Exhibit 10.1 


 





EXECUTIVE
RETENTION AGREEMENT


This
Executive Retention Agreement (the “Agreement”) is made and entered into as of August 9, 2017 (the “Effective
Date”) by and between WORKHORSE GROUP INC., a Nevada corporation (the “Company”), and Paul Gaitan
(the “Executive”).


Recitals:


WHEREAS,
the Executive is a key employee of the Company who possesses valuable proprietary knowledge of the Company, its business and operations
and the markets in which the Company competes; and


WHEREAS,
the Company and the Executive desire to enter into this Agreement to encourage the Executive to continue to devote the Executive’s
full attention and dedication to the success of the Company, and to provide specified compensation and benefits to the Executive
in the event of a Termination Upon Change of Control or certain other terminations pursuant to the terms of this Agreement.


NOW,
THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:




1.                 
PURPOSE AND TERM; DUTIES


1.1       The
purpose of this Agreement is to provide specified compensation and benefits to the Executive in the event of (i) a Termination
Upon Change of Control or (ii) an Involuntary Termination. Subject to the terms of any applicable written employment agreement
between Company and the Executive (as to which Executive acknowledges no other such agreement exists as of the date hereof), either
the Executive or Company may terminate the Executive’s employment at any time for any reason, with or without notice. The
term of this Agreement shall be the period from the date set forth above until Executive’s employment is terminated for
any reason or this Agreement is terminated by mutual agreement of the parties.


1.2       The
Executive shall serve as the Chief Financial Officer of the Company. The Executive’s job responsibilities will comprise
managing and overseeing all financial operations and matters of the Company, including the subsidiaries, including but not limited
to:


 


	 	(a)	Timely
                           and accurate annual and quarterly financial reporting in accordance with Securities & Exchange
                           Commission (“SEC”) rules and regulations, applicable law and United States Generally Accepted
                           Accounting Principles (“GAAP”).
	 	 	 
	 	(b)	Management
                           of our Finance Department and oversight of all financial personnel, accounting systems, procedures
                           and policies.
	 	 	 
		(c)	Establishing
                                         and maintaining adequate financial controls, sufficient as a minimum to enable your appropriate
                                         certification of the Company’s annual and quarterly reports in accordance with
                                         SEC rules.



 






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	 	(d)	Managing
                           the treasury functions for the Company, as well as all borrowings, debt facilities and equity fundraising,
                           subject to the approval of the Board (as defined below).
	 	 	 
	 	(e)	Undertaking
                           financial planning for the Company, including preparing annual and other budgets and projections and
                           managing in compliance with such budgets as may be approved by the Board.
	 	 	 
	 	(f)	Monthly
                           management reporting and analysis for the Board.



 


		(g)	Managing
                                         and corresponding with all potential investors with respect to due diligence, documentation
                                         and closing of such financings.
	 	 	 
	 	(h)	Investor
relations to the extent reasonably requested by the CEO.



  


		(i)	All
                                         such functions as are customarily applicable to your position, as well as those that
                                         are reasonably assigned to you by the Company.



 


1.3        The
Executive is entitled to four (4) weeks of vacation which will accrue on a pro-rata basis during the year, in addition to all
public holidays when the office is closed.   Executive will be eligible to participate in all employee benefit plans established
by the Company for its employees from time to time. In accordance with Company policies from time to time, the Company will reimburse
you for all reasonable and proper travel and business expenses incurred by you in the performance of your duties.


 


2.                 
COMPENSATION AND TERMINATION GENERALLY


2.1             
Compensation. 


2.1.1       Annual
Salary. The Executive’s current base salary of $200,000 per annum, subject to periodic review and modification which
may not be adjusted downward by the Company’s Board of Directors (the “Board”) as may be delegated
to the Compensation Committee of the Board (references herein to the Compensation Committee shall include reference to the Board
if no such Committee exists at any time) at such time or times as it shall determine. The Company’s Compensation Committee
shall also from time to time, in its discretion, determine the type and amount of other forms of compensation for Executive’s
service with the Company (including, without limitation, stock options or other forms of equity awards).


