Exhibit 10.1
PRIVATE & CONFIDENTIAL
VIA E-MAIL
September 16, 2022
Conor McCarthy
conor_mccarthy@yahoo.com
Dear Conor:
As discussed, your employment
with Ideanomics, Inc. (“Ideanomics” or the “Company”) will end effective September 16, 2022 (the “Separation
Date”), which shall be deemed a termination by the Company without Cause (as defined in the Employment Agreement and the Plan).
Accordingly, your eligibility for participation in the Company’s health benefits program and other benefits programs will end on
September 30, 2022. You will receive instructions in the mail regarding how you may continue to receive health benefits, if eligible,
your Separation Date.
Below is a Separation Agreement
and General Release (“Agreement”) to resolve all matters between you and Ideanomics, its divisions, officers, directors, employees
and affiliates. Please take your time to thoroughly review and understand the effect of this Agreement.
Prior Employment Agreement
The Company and you acknowledge
your employment letter agreement dated July 31, 2020 (the “Employment Agreement”), a copy of which is incorporated herein
by reference. Unless otherwise stated, all capitalized terms herein have the same meaning as defined within the Employment Agreement.
Transition Period
During the period from September
12, 2022 to September 16, 2022 (“Transition Period”), you will work with Stephen Johnston, to transition your duties as Chief
Financial Officer to him.
Payments as Consideration in Exchange for Your
Promises
The Company shall pay you
your annual gross base salary and provide you benefits owed, and pay you for all accrued but unused vacation and any unreimbursed expenses,
through the Separation Date. In accordance with and subject to terms of Section 4 of the Employment Agreement, the Company shall provide
you the following monetary benefits in exchange for your release of claims and your other promises described in this Agreement:
1441 Broadway, Suite #5116,
New York, NY 10018 | www.ideanomics.com
| 1. | The Company shall pay you a lump sum cash payment of $525,000 no later than ninety (90), but no earlier
than thirty-one (31), days following your Separation Date. |
| 2. | The Company shall pay you a sum of $175,000, which is the remainder of your prior year’s performance
bonus no later than the second payroll date following the date of this agreement. |
| 3. | The Company shall pay you the cost of continuing your health insurance benefits pursuant to COBRA, if
eligible, for a period of twelve (12) months, estimated to be $24,000. |
All payments provided to you
pursuant to this Agreement shall be less mandatory withholdings and deductions and distributed in accordance with the Company’s
regular payroll practices. You acknowledge that you would not otherwise be entitled to one or more of the benefits described above without
signing this Agreement and that such benefits: (i) are adequate consideration in exchange for your release of claims and other promises
herein; and (ii) fully satisfy all claims for compensation that you may have against the Company, including without limitation any claim
for back pay, front pay, vacation pay, paid time off, bonuses, fringe benefits, expense reimbursements, or other forms of compensation
of any kind that are not otherwise set forth within this Agreement other than vested benefits, indemnification, advancement, and insurance
coverage.
Stock Options
You and the Company agree
and hereby acknowledge that over the course of your employment pursuant to 3 separate stock option agreements dated May 8, 2020 and July
31, 2021 (the “Stock Options Agreements”), the Company has granted you the option to purchase an aggregate of 2,250,000 shares
of the Company’s Common Stock (the “Options”), subject to the terms and conditions of your Stock Options Agreements
governing the Options and the Ideanomics, Inc. Amended and Restated 2010 Equity Incentive Plan (the “Plan”). The vesting schedules
and exercise prices of Your Options are defined in your Stock Options Agreements and summarized as follows:
| 1. | 1,500,000 of the Options are fully vested and exercisable at $0.53 per share. |
| 2. | 437,500 of the Options are fully vested and exercisable at $2.37 per share. |
| 3. | 312,500 of the Options are not yet vested and will vest at a rate of 1/18th per month over
the next 18 months and are exercisable (once vested) at $2.37 per share. |
Subject to all of the provisions of your
Stock Options Agreements, to the extent vested, the Options will be exercisable for twelve (12) months after you cease employment on
September 16, 2022. To the extent not yet vested, the Options will be exercisable for twelve (12) months after they vest.
Further, you and the Company agree and hereby
acknowledge that you own 290,062 of the original amount of 625,000 Restricted Shares granted to you by the Company on July 23, 2021, subject
to all of the provisions of your Restricted Shares Grant Agreement and the Plan.
To the extent not prohibited by Section 402 of
the Sarbanes-Oxley Act of 2002, you will be permitted to pay the exercise price and any tax withholding required in connection with the
exercise of your stock options in accordance with any broker-assisted cashless exercise procedures (including without limitation “Sell
to Cover” or “Same Day Sale/Cash” Exercise) approved by the Company. You agree to be responsible for the tax consequences
that may apply to you as the result of such permission and any such exercise.
General Release of Claims
In consideration of the
payments and benefits to you provided herein, you agree to and hereby release and discharge the Company, its parents, subsidiaries,
affiliated companies and entities and their successors or assigns, divisions, directors, officers, managers, shareholders, founders,
partners, limited partners, members, agents, consultants, contractors, payroll companies, insurers, licensees, attorneys,
representatives and employees, past and present (collectively “Releasees”) from any and all claims, causes of action,
arbitrations and demands, whether known or unknown, which you have or ever have had, which are based on acts or omissions occurring
up to and including the date this Agreement is fully executed, except as to: (i) the enforcement of this Agreement; (ii) vested
benefits; (iii) any rights to indemnification and/or advancement (including without limitation pursuant to law as well as the Articles of Incorporation of Alpha Nutraceuticals, Inc.) and, for the avoidance of doubt, the
Company will: (1) continue to indemnify you and advance your expenses with respect to the investigation of the Company by the U.S.
Securities and Exchange Commission for which you are being represented by Wilmer Cutler Pickering Hale and Dorr LLP; and (2) provide
you indemnification and advancement on terms no less favorable than similarly situated executives); (iv) rights as an equity holder
of the Company; (v) any right to insurance coverage; and (vi) any rights which cannot be waived as a matter of law. In this release,
you further release the Company and its parents, subsidiaries and affiliated entities from any and all compensation owed to you,
including vacation pay and any attorneys’ fees, damages and costs you could recover under any statute or common law theory,
except as otherwise provided herein. Included within this release, without limiting its scope, are claims arising out of your
employment or the termination of your employment based on Title VII of the Civil Rights Acts of 1964, the Americans with
Disabilities Act of 1990, the Age Discrimination in Employment Act (“ADEA”), the Older Workers Benefit Protection Act,
the Worker Adjustment and Retraining Notification (“WARN”) Act (and any state or local WARN laws, as applicable), the
Fair Labor Standards Act of 1938, the Equal Pay Act of 1963, the Family and Medical Leave Act, the Employee Retirement Income
Security Act of 1974, the Civil Rights Act of 1991, the Genetic Information Nondiscrimination Act of 2008, the Lilly Ledbetter Fair
Pay Act of 2009, the Sarbanes-Oxley Act of 2002, the Dodd–Frank Wall Street Reform and Consumer Protection Act, as all such
laws have been amended from time to time, or any other federal, state, or local human rights, civil rights, disability,
discrimination, retaliation, wage and hour, sick leave, fair employment practices or labor laws, or any theory of contract,
criminal, arbitral or tort law (collectively “Claims”). By signing this Agreement, you acknowledge and represent that
you have suffered no injuries or occupational diseases relating to or arising out of your employment with the Company and that you
have received all wages and leave to which you were entitled as an employee of the Company. Further, by signing this Agreement, you
also expressly acknowledge and represent that you have been correctly paid for all time worked and that you are not currently aware
of any facts or circumstances constituting a violation of the Fair Labor Standards Act, the Equal Pay Act, or any other applicable
state or local wage and hour laws. You specifically acknowledge that you release and waive any right to attorneys’ fees, costs
and expenses associated with any of the released Claims except as otherwise provided herein.
