Employment Agreement between Joshua Rosen and Vireo Health, Inc., dated December 4, 2022
Exhibit 10.1
(See following pages)
EMPLOYMENT AGREEMENT
This Employment Agreement (“Agreement”) is entered into on December 4, 2022 (“Effective Date”) by and between Vireo Health, Inc., a Delaware corporation (the “Company”) and Joshua Rosen, an individual residing in the State of Arizona (“Executive”) (collectively “Parties” or individually “Party”).
RECITALS
WHEREAS, Goodness Growth Holdings, Inc., a British Columbia (Canada) corporation and the Company’s sole owner (the “Parent Company”) desires to appoint Executive to the role of Interim President; and
WHEREAS, Executive is a resident of the United States and therefore wishes to contract with a domestic party;
WHEREAS, the Company, acting at the direction of the Parent Company, desires to employ Executive pursuant to the terms of this Agreement and Executive desires to accept such employment pursuant to the terms of this Agreement; and
WHEREAS, during Executive’s employment with the Company, Executive has been and will become acquainted with technical and nontechnical information which the Company has developed, acquired and uses, or which the Company has developed, acquired or used, or will develop, acquire or use, and which is commercially valuable to the Company and which the Company desires to protect, and Executive may contribute to such information through inventions, discoveries, improvements or otherwise.
NOW, THEREFORE, in consideration of the employment of Executive by the Company, and further in consideration of the salary, wages or other compensation and benefits to be provided by the Company to Executive, and for additional mutual covenants and conditions, the receipt and sufficiency of which are hereby acknowledged, the Company and Executive, intending legally to be bound, hereby agree as follows:
AGREEMENT
In consideration of the above recitals and the mutual promises set forth in this Agreement, the Parties agree as follows:
1. Nature and Capacity of Employment.
1.1 Title and Duties. Effective as of Effective Date, the Company will employ Executive as its Interim President, pursuant to the terms and conditions set forth in this Agreement. Executive will perform such duties and responsibilities for the Parent Company and the Company as the Parent Company’s Board of Directors (the “Board”) may assign to Executive from time to time consistent with Executive’s position. The Executive hereby agrees to act in that capacity under the terms and conditions set forth in this Agreement. Executive shall serve the Company faithfully and to the best of Executive’s ability and shall at all times act in accordance with the law, excepting only the Controlled Substances Act as it applies to the state-licensed operations of the Company. Executive shall devote Executive’s full working time, attention and efforts to performing Executive’s duties and responsibilities under this Agreement and advancing the Company’s business interests. Executive shall follow applicable policies and procedures adopted by the Company from time to time, including without limitation the Company’s Code of Conduct, Executive Handbook and other Company policies, including those relating to business ethics, conflict of interest, non-discrimination and non-harassment. Executive shall not, without the prior written consent of the Board, accept other employment, excepting only that employment described in Schedule 1.1 to this Agreement, or engage in other business activities during Executive’s employment with the Company that may prevent Executive from fulfilling the duties or responsibilities as set forth in or contemplated by this Agreement. Executive may participate in civic, religious and charitable activities and personal investment activities to a reasonable extent, so long as such activities do not interfere with the performance of Executive’s duties and responsibilities hereunder.
1.2 No Restrictions. Executive hereby represents and confirms that Executive is under no contractual or legal commitments that would prevent Executive from fulfilling Executive’s duties and responsibilities as set forth in this Agreement.
1.3 Location. Executive’s employment will be based at the Company’s corporate headquarters; provided, however, that Executive will primarily work remotely and has no specific requirement to be present at any of the Company’s locations. Executive acknowledges and agrees that Executive’s position, duties and responsibilities may require regular travel, both in the U.S. and internationally.
2. Term. Unless terminated at an earlier date in accordance with Section 5, the term of Executive’s employment with the Company under the terms and conditions of this Agreement will be for the period commencing at 12:01 a.m. Central Time on the Effective Date and ending at 11:59 p.m. Central Time on the day that is exactly one year after the Effective Date (the “Term”); provided, however, that if a Change in Control (as defined in Section 6.5) occurs during the Term then the Term will expire on the one (1) year anniversary of the date of the Change in Control. If Executive remains employed by the Company after the Term ends for any reason, then such continued employment shall be according to the terms and conditions established by the Company from time to time (provided that any provisions of this Agreement and the Restrictive Covenants Agreement (as defined in Section 3) that by their terms survive the termination of the Term shall remain in full force and effect).
3. Restrictive Covenants Agreement. On the Effective Date, Executive is executing a Confidential Information, Intellectual Property Rights, Non-Competition and Non-Solicitation Agreement, substantially in the form of Exhibit A attached hereto and made a part hereof (the “Restrictive Covenants Agreement”). Executive acknowledges and agrees that the Company’s execution of this Agreement and agreement to employ Executive are conditioned upon Executive executing the Restrictive Covenants Agreement. Nothing in this Agreement is intended to modify, amend, cancel or supersede the Restrictive Covenants Agreement in any manner.
4. Compensation, Benefits and Business Expenses.
4.1. Base Salary. As of the Effective Date, the Company agrees to pay Executive an annualized base salary of USD$300,000.00 (the “Base Salary”), which Base Salary will be earned by Executive on a pro rata basis as Executive performs services. Sixty percent (60%) of the Base Salary shall be paid according to the Company’s normal payroll practices. The remaining forty percent (40%) of the Base Salary shall be paid at a time determined by the Board but not later than six (6) months after the end of the Term.
4.2 Incentive Compensation. Executive may be eligible to earn a cash bonus if and in an amount determined by the Board in its discretion and subject to the terms of any written document addressing such annual cash bonus as the Board may adopt in its sole discretion. The parties acknowledge that Executive’s target incentive compensation for the Term is equal to $300,000, based upon level of achievement of metrics and other goals as agreed in writing between Executive and the Board. Unless specified otherwise a written cash bonus document applicable to Executive, Executive must be employed on the date any annual cash bonus is paid in order to earn and receive each such bonus.