2.1.2       Bonuses.
Commencing during the year ended December 31, 2018, Executive will be eligible for bonuses based
on achievement of performance milestones, calculated and payable in an amount equal to 25% of the Base Salary (as amended by the
Board from time to time) (the “Cash Bonus”), which shall be payable during any fiscal year upon the Company generating
75% of its projected revenue set forth in the Company’s budget as established by the Company’s Board of Directors
and management and evidenced by the Company’s financial statements as filed in its Form 10-K Annual Report (the “Revenue
Target”). In the event the Company generates 100% or 125% of its Revenue Target, then the Cash Bonus will be increased to
37.5% and 50% of the Annual Salary, respectively. If such conditions are fulfilled, the Cash Bonus shall be payable with the next
payroll following the latest to occur of the above events, subject to all applicable deductions required by law.


 






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2.1.3       Options.
The Executive will be provided with an initial grant of options to purchase 200,000 shares of common
stock, which shall vest over four (4) years in equal quarterly installments of 12,500 shares per quarter commencing January 1,
2018.  The exercise price of the options shall be $2.74 per share and the term shall be ten years. The Executive may be eligible
for additional equity incentive grants, subject to Executive’s continued employment and satisfactory job performance, which
may be made from time to time, by the Board, on the same terms as other executive employees of the Company. Terms and conditions
of all the equity incentive grants, will be in accordance with the terms of the Company’s Equity Incentive Plan in effect
at the time of each such grant.


 


2.2             
Termination of Employment Generally. In the event the Executive’s employment with the Company terminates, for any
reason whatsoever including death or disability the Executive shall be entitled to the benefits described in this Section 2.2.


2.2.1       
Accrued Salary and Vacation. All salary and accrued vacation earned through the Termination Date shall be paid to Executive
on such date.


2.2.2       
Accrued Bonus Payment. The Executive shall receive a lump sum payment of any actual bonus amount to the extent that all
the conditions for payment of such bonus have been satisfied and any such bonus was earned and is unpaid on the Termination Date.


2.2.3       
Expense Reimbursement. Within ten (10) days following submission to the Company of proper expense reports by the Executive,
the Company shall reimburse the Executive for all expenses incurred by the Executive, consistent with the Company’s expense
reimbursement policy in effect prior to the incurring of each such expense, in connection with the business of the Company prior
to the Termination Date.


2.2.4       Equity
Compensation. The period during which the Executive may exercise any rights (“Exercise Period”)
under any outstanding stock options (or any other equity award, including, without limitation, stock appreciation rights and restricted
stock units) granted to the Executive under any equity incentive plan or agreement adopted by the Board of Directors (the “Company
Plans”) shall continue as set forth in such security; provide, however, such Exercise Period shall terminate immediately
in the event Executive is terminated for Cause. Further, in the event the Executive is terminated for Cause or leaves for any
reason except as set forth in Section 4, then the vesting of all outstanding stock options (or any other equity award, including,
without limitation, stock appreciation rights and restricted stock units) shall cease.


 


3.                 
TERMINATION UPON CHANGE OF CONTROL


3.1             
Severance Payment. In the event of the Executive’s Termination Upon Change of Control at any time after November
9, 2017, the Executive shall be entitled to receive an amount equal to twelve (12) months of Executive’s Base Salary, which
shall be paid according to the following schedule: (i) a lump sum payment equal to one-half of such amount shall be payable within
ten (10) days following the Termination Date, and (ii) one-third of the balance of such amount shall be payable within ten (10)
days of each of the three-month, six-month and nine-month anniversaries of the Termination Date (and in each case no interest
shall accrue on such amount); provided, however, that if Section 409A of the Code would otherwise apply to such cash severance
payment, it instead shall be paid at such time as permitted by Section 409A of the Code. In addition to the foregoing severance
payment, in the event of the Executive’s Termination Upon Change of Control, the Executive shall be entitled to receive,
within ten (10) days following the Termination Upon Change of Control, a lump sum payment equal to one hundred percent (100%)
of (a) any actual bonus amount earned with respect to a previous year to the extent that all the conditions for payment of such
bonus have been satisfied (excluding any requirement to be in employment with the Company as of a given date which is after the
Termination Date) and any such bonus was earned but is unpaid on the Termination Date; and (b) the target bonus then in effect
for the Executive for the year in which such termination occurs, such payment to be prorated to reflect the full number of months
the Executive remained in the employ of the Company; provided, however, that if Section 409A of the Code would otherwise apply
to such cash payment, it instead shall be paid at such time as permitted by Section 409A of the Code. To illustrate, if the Executive’s
target bonus at 100% equals $120,000 for the calendar year and the Executive is terminated on October 15th, then the
foregoing payment shall equal $100,000 (i.e., ten (10) months’ prorated bonus at one hundred percent (100%) with October
counting as a full month worked).



