Exhibit
10.28


 


FORM
OF EXECUTIVE EMPLOYMENT AGREEMENT


 


THIS
EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) dated as of January 1, 2020 (the “Effective Date”),
is by and between GrowGeneration Corp., a Colorado Corporation with offices at 1000 W Mississippi Ave., Denver, CO 80223 (the
“Company”) and Monty Lamirato, an individual residing at 7017 Orion Lane, Arvada, CO 80007(the “Executive”).


 


RECITALS


 


WHEREAS,
the Company desires to employ the Executive and the Executive desires to gain employment with the Company, all upon the terms
and provisions, and subject to the conditions, as set forth in this Agreement.


 


NOW,
THEREFORE, in consideration of the mutual premises, covenants and agreements hereinafter set forth, and for other good and
valuable consideration, the receipt, and legal adequacy of which is hereby acknowledged, the parties, intending to be legally
bound, hereby agree as follows:


 


I.
POSITION AND DUTIES.


 


(a)
Reporting. During the term of this Agreement (the “Employment Term”), the Company shall employ the Executive,
and the Executive shall serve, as the Chief Financial Officer of the Company. The Executive shall report directly to the CEO and
President of the Company.


 


(b)
Responsibilities. The Executive shall have responsibility to oversee all aspects of the Company’s business activities as
are customarily performed and enjoyed by persons employed in comparable positions, subject, however, in all instances to the direction
and control of the Board. A copy of the Executives duties are attached hereto as Exhibit 1.


 


(c)
Devotion of Executive’ s Time. Subject to Section 2(d) hereof, the Executive shall devote all of his business time, labor, skill
and energy to conducting the business and affairs of the Company and to performing his duties and responsibilities to the Company
as set forth in Section 2(b) hereof The Executive shall not become employed with, consult with or otherwise perform services for
any other entity or individual during the Term of this Agreement. The Executive shall perform the Executive’s duties and responsibilities
to the Company diligently, competently, faithfully and to the best of his ability. Executive shall perform his duties from his
home office and shall travel as needed.


 


(d)
Representations. The Executive represents and warrants to the Company that the Executive has the right to negotiate and enter
into this Agreement, and the Executive’s execution, delivery and performance of this Agreement does not breach, interfere with
or conflict with any other contractual agreement, covenant not to compete, option, right of first refusal or other existing business
relationship or any judgment or order, in each case, to which the Executive is a party or otherwise subject.


 


2.
EMPLOYMENT TERM.


 


(a)
Initial Term. The initial term of employment shall be for a period of three years (the “Employment Term”), commencing
with the date hereof, unless sooner terminated as provided in this Agreement. This Agreement shall be renewed annually for a term
of one year unless the Company or the Executive gives notice to the other of termination at least six (6) months prior to the
expiration of the initial term, or any successive term, as the case may be.


 






     


     


    

 


(b)
Termination for Cause. Notwithstanding the provisions of Section 2(a) above, the Company shall have the right to terminate the
Executive’s employment for Cause (as defined in Section 2(c) below); provided, however, that the Executive shall not be deemed
to have been terminated for Cause unless and until the Board of Directors at a meeting duly called and held for that purpose shall
have determined that the Executive committed an act falling within the definition of Cause and specifying the basis for such determination.
If the Executive’s employment shall be terminated by the Company for Cause, then the Company shall pay to the Executive any unpaid
salary, bonuses and benefits through the effective date of termination. If the Executive’s employment shall be terminated by the
Company without Cause, then the Company shall pay to the Executive any unpaid salary, bonuses and benefits through the effective
date of termination.


 


(c)
Cause. For purposes of this Agreement the term, “Cause” shall mean the Executive’s: (a) engagement in gross misconduct
materially injurious to the Company: (b) knowing and willful neglect or refusal to attend to the material duties assigned to him
by the Board of Directors of the Company, which is not cured within 30 days after written notice; (c) conviction of an act of
fraud or embezzlement; or (e) conviction of a felony.


 


(d)
Notice of Termination. Any purported termination of the Executive’s employment by the Company hereunder shall be communicated
by a Notice of Termination to the Executive in accordance with Section 13. For purposes of this Agreement, a “Notice of
Termination” shall mean a written notice which shall indicate those specific termination provisions in this Agreement
relied upon and which sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of
the Executive’s employment under the provisions so indicated.