4.3 Equity Grants. The Company shall cause the Parent Company to grant to Executive the right (the “Option”) to purchase two million (2,000,000) subordinate voting shares of the Parent Company’s capital stock (“Shares”) at an exercise price equal to the volume weighted-average closing price of like shares on the Canadian Securities Exchange for the two trading days immediately preceding the Grant Date. The “Grant Date” shall be the later of (i) the day that is two trading days after the date (the “Announcement Date”) of the public announcement of the appointment of Executive to the role contemplated herein and (ii) such date after the Announcement Date that the Board determines is the earliest date on which a trading window for Company insiders can be opened in accordance with the Company’s Corporate Disclosure and Insider Trading Policy (the “Insider Trading Policy”). One-fourth (1/4) of the Option will be deemed vested on the Effective Date. Another one-fourth (1/4) of the Option will vest on March 1, 2023, June 1, 2023 and October 1, 2023. Vesting shall be contingent, on each such date, on all of the following being true as of such date: (1) Executive shall continue to be employed by the Company unless the Company shall have terminated Executive’s employment without Cause or Executive shall have terminated his employment with Good Reason; (2) the Company shall not have made any filing under Federal bankruptcy or state insolvency laws, nor had a receiver appointed for any of its assets; and (3) no event of default shall have occurred under any credit agreement, other debt instrument or material lease to which the Company is a party or guarantor.
4.4. Executive Benefits. While Executive is employed by the Company during the Term, Executive shall be entitled to participate in the retirement plans, health plans, and all other employee benefits made available by the Company, and as they may be changed from time to time. Executive acknowledges and agrees that Executive will be subject to all eligibility requirements and all other provisions of these benefits plans, and that the Company is under no obligation to Executive to establish and maintain any employee benefit plan in which Executive may participate. The terms and provisions of any employee benefit plan of the Company are matters within the exclusive province of the Board, subject to applicable law.
4.5. Paid Time Off. While Executive is employed by the Company during the Term, Executive shall have available unlimited personal time off in accordance with the Company’s policies then in effect. Paid time off may be used for illness or other personal business, or as vacation time off at such times so as not to materially disrupt the operations of the Company. Paid time off is intended to be used, not stored, and these days shall in no event be converted to cash, nor shall any unused days be paid to Executive upon termination of his employment under this Agreement.
4.6 Business Expenses. While Executive is employed by the Company during the Term, the Company shall reimburse Executive for all reasonable and necessary out-of-pocket business, travel and entertainment expenses incurred by Executive in the performance of Executive’s duties and responsibilities hereunder, subject to the Company’s normal policies and procedures for expense verification and documentation.
5. Termination of Employment.
5.1 Termination of Employment Events. Executive’s employment with the Company is at-will. Executive’s employment with the Company will terminate immediately upon:
| (a) | The date of Executive’s receipt of written notice from the Company of the termination of Executive’s employment (or any later date specified in such written notice from the Company); |
| (b) | Executive’s abandonment of Executive’s employment or the effective date of Executive’s resignation for Good Reason (as defined below) or any other reason (as specified in written notice from Executive); |
| (c) | Executive’s Disability (as defined below); or |
| (d) | Executive’s death. |
5.2 Termination Date. The date upon which Executive’s termination of employment with the Company is effective is the “Termination Date.” For purposes of Sections 6.1 or 6.2 only, with respect to the timing of the Pre-CIC Severance Payments or the Post-CIC Severance Payment (as applicable), the Pre-CIC Benefits Continuation Payments or the Post-CIC Benefits Continuation Payments (as applicable), the Outplacement Payments, the Termination Date means the date on which a “separation from service” has occurred for purposes of Section 409A of the Internal Revenue Code, as amended, and the regulations and guidance thereunder (the “Code”).
5.3 Resignation From Positions. Unless otherwise requested by the Board in writing, upon Executive’s termination of employment with the Company for any reason Executive shall automatically resign as of the Termination Date from all titles, positions and appointments Executive then holds with the Company, whether as an officer, director, trustee or employee (without any claim for compensation related thereto), and Executive hereby agrees to take all actions necessary to effectuate such resignations.
6. Payments Upon Termination of Employment.
6.1. Termination of Employment Without Cause or for Good Reason During the Term and Before the First Change in Control. If Executive’s employment with the Company is terminated during the Term by the Company for any reason other than for Cause (as defined in Section 6.4), or by Executive for Good Reason (as defined in Section 6.6), and the Termination Date occurs before the first Change in Control to occur during the Term, then the Company shall, in addition to paying Executive’s Base Salary and other compensation earned through the Termination Date, and subject to Section 6.9,
| (a) | pay to Executive as severance pay an amount equal to fifty percent (50%) of Executive’s annualized Base Salary as of the Termination Date, less all legally required and authorized deductions and withholdings, payable in substantially equal installments in accordance with the Company’s regular payroll cycle during the twelve (12) month period immediately following the Termination Date, provided, however, that any installments that otherwise would be payable on the Company’s regular payroll dates between the Termination Date and the 45th calendar day after the Termination Date will be delayed until the Company’s first regular payroll date that is more than forty-five (45) days after the Termination Date and included with the installment payable on such payroll date (the “Pre-CIC Severance Payments”); and |
| (b) | if Executive is eligible for and takes all steps necessary to continue Executive’s group health insurance coverage with the Company following the Termination Date (including completing and returning the forms necessary to elect COBRA coverage), pay for the portion of the premium costs for such coverage that the Company would pay if Executive remained employed by the Company, at the same level of coverage that was in effect as of the Termination Date, through the earliest of: (i) the six (6) month anniversary of the Termination Date, (ii) the date Executive becomes eligible for group health insurance coverage from any other employer, or (iii) the date Executive is no longer eligible to continue Executive’s group health insurance coverage with the Company under applicable law (“Pre-CIC Benefits Continuation Payments”). |
6.2. Termination of Employment Without Cause or for Good Reason During the Term and Within Twelve (12) Months After the First Change in Control. If Executive’s employment with the Company is terminated during the Term by the Company for any reason other than for Cause, or by Executive for Good Reason, and the Termination Date occurs on the date of the first Change in Control to occur during the Term or before the twelve (12) month anniversary of such Change in Control, then the Company shall, in addition to paying Executive’s Base Salary and other compensation earned through the Termination Date, and subject to Section 6.9,