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3.2             
Equity Compensation Acceleration. Upon the Executive’s Termination Upon Change of Control at any time after November
9, 2017, the vesting and exercisability of all then outstanding stock options (or any other equity award, including, without limitation,
stock appreciation rights and restricted stock units) granted to the Executive under any Company Plans shall be
accelerated as to 100% of the shares subject to any such equity awards granted to the Executive. 


3.3             
COBRA. If the Executive timely elects coverage under the Consolidated Budget Reconciliation Act of 1985, as amended (“COBRA”),
the Company shall continue to provide to the Executive, at the Company’s expense, the Company’s health-related employee
insurance coverage for the employee only as in effect immediately prior to the Executive’s Termination Upon Change of Control
for a period of twelve (12) months following such Termination Upon Change of Control. The date of the “qualifying event”
for the Executive and any dependents shall be the Termination Date. 


3.4             
Indemnification. In the event of the Executive’s Termination Upon Change of Control, (a) the Company shall continue
to indemnify the Executive against all claims related to actions arising prior to the termination of the Executive’s employment
to the fullest extent permitted by law, and (b) if the Executive was covered by the Company’s directors’ and officers’
insurance policy, or an equivalent thereto, (the “D&O Insurance Policy”) immediately prior to the
Change of Control, the Company or its Successor shall continue to provide coverage under a D&O Insurance Policy for not less
than twenty-four (24) months following the Executive’s Termination Upon Change of Control on substantially the same terms
of the D&O Insurance Policy in effect immediately prior to the Change of Control. 


4.                 
INVOLUNTARY TERMINATION


4.1             
Severance Payment. In the event of the Executive’s Involuntary Termination at any time after November 9, 2017, the
Executive shall be entitled to receive an amount equal to twelve (12) months of the Executive’s Base Salary which shall
be paid according to the following schedule: (i) a lump sum payment equal to one-fourth of such amount shall be payable within
ten (10) days following the Termination Date, and (ii) one-fourth of such amount shall be payable within ten (10) days of each
of the three-month, six-month and nine-month anniversaries of the Termination Date (and in each case no interest shall accrue
on such amount); provided, however, that if Section 409A of the Code would otherwise apply to such cash severance payment, it
instead shall be paid at such time as permitted by Section 409A of the Code. In addition to the foregoing severance payment, in
the event of the Executive’s Involuntary Termination, the Executive shall be entitled to receive, within ten (10) days following
the Executive’s Involuntary Termination, a lump sum payment equal to one hundred percent (100%) of (a) any actual bonus
amount earned with respect to a previous year to the extent that all the conditions for payment of such bonus have been satisfied
(excluding any requirement to be in employment with the Company as of a given date which is after the Termination Date) and any
such bonus was earned but is unpaid on the Termination Date; and (b) the target bonus then in effect for the Executive for the
year in which such termination occurs, such payment to be prorated to reflect the full number of months the Executive remained
in the employ of the Company; provided, however, that if Section 409A of the Code would otherwise apply to such cash payment,
it instead shall be paid at such time as permitted by Section 409A of the Code. To illustrate, if the Executive’s target
bonus at 100% equals $120,000 for the calendar year and the Executive is terminated on October 15th, then the foregoing
payment shall equal $100,000 (i.e., ten (10) months’ prorated bonus at one hundred percent (100%) with October counting
as a full month worked).






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4.2             
Equity Compensation Acceleration. Upon the Executive’s Involuntary Termination at any time after November 9, 2017,
the vesting and exercisability of all then outstanding stock options (or any other equity award, including, without limitation,
stock appreciation rights and restricted stock units) granted to the Executive under any Company Plans shall be accelerated as
to 100% of the shares subject to any such equity awards granted to the Executive. 


4.3             
COBRA. In the event of the Executive’s Involuntary Termination, at any time after November 9, 2017, if the Executive
timely elects coverage under the Consolidated Budget Reconciliation Act of 1985, as amended (“COBRA”),
the Company shall continue to provide to the Executive, at the Company’s expense, the Company’s health-related employee
insurance coverage for the employee only as in effect immediately prior to the Executive’s Involuntary Termination for a
period of twelve (12) months following such Involuntary Termination. The date of the “qualifying event” for the Executive
and any dependents shall be the Termination Date. 