 


(e)
Date of Termination. For purposes of this Agreement, the date of termination shall be: (a) if this Agreement is terminated by
the Company for Incapacity (as defined in Section 4(a) below), the date on which a Notice of Termination is given, (b) if the
Executive’s employment is terminated by the Company for any other reason (other than death), the date on which a Notice of Termination
is given or (c) if the Company or Executive terminates his employment for any reason, the date on, which he gives the Company
notice of such termination.


 


3.
COMPENSATION


 


The
Company shall pay to the Executive for the services to be rendered by the Executive hereunder, a salary for the initial Employment
Term under this Agreement at the rate of $205,000 per annum. The salary shall be payable in accordance with the Company’s regular
policies, subject to applicable withholding and other taxes. Such salary will be increased during the term of this Agreement by
as follows: January 1, 2021 to $225,000 annually and January 1, 2022 to $250,000 annually.


 


(a)
Bonus. The Executive shall receive a bonus, either in the form of cash, commons stock or common stock options, with respect
to each fiscal year of the Company during which he is employed hereunder, commencing with the year ending December 31, 2020 in
an amount to be to be determined at the discretion of the Board of Directors of the Company.


 






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(b)
Grant of Common Stock and Common Stock Options. The Company will issue 30,000 shares of restricted common stock to the Executive
as of January 1 of each year during the term of the New Employment Agreement, with the first issuance on January 1, 2020, the
second on January 1, 2021 and the third on January 1, 2022. In addition, the Company will issue options to acquire 50,000 shares
of restricted common stock of the Corporation with a three-year vesting period, with 50,000 options vest as of January 1, 2020,
50,000 options vest as of January 1, 2021 and 50,000 options vest as of January 1, 2022, subject to the terms and conditions of
a separate option agreement and the Corporation’s 2018 Equity Incentive Plan. The exercise price of the options shall be
the equivalent of the market price of the Company’s common stock as of the close of business of the date this agreement
is hereby approved.


 


(c)
Expenses. The Company agrees promptly to reimburse the Executive for all reasonable and necessary business expenses, including
without limitation, travel, and telephone during his duties hereunder, upon the presentation by the Executive of appropriate evidence
thereof.


 


4.
DEATH; INCAPACITY.


 


(a) Incapacity. If,
during the Employment Term hereunder, because of illness or other incapacity, the Executive shall fail for a period of six
(6) consecutive months (“Incapacity”), to render the services contemplated hereunder, then the Company, at
its option, may terminate the employment hereunder by notice to the Executive, effective on the giving of such notice;
provided however, that the Company shall (i) pay to the Executive any unpaid salary through the effective date of termination
specified in such notice; (ii) pay to the Executive his accrued but unpaid incentive compensation, if any, for any bonus
period ending on or before the date of termination of the Executive’s employment with the Company; (iii) continue to
pay the Executive for a period of six (6) months following the effective date of termination, an amount equal to the excess,
if any, of (A) the salary he was receiving at the time of his Incapacity, over (B) any benefit the Executive is entitled to
receive during such period under any disability insurance policies provided to the Executive by the Company or maintained by
the Executive, such amount to be paid in the manner and at such time as the salary otherwise would have been payable to the
Executive; and (iv) pay to the Executive (within 45 days after the end of the fiscal quarter in which such termination
occurs) a pro-rata portion (based upon the period ending on the date of termination of the Executive’s employment
hereunder) of the incentive compensation, if any, for the bonus period in which such termination occurs. The Company shall
have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date
of the Executive’ Incapacity and other reimbursable expenses due under Section 3(t) through the date of
Executive’s Incapacity, and repayment of compensation for unused vacation days that have accumulated during the
calendar years in which such termination occurs)


 


5.
TERMINATION BY THE COMPANY OR THE EXECUTIVE WITH NO REASON. Either the Company or the Executive shall have the right to
terminate the Executive’s employment hereunder for “No Reason” by providing the Company’s Board of Directors with ninety
(90) days-notice. Notwithstanding the foregoing, if the Executive terminates this Agreement, the Company shall have the right
to terminate this Agreement at any time during the ninety (90) day notice period.


 


6.
EMPLOYEE BENEFITS.


 


(a)
Eligibility. During the period of the Executive’s employment with the Company hereunder, the Executive shall be entitled
to receive such other perquisites and fringe benefits generally if and when made available by the Company to its senior executives
and key management employees as a group in accordance with the plans and policies of the Company. The Company will pay 10% of
the expense of the Executive’s health insurance.


 






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(b)
Vacation Time. The Executive shall be entitled to paid vacation time and holidays per annum as is consistent with his position
with the Company and the performance of his duties hereunder; provided that the Executive shall not be able to take vacation
time at any time that would materially interfere with the business or operations of the Company. The Executive shall be entitled
to three (3) weeks of paid vacation for each twelve (12) months of employment. The timing is subject to the approval of the CEO.


