Certain portions of this exhibit (indicated by ####) have been omitted pursuant to Regulation S-K, Item 601(a)(6).
This EMPLOYMENT AGREEMENT (the Agreement) is made and entered into as of the 10th day of February, 2020 (the Commencement Date), by and between All Market Inc., a Delaware corporation (the Corporation), with its principal offices at 250 Park Avenue South, Floor 7, New York, New York 10003 and Charles Van Es, an individual currently residing at #### (the Employee).
WHEREAS the Employee is employed by the Corporation;
WHEREAS the Corporation wishes to clarify the terms of Employment for the Employee going forward by entering into this Employment Agreement with the Employee;
WHEREAS, the Corporation desires to employ the Employee in the capacity hereinafter stated, and the Employee desires to be employed by the Corporation in such capacity for the period and on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, it is hereby covenanted and agreed by the Corporation and the Employee as follows:
|1. || |
This Agreement replaces all previous employment arrangements whether written or verbal, with the exception that existing Equity Agreements related to Stock Options Granted previously shall continue uninterrupted based on continued employment.
|2. || |
Employment Period. The Corporation hereby agrees to employ the Employee as Chief Sales Officer - North America or other title as the Corporation may decide from time to time, and the Employee, in such capacity, agrees to provide services to the Corporation for the period beginning on the Commencement Date and ending upon the termination of the Employees employment with the Corporation for any reason (the Employment Period).
|3. || |
Performance of Duties. The Employee agrees that during the Employment Period, while Employee is employed by the Company, Employee shall devote Employees full time, energies and talents exclusively to serving the Company in the best interests of the Company, and to perform the duties assigned to Employee by the CEO or the President of the Company and/or other authorized representatives of the Company faithfully, efficiently and in a professional manner; provided further that, without the Boards prior consent, the Employee shall not serve as or be a consultant to or employee, officer, agent or director of any Company, partnership or other entity other than the Company or any of its affiliates (other than civic, charitable, or other public service organizations) if such would, in the sole discretion of the Company, either create a conflict of interest for the Employee relative to the Employees obligations to the Company, or have a material adverse effect upon the ability of the Employee to perform Employees duties hereunder or otherwise have a material adverse effect upon the Company,.
|4. || |
Compensation. Subject to the terms and conditions of this Agreement, during the Employment Period, the Employee shall be compensated by the Corporation for his services as follows:
| ||(a) || |
The Employee shall receive a rate of salary that is $300,000 per year (the Salary) starting January 1st 2020, payable in substantially equal monthly or more frequent installments and subject to normal and customary tax withholding and other deductions, all on a basis consistent with the Corporations normal payroll procedures and policies and prorated for any partial years of employment. The Employees salary rate will be eligible for annual positive adjustment based
| || physical or mental ailment or incapacity as determined by a licensed physician in good standing selected by the Corporation, which has prevented, or is reasonably expected (as determined by a licensed physician in good standing selected by the Corporation) to prevent, the Employee from performing the duties, with or without reasonable accommodation, incident to the Employees employment hereunder which has continued for a period of either (A) one hundred twenty (120) consecutive days or (B) two hundred ten (210) total days in any twelve (12) month period; provided that the Employee receives at least forty-five (45) days advance written notice prior to such termination. |
| ||(c) || |
Termination by the Corporation for Cause. The Corporation may terminate Employees employment hereunder (A) upon written notice in the event of any indictment (or charge) of the Employee or his entering of a plea of nolo contendere with respect to any crime constituting a felony or with any other crime involving moral turpitude (in each case, excluding a traffic or parking violation, jaywalking, driving while intoxicated or similar offense), whether or not in the course of the Employees duties, or (B) for Cause (as defined herein); provided that (x) the Corporation provides written notice to Employee specifying in reasonable detail the circumstances claimed to provide the basis for such termination within twenty (20) days following the occurrence (or, if later, within twenty (20) days following the date the Corporation first becomes aware), without Corporations consent, of an event constituting Cause, (y) the Employee fails to correct the circumstances set forth in the Corporations notice of termination within forty-five (45) days of receipt of such notice, and (z) the Corporation actually terminates the Employees employment within sixty (60) days following such occurrence. For purposes of this Agreement, the term Cause means any of the following:
| ||(i) || |
The Employees failure to comply with any applicable laws, rules or regulations of any federal, state or local authority having jurisdiction over the Corporation and its business operations;
| ||(ii) || |
The Employees failure to comply with the lawful specific directions of the CEO, the President and/or the Board related to the Employees duties hereunder (provided if Employee receives contrary lawful directives, the Boards lawful directives shall control);
| ||(iii) || |
The Employees committing any willful act which constitutes a conflict of interest with the Corporation, or any act which constitutes a breach of fiduciary duty owed by the Employee to the Corporation;
| ||(iv) || |
The Employees willful breach of any material provision of this Agreement; or
| ||(v) || |
The Employees conviction, or entering of a plea of no lo contendere, to a felony or other crime involving moral turpitude.