4.4             
Indemnification. In the event of the Executive’s Involuntary Termination, (a) the Company shall continue to indemnify
the Executive against all claims related to actions arising prior to the Termination Date to the fullest extent permitted by law,
and (b) if the Executive was covered by the D&O Insurance Policy immediately prior to the Termination Date, the Company shall
continue to provide coverage under a D&O Insurance Policy for not less than twenty-four (24) months following the Executive’s
Involuntary Termination on substantially the same terms of the D&O Insurance Policy in effect immediately prior to the Termination
Date. 


5.                 
FEDERAL EXCISE TAX UNDER SECTION 280G


5.1             
Excise Tax. If (a) any amounts payable to the Executive under this Agreement or otherwise are characterized as excess parachute
payments pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), and
(b) the Executive thereby would be subject to any United States federal excise tax due to that characterization, then if Executive
would thereby be in a better after-tax position, the Company may elect, in the Company’s sole discretion, to reduce the
amounts payable under this Agreement or otherwise, or to have any portion of applicable options or restricted stock not vest or
become exercisable, in order to avoid any “excess parachute payment” under Section 280G(b)(1) of the Code.






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5.2             
Calculation by Independent Public Accountants. Unless the Company and the Executive otherwise agree in writing, any calculation
of the amount of any excess parachute payments payable by the Executive shall be made in writing by the Company’s independent
public accountants (the “Accountants”) whose conclusion shall be final and binding on the parties. For
purposes of making such calculations, the Accountants may rely on reasonable, good faith interpretations concerning the application
of Sections 280G and 4999 of the Code. The Company and the Executive shall furnish to the Accountants such information and documents
as the Accountants may reasonably request in order to make the required calculations. The Company shall bear all fees and expenses
the Accountants may charge in connection with these services, but the engagement of the Accountants for this purpose shall be
pursuant to an agreement between the Executive and the Accountants.


6.                 
DEFINITIONS


6.1             
Capitalized Terms Defined. Capitalized terms used in this Agreement shall have the meanings set forth in this Section 4,
unless the context clearly requires a different meaning.


6.2             
“Base Salary” means the greater of (a) if applicable, the monthly salary of the Executive in effect immediately
prior to the Change of Control, or (b) the monthly salary of the Executive in effect immediately prior to the Termination Date.


6.3             
“Cause” means: 


		(a)	the
                                         Executive willfully failed to follow the lawful written directions of the Board of Directors
                                         of the Company or Executive’s immediate superior; provided that no termination
                                         for such Cause shall occur unless the Executive: (i) has been provided with notice, specifying
                                         such willful failure in reasonable detail, of the Company’s intention to terminate
                                         the Executive for Cause; and (ii) has failed to cure or correct such willful failure
                                         within thirty (30) days of receiving such notice; 



		(b)	the
                                         Executive engaged in gross misconduct, or gross incompetence which is materially detrimental
                                         to the Company; provided that no termination for such Cause shall occur unless the Executive:
                                         (i) has been provided with notice, specifying such gross misconduct or gross incompetence
                                         in reasonable detail, of the Company’s intention to terminate the Executive for
                                         Cause; and (ii) has failed to cure or correct such gross misconduct within thirty (30)
                                         days of receiving such notice; 



		(c)	the
                                         Executive willfully failed to comply in any material respect with the Employee Invention
                                         Assignment & Confidentiality Agreement, the Company’s share dealing code, the
                                         Employee’s non-competition agreement or any other reasonable policies of the Company
                                         where non-compliance would be materially detrimental to the Company; provided that no
                                         termination for such Cause shall occur unless the Executive: (i) has been provided with
                                         notice of the Company’s intention to terminate the Executive for such Cause, and
                                         (ii) has failed to cure or correct such willful failure within thirty (30) days of receiving
                                         such notice, provided that such notice and cure period requirements shall not apply in
                                         the event that such non-compliance is of a nature that it is unable to be remedied; or




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		(d)	is
                                         convicted of a felony or crime involving moral turpitude (excluding drunk driving unless
                                         combined with other aggravating circumstances or offenses) or commission of a fraud which
                                         the Company reasonably believes would reflect adversely on the Company.