 


(c)
The Executive is entitled to all paid time all observed holidays.


 


7.
DEDUCTIONS AND WITHHOLDINGS. The amounts payable or which become payable to the Executive under any provision of this Agreement
shall be subject to such deductions and withholdings as is required by applicable.


 


8.
INDEMNIFICATION. The Company shall indemnify the Executive in his capacity as an officer of the Company to the fullest extent
permitted by applicable law against all debts, judgments, costs, charges or expenses whatsoever incurred or sustained by the Executive
in connection with any action, suit or proceeding to which the Executive may be made a party by reason of his being or having
been an officer of the Company, or because of actions taken by the Executive which were believed by the Executive to be in the
best interests of the Company, and the Executive shall be entitled to be covered by any directors’ and officers’ liability insurance
policies which the Company may maintain for the benefit of its directors and officers, subject to the limitations of any such
policies. The Company shall have the right to assume, with legal counsel of its choice, the defense of the Executive in any such
action, suit or proceeding for which the Company is providing indemnification to the Executive. Should the Executive determine
to employ separate legal counsel in any such action, suit or proceeding, any costs and expenses of such separate legal counsel
shall be the sole responsibility of the Executive. If the Company does not assume the defense of any such action, suit or other
proceeding, the Company shall, upon request of the Executive, promptly advance or pay any amount for costs or expenses (including,
without limitation, the reasonable legal fees and expenses of counsel retained by the Executive) incurred by the Executive in
connection with any such action, suit or proceeding. The Company shall not indemnify the Executive against any actions that would
be deemed illegal or contrary to the general indemnification provisions of the Delaware General Corporation Law.


 


9.RESTRICTIONS,
RESPECTING CONFIDENTIAL INFORMATION, COMPETING BUSINESSES, ETC.


 


(a)
Acknowledgments of Executive. The Executive acknowledges and agrees that by virtue of the Executive’s position and
involvement with the business and affairs of the Company, the Executive will develop substantial expertise and knowledge with
respect to all aspects of the business, affairs and operations of the Company and will have access to all significant aspects
of the business and operations of the Company and to Confidential and Proprietary Information (as such term is hereinafter
defined). The Executive acknowledges and agrees that the Company will be damaged if the Executive were to breach any of the
provisions of this Section 10 or if the Executive were to disclose or make unauthorized use of any Confidential and
Proprietary Information. Accordingly, the Executive expressly acknowledges and agrees that the Executive is voluntarily
entering into this Agreement and that the terms, provisions and conditions of this Section 10 are fair and reasonable and
necessary to adequately protect the Company.


 






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(a)
Definition of Confidential Information. For purposes of this Agreement, the term “Confidential and Proprietary Information”
shall mean any and all (i) confidential or proprietary information or material not in the public domain about or relating
to the business, operations, assets or financial condition of the Company or any of its subsidiaries or affiliates, or any of
its trade secrets, including, without limitation, research and development plans or projects; data and reports; computer materials
such as programs, instructions and printouts; formulas; product testing information; business improvements, processes, marketing
and selling strategies; strategic business plans (whether pursued or not); budgets; unpublished financial statements; licenses;
pricing, pricing strategy and cost data; information regarding the skills and compensation of executives; the identities of clients
and potential clients; and (ii) any other information, documentation or material not in the public domain by virtue of any action
by or on the part of the Executive, the knowledge of which gives or may give the Company or any of its subsidiaries or affiliates
a material competitive advantage over any entity not possessing such information. For purposes hereof, the term Confidential and
Proprietary Information shall not include any information or material (i) that is known to the general public other than due to
a breach of this Agreement by the Executive; or (ii) was disclosed to the Executive by a person or entity who the Executive did
not reasonably believe was bound to a confidentiality or similar agreement with the Company.