In consideration of the release
and benefits to the Releasees provided herein, the Releasees agree to and hereby release and discharge you, your heirs, executors, administrators,
agents, assigns, successors, and representatives from any and all known claims, causes of action, arbitrations and demands which the Releasees
have or ever have had, which are based on acts or omissions occurring up to and including the date this Agreement is fully executed, except
as to: (i) the enforcement of this Agreement; and (ii) any rights which cannot be waived as a matter of law. The Releasees specifically
acknowledge that they release and waive any right to attorneys’ fees, costs and expenses associated with any of the released known
claims except as otherwise provided herein.
Confidential Information
You acknowledge that, as a
result of your employment, you have been provided access to Confidential and/or Proprietary Information related to the Company and the
Company’s customers, merchants, vendors, licensees and suppliers. For purposes of this Agreement, “Confidential and/or Proprietary
Information” includes, without limitation, the following types of non-public information: (i) the identities, contact information,
purchasing patterns, specifications, and preferences of the Company’s customers, merchants, vendors, licensees and suppliers; (ii)
actual and proposed contracts or contractual terms between the Company and the Company’s customers, merchants, vendors, licensees
and suppliers; (iii) negotiation histories and pricing policies; (iv) methods of operation; (v) computer programs; (vi) financial information
such as sales, profit, and cost data; (vii) licensing information; (viii) sourcing, merchandising, and manufacturing information; (ix)
marketing strategies and sales promotion activities; (x) information processing standards and practices; (xi) personnel information such
as employees’ compensation, benefits, skills, qualifications, and abilities, as well as the Company’s staffing plans, strategies,
and training programs; (xii) any other information qualifying as a trade secret under applicable state trade secret law; and (xiii) any
other information which you have been told is confidential by either the Company or the Company’s customers, merchants, vendors,
licensees or suppliers.
You promise you will
not, directly or indirectly, at any time after your separation from employment with the Company, except as required by law: (i) use
any Confidential and/or Proprietary Information for any purpose; (ii) disclose any Confidential and/or Proprietary Information to
any person or entity other than the Company; or (iii) retain possession of any Confidential and/or Proprietary Information. By
signing this Agreement, you warrant that you have not disclosed any Confidential and/or Proprietary Information to any person or
entity not affiliated with the Company at the time of such disclosure. You further warrant that, as of the date of your signature
hereon, you have returned to the Company (or, in the case of electronic information, destroyed) any and all documents, files, notes,
memoranda, databases, computer files, computer programs, and Confidential and/or Proprietary Information related in any way to the
Company, or alternatively, you agree that you will return and/or destroy such information and materials before you accept any
benefit pursuant to this Agreement.
Notwithstanding your confidentiality
obligations set forth above, you shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure
of a Confidential and/or Proprietary Information that is made: (i) in confidence to a federal, state, or local government official, either
directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii)
in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
Non-Disparagement
You further agree you will
not make any statements or comments of a defamatory or disparaging nature to third parties regarding the Company or its officers, directors,
personnel or products, or those of its affiliates except as necessary to enforce this Agreement. This prohibition against defamatory or
disparaging remarks includes, without limitation, statements to any individual or entity which would be reasonably likely to affect adversely
the Company’s business. Notwithstanding the foregoing, nothing herein is intended to prevent you from testifying in good faith under
oath pursuant to a subpoena or as otherwise required by law.
The Company’s
Chief Executive Officer and direct reports will not make any statements or comments of a defamatory or disparaging nature to third
parties regarding you except as necessary to enforce this Agreement. This prohibition against defamatory or disparaging remarks
includes, without limitation, statements to any individual or entity which would be reasonably likely to affect you adversely.
Notwithstanding the foregoing, nothing herein is intended to prevent the aforementioned individuals from testifying in good faith
under oath pursuant to a subpoena or as otherwise required by law.
Non-Competition and Non-Solicitation Covenants
You acknowledge the validity
of your non-competition and non-solicitation promises set forth in Sections 7 and 8 the Employment Agreement (the “Non-Competition
Promise” and Non-Solicitation Promises”). In exchange for your benefits pursuant to this Agreement, you promise to comply
with the Non-Competition and Non-Solicitation Promises and you waive any claim or rights to challenge the enforceability of such promises.
You acknowledge and agree that your compliance with the Non-Competition and Non-Solicitation Promises is a material inducement for the
Company’s execution of this Agreement, without which the Company would not agree to provide you the benefits described herein. For
the avoidance of doubt, the Non-Competition and Non-Solicitation Promises are effective through September 15th, 2023. Accordingly, in
the event the Company has reasonable grounds to conclude that you have breached any of the Non-Competition and Non-Solicitation Promises,
you agree that: (i) the Company may cease paying any of the monetary benefits owed to you pursuant to this Agreement; (ii) you shall be
obligated to return to the Company ninety percent (90%) of the gross amount of any payments that you have received pursuant to this Agreement;
and (iii) all other terms of this Agreement, including your release of claims, shall remain in full force and effect.
Non-Admission of Liability
You acknowledge that nothing
in this Agreement shall be viewed or construed as an admission of fault, liability, or wrongdoing of any kind on behalf of the Company.
Voluntariness of Agreement
By signing this Agreement,
you understand, warrant, and acknowledge: (i) you are not suffering from any disability or impairment which could render you unable to
read, consider, or understand this Agreement; (ii) you have carefully read and fully understand all of the terms of this Agreement; (iii)
you are freely and voluntarily entering into this Agreement under which you shall release the Company as described above in exchange for
the benefits to you described above; (iv) you are not relying and have not relied upon any representations or statements from any of the
Company’s agents or attorneys with regard to the subject matter of this Agreement; and (v) the Company advised you that you may
consult with an attorney of your choice and at your expense regarding the terms of this Agreement before you sign below.
Review and Revocation Periods
As
described above, your general release of claims includes a waiver of all rights and claims you may have under the Age Discrimination in
Employment Act of 1967, as amended (29 U.S.C. §§ 621 et seq.) (“ADEA”). You acknowledge that you have at
least twenty-one (21) days to review and consider whether to sign this Agreement and that such period of time is reasonable. You may decide
to unilaterally waive this twenty-one (21) day review period by signing below beforehand. On September 19, 2022, the Company may revoke
the offer in this Agreement unless you have delivered a signed version of this Agreement to the Company beforehand (notwithstanding anything
to the contrary in the Employment Agreement).
You may revoke your release
of claims under the ADEA at any time within seven (7) days of your execution of this Agreement. Your release of claims under the ADEA
shall not become effective or enforceable until this seven (7) day revocation period has expired without you having exercised your right
to revoke your release of claims under the ADEA. Any revocation you make must be submitted via a signed letter delivered to the Company
at the following address no later than the seventh (7th) day following your execution of this Agreement: Ideanomics, Inc., Attn: Alfred
Poor, CEO: 1441 Broadway, Suite #5116, New York, NY 10018. Accordingly, the “Effective Date” of this Agreement shall be
the eighth (8th) day following your execution of this Agreement. If you do not exercise your right to revoke your release of claims under
the ADEA during the revocation period, this entire Agreement will take effect as of the Effective Date. On the other hand, if you duly
revoke your claims under the ADEA during this revocation period, this entire Agreement will take effect as of the date of your revocation,
except for your release of claims under the ADEA, and in such case you shall waive your rights to the benefits described above and, instead,
shall only be entitled to payment of $500.00, less all applicable deductions and withholdings.
Entire Agreement
You acknowledge that this
Agreement, the Stock Option Agreements, the Restricted Shares Grant Agreement, the Plan, and the Employment Agreement, which are incorporated
herein by reference and, in some cases as provided herein, modified, contain the entire agreement and understanding between you and the
Company regarding the subject matter herein and that they supersede all prior negotiations and all agreements, proposed or otherwise,
whether written or oral, concerning the subject matter described herein. This is an integrated document. No prior drafts or versions of
this Agreement may be used for purposes of interpreting this Agreement. This Agreement shall not be deemed to have been prepared or drafted
by one party or the other, and you further agree that no ambiguities herein shall be construed against a party hereto solely because it
drafted this Agreement. With respect to your obligations concerning confidential information, the Non-Competition and Non-Solicitation
Promises, and non-disparagement, to the extent there is a conflict between an obligation within this Agreement and the Employment Agreement,
the broader obligation shall control.