| (a) | pay to Executive as severance pay an amount equal to one hundred percent (100%) of Executive’s annualized Base Salary as of the Termination Date, less all legally required and authorized deductions and withholdings, payable in a lump sum on the Company’s first regular payroll date that is after the expiration of all rescission periods identified in the Release (as defined in Section 6.9) but in no event later than seventy-five (75) days after the Termination Date (the “Post-CIC Severance Payment”); provided, however, if the Post-CIC Severance Payment could be made in two different calendar years based on the date on which Executive signs the Release and all rescission periods identified in the Release expire, then the Post-CIC Severance Payment shall be paid in a lump sum in the second calendar year but no later than March 15 of such calendar year; |
| (b) | if Executive is eligible for and takes all steps necessary to continue Executive’s group health insurance coverage with the Company following the Termination Date (including completing and returning the forms necessary to elect COBRA coverage), pay for the portion of the premium costs for such coverage that the Company would pay if Executive remained employed by the Company, at the same level of coverage that was in effect as of the Termination Date, through the earliest of: (i) the twelve (12) month anniversary of the Termination Date, (ii) the date Executive becomes eligible for group health insurance coverage from any other employer, or (iii) the date Executive is no longer eligible to continue Executive’s group health insurance coverage with the Company under applicable law (“Post-CIC Benefits Continuation Payments”); and |
| (c) | pay up to $10,000.00 for outplacement services by an outplacement services provider selected by Executive, with any such amount payable by the Company directly to the outplacement services provider or reimbursed to Executive, in either case subject to Executive’s submission of appropriate receipts before the twelve (12) month anniversary of the Termination Date (the “Outplacement Payments”). |
6.3. Other Termination of Employment Events. If Executive’s employment with the Company is terminated by the Company or Executive for any reason upon or following the expiration of the Term, or if Executive’s employment with the Company is terminated during the Term by reason of:
| (a) | Executive’s abandonment of Executive’s employment or Executive’s resignation for any reason other than Good Reason; |
| (b) | termination of Executive’s employment by the Company for Cause; or |
| (c) | Executive’s death or Disability, |
then the Company shall pay to Executive or Executive’s beneficiary or Executive’s estate, as the case may be, Executive’s Base Salary and other compensation earned through the Termination Date and Executive shall not be eligible or entitled to receive any severance pay or benefits from the Company.
6.4. Cause Defined. “Cause” hereunder means:
| (a) | Executive’s material failure to perform his job duties competently as reasonably determined by the Board; |
| (b) | gross misconduct by Executive which the Board reasonably determines is (or will be if continued) demonstrably and materially damaging to the Company; |
| (c) | fraud, misappropriation, or embezzlement by Executive; |
| (d) | an act or acts of dishonesty by Executive and intended to result in gain or personal enrichment of Executive at the expense of the Company; |
| (e) | Executive’s conviction of or plea of nolo contendere to a felony regardless of whether involving the Company and whether or not committed during the course of Executive’s employment, other than with respect to any criminal penalties related to the illegality of possessing or using Marijuana under the Controlled Substance Act, 21 U.S.C. Section 812(b); |
| (f) | Executive’s violation of the Company’s Code of Conduct, Executive Handbook or other material written policy, as reasonably determined by the Board; or |
| (g) | the material breach of this Agreement of the Restrictive Covenants Agreement by Executive. |
With respect to Section 6.4(a) and Section 6.4(f), the Company shall first provide Executive with written notice and an opportunity to cure such breach, if curable, in the reasonable discretion of the Board, and identify with specificity the action needed to cure within fifteen (15) days of Executive’s receipt of written notice from the Company. If the Company terminates Executive’s employment for Cause pursuant to this Section 6.4, then Executive shall not be eligible or entitled to receive any severance pay or benefits from the Company.
6.5. Change in Control Defined. “Change in Control” hereunder has the same meaning such term has in the Vireo Health International Inc. 2019 Equity Incentive Plan, as amended from time to time (the “Equity Incentive Plan”).
6.6. Good Reason Defined. “Good Reason” hereunder means the initial occurrence of any of the following events without Executive’s consent:
| (a) | a material diminution in the Executive’s responsibilities, authority or duties or a change in his title; |
| (b) | a material diminution in the Executive's salary, other than a general reduction in base salaries that affects all similarly situated Company employees in substantially the same proportions; |
| (c) | a relocation of the Executive’s principal place of employment to a location more than fifty (50) miles from his principal place of employment on the Effective Date; or |
| (d) | the material breach of this Agreement by the Company. |
provided, however, that “Good Reason” shall not exist unless Executive has first provided written notice to the Company of the initial occurrence of one or more of the conditions under clauses (a) through (d) above within thirty (30) days of the condition’s occurrence, such condition is not fully remedied by the Company within thirty (30) days after the Company’s receipt of written notice from Executive, and the Termination Date as a result of such event occurs within ninety (90) days after the initial occurrence of such event.
6.7. Disability Defined. “Disability” hereunder has the same meaning such term has in the Equity Incentive Plan.
6.8. The Company’s Sole Obligation. In the event of termination of Executive’s employment, the sole obligation of the Company to provide Executive with severance pay or benefits shall be its obligation to make the payments called for by Section 6.1 or Section 6.2, as the case may be, and the Company shall have no other severance-related obligation to Executive or to Executive’s beneficiary or Executive’s estate. For avoidance of doubt, nothing in this Section 6.8 affects Executive’s right to receive any amounts due under the terms of any employee benefit plans or programs (other than any severance-related plan or program) then maintained by the Company in which Executive participates.
6.9. Conditions To Receive Payments. Notwithstanding the foregoing provisions of this Section 6, the Company will not be obligated to make the Pre-CIC Severance Payments or Pre-CIC Benefits Continuation Payments under Section 6.1, or the Post-CIC Severance Payment, Post-CIC Benefits Continuation Payments or Outplacement Payments under Section 6.2, to or on behalf of Executive unless (a) Executive signs a release of claims in favor of the Company in a form to be prescribed by the Company (the “Release”), (b) all applicable consideration periods and rescission periods provided by law with respect to the Release have expired without Executive rescinding the Release, and (c) Executive is in strict compliance with the terms of this Agreement and the Restrictive Covenants Agreement and any other written agreement between Executive and the Company.
7. Anticipatory Termination without Cause. If Executive’s employment with the Company is terminated during the Term by the Company for any reason other than for Cause or by Executive for Good Reason, and a Change in Control occurs (i) within six (6) months after Executive’s Termination Date or (ii) within one year after Executive’s Termination Date, pursuant to an agreement executed within sixty (60) days after Executive’s Termination Date, then Executive shall receive an additional cash payment equal to fifty percent (50%) of Executive’s annualized Base Salary as of the Termination Date, less all legally required and authorized deductions and withholdings, payable in a single lump sum no later than ten (10) days after the date of such Change in Control.