 


(b)
Disclosure of Confidential Information. The Executive hereby covenants and agrees that, while the Executive is employed
by the Company and for a period of one (1) year thereafter, unless otherwise authorized by the Company in writing, the Executive
shall not, directly or indirectly, under any circumstance: (i) disclose to any other person or entity (other than in the regular
course of business of the Company) any Confidential and Proprietary Information, other than pursuant to applicable law, regulation
or subpoena or with the prior written consent of the Company; (ii) act or fail to act so as to impair the confidential or proprietary
nature of any Confidential and Proprietary Information; (iii) use any Confidential and Proprietary Information other than for
the sole and exclusive benefit of the Company; or (iv) offer or agree to, or cause or assist in the inception or continuation
of any such disclosure, impairment or use of any Confidential and Proprietary Information. Following the Employment Term, the
Executive shall return all documents, records and other items containing any Confidential and Proprietary Information to the Company
(regardless of the medium in which maintained or stored), without retaining any copies, notes or excerpts thereof, or at the request
of the Company, shall destroy such documents, records and items (any such destruction to be certified by the Executive to the
Company in writing). Following the Employment Term, the Executive shall return to the Company any property or assets of the Company
in the Executive’s possession.


 


(c)
Non-Compete. The Executive covenants and agrees that, while the Executive is employed by the Company, in the state of CO.
and a period of two (2) years thereafter, the Executive shall not, directly or indirectly, manage, operate or control, or participate
in the ownership, management, operation or control of, or otherwise become interested in (whether as an owner, stockholder, member,
partner, lender, consultant, executive, officer, director, agent, supplier, distributor or otherwise) any business which is competitive
with the business of the Company or any of its subsidiaries or affiliates, or, directly or indirectly, induce or influence any
person that has a business relationship with the Company or any of its subsidiaries or affiliates to discontinue or reduce the
extent of such relationship. For purposes of this Agreement, the Executive shall be deemed to be directly or indirectly interested
in a business if he is engaged or interested in that business as a stockholder, director, officer, executive, agent, member, partner,
individual proprietor, consultant , advisor or otherwise, but not if the Executive’s interest is limited solely to the ownership
of not more than five percent (5%) of the securities of any class of equity securities of a corporation or other person whose
shares are listed or admitted to trade on a national securities exchange or are quoted on an electronic quotation medium.


 






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(d)
No Solicitation. While the Executive is employed by the Company and for one (1) year after the Executive ceases to be an employed
by the Company, the Executive shall not, directly or indirectly, solicit to employ, or employ for himself or others, any employee
of the Company, or any subsidiary or affiliate of the Company, who was not known to the Executive prior to the date of this Agreement.


 


(e)
Specific Performance. Because the breach of any of the provisions of this Section 10 may result in immediate and irreparable
injury to the Company for which the Company may not have an adequate remedy at law, the Company shall be entitled, in addition
to all other rights and remedies available to it at law, in equity or otherwise, to a decree of specific performance of the restrictive
covenants contained in this Section 10 and to a temporary and permanent injunction enjoining such breach (without being required
to post a bond or furnish other security to show any damages).


 


(f)
Challenge of Agreement by Executive. In the event the Executive challenges this Agreement and an injunction is issued staying
the implementation of any of the restrictions imposed by Section 10 hereof: the time remaining on the restrictions shall be tolled
until the challenge is resolved by final adjudication, settlement or otherwise, except that the time remaining on the restrictions
shall not be tolled during any period in which the Executive is unemployed.


 


(g)
Interpretation of Restrictions. Executive acknowledges that the type and periods of restriction imposed by this Section 10 are
fair and reasonable and are reasonably required for the protection of the legitimate interests of the Company and the goodwill
associated with the business of the Company; and that the time, scope, geographic area and other provisions of this Agreement
have been specifically negotiated by sophisticated commercial parties and are given as an integral part of the transactions contemplated
hereby. If any of the covenants in this Section 10, or any part hereof, is hereafter construed to be invalid or unenforceable,
the same shall not affect the remainder of the covenant or covenants herein, which shall be given full effect, without regard
to the invalid portions. In the event that any covenant contained in this Agreement shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area
or by reason of its being too extensive in any other respect, it shall be interpreted to extend only over the maximum period of
time for which it may be enforceable and/or over the maximum geographical area as to which it may be enforceable and/or to the
maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.


 