Severability
You acknowledge that the
scope of the post-employment restrictions set forth herein are as narrowly tailored as possible to protect the Company’s
legitimate interests, including its interests pertaining to the Company’s Confidential and/or Proprietary Information,
customer goodwill, and investment in its workforce. You and the Company agree that this Agreement is intended to be enforced to the
fullest extent possible under applicable laws and public policies. Accordingly, if any term of this Agreement is declared illegal or
unenforceable by any court of competent jurisdiction, such provision or portion shall be deemed modified so as to render it
enforceable. To the extent such provision or portion of this Agreement cannot be rendered enforceable, the invalid provision or
portion will be considered not to be part of the Agreement, and the remainder shall continue in force and effect.
Choice of Law
This Agreement shall be governed
by the laws of the State of New York without regard to such State’s choice of law principles.
Dispute Resolution
Pursuant to Section 14 of
your Employment Agreement, should any dispute arise between you and the Company or any Company affiliate regarding your separation from
the Company, you and the Company or the Company affiliate will confer in good faith to promptly resolve such dispute. In the event that
you and the Company or the Company affiliate are unable to resolve the dispute, and should either party to the dispute desire to pursue
a claim against the other party, both you and the Company or the Company affiliate agree to have the dispute resolved by final and binding
Arbitration held in New York County, New York. The Arbitration shall be conducted by JAMS or the American Arbitration Association and
provided by an impartial third-party Arbitration provider in accordance with the employment dispute rules then in effect. All previously
unasserted claims arising under federal, state, or local statutory or common law and all disputes relating to the validity of this contract,
as well as this Arbitration provision, shall be decided by binding and final arbitration. Any award of the Arbitrator(s) is final and
binding, and may be entered as a judgment in any court of competent jurisdiction. The prevailing party shall be entitled to reimbursement
of his/its related costs, including reasonable attorneys’ fees, from the non-prevailing party. Notwithstanding the foregoing, nothing
in this letter shall prohibit either party from applying to a court of competent jurisdiction (instead of an arbitrator) for injunctive
relief to enjoin an actual or threatened breach of each other’s obligations set forth in this letter.
Miscellaneous
This Agreement may be executed
in electronic counterparts, and a signed copy of this Agreement may be treated as a signed original for purposes of enforcement.
If you agree to the terms
of this Agreement, please sign (via e-signature or regular signature) and return to me. If you sign via e-signature, your signature will
be automatically delivered. If you sign on the hard copy of the Agreement, send a signed copy of the Agreement to Alfred Poor, CEO: alf.poor@ideanomics.com
on or before twenty-one (21) days from the date you were presented with this Agreement. If you would like to make other arrangements
for providing the signed Agreement, please contact Mr. Poor at the email address above.
Thank you for your contributions to the Company.
Sincerely,
Alfred P. Poor
CEO
Ideanomics, Inc.
| By: | /s/ Alfred P. Poor |
|
/s/ Conor McCarthy |
| | |
|
|
| | Alfred P. Poor |
|
Conor McCarthy |
| | |
|
|
| | CEO |
|
|
| | |
|
|
| Date: | 19-Sep-2022 | 3:01 PM PDT |
|
Date: |
9/19/2022 |
Exhibit 10.2
September 16th,
2022
VIA EMAIL
Name: Stephen Johnston
Email: stjohnston.cpa@gmail.com
Offer
of Employment
Dear Stephen:
Ideanomics,
Inc. (NASDAQ: IDEX) (the “Company”) is pleased to make this offer of full-time employment to you as Chief Financial
Officer. If you accept the offer contained in this agreement (this “Agreement”), your employment will be effective
according to the date shown in Section 3 of this Agreement and subject to the terms and conditions set forth below.
1. Job
Duties; Location.
(a) Job
Duties. As a Chief Financial Officer your primary job duties will include but are not limited to: (a) working with the
CEO and Board on planning, implementation, managing and running of all the finance activities of a company;
and (b) such other duties as may be assigned to you from time to time by the Company. During your employment, you promise to devote
your full business time and efforts to the performance of your job duties. You shall report directly to Alf Poor, Chief Executive
Officer, whose contact email address is apoor@ideanomics.com, or any other person the Company may designate from time to time. In
light of your anticipated job duties, compensation, exercise of discretion, and advanced knowledge required of your position, you
will be exempt from federal and state overtime wage requirements.
(b)
Location. You will be working remotely from Michigan State. Once the travel restrictions are lifted you may be required to travel
to other locations in connection with the performance of your job duties. You shall be required to notify the Company within five (5)
days of your permanent relocation to a state other than as set forth in this Agreement or as otherwise previously disclosed to the Company.
Additionally, in the event of such relocation, you hereby consent to and the Company shall be permitted to, in its discretion, modify
and amend this Agreement in order to comply with applicable state and local laws.
2. Compensation.
(a)
Base Salary. The Company shall pay you a base salary at a rate of five hundred and twenty-five thousand
dollars ($525,000) per year, less all required withholdings and deductions, payable in accordance with the Company’s regular payroll
policies (the “Base Salary”). The Base Salary shall be subject to review and adjustment from time to time depending
upon your job performance and the Company’s overall performance.
(b) Annual
Bonus. You may be eligible to receive an annual discretionary performance-related cash incentive bonus (the “Annual
Bonus”) of up to seventy-five percent (75%) of your Base Salary. Eligibility for and the payment of the Annual Bonus is
completely within the Company’s sole and absolute discretion and may generally be based on a variety of factors and
circumstances, including overall Company performance and general individual performance. You must be employed on the date of payment
in order to earn and be paid any Annual Bonus. The Company anticipates that any Annual Bonus, if issued, will generally be paid
within sixty (60) days from the end of the applicable bonus year, and in no event later than March 15 of the year following the
bonus year. However, this is a mere guideline and not a promise. Annual Bonuses paid in prior years, if any, should not be used to
determine whether future Annual Bonuses will be paid or the amounts thereof. All Annual Bonuses paid pursuant to this Section shall
be less all required withholdings and deductions.
(c)
Equity Compensation. After three (3) months of initial employment and subject to the discretion and
approval of the Board of Directors (the “Board”), you will be eligible to participate in the equity incentive program
of the Company and earn an initial option (the “Option”) to purchase up to 1,000,000 shares of Company common stock.
The exercise price per share of the Option shall be the closing price of IDEX stock as of the date of the Board’s approval of the
Option. The options vest over 48 months. Notwithstanding anything to the contrary, you shall not have any vesting rights after notice
of your resignation or termination of employment. The Option shall be governed by and subject to the terms and conditions of the Company’s
equity plan (the “Plan”) and the stock option agreement to be provided by the Company.
3.
At-Will Employment. This offer
of employment is at-will and your employment will commence no later than September 16th, 2022 (the “Start Date”),
subject to proof of your eligibility to work in the United States of America. Because employment under this Agreement is at-will, either
you or the Company may terminate the employment relationship at any time, for any or no reason, with or without notice. If you decide
to resign from employment, the Company asks that you provide the courtesy of at least two (2) weeks’ notice of your resignation.
4.
Benefits.
(a)
Benefits. You shall be eligible for such employee benefits that the Company provides to its employees,
subject to any waiting time periods or other terms and conditions set forth in the policy or plan document governing each benefit. The
Company reserves the right to amend its employee benefit plans from time to time.
(b) Vacation.
You shall accrue up to 15 days of paid time off per year on a pro rata basis over the course of the calendar year. Per Company
policy, advance authorization is required for all employees’ use of paid vacation time. Accordingly, you must notify your
manager in advance of your intent to use paid vacation time and receive his or her approval. Generally, the Company will not approve
any employee request for more than two (2) consecutive weeks of paid vacation.