8. Section 409A and Taxes Generally.
8.1 Taxes. The Company is entitled to withhold on and report the making of such payments as may be required by law as determined in the reasonable discretion of the Company. Except for any tax amounts withheld by the Company from any compensation that Executive may receive in connection with Executive’s employment with the Company and any employer taxes required to be paid by the Company under applicable laws or regulations, Executive is solely responsible for payment of any and all taxes owed in connection with any compensation, benefits, reimbursement amounts or other payments Executive receives from the Company under this Agreement or otherwise in connection with Executive’s employment with the Company. The Company does not guarantee any particular tax consequence or result with respect to any payment made by the Company.
8.2 Section 409A. This Agreement is intended to provide for payments that satisfy, or are exempt from, the requirements of Section 409A, including Sections 409A(a)(2), (3) and (4) of the Code and current and future guidance and regulations interpreting such provisions, and should be interpreted accordingly. In furtherance of the foregoing, the provisions set forth below shall apply notwithstanding any other provision in this Agreement:
| (a) | all payments to be made to Executive hereunder, to the extent they constitute a deferral of compensation subject to the requirements of Section 409A (after taking into account all exclusions applicable to such payments under Section 409A), shall be made no later, and shall not be made any earlier, than at the time or times specified in this Agreement or in any applicable plan for such payments to be made, except as otherwise permitted or required under Section 409A; |
| (b) | the date of Executive’s “separation from service”, as defined in Section 409A (and as determined by applying the default presumptions in Treas. Reg. §1.409A-1(h)(1)(ii)), shall be treated as the date of Executive’s termination of employment for purposes of determining the time of payment of any amount that becomes payable to Executive related to Executive’s termination of employment under Sections 10(a), 10(b) or 10(c), and any reference to Executive’s “Termination Date” or “termination” of Executive’s employment in Section 6.1 or Section 6.2 shall mean the date of Executive’s “separation from service”, as defined in Section 409A (and as determined by applying the default presumptions in Treas. Reg. §1.409A-1(h)(1)(ii)); |
| (c) | in the case of any amounts payable to Executive under this Agreement that may be treated as payable in the form of “a series of installment payments”, as defined in Treas. Reg. §1.409A-2(b)(2)(iii), Executive’s right to receive such payments shall be treated as a right to receive a series of separate payments for purposes of Treas. Reg. §1.409A-2(b)(2)(iii); |
| (d) | to the extent that the reimbursement of any expenses eligible for reimbursement or the provision of any in-kind benefits under any provision of this Agreement would be considered deferred compensation under Section 409A (after taking into account all exclusions applicable to such reimbursements and benefits under Section 409A): (i) reimbursement of any such expense shall be made by the Company as soon as practicable after such expense has been incurred, but in any event no later than December 31st of the year following the year in which Executive incurs such expense; (ii) the amount of such expenses eligible for reimbursement, or in-kind benefits to be provided, during any calendar year shall not affect the amount of such expenses eligible for reimbursement, or in-kind benefits to be provided, in any calendar year; and (iii) Executive’s right to receive such reimbursements or in-kind benefits shall not be subject to liquidation or exchange for another benefit; |
| (e) | to the extent any payment or delivery otherwise required to be made to Executive hereunder on account of Executive’s separation from service is properly treated as a deferral of compensation subject to Section 409A after taking into account all exclusions applicable to such payment and delivery under Section 409A, and if Executive is a “specified employee” under Section 409A at the time of Executive’s separation from service, then such payment and delivery shall not be made prior to the first business day after the earlier of (i) the expiration of six months from the date of Executive’s separation from service, or (ii) the date of Executive’s death (such first business day, the “Delayed Payment Date”), and on the Delayed Payment Date, there shall be paid or delivered to Executive or, if Executive has died, to Executive’s estate, in a single payment or delivery (as applicable) all entitlements so delayed, and in the case of cash payments, in a single cash lump sum, an amount equal to aggregate amount of all payments delayed pursuant to the preceding sentence. Except for any tax amounts withheld by the Company from the payments or other consideration hereunder and any employment taxes required to be paid by the Company, Executive shall be responsible for payment of any and all taxes owed in connection with the consideration provided for in this Agreement; and |
| (f) | the Parties agree that this Agreement may be amended, as may be necessary to fully comply with, or to be exempt from, Section 409A and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either Party. |
9. Change-in-Control.
9.1 Retention Bonus. Executive will receive a retention bonus (the “Retention Bonus”) in an amount equal to fifty percent (50%) of Executive’s Base Salary on the date of the closing of a CIC Transaction (the “CIC Closing Date”), subject to the conditions and on the terms described in this Section 9. If, during the Term and prior to the CIC Closing Date, the Company terminates Executive’s employment without Cause Base Salary will be defined as Executive’s annual base salary immediately prior to the date of termination of employment. If, during the Term and prior to the CIC Closing Date, or Executive voluntarily terminates his employment with Good Reason, Base Salary will be defined as Executive’s annual base salary immediately prior to the occurrence of the initial event that gave rise to Good Reason. Company will pay the Retention Bonus to Executive only if Executive’s employment is not terminated by the Company for Cause or by Executive without Good Reason. The Retention Bonus will be paid within thirty (30) days after the date of the Change in Control and will be subject to required withholdings and deductions.
9.2 Options and Restricted Stock Units. The provisions of this paragraph 9.2 apply if Employee has been granted any stock options (“Options”) or restricted stock units (“RSUs”) under the Vireo Health, Inc. 2018 Equity Incentive Plan (the “2018 Plan”), the Vireo Health International, Inc. 2019 Equity Incentive Plan (the “2019 Plan”), or under Section 4.3 of this Agreement, which Options and/or RSUs have not vested as of the CIC Closing Date.
a. Accelerated Vesting. All unvested Options and RSUs held by Employee will vest immediately prior to the Change in Control, provided that Employee’s employment shall not have been terminated by Employer for Cause or by Employee without Good Reason on or prior to such date.
b. Time to Exercise. Consistent with and confirming a resolution of Parent Company’s board of directors that was unanimously approved on August 10, 2021, and notwithstanding the provisions of the 2018 Plan, the 2019 Plan, or the incentive option agreement or other instrument by which Employer or Parent granted Options to Executive (“Grant Agreement”), provided that Executive’s employment shall not have been terminated for Cause, Executive shall be entitled to exercise, by completing all steps listed in the respective Grant Agreement, any vested, unexercised Option or Options, through the day that is the earlier of (i) the day that is two (2) years after the last date of employment of Executive by the Company or any parent, subsidiary or affiliated company of the Company and (ii) the expiration date applicable to such Option.
c. The provisions of this Section 9.2 shall survive the expiration or earlier termination of this Agreement.