In addition to the other preconditions set forth in this Agreement, the cessation of employment of the Employee shall also not be deemed for Cause unless and until there shall have been delivered to the Employee a copy of a resolution duly adopted by a
majority of the members of the Board at a meeting of the Board (after reasonable notice is provided to the Employee and the Employee is given an opportunity to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive is guilty of conduct described in this Section 5 (c); For purposes of the definition of Cause, no act or failure to act, on the part of the Employee, shall be considered willful unless it is done, or omitted to be done, by the Employee in bad faith or without the Employees reasonable belief that the Employees action or omission was in the best interest of the Corporation. In determining whether the Employees acts or failures to act are willful, relevant factors shall include whether the Employee was operating in good faith at the direction of the CEO and/or Board or upon the advice of counsel for the Corporation.
| ||(d) || |
Termination by the Corporation without Cause. The Corporation may terminate the Employees employment hereunder without Cause at any time by providing ninety (90) days advance written notice to the Employee.
| ||(e) || |
Termination by Employee for Good Reason. The Employee may terminate his employment with the Corporation for Good Reason. For purposes of this Agreement, Good Reason shall mean a termination by the Employee of his employment with the Corporation following any breach by the Corporation of the Corporations material obligations under this Agreement or any other material written agreements between Employee and the Corporation, or any decrease in salary or material decrease in annual bonus opportunity, provided that (x) the Employee provides written notice to the Corporation specifying in reasonable detail the circumstances claimed to provide the basis for such termination within forty-five (45) days following the date the Employee first becomes aware of the occurrence (or reasonably should have been aware of such occurrence), without the Employees written consent, of such events, (y) the Corporation fails to correct the circumstances set forth in the Employees notice of termination within thirty (30) days of receipt of such notice (Cure Period), and (z) the Employee actually terminates employment within sixty (60) days following the end of the Cure Period.
| ||(f) || |
Voluntary Termination by the Employee other than for Good Reason. The Employee may terminate his employment hereunder at any time by providing written notice to the Corporation at least thirty (30) days prior to his voluntary termination of employment.
| ||(g) || |
Notice of Termination. Any termination by the Corporation or by the Employee under this Agreement (other than a termination due to the expiration of the Term) must be communicated by written notice to the other party.
|6. || |
Obligations and Compensation Following Termination of Employment. In the event that Employees employment hereunder is terminated, Employee shall have the following obligations and be entitled to the following compensation and benefits upon such termination:
| ||(a) || |
Termination by Employee for Good Reason or By Corporation Without Cause. In the event that (i) the Employee terminates his employment for Good Reason in accordance with Section 4(e) above, or (ii) the Corporation terminates his employment in any manner other than pursuant to Section 5(a), Section 5(b) or Section 5(c) above, then, in any case, the Corporation shall pay the following amounts to the Employee and nothing else, subject to the Employees compliance with the provisions contained in Sections 6(d), 6(e), and 7 below:
| ||(i) || |
any accrued but unpaid Salary plus, any earned bonus for a prior completed year for services rendered prior to the date of termination, including but not limited to those amounts that are due during the applicable period of notice and
|12. || |
Notice. Any notice to be given hereunder by a party hereto shall be in writing and shall be deemed to have been given when deposited in the U.S. mail, certified or registered mail, postage prepaid:
| ||(a) || |
to the Employee addressed as follows:
Charles Van Es
| ||(b) || |
to the Corporation addressed as follows (with a copy to Corporations General Counsel at the same address):
All Market Inc.
250 Park Avenue South, Floor 7
New York, New York 10003
|13. || |
Amendment. This Agreement may be amended only by mutual agreement of the parties in writing without the consent of any other person and no person, other than the parties thereto (and the Employees estate upon the Employees death), shall have any rights under or interest in this Agreement or the subject matter hereof.
|14. || |
Applicable Law. The provisions of this Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without regard to the conflicts of laws principles thereof. Any dispute is to be resolved exclusively in the federal or state courts located in the City and State of New York.
|15. || |
Interpretation. This Agreement shall be construed as a whole, according to its fair meaning, and not in favor of or against any party. Sections and section headings contained in this Agreement are for reference purposes only and shall not affect in any manner the meaning or interpretation of this Agreement. Whenever the context requires, references to the singular shall include the plural and the plural the singular.
|16. || |
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement, but all of which together shall constitute one and the same instrument.
|17. || |
Authority. Each party represents and warrants that such party has the right, power and authority to enter into and execute this Agreement and to perform and discharge all of the obligations hereunder; and that this Agreement constitutes the valid and legally binding agreement and obligation of such party and is enforceable in accordance with its terms.
|18. || |
VENUE. THIS AGREEMENT MAY BE ENFORCED IN ANY FEDERAL COURT OR STATE COURT SITTING IN THE CITY AND STATE OF NEW YORK, AND EACH OF THE PARTIES HERETO CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IF ANY PARTY HERETO COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT, THE OTHER PARTY HERETO MAY HAVE THE CASE TRANSFERRED TO THE JURISDICTION(S) AND VENUE(S) ABOVEDESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.
|19. || |
Entire Agreement. This Agreement (and the documents and arrangements referenced herein are intended to be the final, complete, and exclusive statement of the terms of Employees employment by the Corporation and may not be contradicted by evidence of any prior or contemporaneous oral or written statements or agreements, except for agreements specifically referenced herein. To the extent that the practices, policies or procedures of the Corporation, now or in the future, apply to the Employee and are inconsistent with the terms of this Agreement, the provisions of this Agreement shall control. Any subsequent change in the Employees duties, position, or compensation which has been mutually agreed in writing by the parties hereto will not affect the validity or scope of this Agreement.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
IN WITNESS WHEREOF, the Employee and the Corporation have executed this Employment Agreement as of the day and year first above written.
/s/ Charles Van Es
|Charles Van Es|
|ALL MARKET INC.|
/s/ Michael Kirban
|By: Michael Kirban|
|Title: Chief Executive Officer|