5. Confidential
Information
(a)
Non-Disclosure. You acknowledge that the information, observations
and data that have been or may be obtained by you during your employment or other relationship with the Company, any subsidiary or affiliate
thereof, or any direct or indirect successor to or predecessor of any of them or any of their businesses (collectively with the Company,
the “Related Companies”), prior to or after the execution and delivery of this Agreement, of or concerning the Related
Companies or their businesses or affairs (collectively, “Confidential Information”), are and will be the property
of the Related Companies; provided, that the term “Confidential Information” shall not include any information (including
techniques, know-how or strategies) that you can demonstrate (i) is or becomes publicly available otherwise than through a breach of
this Agreement, or (ii) is or becomes known or available to you on a non-confidential basis and not in contravention of applicable law
from a source that is entitled to disclose such information to you. Therefore, you agree that you will not, during your employment or
engagement with the Company or thereafter, disclose to any unauthorized party or use for the account of you or any other party (other
than the Company and its affiliates, their officers, directors and employees, in the course of performing your duties thereof) any Confidential
Information without the prior written consent of the Company, unless and to the extent that such disclosure is required by law. You will
deliver or cause to be delivered to the Company upon the date of your termination of employment or at any other time the Company or its
affiliates may request, all memoranda, notes, plans, records, reports, computer tapes and software and other documents and materials
(and copies thereof) containing or relating to Confidential Information or the business of any Related Company that you may then possess
or have under your control. For purposes of this Agreement, Confidential Information includes, but is not limited to, formulas, patterns,
compilations, programs, devices, methods, techniques, or processes, business plans and strategies, customer lists, customer data, information
regarding employees and other service providers, marketing plans, supplier and vendor lists and cost information, software and computer
programs, data processing systems and information contained therein, price lists and pricing strategies, financial data, and any other
trade secrets or confidential or proprietary information, documents, reports, plans, or data, of or about the Related Companies. You
acknowledge and agree that this Agreement is intended to protect the trade secrets of the Related Companies, and that such trade secrets
(x) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from its disclosure or use; and (y) are the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
(b)
Exceptions. Notwithstanding the foregoing, (i) you will not be in breach of this Agreement if you
are compelled by law or legal process to disclose Confidential Information, provided that in each such event, you will provide to the
Company prompt written notice prior to any such disclosure (unless such disclosure is itself prohibited by applicable law, regulation,
rule, or process, if pursuant to the valid order of a court of competent jurisdiction or an authorized government agency) so that the
Company may, at its sole expense, obtain a protective order or other confidential treatment for the Confidential Information, and in
the event that such a remedy is not obtained by the Company, you will furnish only that portion of Confidential Information which you
are advised by legal counsel is legally required to be furnished; and (ii) this Agreement does not prohibit you from providing truthful
information to a government agency.
(c) Defend
Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, the Company hereby provides notice and you hereby
acknowledge that you may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of
a trade secret that (i) is made (A) in confidence to a federal, state, or local government official, either directly or
indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is
made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if you
file a lawsuit or other court proceeding against the Company for retaliating against you for reporting a suspected violation of law,
you may disclose the trade secret to the attorney representing you and use the trade secret in the court proceeding, so long as you
file any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
6. Non-Disparagement.
You agree not to disparage the Company, its officers and owners, or its clients and business partners in any way during or after
your employment with the Company. This non-disparagement obligation prohibits you from making any statement that would or is
reasonably likely to defame, criticize, malign, or in any way be materially and financially harmful to the business reputation of
the foregoing entities or individuals. Notwithstanding the foregoing, nothing herein shall prohibit you from testifying or
responding in good faith to any subpoena or other legal process, provided that you provide reasonable advance notice to the Company
of your receipt of such subpoena or other legal process.
7. Inventions
(a)
Inventions Licensed and Retained. You have attached hereto, as Exhibit B, a list describing
all inventions, original works of authorship, developments, improvements, and trade secrets which were made by you prior to your employment
with the Company (collectively referred to as “Prior Inventions”), which belong to you, which relate to the Company’s
proposed business, products or research and development, and which are not assigned to the Company hereunder; or, if no such list is
attached, you represent that there are no such Prior Inventions. If, in the course of your employment with the Company, you incorporate
into a Company product, process or service a Prior Invention owned by you or in which you have an interest, you hereby grant to the Company
a nonexclusive, royalty-free, fully-paid up, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such
Prior Invention as part of or in connection with such product, process or service, and to practice any method related thereto. Notwithstanding
the foregoing, you agree that you will not incorporate, or permit to be incorporated, Prior Inventions or inventions of third parties
in any Inventions without the Company’s prior written consent.
(b) Assignment
of Inventions. You hereby assign to the Company your entire right, title and interest in and to all discoveries and
improvements, patentable or otherwise, trade secrets and ideas, writings and copy right able material, which may be conceived by you
or developed or acquired by you during your employment by the Company, which may pertain directly or indirectly to the business of
any Related Company. You agree to disclose fully all such developments to the Company upon its request, which disclosure shall be
made in writing promptly following any such request. You shall, upon the Company’s request, execute, acknowledge and deliver
to the Company all instruments and do all other acts which are necessary or desirable to enable the Company or any of its affiliates
to file and prosecute applications for, and to acquire, maintain and enforce, all patents, trademarks and copyrights in all
countries. You irrevocably appoint the Company as your attorney-in-fact in your name and on your behalf to execute all documents and
do all things required in order to give full effect to the provisions of this Section. All developments and inventions described
hereunder shall be deemed works made for hire under applicable law.
(c) Inventions
Assigned to the United States. You agree to assign to the United States government all right, title, and interest in and to any
and all discoveries and improvements, patentable or otherwise, trade secrets and ideas, writings and copy right able material, which
may be conceived by you or developed or acquired by you during your employment by the Company whenever such full title is required
to be in the United States by a contract between the Company and the United States or any of its agencies.
(d)
Exclusion. The obligation to assign as provided in this Agreement does not apply to an invention
or innovation that you developed entirely on your own time without using Company’s equipment, supplies, facilities, or trade secret
information (including, without limitation, any works of creative authorship (e.g., songs, works of fiction, etc.) belonging to you)
except for those inventions that either: (i) relate to either (A) the business of Company or any of its affiliates at the time of conception
or reduction to practice of the invention, or (B) actual or demonstrably anticipated research or development of Company or any of its
affiliates; or (ii) result from any work performed by you for Company or any of its affiliates.
8.
Restrictive Covenants.
(a) Non-Compete. During
your employment with the Company and for a period of twelve (12) months following the effective date of your termination of
employment (the “Termination Date”), you shall not, and shall not permit any of your
Affiliates to, directly or indirectly, for, with, or through any other Person own, manage, operate, control, participate in the
ownership, management, operation or control of, loan money to, have a financial interest in, or serve as a director, officer,
employee, partner, manager, consultant, advisor, agent, or independent contractor of any Person that engages in or proposes to
engage in, any business that is the same as or substantially similar to, or that materially competes with, the Business anywhere in
the Restricted Territory (other than in connection with the performance of your duties as an employee of the Company or its
successors); provided that this clause shall in no event restrict or prohibit you or your Affiliates from owning, directly or
indirectly, up to three percent (3%) of the outstanding securities of any issuer that is traded on a national securities exchange or
quoted on an automated system of quotation so long as you or such Affiliate, as applicable,is not actively engaged in the business
of such issuer.
(a)
Non-Solicitation of Business Relations. During your employment with the Company and for a period
of twelve (12) months following the Termination Date (the “Non-Solicit Period”), you shall not, and shall not permit
any of your Affiliates to, directly or indirectly, for, with, or through any other Person solicit, entice, or induce, or attempt to solicit,
entice, or induce, any Company Business Relation for the purpose of diverting their business from, or otherwise adversely impacting their
current or potential business relationship with, the Company, its Affiliates, or their respective successors, and the Business. For purposes
of this Agreement, “Company Business Relation” means any Person who is or was a current or prospective client, customer,
vendor, investor, or other business relations of the Company or its Affiliates, or any of their respective predecessors or successors,
at the time of, or during the twenty-four (24) month period prior to, the Termination Date.