9.3 Termination. If the Company terminates Executive’s employment for Cause or Executive voluntarily terminates his employment without Good Reason, in each case prior to the date of a Change in Control, the Executive shall forfeit any right or claim to the Retention Bonus or any portion thereof.
10. Miscellaneous.
10.1. Integration. This Agreement and the Restrictive Covenants Agreement embody the entire agreement and understanding among the Parties relative to subject matter hereof and combined supersede all prior agreements and understandings relating to such subject matter, including but not limited to any earlier offers to Executive by the Company; provided, however, this Agreement and the Restrictive Covenants Agreement are not intended to supersede or otherwise affect the Equity Incentive Plan or any Award Agreement (as defined in the Equity Incentive Plan), each of which shall remain in effect in accordance with its terms.
10.2. Applicable Law. All matters relating to the interpretation, construction, application, validity and enforcement of this Agreement are governed by the laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule, whether of the State of Arizona or any other jurisdiction, which would cause the application of laws of any jurisdiction other than the State of Arizona.
10.4. Executive’s Representations. Executive represents that Executive is not subject to any agreement or obligation that would prevent or limit Executive from entering into this Agreement or that would be breached upon performance of Executive’s duties under this Agreement, including but not limited to any duties owed to any former employers not to compete. If Executive possesses any information that Executive knows or should know is considered by any third party, such as a former employer of Executive’s, to be confidential, trade secret, or otherwise proprietary, Executive shall not disclose such information to the Company or use such information to benefit the Company in any way.
10.4. Counterparts. This Agreement may be executed in several counterparts and as so executed shall constitute one agreement binding on the Parties.
10.5. Assignment and Successors. The rights and obligations of the Company under this Agreement shall inure to the benefit of and will be binding upon the successors and assigns of the Company. Neither party may, without the written consent of the other party, assign or delegate any of its rights or obligations under this Agreement except that the Company may, without any further consent of Executive, assign or delegate any of its rights or obligations under this Agreement to any corporation or other business entity (a) with which the Company may merge or consolidate, (b) to which the Company may sell or transfer all or substantially all of its assets or capital stock or equity, or (c) any affiliate or subsidiary of the Company. After any such assignment or delegation by the Company, the Company will be discharged from all further liability hereunder and such assignee will thereafter be deemed to be the “Company” for purposes of all terms and conditions of this Agreement, including this Section 9.6. Executive may not assign this Agreement or any rights or obligations hereunder. Any purported or attempted assignment or transfer by Executive of this Agreement or any of Executive’s duties, responsibilities, or obligations hereunder is void.
10.6. Modification. This Agreement shall not be modified or amended except by a written instrument signed by the Parties.
10.7. Severability. The invalidity or partial invalidity of any portion of this Agreement shall not invalidate the remainder thereof, and said remainder shall remain in fully force and effect.
10.8. Opportunity to Obtain Advice of Counsel. Executive acknowledges that Executive has been advised by the Company to obtain legal advice prior to executing this Agreement, and that Executive had sufficient opportunity to do so prior to signing this Agreement.
10.9. 280G Limitations. In the event that the severance and other benefits provided for in this Agreement or otherwise payable to Executive (a) constitute “parachute payments” within the meaning of Section 280G of the Code and (b) would be subject to the excise tax imposed by Code Section 4999, then such benefits shall be either be: (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under Code Section 4999, whichever of the foregoing amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Code Section 4999, results in the receipt by Executive, on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be subject to excise tax under Code Section 4999. Any determination required under this Section 9.10 will be made in writing by an accounting firm selected by the Company or such other person or entity to which the parties mutually agree (the “Accountants”), whose determination will be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 9.10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. The Company and the Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 9.10. Any reduction in payments and/or benefits required by this Section 9.10 shall occur in the following order: (A) cash payments shall be reduced first and in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (B) accelerated vesting of stock awards, if any, shall be cancelled/reduced next and in the reverse order of the date of grant for such stock awards (i.e., the vesting of the most recently granted stock awards will be reduced first), with full-value awards reversed before any stock option or stock appreciation rights are reduced; and (C) deferred compensation amounts subject to Section 409A shall be reduced last.
[Signature Page Follows]
THIS EMPLOYMENT AGREEMENT was voluntarily and knowingly executed by the Parties effective as of the Effective Date first set forth above.