6.4             
“Change of Control” means: 


		(a)	any
                                         “person” (as such term is used in Sections 13(d) and 14(d) of the Securities
                                         Exchange Act of 1934, as amended (the “Exchange Act”)) becomes
                                         the “beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange
                                         Act), directly or indirectly, of securities of the Company representing fifty (50%) percent
                                         or more of (i) the outstanding shares of common stock of the Company, or (ii) the combined
                                         voting power of the Company’s outstanding securities;



		(b)	the
                                         Company is party to a merger or consolidation, or series of related transactions, which
                                         results in the voting securities of the Company outstanding immediately prior thereto
                                         failing to continue to represent (either by remaining outstanding or by being converted
                                         into voting securities of the surviving entity), directly or indirectly, at least fifty
                                         (50%) percent of the combined voting power of the voting securities of the Company or
                                         such surviving entity outstanding immediately after such merger or consolidation;



		(c)	the
                                         sale or disposition of all or substantially all of the Company’s assets, or consummation
                                         of any transaction, or series of related transactions, having similar effect (other than
                                         to a subsidiary of the Company); 



6.5             
“Company” shall mean Workhorse Group Inc. and, following a Change of Control, any Successor.


6.6             
“Involuntary Termination” means: 


		(a)	any
                                         termination without Cause of the employment of the Executive by the Company; or



		(b)	any
                                         resignation by Executive for Good Reason where such resignation occurs within sixty (60)
                                         days following the occurrence of such Good Reason.



Notwithstanding
the foregoing, the term “Involuntary Termination” shall not include any termination of the employment of the Executive:
(1) by the Company for Cause; (2) by the Company as a result of the Permanent Disability of the Executive; (3) as a result
of the death of the Executive; (4) that occurs within the period of time to qualify as a “Termination Upon Change of Control”;
or (5) as a result of the voluntary termination of employment by the Executive for any reason other than Good Reason.


6.7             
 “Good Reason” means the occurrence of any of the following conditions, without the Executive’s written
consent:


		(a)	Any
                                         act, set of facts or omissions with respect to the Executive that would, as a matter
                                         of applicable law, constitute a constructive termination of the Executive.





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		(b)	A
                                         reduction in the Executive’s Base Salary or, if applicable, target bonus opportunity
                                         (subject to applicable performance requirements with respect to the actual amount of
                                         bonus compensation earned similar to the applicable performance requirements currently
                                         in effect), and in the event of a Change of Control, as compared to Executive’s
                                         Base Salary and target bonus opportunity in effect immediately prior to the public announcement
                                         of the Change of Control; provided, however, that this clause (c) shall not apply in
                                         the event of a reduction in the Executive’s Base Salary or, if applicable, target
                                         bonus opportunity as part of a Company-wide or executive team-wide cost-cutting measure
                                         or Company-wide or executive team-wide cutback as a result of overall Company performance.
                                         



		(c)	The
                                         failure of the Company (i) to continue to provide the Executive an opportunity to participate
                                         in any benefit or compensation plans provided to employees who hold positions with the
                                         Company comparable to the Executive’s position, (ii) to provide the Executive all
                                         other fringe benefits (or the equivalent) in effect for the benefit of any employee group
                                         which includes any employee who hold a position with the Company comparable to the Executive’s
                                         position, where in the event of a Change of Control, such comparison shall be made relative
                                         to the time immediately prior to the public announcement of such Change of Control);
                                         or (iii) continue to provide director’s and officers’ insurance.



		(d)	A
                                         material breach of this Agreement by the Company, including, in the event of a Change
                                         of Control, failure of the Company to obtain the consent of a Successor to perform all
                                         of the obligations of the Company under this Agreement.



The
Executive must first give the Company an opportunity to cure any of the foregoing within thirty (30) days following delivery to
the Company of a written explanation specifying the specific basis for Executive’s belief that Executive is entitled to
terminate employment for Good Reason, and Executive terminates employment with the Company not later than (30) days following
the Company’s failure to cure.


6.8             
 “Permanent Disability” means that:


		(a)	the
                                         Executive has been incapacitated by bodily injury, illness or disease so as to be prevented
                                         thereby from engaging in the performance of the Executive’s duties;



		(b)	such
                                         total incapacity shall have continued for a period of six consecutive months; and



		(c)	such
                                         incapacity will, in the opinion of a qualified physician, be permanent and continuous
                                         during the remainder of the Executive’s life.



6.9             
Intentionally left blank.






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6.10         
“Successor” means any successor in interest to, or assignee of, substantially all of the business and assets
of the Company.