9.
NOTICES. All notices, demands, consents, requests, instructions and other communications to be given or delivered or permitted
under or by reason of the provisions of this Agreement or in connection with the transactions contemplated hereby shall be in
writing and shall be deemed to be delivered and received by the intended recipient as follows: (i) if personally delivered, on
the “Business Day” (defined as a day on which the New York Stock Exchange is open) of such delivery (as evidenced
by the receipt of the personal delivery service); (ii) if mailed certified or registered mail return receipt requested, four (4)
Business Days after being mailed; (iii) if delivered by overnight courier (with all charges having been prepaid), on the Business
Day of such delivery (as evidenced by the receipt of the overnight courier service of recognized standing); or (iv) if delivered
by facsimile or e-mail transmission, on the Business Day of such delivery if sent by 6:00 p.m. in the time zone of the recipient,
or if sent after that time, on the next succeeding Business Day (as evidenced by the printed confirmation of delivery generated
by the sending party’s telecopies machine or e-mail log). If any notice, demand, consent, request, instruction or other communication
cannot be delivered because of a changed address of which no notice was given (in accordance with this Section 11), or the refusal
to accept same, the notice, demand, consent, request, instruction or other communication shall be deemed received on the second
(2nd) Business Day the notice is sent (as evidenced by a sworn affidavit of the sender). All such notices, demands, consents,
requests, instructions and other communications will be sent to the addresses first above written. Any notice, consent, direction,
approval, instruction, request or other communication given in accordance with this Section 11 shall be effective after it is
received by the intended recipient.


 






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10.
GENERAL PROVISIONS.


 


(a)
Benefit of Agreement and Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective executors, administrators, successors and permitted assigns; provided, however, that the Executive
may not assign any of his rights or duties hereunder except upon the prior written consent of the Company. This Agreement shall
be binding on any successor to the Company whether by merger, consolidation, acquisition of all or substantially all of the Company’s
stock, assets or business or otherwise, as fully as if such successor were a signatory hereto, and the Company shall cause such
successor to, and such successor shall, expressly assume the Company’s obligations hereunder. The term “Company”
as used in this Agreement shall include all such successors. Except as expressly permitted by Section 11(a), nothing herein
is intended to or shall be construed to confer upon or give any person, other than the parties hereto, any rights, privileges
or remedies under or by reason of this Agreement.


 


Governing
Law: Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT REGARD OR REFERENCE TO ITS PRINCIPLES OF LAW, CONFLICTS
OF LAWS. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED WITHOUT REGARD TO ANY PRESUMPTION AGAINST THE PARTY CAUSING THIS AGREEMENT
TO BE DRAFTED. EACH OF THE PARTIES UNCONDITIONALLY AND IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH OF THE PARTIES
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY RIGHT TO CONTEST THE VENUE OF SAID COURTS OR TO CLAIM THAT SAID COURTS CONSTITUTEAN
INCONVENIENT FORUM. EACH OF THE PARTIES UNCONDITIONALLY AND IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT
OR PROCEEDING ARISING out OF R RELATING TO THIS AGREEMENT.


 


(b)
Entire Agreement. This Agreement contains the entire understanding and agreement of the parties, and supersedes any and
all other prior and/or contemporaneous understandings and agreements, either oral or in writing, between the parties hereto with
respect to the subject matter hereof: all of which are merged herein. Each party to this Agreement acknowledges that no representations,
inducements, promises, or agreements, oral or otherwise, have been made by either party, or anyone acting on behalf of either
party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall
be valid or binding.


 


(c)
Amendments: Waiver. This Agreement may be modified, amended or waived only by an instrument in writing signed by the Company
and the Executive. No waiver of any provision hereof shall be valid unless made in writing and signed by the party making the
waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver.


 


(d)
Attorneys’ Fees. Should any party hereto institute any action or proceeding at law or in equity, or in connection with any arbitration,
to enforce any provision of this Agreement, including an action for declaratory relief, or for damages by reason of an alleged
breach of any provision of this Agreement, or otherwise in connection with this Agreement, or any provision hereof, the prevailing
party shall be entitled to recover from the losing party or parties reasonable attorneys’ fees and expenses for services rendered
to the prevailing party in such action or proceeding.


 






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(e)
Right to Legal Representation. The Executive represents and warrants that the Executive has read this Agreement and the Executive
understands connection with the negotiation and execution of this Agreement and that the Executive has either retained and has
been represented by such legal counsel or has knowingly and voluntarily waived his right to such legal counsel and desires to
enter into this Agreement without the benefit of independent legal representation. The Executive acknowledges that Robinson &
Cole LLP is representing the Company in connection with this Agreement and that it is not representing the Executive in connection
with this Agreement.


 


(f)
Affirmations of the Executive. By the Executive’s signature below, the Executive represents to and agrees with the Company
that the Executive hereby accepts this Agreement subject to all of the terms and provisions hereof. The Executive has reviewed
this Agreement in its entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully
understands all of the provisions of this Agreement.


 


IN
WITNESS WHEREOF, each of the Company and the Executive has executed this Agreement as of the date first above written.


 


	GROWGENERATION CORP.	 	EXECUTIVE
	 	 	 
	By: 	                                   	 	By:	            
	Darren Lampert	 	Monty Lamirato




 


 


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