| VIREO HEALTH, INC. | ||
| /s/ Kyle Kingsley | ||
| By: Kyle Kingsley | ||
| Its: Chief Executive Officer | ||
| EMPLOYEE: | ||
| /s/ Joshua Rosen | ||
| Joshua Rosen |
[Signature Page to Employment Agreement]
Exhibit A
to Employment Agreement
FORM OF
Confidential Information, Intellectual Property Rights, Non-Competition and
Non-Solicitation Agreement
Confidential Information, Intellectual Property Rights,
Non-Competition and Non-Solicitation Agreement
This Confidential Information, Intellectual Property Rights, Non-Competition and Non-Solicitation Agreement (the “Agreement”) is made and entered into by and between Vireo Health, Inc., a Delaware corporation (“Company”) and ________________________ (“Employee”), as of ____________________, (the “Effective Date”). Each of Company and Employee hereinafter may be referred to individually as a “Party” or, collectively, as the “Parties.” In consideration of Employee’s employment with Company, the compensation Employee will earn in connection with such employment, Company entering into an Employment Agreement with Employee (the “Employment Agreement”), Company providing Employee with ongoing access to Confidential Information (as defined below), and other good and valuable consideration, the sufficiency and receipt of which Employee acknowledges, Employee agrees as follows:
| 1. | Confidential Information |
| 1.1 | Confidential Information and Trade Secrets Defined. Employee hereby acknowledges and understands the term “Confidential Information” means any data, information, or material of Company or its owners or its Affiliates relating directly or indirectly to Company or its owners or Affiliates: clients and customers or potential clients and customers (collectively “Customer(s)”); competitors; vendors; advertisers; employees; contractors; suppliers; or business partners, that is discovered or developed by, or disclosed to, Employee through Employee’s relationship with Company, that is not generally ascertainable from public information, whether it is expressly identified as “confidential” or “trade secret,” that includes, but is not limited to: financial information; invoices; business plans; business and contract applications; contracts; forms; research; price lists; marketing materials; advertising materials and developments; sales materials and reports; copyrighted materials; Trade Secrets; the particular needs and requirements of Customers; identities of potential Customers; and all accompanying Customer data. Employee hereby acknowledges and understands the term “Trade Secret(s)” includes, but is not limited to, a confidential, proprietary, and/or sensitive: formula; software; methodology; model; architecture; pattern; compilation; program; device; method; technique; or process, that is discovered, developed in whole or part by Employee, or disclosed to Employee, through Employee’s relationship with Company, including any information, data, or material concerning the Business (as defined in Subsection 3.2), and all other information related to Company and its owner and Affiliates businesses, that is not generally known and readily ascertainable by proper means by any other person and/or Employee. This includes, but is not limited to, all inventions or discoveries made by Employee and/or Company (or its owners or Affiliates) resulting in whole or part from Employee’s relationship with Company. The term “Trade Secret(s)” also includes, but is not limited to, Customer lists, invoices and reports containing specifically developed information, such as the name, address, phone number, buying history and other traits of Customers, along with any other information that Company derives a competitive advantage from and that Company makes reasonable efforts to maintain as secret. For purposes of this Agreement, “Affiliate” means, for any individual, partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, or unincorporated organization (each, a “Person”), another Person that directly, or indirectly through one or more intermediaries, controls, or has been or is controlled by, or is under common control with, such Person. For avoidance of doubt, the Affiliates of Company include, without limitation, Goodness Growth Holdings International, Inc. |
| 1.2 | Use & Restriction. Employee acknowledges that Employee will have access to and be provided with Confidential Information in connection with performing services for Company. Employee expressly recognizes that the efficacy and profitability of Company and Affiliates is dependent in part upon Employee’s protection of the Confidential Information. Employee may use the Confidential Information solely in connection with performing services for Company and its Affiliates. To ensure the continued confidentiality of the Confidential Information, Employee agrees to hold the Confidential Information in strict confidence. Employee shall not, either during Employee’s relationship with Company, or for such period as such information remains Confidential Information after termination, disclose or use for Employee’s own benefit or for the benefit of any other individual or third party, directly or indirectly, any of the Confidential Information, except as such disclosure or use is expressly authorized by Company in writing. Employee hereby agrees to adhere to the method and form of protection of Confidential Information required by Company, subject to change at Company’s sole discretion. Employee shall not communicate any Confidential Information, even in furtherance of Company’s business, to any individual or third party not privy to the Confidential Information, without express consent by Company and the individual or third party’s agreement to be bound by confidentiality terms that adequately protect Company’s Confidential Information. |
| 1.3 | Exceptions. The confidentiality and restriction on the use of Confidential Information under this Agreement shall not apply to Confidential Information to the extent that such Confidential Information: is now, or hereafter becomes, through no breach of this Agreement by Employee, generally known or available to the public; was known to Employee without an obligation to hold it in confidence prior to the time such Confidential Information was disclosed to Employee by Company; is disclosed or used, as applicable, with the prior written consent of Company and in accordance with any limitations or conditions on such disclosure or use that may be imposed in such written consent; or was or is independently developed by Employee without any use of or reference to the Confidential Information. In addition, notwithstanding any other language in this Agreement to the contrary, Employee understands that Employee may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney if such disclosure is made solely for the purpose of reporting or investigating a suspected violation of law or for pursuing an anti-retaliation lawsuit; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and Employee does not disclose the trade secret except pursuant to a court order. |
| 1.4 | Required Disclosure. The confidentiality obligations under this Agreement shall not apply to Confidential Information to the extent that such Confidential Information is required to be disclosed pursuant to the order or requirement of a court, administrative agency, or other authority, or otherwise by operation of applicable law. In the event of such order or requirement, Employee, if and to the extent permitted by law, shall give Company written notice thereof and of the Confidential Information to be disclosed as soon as practicable prior to disclosure of such Confidential Information and shall provide such reasonable assistance as Company may request, at Company’s sole expense, in seeking a protective order or other appropriate relief in order to protect the confidentiality of the Confidential Information. |
| 1.5 | Other Nondisclosure Agreements. If Company is subject to the terms of any confidentiality or nondisclosure agreement relating to some or all of the Confidential Information that imposes greater restrictions on the disclosure and/or use of such Confidential Information, then Employee shall comply with such greater restrictions to the extent that Employee is made aware of them. |
| 1.6 | Property of Company. Employee specifically acknowledges and understands that all Confidential Information and all of Company’s and its Affiliates’ strategies and files, including, but not limited to, computer data, reports, materials, records, documents, notes, memoranda, and other items, and any originals or copies thereof, related to the business of Company or its Affiliates, which Employee either is provided, prepares, uses, or simply acquires during the term of this Agreement, are and shall remain the sole and exclusive property of Company and, to the extent applicable, shall not be removed from Company’s premises or systems without the prior consent of Company. |
