prosecute
proceedings at law or in equity with respect to such breach. The
parties further recognize that because a remedy at law for any
breach or attempted or threatened breach by Employee shall be
inadequate, that in addition to the foregoing, the Company shall be
entitled to temporarily and/or permanently enjoin, without the
requirement of a bond, Employee from engaging in any conduct in
violation of any provision of the Restrictive Covenants and seek
any other equitable relief as may be appropriate and just.
Additionally, no claim or cause of action Employee may have or
assert against the Company, whether predicated on this Agreement or
otherwise, shall serve as or constitute a defense to the
enforcement of any provision of the Restrictive
Covenants.

 

(c) The
parties acknowledge and agree that the duration of the restrictions
contained in the Restrictive Covenants shall be extended by the
length of time during which Employee is adjudged to have been in
breach of any such restriction.

 

(d) It is the intention
of the parties that this Agreement shall be enforceable to the
fullest extent permitted by law and that if any restriction set
forth in any of the provisions of the Restrictive Covenants is
deemed broader than necessary to protect the Company’s
legitimate interests, or is deemed unenforceable for any reason,
that such determination shall not be deemed to affect the
enforceability of any other restrictions set forth in the
Restrictive Covenants. It is expressly intended by the parties that
the obligations and restrictions imposed by each paragraph and
subparagraph of the Restrictive Covenants shall be severable and
separately enforceable. The parties further agree that, in the
event that an arbitrator or court of competent jurisdiction shall
determine that any provision of the Restrictive Covenants is
invalid or unenforceable under applicable law by reason of the
geographic or temporal scope of such provision or the extent of
restriction imposed on Employee’s activities set forth
therein, then the geographic or temporal scope of such provision or
the extent of restriction imposed upon Employee’s activities
thereby may be deemed modified by the adjudicating body making such
determination to reduce said geographic or temporal scope or the
extent of such restriction upon Employee’s activities by such
amount as is minimally necessary to render such provision, as so
amended, valid and enforceable under applicable law. The parties
agree to be bound by the adjudicating body’s modification
except that the parties may appeal the ruling on any issue to the
appropriate appellate court or courts, if applicable.
Notwithstanding the foregoing, the parties acknowledge and agree
that should an arbitrator or court of competent jurisdiction
determine that the provisions of this Section 11(d) are
impermissible under applicable law such provisions shall have no
force and effect and the determination shall not affect the
validity of the remainder of the Agreement, including any other
provision, paragraph, or subparagraph.

 

12. Survival
of Obligations.

 


The
parties acknowledge and agree that all covenants and obligations
contained herein that contemplate performance or obligation after
the termination of Employee’s employment hereunder,
including, but not limited to, the Restrictive Covenants, shall
survive and continue in full force in accordance with their terms
notwithstanding the expiration or termination, for any reason, of
this Agreement, the Employment Period, or Employee’s
employment by the Company hereunder.

 


 




 


 








 





 

13. Successors
and Assigns.

 

(a) Assignment
by the Company. This Agreement shall be binding upon and
inure to the benefit of the Company or any corporation or other
entity to which the Company may transfer all or substantially all
of its assets and business and to which the Company may assign this
Agreement, in which case the term “Company,” as used herein,
shall mean such corporation or other entity, provided that no such
assignment shall relieve the Company from any obligations
hereunder, whether arising prior to or after such
assignment.

 

(b) Assignment
by Employee. Employee may not assign this Agreement or any
part hereof without the prior written consent of the
Company.

 

14. Notices.

 


All
notices and other communications required or permitted hereunder or
necessary or convenient in connection herewith shall be in writing
and shall be deemed to have been given when mailed by registered or
certified mail, or the next business day if sent for next day
delivery by a reputable special courier such as Federal Express or
United Parcel Service addressed to the party concerned at the
address indicated below or to such other address as such party may
subsequently have given notice of hereunder in
writing.

 


If to the Company:


c/o
Philip J Young


Chairman and
CEO


Exactus
Inc


4870
Sadler Rd suite 300


Glen
Allen VA 23060


 


If to the
Employee:


Kelley
Wendt


679
Belsches Road


Bumpass, VA
23024


 

15. Employee’s
Representations.

 


Employee hereby
represents and warrants to the Company that, to the best of
Employee’s ability: (i) the execution, delivery and
performance of this Agreement by Employee do not and shall not
conflict with, breach, violate or cause a default under any
contract, agreement, instrument, order, judgment or decree to which
Employee is a party or by which she is bound; (ii) Employee is not
a party to or bound by any employment agreement, non-compete
agreement, or confidentiality agreement with any other person or
entity that would prohibit Employee’s employment with the
Company; and (iii) upon the execution and delivery of this
Agreement by the Company, this Agreement shall be the valid and
binding obligation of Employee, enforceable in accordance with its
terms. Employee hereby acknowledges and represents that she has
consulted with independent legal counsel regarding her rights and
obligations under this Agreement (or that she has elected not to do
so) and that she fully understands the terms and conditions
contained herein.

 

16. Miscellaneous.

 

(a) Governing
Law. This Agreement shall be governed by the laws of the
Commonwealth of Virginia without reference to the choice or
conflict of law principles thereof.

 

(b) Entire
Agreement and Modification. This Agreement contains the
entire understanding of, and representations between, the parties
hereto pertaining to the matters referred to herein, and supersedes
all undertakings and agreements, whether oral or in writing,
previously entered into by them with respect thereto including, but
not limited to, the FCS Agreement. This Agreement may only be
modified by an instrument in writing signed by all parties hereto.
No modification, including to section 6(c) above, will be effective
if contained solely in an email or similar electronic communication
not accompanied by a signed physical writing.

 




 


 








 





 

(c) Waiver
of Breach. The waiver by any party of a breach of any
condition or provision of this Agreement to be performed by such
other party shall not operate or be construed to be a waiver of a
similar or dissimilar provision or condition at the same or any
prior or subsequent time.

 

(d) Severability.
Without prejudice to the provisions of this Agreement which
authorize judicial modification, in the event that any provision or
portion of this Agreement shall be determined to be invalid or
unenforceable for any reason, the remaining provisions or portions
of this Agreement shall be unaffected thereby and shall remain in
full force and effect to the fullest extent permitted by
law.

 

(e) Captions.
The titles, captions, and headings in this Agreement are included
for convenience only and shall not be construed to define or limit
any of the provisions contained herein.

 

(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.

 


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

 

 

 

COMPANY
                 
                 
           
         
EMPLOYEE


 

By:    
  /s/ Philip J.
Young                               
/s/ Kelley A.
Wendt



 

Name: 
Philip J.
Young                                                      


 

Title:   
President &
CEO                                                      


 

Dated: 
3/16/2017                                             
Dated: 
3/16/2017