(b)
Non-Solicitation of Service Providers. During the Non-Solicit Period, you shall not, and shall not
permit any of your Affiliates to, directly or indirectly, for, with, or through any other Person solicit, entice or induce any Company
Service Provider to terminate, or otherwise adversely interfere with, your employment or engagement with the Company, its Affiliates,
or their respective successors. For purposes of this Agreement, “Company Service Provider” means any Person who is
or was an employee, independent contractor, or service provider of the Company, its Affiliates, or their respective predecessors or successors,
at the time of, or during the twelve (12) month period prior to, the Termination Date.
9. Definitions.
For purposes of this Agreement, the following terms shall mean the following:
(a) “Affiliate”
of any Person means any other Person controlling, controlled by, or under common control with such Person, where "control"
(including the terms "controlled by" and "under common control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of a Person whether through the ownership of voting securities,by
contract, in its capacity as a sole or managing member, or otherwise.
(b) “Business”
means: (i) the business of the sale and distribution of commercial Electronic Vehicles (EV); (b) the sale and distribution of
block chain-based global financial technology and financial asset digitization services and (iii) any other business in which the
Company is engaged or contemplates engaging in at the time of, or during the twelve (12) month period prior to, the Termination
Date.
(c) “Cause”
for purposes of this Agreement, “Cause” means, the good faith determination by the Company of any of the
following: (i) your engaging in any acts of fraud, theft, or embezzlement involving the Company or its Affiliates; (ii) your willful
or gross neglect of, or repeated refusal or failure to perform the material duties or responsibilities of your position, in each
case, after delivery of written notice by the Company and your failure to cure such acts within 10 business days; (iii) your
engaging in any willful material act of dishonesty in connection with your responsibilities to the Company and/or any of its
Affiliates; (iv) your indictment, including any plea of guilty or nolo contendere, of any felony or crime of moral turpitude which
the Board reasonably determines is relevant to your position with the Company or is materially and demonstrably damaging to the
reputation or business of the Company or its Affiliates;(v) any conduct or omission which could reasonably be expected to, or which
does, cause the Company or any of its Affiliates material and demonstrable public disgrace, disrepute or economic harm; (vi) your
material violation of any written policies or procedures of the Company; and/or (vii) your breach of any of the material terms of
this Agreement or any other written agreement with the Company or its Affiliates
(d) “Person”
means any natural person, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability
company, other entity, or governmental entity.
(e) “Restricted
Territory” means: the state of Michigan.
10.
Reasonableness of Covenants. In signing this Agreement, you give
the Company assurance that you have carefully read and considered all of the terms and conditions of this Agreement, including the restraints
imposed under Sections 5, 6, 7, and 8. You agree that these restraints are necessary for the reasonable and proper protection of the
Company and the Related Companies and the Confidential Information and that each and every one of the restraints is reasonable in respect
to subject matter, length of time and geographic area, and that these restraints, individually or in the aggregate, will not prevent
you from obtaining other suitable employment during the period in which you are bound by the restraints. You acknowledge that each of
these covenants has a unique, very substantial and immeasurable value to the Related Companies and that you have sufficient assets and
skills to provide a livelihood while such covenants remain in force. You further covenant that you will not challenge the reasonableness
or enforceability of any of the covenants set forth in Sections 5, 6, 7, and 8. It is also agreed that each of the Related Companies
(other than the Company) is an express third-party beneficiary of, and will have the right to enforce, all of your obligations to that
Related Company under this Agreement, including pursuant to Sections 5, 6, 7, and 8. In the event of any violation of the provisions
of Sections 5, 6, 7, and 8, you acknowledge and agree that the post-termination restrictions contained in Sections 5, 6, 7, and 8 shall
be extended by a period of time equal to the period of such violation, it being the intention of the parties that the running of the
applicable post-termination restriction period shall be tolled during any period of such violation. The obligations contained in Sections
5, 6, 7, and 8 hereof shall survive the termination or expiration of your employment with the Company and shall be fully enforceable
thereafter.
11.
Business Related Expense Reimbursements. You
may occasionally incur business related expenses in the course of your job duties. The Company will reimburse you for an appropriate
business-related expense. You will be expected to provide proof of payment and details concerning the expense in a timely manner.
12.
No Conflicts. By signing below, you represent to the Company that you are not presently subject
to any obligation that would otherwise prohibit you from performing the above-referenced job duties for the Company, such as a non-competition
promise or other restrictive covenant. You further represent to the Company that you are not in possession of any confidential or proprietary
information belonging to any entity or person that directly or indirectly competes with the Company.
13.
Dispute Resolution. As a condition
of employment, you agree to execute and be bound by the terms of the Arbitration Agreement attached hereto as Exhibit A, the full
terms of which are incorporated as if fully set forth herein.
14.
Severability. You acknowledge and agree that in the event any court or arbitrator of
competent jurisdiction determines that one or more of the provisions of this letter is unenforceable, such court or
arbitrator shall be entitled to equitably reform such unenforceable provision so that the provision is given its maximum affect
permitted under applicable law. Each provision of this letter is severable from other provisions hereof, and if one or more
provisions are declared invalid, the remaining provisions shall nevertheless remain in full force and effect.
15.
Prior Agreements. You acknowledge and agree that this document replaces
and supersedes any previous offer of employment to you by the Company (whether oral or in writing). By signing below, you are not relying
upon any representation or promise that is not explicitly set forth within this letter, and that this Agreement shall not be subject
to modification except in writing signed by the Company’s President or CEO.
16.
Governing Law. You agree that
this letter and your employment with the Company shall be governed by the laws of the State of Michigan,
irrespective of conflicts of law.
17. Miscellaneous.
You acknowledge that this letter is the product of arms-length negotiations between you and the Company and, therefore, neither you
nor the Company will be considered the drafter of this letter. This letter may be executed in one or more counterparts, each of
which shall constitute an original. Original signatures shall not be required. If these terms are agree able to you, please sign and
date this letter and return it to me as soon as possible. Please feel free to contact me with any questions.
Kevin Fleming
Head of HR
I understand that this offer
of employment is contingent upon proof of my employment eligibility in the United States.
Accepted and Agreed:
| /s/ Stephan Johnston | | 16-Sep-2022
| 12:34 PM EDT |
| Name | | Date |
Exhibit
A
ARBITRATION
AGREEMENT
Please
Read Carefully – By Signing This Document You Give Up Certain Legal Rights
I
(the “Company”) and the undersigned employee (“Employee”) have entered into this Arbitration Agreement
(“Agreement”) in order to establish and gain the benefits of a timely, impartial, and cost-effective dispute resolution
procedure. Employee understands that any reference in this Agreement to the Company will also be a reference to any and all benefit plans,
the benefit plans’ sponsors, fiduciaries, administrators, affiliates, and all successors and assigns of any of them.