| 1.7 | Return or Destroy Confidential Information. Employee agrees, immediately upon the termination of the relationship between Employee and Company for any reason or upon earlier request by Company to make a diligent search for any and all documents, computer discs, electronic files, software, tapes, computer printouts, or any other material constituting Confidential Information described in this Section 1, and shall: cease using the Confidential Information; promptly return to Company or destroy all Confidential Information and any copies thereof; and certify in writing that Employee has complied with the obligations of this Subsection 1.7. |
| 1.8 | Return of Company Property. Employee agrees, immediately upon the termination of the relationship between Employee and Company for any reason or upon earlier request by Company to promptly deliver to Company all Company property not covered by Subsection 1.7. |
| 2. | Intellectual Property |
| 2.1 | Prior Inventions. Any intellectual property, including, but not limited to, any ideas, inventions, patents, trademarks, service marks, copyrights, creations, know how, work product, and other developments or improvements, if any, patented or unpatented, that Employee, alone or with others, conceived, created, invented, developed, reduced to practice, or caused to be conceived and or caused to be reduced to practice prior to the earlier of (a) commencement of Employee’s employment with Company or (b) when Employee first provided services to Company, is listed on Schedule 1 attached hereto (“Prior Inventions”). |
| 2.2 | Ownership. Except with respect to Prior Inventions, all right, title, and interest of every kind and nature, whether now known or unknown, in and to any and all intellectual property, including, but not limited to, any ideas, inventions, patents, trademarks, service marks, copyrights, creations, know how, work product, properties and other developments or improvements, patented or unpatented, conceived, created, invented, written, developed, furnished, produced, disclosed, reduced to practice, or caused to be conceived and or caused to be reduced to practice in whole or in part, alone or with others, whether or not during working hours, by Employee during the term of Employee’s employment with Company and for six (6) months thereafter, that are within the scope of Company’s business operations or that relate to any of Company’s work or projects, will, as and between Company and Employee, be and remain the sole and exclusive property of Company for any and all purposes and uses, and Employee hereby agrees to assign and assigns all rights thereto to Company. Intellectual property may be in any form including, but not limited to, written, oral, electronic, digital, or other form. |
| 2.2 | Work Made for Hire. Any work of Employee for which a copyright could be claimed developed in the course of employment with the Company will be deemed “work made for hire” under federal copyright law and all ownership rights to such work belong exclusively to Company. To the extent any invention does not qualify as a work for hire under applicable law, and to the extent any invention is subject to copyright, patent, trade secret, or other proprietary right protection, Employee hereby assigns, and agrees to assign, all rights therein to Company. |
| 2.3 | Pre-Existing Work. If, in the course of Employee’s relationship with Company, Employee has used or uses, has relied upon or relies upon, has provided or provides, or has incorporated or incorporates any Prior Invention or any other intellectual property Employee owns, or in which Employee has had or has an interest, into any idea, invention, patent, trademark, service mark, copyright, creation, know how, work product, and other development or improvement conceived, created, invented, written, developed, furnished, produced, or disclosed in whole or in part, alone or with others, whether or not during working hours, by Employee during the term of Employee’s employment with Company, Employee hereby grants Company, under all of Employee’s intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (a) to make, use, copy, modify, and create derivative works of such intellectual property; (b) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the intellectual property, and derivative works of the intellectual property; and (c) to sublicense the rights in this Subsection 2.3 to third parties. |
| 2.4 | Required Undertakings. Employee agrees, both while an employee of Company and thereafter, to assist Company and its Affiliates, at Company’s expense, in any and all attempts to obtain patents, copyrights, and/or trademarks or other intellectual property protection on any work Employee participated in developing and agrees to execute all documents necessary to obtain such rights in the name of or to transfer such rights to Company. If, because of Employee’s mental or physical incapacity or for any other reason whatsoever, Company is unable to secure Employee’s signature to apply for or pursue any patents, copyrights, or other protection for any invention assigned to Company under this Agreement or otherwise, Employee irrevocably designates and appoints Company and its duly authorized officers and agents as Employee’s agent and attorney-in-fact to act for Employee and on Employee’s behalf and stead to file any applications and to do all other lawfully-permitted acts to further the prosecution and issuance of any patents, copyrights, or other protections with the same legal force and effect as if executed by Employee. |
| 2.5 | Limited Exclusion. This Section 2 does not apply to any inventions or intellectual property for which no equipment, supplies, facility or Confidential Information of Company was used, and which was developed entirely on Employee’s own time, and (a) which does not relate (i) directly or indirectly to the business of Company or (ii) to Company’s actual or demonstrably anticipated research or development, or (b) which does not result from any work performed by Employee for Company. |
| 3. | Non-competition and Non-solicitation |
| 3.1 | No Existing Restrictions. Employee represents and warrants that Employee is not a party to any confidentiality agreement, non-competition agreement, non-solicitation agreement, intellectual property rights agreement, or any other agreement with any former employer or other entity that in any way prohibits or inhibits Employee’s ability to (a) be employed by Company; (b) perform services for Company; (c) enter into this Agreement; or (d) comply with Employee’s obligations under this Agreement. |
| 3.2 | Non-competition and Non-solicitation. Employee acknowledges that Company is engaged in the business of the promotion, manufacture, cultivation, marketing or distribution of cannabis (the “Business”). Employee agrees that during the term of Employee’s employment with Company (the “Restricted Period”), regardless of the reason for such termination and whether such termination is at the initiative of Employee or Company, Employee will not, directly or indirectly, individually or in connection with other individuals or entities, without the prior written consent of Company: |
| (a) | Other than on behalf of Company, anywhere within a Market Area (as defined herein) in which Company or any of its Affiliates is then operating or doing business or in which the Company has then or within the prior six (6) months identified an intention of doing business (as confirmed by reasonable written support including, but not limited to, having begun the application or certification process to enable such Company or an Affiliate to do business in such Market Area) (the “Restricted Area”), control, manage, operate, be employed or engaged by, or otherwise participate, assist, or engage in business as, or own an interest in or provide active, direct material financial or other assistance to, , any individual proprietorship or business entity, if such entity is engaged as its primary business , in business or operations that compete with any business then engaged in by Company or Company’s Affiliates in in the Restricted Area; provided, however, this Section 3.2(a) does not prohibit or restrict Employee or any of Employee’s Affiliates from holding a passive investment of not more than ten percent (10%) of the outstanding shares of the capital stock of any publicly held corporation. For purposes of this Agreement, “Market Area” shall mean an imaginary circle with a fifty-mile radius centered on a cultivation, manufacturing, or retail facility operated by the Company or any of its Affiliates in the States of Minnesota, New York or Maryland, or such smaller area as may be finally determined by a court of competent jurisdiction to be a reasonable area from which to exclude Employee from engaging in a competitive activity; |