6.11         
“Termination Date” means the date of the termination of the Executive’s employment with the Company.


6.12         
“Termination Upon Change of Control” means: 


		(a)	any
                                         termination of the employment of the Executive by the Company without Cause during the
                                         period commencing on or after the date that the Company first publicly announces a definitive
                                         agreement that results in a Change of Control (even though still subject to approval
                                         by the Company’s stockholders and other conditions and contingencies, but provided
                                         that the Change of Control actually occurs) and ending on the date which is twelve (12)
                                         months following the Change of Control; or



		(b)	any
                                         resignation by Executive for Good Reason where (i) such Good Reason occurs during the
                                         period commencing on or after the date that the Company first publicly announces a definitive
                                         agreement that results in a Change of Control (even though still subject to approval
                                         by the Company’s stockholders and other conditions and contingencies, but provided
                                         that the Change of Control actually occurs) and ending on the date which is twelve (12)
                                         months following the Change of Control, and (ii) such resignation occurs at or after
                                         such Change of Control and in any event within six (6) months following the occurrence
                                         of such Good Reason.



Notwithstanding
the foregoing, the term “Termination Upon Change of Control” shall not include any termination of the employment of
the Executive: (1) by the Company for Cause; (2) by the Company as a result of the Permanent Disability of the Executive; (3) as
a result of the death of the Executive; or (4) as a result of the voluntary termination of employment by the Executive for any
reason other than Good Reason.


7.                 
EXCLUSIVE REMEDY


7.1             
No Other Benefits Payable. The Executive shall be entitled to no other termination, severance or change of control compensation,
benefits, or other payments from the Company as a result of any termination with respect to which the payments and benefits described
in Section 2 have been provided to the Executive, except as expressly set forth in this Agreement.


7.2             
No Limitation of Regular Benefit Plans. Except as may be provided elsewhere in this Agreement, this Agreement is not intended
to and shall not affect, limit or terminate any plans, programs or arrangements of the Company that are regularly made available
to a significant number of employees or officers of the Company, including, without limitation, the Company’s stock option
plans.


7.3             
Release of Claims. The payment of the benefits described in Sections 3 and 4 of this Agreement is conditioned upon the
delivery by the Executive to the Company of a signed and effective general release of claims as provided by the Company; provided,
however, that the Executive shall not be required to release any rights the Executive may have to be indemnified by the Company
or as otherwise provided under this Agreement.






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7.4             
Noncumulation of Benefits. The Executive may not cumulate cash severance payments, stock option vesting and exercisability
and restricted stock vesting under this Agreement, any other written agreement with the Company and/or another plan or policy
of the Company. If the Executive has any other binding written agreement with the Company which provides that, upon a Change of
Control or Termination Upon a Change of Control or Involuntary Termination, the Executive shall receive termination, severance
or similar benefits, then no benefits shall be received by Executive under this Agreement unless, prior to payment or receipt
of benefits under this Agreement, the Executive waives Executive’s rights to all such other benefits, in which case this
Agreement shall supersede any such written agreement with respect to such other benefits.


8.                 
NON-COMPETE; PROPRIETARY AND CONFIDENTIAL
INFORMATION


During
the term of this Agreement and following any termination of employment, Executive agrees to continue to abide by the terms and
conditions of each of the non-competition agreement (during the term of such Agreement) and the Employee Invention Assignment
& Confidentiality Agreement between the Executive and the Company.


9.                 
ARBITRATION


9.1             
Disputes Subject to Arbitration. Any claim, dispute or controversy arising out of this Agreement (other than claims relating
to misuse or misappropriation of the intellectual property of the Company), the interpretation, validity or enforceability of
this Agreement or the alleged breach thereof shall be submitted by the parties to binding arbitration by a sole arbitrator under
the rules of the American Arbitration Association; provided, however, that (a) the arbitrator shall have no authority to make
any ruling or judgment that would confer any rights with respect to the trade secrets, confidential and proprietary information
or other intellectual property of the Company upon the Executive or any third party; and (b) this arbitration provision shall
not preclude the Company from seeking legal and equitable relief from any court having jurisdiction with respect to any disputes
or claims relating to or arising out of the misuse or misappropriation of the Company’s intellectual property. Judgment
may be entered on the award of the arbitrator in any court having jurisdiction.