| 1. | Claims
Covered by the Agreement: The Company and Employee mutually consent to the resolution by final and
binding arbitration of all claims or controversies (“claims”) arising out of Employee’s
employment (or termination) that the Company may have against Employee or that Employee may have against
the Company or its officers, directors, employees, or agents. Final and binding arbitration shall provide
the sole and exclusive remedy and forum for all such claims. The claims covered by this Agreement include,
but are not limited to: (i) claims for discrimination or harassment on the basis of ancestry, age, color,
marital status, medical condition, physical or mental disability, national origin, race, religion, sex,
pregnancy, sexual orientation, or any other characteristic protected by applicable law; (ii) claims for
retaliation; (iii) claims for breach of any contract or covenant (express or implied); (iv) claims for
wages or other compensation due; (v) claims for benefits (except where an employee benefit or pension
plan specifies that its claim procedure shall culminate in a resolution procedure different from this
one); (vi) claims for violation of any federal, state, or other governmental law, statute, regulation
or ordinance now in existence, or hereinafter enacted, and amended from time to time; and (vii) any tort
claims (including, but not limited to, negligent or intentional injury, defamation, and termination of
employment in violation of public policy). |
| 2. | Waiver
of Right to Trial: The Company and Employee agree to give up their respective rights to have the above-mentioned
claims decided in a court of law before a judge or jury or by administrative proceeding, and instead are
accepting and agreeing to the use of final and binding arbitration. |
| 3. | No
Participation in Class Action: All claims, disputes, or causes of action under this Agreement, whether
by the Company or Employee, must be brought in an individual capacity, and shall not be brought as a plaintiff
(or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated
with any claims of any other person or entity. |
| 4. | Claims Not Covered by
the Agreement: This Agreement does not cover: (i) claims by Employee for workers’ compensation
or unemployment insurance (an exclusive government-created remedy exists for these claims); and (ii) claims
which even in the absence of the Agreement could not have been litigated in court or before any administrative
proceeding under applicable federal, state or local law. Nothing in this Agreement precludes either party
from filing a charge or complaint with any state or federal administrative agency that prosecutes a claim
on behalf of the government, for purposes of assisting or cooperating with such agency in its investigation
or prosecution of charges or complaints. However, the parties waive their right to any remedy or relief
as a result of such charges or complaints brought by such prosecuting agencies, to the extent that is
permissible under law. |
| 5. | Notice
of Claims and Statute of Limitations: All disputes between Employee and the Company (and its affiliates,
shareholders, directors, officers, employees, agents, successors, attorneys, and assigns) relating to
Employee’s services with the Company, the termination of Employee’s employment with the Company,
or this Agreement, will be resolved by final and binding arbitration to the fullest extent permitted by
law. Except as otherwise provided in this Agreement, the arbitration provisions are to apply to the resolution
of disputes that otherwise would be resolved in a court of law. All disputes must be brought within the
applicable statute of limitations established by law and all claims must be sent via registered or certified
mail, and shall identify and describe the nature of all claims asserted and the facts upon which such
claims are based. Claims set forth in any applicable notice or complaint initiating arbitration or that
is later asserted during the arbitration process. Failure to comply with the requirements of this Section
5 may constitute a waiver of all rights that the party seeking arbitration may have against the other
party. |
| 6. | Arbitration Procedures:
The arbitration will be conducted in accordance with the then-existing JAMS Employment Arbitration
Rules & Procedures, as amended, (“JAMS Employment Rules”) and as augmented in this
Agreement. Arbitration will be initiated as provided by the JAMS Employment Rules. JAMS Employment Rules
can be found at jamsadr.com/rules, or by calling JAMS at 949-224-1810. Either party may bring an
action in court to compel arbitration under this Agreement and to enforce an arbitration award. Otherwise,
neither party will initiate or prosecute any lawsuit or administrative action in any way related to any
applicable dispute or claim, except as set forth in this Agreement. All disputes or claims subject to
arbitration will be decided by a single arbitrator. The arbitrator will be selected by mutual agreement
of the parties within 30 days of the effective date of the notice initiating the arbitration. If the parties
cannot agree on an arbitrator, then the complaining party will notify JAMS and request selection of an
arbitrator in accordance with the JAMS Employment Rules or other applicable JAMS rules. The arbitrator
will only have authority to award equitable relief, damages, costs, and fees as a court would have for
the particular claims asserted, and any action of the arbitrator in contravention of this limitation may
be the subject of court appeal by the aggrieved party. All other aspects of the arbitrator’s ruling
will be final. |
| 7. | Arbitration Decision:
Within thirty (30) days of the close of the arbitration hearing, or at such other time as determined
by the arbitrator, any party will have the right to prepare, serve on the other party, and file with the
arbitrator a brief. The arbitrator will issue a decision or award in writing, stating the essential findings
of fact and conclusions of law. Except as may be permitted or required by law, all proceedings and all
documents prepared in connection with any arbitration will be confidential and the arbitration subject
matter will not be disclosed to any person other than the parties to the proceedings, their counsel, witnesses
and experts, the arbitrator, and, if involved, the court and court staff. All documents filed with the
arbitrator or with a court, to the maximum extent allowed by law, will be filed under seal. The parties
will stipulate to all arbitration and court orders necessary to effectuate these confidentiality provisions.
A court of competent jurisdiction will have the authority to enter a judgment upon the award made pursuant
to the arbitration or applicable arbitration appeal. |
| 8. | Place
of Arbitration: All arbitration proceedings will be conducted at a JAMS office located nearest to
the Company office where Employee regularly reported to work. |
| 9. | Representation / Attorneys’
Fees: Each party may be represented in the arbitration by an attorney or other representative selected
by the party. Each party shall be responsible for its own attorneys’ or representatives’ fees,
if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’
fees, the arbitrator may award reasonable attorneys’ fees to the prevailing party in accordance
with applicable law. |
| 10. | Discovery and Information
Exchange: At least thirty (30) days before the arbitration, the parties shall exchange lists of witnesses,
including any experts, as well as copies of all exhibits intended to be used at the hearing. The arbitrator
shall have discretion to order earlier and additional pre-hearing exchange of information. The parties
may engage in any method of discovery as outlined in the Federal Rules of Civil Procedure (exclusive
of Rule 26(a)). Such discovery includes discovery sufficient to arbitrate adequately a claim, including
access to essential and relevant documents and witnesses. Discovery disputes are subject to the Federal
Rules of Evidence and the Federal Rules of Civil Procedure. |
| 11. | Subpoenas: Each
party shall have the right to subpoena witnesses and documents for the arbitration. |
| 12. | Arbitrator Fees and Costs: The Company
will bear the cost of the arbitrator and the arbitration proceeding. |
| 13. | Federal
Arbitration Act. This Agreement is made under the provisions of the Federal Arbitration Act (9 U.S.C.,
Section 1-14) and will be construed and governed accordingly. Questions of arbitrability (that is whether
an issue is subject to arbitration under this Agreement) shall be decided by the arbitrator. Likewise,
procedural questions which grow out of the dispute and bear on the final disposition are also matters
for the arbitrator to decide. |
| 14. | Consideration: The
Company’s offer of employment to Employee, and the mutual promises of the Company and Employee
to arbitrate claims covered by this Agreement rather than to litigate them in civil court, provide good
and sufficient consideration for each other. |
| 15. | Construction:
Should any part of this Agreement be found to be unenforceable, such portion shall be severed from
the Agreement, and the remaining portions shall continue to be enforceable. |
| 16. | Sole
and Entire Agreement: This Agreement expresses the entire Agreement of the parties concerning the
subject matter hereof and there are no other agreements, oral or written, concerning arbitration, except
as provided herein. This Agreement is not, and shall not be construed to create any contract of employment,
express or implied. |
| 17. | Requirements
for Modification or Revocation: This Agreement to arbitrate shall survive the termination of Employee’s
employment. It can only be revoked or modified by a writing signed by the Chief Financial Officer of
the Company and Employee, which specifically states an intent to revoke or modify this Agreement. |
| 18. | Feedback. The Company
desires this Agreement to be as clear and as straightforward as possible given the important subject
matter. If you have any questions about this Agreement or have any suggestions on how the Company can
modify it to improve your or your colleagues’ understanding ofits terms, please feel free to contact
your supervisor or any manager or owner at any time. You are afforded the opportunity to request changes
to this Agreement before you sign it. Please bring any such requested changes to the attention
of the Company before you sign it. If you sign this Agreement without such requested modifications,
you are verifying that no such changes have been requested. |
Remainder
of Page Intentionally Left Blank; Signature Page to Follow
I
ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, UNDERSTAND ITS TERMS, AND AGREE THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN
THE COMPANY AND EMPLOYEE RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT. I HAVE VOLUNTARILY ENTERED INTO THE AGREEMENT
WITHOUT RELIANCE ON ANY PROVISIONS OR REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT. I UNDERSTAND AND AGREE THAT THIS
AGREEMENT SUPERSEDES ANY PRIOR AGREEMENTS BETWEEN THE COMPANY AND EMPLOYEE CONCERNING ARBITRATION. I AGREE THAT THE TERMS OF THIS ARBITRATION
AGREEMENT SHALL BE APPLIED RETROACTIVELY TO MY DATE OF HIRE. I FURTHER ACKNOWLEDGE I HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS
AGREEMENT WITH PRIVATE LEGAL COUNSEL AND THAT I HAVE UTILIZED THAT OPPORTUNITY TO THE EXTENT DESIRED AND HAVE BEEN GIVEN THE OPPORTUNITY
TO MAKE SUGGESTED CHANGES OR MODIFICATIONS TO THIS AGREEMENT BEFORE SIGNING IT.