| (b) | Other than on behalf of Company, solicit any person who is then an employee of Company or Company’s Affiliates, or who was an employee of Company or Company’s Affiliates, within the prior six (6) months, to perform services, as an employee, contractor, consultant or otherwise, or take any actions which are intended to persuade any such employee of Company or Company’s Affiliates, to terminate his or her employment with Company or Company’s Affiliates; or |
| (c) | Other than on behalf of Company, solicit any then-current customer, potential customer, affiliate, or strategic partner of, or investor in, Company, for business that is the same as or substantially similar to that of the Company or any of the Company’s Affiliates in the Restricted Area, or otherwise knowingly interfere with the relationships of Company, or Company’s Affiliates, with any then-current customer, potential customer, affiliate, or strategic partner of, or investor in, Company, or Company’s Affiliate, or otherwise seek to cause a change in any such relationships. |
| 3.3 | Notice. Employee agrees that during the Restricted Period Employee will notify the Company’s General Counsel and chair of the audit committee of the Board, in writing, of any opportunities that may involve a competitive activity or opportunity as set forth in Subsection 3.2(a) prior to accepting an offer to perform such services. |
| 3.4 | Affirmative Disclosure Obligation. Employee agrees that during the Restricted Period Employee will disclose the existence and terms of this Agreement to any prospective third party or other contracting party for whom Employee is considering providing services that constitute a competitive activity as set forth in Subsection 3.2. |
| 3.5 | Reasonableness. Employee agrees that the covenants contained in this Section 3 are necessary to protect Company’s legitimate and protectable business interests and are reasonable with respect to their duration and scope. If, at the time of enforcement of this Section 3, a court holds that any restriction identified herein is unreasonable under the circumstances then existing, Company and Employee agree that such restriction shall be modified by the court such that the maximum period or scope legally permissible under such circumstances will be substituted for the period or scope identified herein. |
| 3.6 | Tolling. In the event that Employee violates any provision of this Section 3 to which there is a specific time period during which Employee is prohibited from taking certain actions or from engaging in certain activities as set forth herein, a violation of this Section 3 will toll the running of that time period from the date the violation commences until the date of its cessation. The period of time will also be tolled during any time period required for litigation during which Company seeks to enforce this Section 3. |
| 4. | Non-disparagement |
Subject to Section 6, Employee agrees that, during and after Employee’s period of employment with Company, Employee will not, publicly or privately, disparage or defame Company or its Affiliates, or any of Company’s or its Affiliates’ employees, officers, directors, governors, members or agents.
During and after Employee’s period of employment with the Company, neither Company nor any of Company’s officers or directors will, publicly or privately, disparage or defame Employee.
| 5. | Injunctive Relief |
In the event of a breach or threatened breach of any covenant in Sections 1, 2, 3 or 4, Employee agrees that Company will be irreparably harmed, that money damages alone cannot adequately compensate Company, and that Company shall be entitled to temporary and injunctive relief as well as all applicable remedies at law or in equity available to Company against Employee including, but not limited to, reasonable attorneys’ fees and costs incurred in bringing any action against Employee or otherwise enforcing the terms of this Agreement. Employee further agrees that in any such action, Company shall be entitled to relief without posting any bond or security.
| 6. | No Unlawful Restriction |
Employee understands and agrees that nothing in this Agreement is intended to or will prevent or interfere with Employee’s ability or right to (a) provide truthful testimony if under subpoena to do so, (b) file any charge with or participate in any investigation or proceeding before the U.S. Equal Employment Opportunity Commission or any other federal, state or local governmental agency, (c) engage in any conduct protected under the National Labor Relations Act, or (d) respond to a subpoena, court order or as otherwise provided by law.
| 7. | Miscellaneous |
| 7.1 | At Will Employment. Employee’s employment with Company is “at will,” which means it may be terminated at any time, with or without notice and for any or no reason, at the option of either Employee or Company, subject to the provisions of any employment agreement between Employee and Company. |
| 7.2 | Assignment. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, executors, administrators, legal representatives, successors and assigns of the Parties, except that the duties and responsibilities of Employee under this Agreement are of a personal nature and shall not be assignable or delegable in whole or in part by Employee. |
| 7.3 | Severability. Subject to Subsection 3.5, if any provision of this Agreement or application thereof to anyone or under any circumstances is adjudicated to be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect any other provision or application of this Agreement which can be given effect without the invalid or unenforceable provision or application and shall not invalidate or render unenforceable such provision or application in any other jurisdiction. If any provision is held void, invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances. |
| 7.4 | Entire Agreement. This Agreement and the Employment Agreement embody the entire agreement and understanding among the Parties relative to subject matter hereof and combined supersede all prior agreements and understandings relating to such subject matter, including but not limited to any earlier offers to Employee by Company; provided, however, this Agreement and the Employment Agreement are not intended to supersede or otherwise affect the Equity Incentive Plan (as defined in the Employment Agreement) or any Award Agreement (as defined in the Equity Incentive Plan), each of which shall remain in effect in accordance with its terms. |
| 7.5 | Applicable Law. All matters relating to the interpretation, construction, application, validity and enforcement of this Agreement are governed by the laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule, whether of the State of Minnesota or any other jurisdiction, that would cause the application of laws of any jurisdiction other than the State of Minnesota. |
| 7.6 | Choice of Jurisdiction. Employee and Company consent to jurisdiction of the courts of the State of Minnesota and/or the federal district courts, District of Minnesota, for the purpose of resolving all issues of law, equity, or fact, arising out of or in connection with this Agreement. Any action involving claims for interpretation, breach or enforcement of this Agreement shall be brought in such courts. Each party consents to personal jurisdiction over such party in the state and/or federal courts of Minnesota and hereby waives any defense of lack of personal jurisdiction or inconvenient forum. |
| 7.7 | Attorneys’ Fees. In the event of any litigation or other proceeding concerning any controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement, the breach hereof or the interpretation hereof, the prevailing party will be entitled to recover from the other party reasonable expenses, attorneys' fees, and costs incurred therein or in the enforcement or collection of any judgment or award rendered therein. The “prevailing party” means the party determined by the court to have most nearly prevailed, even if such party did not prevail in all matters, not necessarily the party in whose favor a judgment is rendered. Further, in the event of any breach by Employee under this Agreement, Employee shall pay all the expenses and attorneys’ fees incurred by Company in connection with such breach, whether or not any litigation is commenced. |
| 7.8 | Counterparts. This Agreement may be executed in any number of counterparts (including facsimile counterparts or counterparts delivered by electronic transmission (e.g., .PDF attachment)), each of which shall be an original, but all of which together shall constitute one instrument. |
* * * * *
[signature page follows]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date first above written.
| VIREO HEALTH, Inc. | |||
| By: | |||
| Name: Kyle Kingsley | |||
| Title: Chief Executive Officer | |||
| EMPLOYEE | |||
| Print Name: Joshua Rosen | |||