9.2             
Costs of Arbitration. All costs of arbitration, including reasonable attorney’s fees of the Executive, will be borne
by the Company, except that if the Executive initiates arbitration and the arbitrator finds the Executive’s claims to be
frivolous the Executive shall be responsible for his own costs and attorneys fees. 


9.3             
Site of Arbitration. The site of the arbitration proceeding shall be in New York City, New York.


10.             
NOTICES


For
purposes of this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or five (5) business days after being mailed, return receipt requested, as follows:
(a) if to the Company, attention: Chief Executive Officer, at the Company’s offices at 100 Commerce Blvd., Loveland, OH
45140 and, (b) if to the Executive, at the address indicated below or such other address specified by the Executive in writing
to the Company. Either party may provide the other with notices of change of address, which shall be effective upon receipt.






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11.       MISCELLANEOUS
PROVISIONS


11.1       Heirs
and Representatives of the Executive; Successors and Assigns of the Company. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the Executive’s personal and legal representatives, executors, administrators,
successors, heirs, distributees, devises and legatees. This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the successors and assigns of the Company.


11.2       Amendment
and Waiver. No provision of this Agreement shall be modified, amended, waived or discharged unless the modification, amendment,
waiver or discharge is agreed to in writing, specifying such modification, amendment, waiver or discharge, and signed by the Executive
and by an authorized officer of the Company (other than the Executive). No waiver by either party of any breach of, or of compliance
with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision
or of the same condition or provision at another time.


11.3       Withholding
Taxes. All payments made under this Agreement shall be subject to deduction of all federal, state, local and other taxes required
to be withheld by applicable law.


11.4       Severability.
The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability
of any other provision hereof, which shall remain in full force and effect.


11.5       Choice
of Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the
State of Ohio, without regard to where the Executive has his residence or principal office or where he performs his duties hereunder.


11.6       No
Duty to Mitigate. The Executive is not required to seek alternative employment following termination, and payments called
for under this Agreement will not be reduced by earnings from any other source.


11.7.       Section
409A of the Code. To the extent (a) any payments or benefits to which Employee becomes entitled under this Agreement, or under
any agreement or plan referenced herein, in connection with Employee’s termination of employment with the Company constitute
deferred compensation subject to Section 409A of the Code and (b) Employee is deemed at the time of such termination of employment
to be a “specified employee” under Section 409A of the Code, then such payments shall not be made or commence until
the earliest of (i) the expiration of the six (6)-month period measured from the date of Employee’s “separation from
service” (as such term is at the time defined in Treasury Regulations under Section 409A of the Code) from the Company;
or (ii) the date of Employee’s death following such separation from service; provided, however, that such deferral shall
only be effected to the extent required to avoid adverse tax treatment to Employee, including (without limitation) the additional
twenty percent (20%) tax for which Employee would otherwise be liable under Section 409A(a)(1)(B) of the Code in the absence of
such deferral. Upon the expiration of the applicable deferral period, any payments which would have otherwise been made during
that period (whether in a single sum or in installments) in the absence of this paragraph shall be paid to Employee or Employee’s
beneficiary in one lump sum (without interest). Any termination of Employee’s employment is intended to constitute a “separation
from service” as such term is defined in Treasury Regulation Section 1.409A-1. It is intended that each installment of the
payments provided hereunder constitute separate “payments” for purposes of Treasury Regulation Section 1.409A-2(b)(2)(i).
It is further intended that payments hereunder satisfy, to the greatest extent possible, the exemption from the application of
Code Section 409A (and any state law of similar effect) provided under Treasury Regulation Section 1.409A-1(b)(4) (as a “short-term
deferral”).






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11.8       Entire
Agreement. This Agreement represents the entire agreement and understanding between the parties as to the subject matter herein
(whether oral or written and whether express or implied).


 


[SIGNATURE
PAGE TO EXECUTIVE RETENTION AGREEMENT FOLLOWS]






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In
Witness Whereof, each of the parties has executed
this Agreement, in the case of the Company, by its duly authorized officer, as of the day and year first above written.


 



	 	Executive
	 	 	 
	 	/s/Paul Gaitan
	 	Paul Gaitan
	 	 	 
	 	 	 
	 	 	 
	 	Workhorse Group Inc.
	 	 	 
	 	 	 
	 	By: 	/s/ Stephen S. Burns
	 	Name: 	Stephen S. Burns
	 	Title: 	Chief Executive Officer