Employee
| /s/ Stephan Johnston | | 16-Sep-2022
| 12:34 PM EDT |
| Employee Signature | | Date |
| | | |
| Stephan Johnston | | |
| Employee Name (Please Print) | | |
| | | |
| Ideanomics, Inc. | | |
| | | |
| By: |
/s/ Kevin Fleming | | 16-Sep-2022
| 1:01 PM EDT |
| |
Signature | | Date |
| | | |
| Kevin Fleming | | |
| Name (Please Print) | | |
EXHIBIT
B
LIST
OF PRIOR INVENTIONS AND ORIGINAL WORKS OF AUTHORSHIP
| Title | | |
| Date | | |
Identifying Number or Brief Description |
| None |
| | |
| |
| No inventions or | |
| None |
| improvements Additional | |
| |
| Sheets Attached | |
| |
| | |
| Signature of Employee: |
| /s/ Stephan Johnston | |
| |
| | |
| Print Name of Employee: |
| Stephan Johnston | |
| 16-Sep-2022 | 12:34 PM EDT | |
| Date |
|
| | |
CONFIDENTIALITY
AND INVENTION ASSIGNMENT AGREEMENT
This Confidentiality and Invention Assignment
Agreement (“Agreement”), dated as of September 16th, 2022 (the “Effective Date”), is
made and entered by and among Ideanomics, Inc. (“Ideanomics”) and Stephen Johnston (“Employee” and together
with Ideanomics, the “Parties”).
| 1. | Provision of Training
and Confidential Information. Ideanomics unequivocally agrees to provide to Employee
the following: (a) extensive and specialized training so as to develop Employee into a valuable,
special and unique asset of Ideanomics; and (b) Ideanomics methods of operations, vendors,
technology, clients, investors, employees, and stock sources, and by providing access to
other confidential and proprietary business information and trade secrets, including the
Proprietary Information (as defined below). Employee expressly agrees that information he
or she is provided or that which he or she creates or develops during employment with Ideanomics,
whether such is in writing, electronic, verbal, or information that can be remembered by
memory alone, shall constitute the confidential information, trade secrets, and/or Proprietary
Information of Ideanomics. |
| 2. | Employee Acknowledgements. Employee acknowledges and agrees
that: (a) Ideanomics has a strong and legitimate business interest in preserving and protecting its
investment, confidential business information, valuable relationships with clients, vendors, investors,
stock sources, and referral sources; (b) Because of Employee’s access to training and confidential
information (including client lists and contact information that Employee would not have had but for
Employee’s employment with Ideanomics), any breach of this Agreement by Employee would result
in irreparable harm to Ideanomics; and (c) The execution of this Agreement is a necessary condition
of employment or continued employment. |
| 3. | The term “Proprietary Information”
shall mean any confidential information that is not available to the general public concerning the business
and affairs of Ideanomics, in any form of media, regardless of when Employee acquired such information,
including, without limitation, trade secrets; inventions; business and product development methods and
business techniques; customer, client, vendors, stock source, and investor names and contact information,
contracts, contract terms, and data; terms and proposed terms of acquisitions or mergers; expansion
strategies; terms and proposed terms of joint venture or similar arrangements with or between Ideanomics
and another person or entity; information related to capital raising initiatives, offering terms, investment
details, and offering documents, materials, filings, and disclosures in connection with same; pricing,
costs, and margins; financial information; marketing information; unpublished promotional materials;
alliances; employee information; training materials; payroll information; investing, loan, and business
investment screening methods, strategies, benchmarks, and procedures; leverage strategies; terms of
any loan or credit facility obtained or considered by Ideanomics; financial statements and other financial
information; projections and forecasts; trading or production volume targets and reports; information
concerning equity ownership (including phantom equity and profits interests), prospects, assets, and
liabilities of Ideanomics; discoveries; data, research, analytics, and reports; information learned
or discussed during any Board meeting; and any other information of a confidential nature of Ideanomics,
including for the avoidance of doubt, any and all agreements or documents received or executed in connection
with this Agreement or Employee’s employment with Ideanomics. By way of illustration but not limitation,
“Proprietary Information” includes (a) all works of authorship and other programs,
processes, data, know-how, ideas, concepts, improvements, developments, designs, and techniques relating
directly to the business or proposed services or products of Ideanomics and which were learned or discovered
by Employee during Employee’s employment with Ideanomics; (b) information regarding any of Ideanomics
plans for research, development, new developments and services, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, prices and costs, suppliers, and clients which
were learned or discovered by Employee during Employee’s employment with Ideanomics; (c) investor,
borrower, customer, referral source, and client lists and information, including investment details;
(d) information regarding the skills of employees and compensation structures of Ideanomics; and (e)
any other information not generally known to the public which, if misused or disclosed, could reasonably
be expected to adversely affect the business of Ideanomics or that of its customers or clients. |
| 4. | Confidentiality of Proprietary Information. “Confidential
Information” means all Proprietary Information of Ideanomics and includes, but is not limited
to, trading methodologies, business and marketing plans, strategies, client and customer lists and information,
training and operational procedures, trading and development information and reports, forecasts and
projections, investor information or the terms of any investment, technical information, computer software,
product information, services information, processes, vendor relationships, the identity or terms with
any stock provider, and other forms of information considered by Ideanomics to be proprietary and confidential
or in the nature of trade secrets (collectively, the “Confidential Information”).
The Employee agrees that during and after the term of his, her, or their employment with Ideanomics,
Employee shall not, directly or indirectly, disclose or furnish to any other person or entity or use,
for his, her, or their own account or the account of any other person or entity, trade secrets or Confidential
Information of Ideanomics, regardless of whether such is done for profit. This confidentiality covenant
has no geographical or territorial restriction. Upon termination of employment, the Employee promptly
will supply all documentation of or related to the Confidential Information, in whatever form, which
has been created or produced by, received by, learned by, or otherwise submitted to the Employee in
the course of his, her or their employment with Ideanomics (including such property received prior to
the date of execution of this Agreement). In the event of termination of employment, whether voluntary
or involuntary, Employee hereby agrees not to utilize such Confidential Information or to exploit or
share it with any other individual or company. |
| 5. | Defend Trade Secrets Act. Pursuant
to the Defend Trade Secrets Act of 2016, the Company hereby provides notice and you hereby acknowledge
that you may not be held criminally or civilly liable under any federal or state trade secret law for
the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government
official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting
or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed
in a lawsuit or other proceeding, if such filing is made under seal. In addition, if you file a lawsuit
or other court proceeding against the Company for retaliating against you for reporting a suspected
violation of law, you may disclose the trade secret to the attorney representing you and use the trade
secret in the court proceeding, so long as you file any document containing the trade secret under seal
and does not disclose the trade secret, except pursuant to court order. |
6. Intellectual
Property and Invention Assignment.
(a) Employee
has attached hereto, as Exhibit A, a list describing all inventions, original works of authorship, developments, improvements, and trade
secrets which Employee made prior to commencing employment with Ideanomics, which belong to Employee, which relate to Ideanomics proposed
or current business, products or research and development, and which are not assigned to Ideanomics (collectively referred to as “Prior
Inventions”); or, if no such list is attached, Employee represents that there are no such Prior Inventions. Employee agrees
not to incorporate any Prior Inventions into any products, processes or developments of or for Ideanomics with the intent or purpose
to have or claim an ownership, property, or other interest in the development incorporating the Prior Inventions. If in the course of
employment with Ideanomics, Employee incorporates into a product, process or development of or for Ideanomics a Prior Invention owned
by Employee or in which Employee has an interest, Employee represents that he or she has all necessary rights, powers and authorization
to use such Prior Invention in the manner it is used and such use will not infringe any right of any company, entity, or person and,
in such a circumstance, Ideanomics is hereby granted and shall have a nonexclusive, royalty-free, sublicensable, transferable, irrevocable,
perpetual, worldwide license to make, have made, modify, use, sell and otherwise exploit such Prior Invention as part of or in connection
with such product, process or development. Employee agrees to indemnify Ideanomics and hold it harmless from all claims, liabilities,
damages and expenses, including reasonable attorneys’ fees and costs for resolving disputes, arising out of or in connection with
any violation or claimed violation of a third party’s rights resulting from any use, sublicensing, modification, transfer, or sale
by Ideanomics of such a Prior Invention.
(b) Unless
included on Exhibit A, the Employee agrees that he or she will promptly make full written disclosure to Ideanomics, will hold in trust
for the sole right and benefit of Ideanomics, and hereby assign to Ideanomics, or its designee, all right, title, and interest in and
to any and all inventions, designs, original works of authorship, processes, formulas, computer software programs, databases, developments,
concepts, improvements or trade secrets, whether or not patentable or registrable under patent, copyright or similar laws, which Employee
may solely or jointly conceive or develop or reduce to practice or cause to be conceived or developed or reduced to practice, during
the period of time he or she is in the employ of Ideanomics (whether or not during business hours) that are either related to the scope
of Employee’s employment with Ideanomics, related to the current, anticipated, or prospective business, products, or developments
of Ideanomics, or make use, in any manner, of the resources of Ideanomics(collectively referred to as “Inventions”).
Employee acknowledges that Ideanomics shall be the sole owner of all rights, title and interest in the Inventions created hereunder.
(c) Employee
agrees to assist Ideanomics, or its respective designees, at the expense of Ideanomics, in every proper way to secure Ideanomics rights
in the Inventions in any and all countries of the world, to further evidence, record and perfect any grant or assignment of the Inventions
hereunder and to perfect, obtain, maintain, enforce and defend any rights so granted or assigned, including the disclosure to Ideanomics
of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and
all other instruments or documents which Ideanomics shall deem necessary to apply for and obtain such rights and to assign and convey
to Ideanomics, its successors, assigns and nominees the sole and exclusive rights, title and interest in and to such Inventions. Employee
further agrees that his, her, or their obligation to execute or cause to be executed any such instrument or papers shall continue after
the termination of this Agreement and Employee’s employment with Ideanomics. If Ideanomics is unable because of Employee’s
mental or physical incapacity or for any other reason to secure Employee’s signature to apply for or to pursue any application
for any patents or copyright registrations covering Inventions or original works of authorship assigned to Ideanomics as set forth above,
then Employee hereby irrevocably designates and appoints Ideanomics and its duly authorized officers and agents as his, her, or their
agent and attorney in fact, to act for and in Employee’s behalf and stead to execute and file any such applications and to do all
other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same
legal force and effect as if executed by Employee.
(d) In
the event the foregoing assignment of Inventions to Ideanomics is ineffective for any reason, Ideanomics is hereby granted and shall
have a royalty-free, sublicensable, transferable, irrevocable, perpetual, worldwide license to make, have made, modify, use, sell
and otherwise exploit such Inventions as part of or in connection with any product, process, or development. Employee also hereby
forever waives and agrees never to assert any and all rights Employee may have in or with respect to any Inventions even after
termination of employment with Ideanomics. Employee further acknowledges that all Inventions created by him, her, or them (solely or
jointly with others), to the extent permitted by applicable law, are “works made for hire” or “inventions made for hire,” as
those terms may be defined in the applicable copyright law, patent law, and any regulations on computer software protection worldwide,
respectively, and all titles, rights and interests in or to such Inventions are or shall be vested in Ideanomics. Employee agrees that
the remuneration received pursuant to employment with Ideanomics includes any bonuses or remuneration which Employee may be entitled for
any “works made for hire,” “inventions made for hire” or other Inventions assigned to Ideanomics pursuant to this
Agreement.
| 7. | Non-Disparagement. Employee shall
refrain, both during employment with Ideanomics and after the termination of Employee's employment with
Ideanomics for any reason whatsoever, from publishing any oral or written statements about Ideanomics
or any of its managers, directors, officers, or employees (i) that are false, disparaging, slanderous,
libelous, or defamatory or (ii) that could reasonably be anticipated to cause material economic damages
or lost material business opportunities to Ideanomics. A violation or threatened violation of this prohibition
may be enjoined by any courts of competent jurisdiction notwithstanding any provision of this Agreement
to the contrary. The rights afforded to Ideanomics, Company, and Ideanomics described in this Section
6 are in addition to any and all other rights and remedies available at law or in equity. |
| 8. | Remedies. Ideanomics and Employee
agree that any breach or threatened breach by Employee of this Agreement could irreparably injure Ideanomics
potentially leaving it with no adequate remedy at law. Accordingly, in addition to all other remedies
available at law, Ideanomics shall be entitled to any and all equitable relief, including injunctive
relief and or specific performance, without the requirement for the posting of bond or security, which
is hereby expressly waived by Employee. |
| 9. | Amendments; Waiver. This Agreement
may be amended and compliance with any provision hereof may be waived only by written instrument executed
by all Parties hereto, in the case of an amendment, or the party to be charged, in the case of a waiver.
No course of conduct or failure or delay in enforcing the provisions of this Agreement shall affect
the validity, binding effect or enforceability of this Agreement or constitute a waiver of any rights
hereunder. No waiver by Ideanomics of any breach or threatened breach of this Agreement shall be a waiver
of any preceding or succeeding breach. No waiver by Ideanomics of any right under this Agreement shall
be construed as a waiver of any other right. Ideanomics shall not be required to give notice to enforce
strict adherence to all terms of this Agreement. Employee also agrees that the failure to enforce this
Agreement against any past, present or future employee of Ideanomics shall not adversely affect, nor
constitute a defense to the enforcement of this Agreement against the Employee, nor shall it give rise
to any claim or cause of action by such employee or ex-employee against Ideanomics. |
| 10. | Acknowledgments. The Employee acknowledges
that he or she has been provided with a copy of this Agreement for review prior to signing it, that
Ideanomics hereby encourage the Employee to have this Agreement reviewed by his, her, or their own
attorney prior to signing it, that the Employee has signed the Agreement of his, her, or their own
free will, that the Employee understands the purposes and effects of this Agreement, that the Employee
agrees that the covenants contained herein are reasonable and necessary to protect Ideanomics’
business interests and do not prevent Employee from obtaining alternative employment. |
| 11. | Severability. The Parties agree
that each provision of this Agreement is separate, distinct and severable from the other provisions
of this Agreement and that the invalidity, unenforceability, or breach of any one provision will not
affect the enforceability of any other provision of this Agreement or give rise to any defense to the
enforcement of any other provision of this Agreement. |
| 12. | Survival.
The obligations under this Agreement shall survive the termination of this Agreement and/or Employee’s
employment with Ideanomics. |
| 13. | Notice to Subsequent Employers. In the event that, following
the termination of employment with Ideanomics, Employee provides services in any capacity, (whether
as employee, independent contractor or otherwise), to an entity providing competitive services to that
of Ideanomics, Employee must provide notice of his, her, or their obligations under this Agreement
to such entity. By providing such notice, all such entities and their individual management are hereby
noticed that ALL RIGHTS AND REMEDIES ARE RESERVED BY IDEANOMICS WITH RESPECT TO ANY THIRD PARTY
FACILITATING OR TAKING PART IN A BREACH OF THIS AGREEMENT, including without limitation, claims
for tortious interference, civil theft, lost profits, punitive damages, and legal fees incurred in
enforcement. |
| 14. | Miscellaneous Provisions. |
(a) Entire
Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matters hereof, and supersedes
all negotiations, preliminary agreements, and all prior and contemporaneous representations, discussions, understandings, and agreements
in connection with the subject matters hereof. Except as otherwise herein provided, no covenant, representation, or condition not expressed
in this Agreement or in an amendment hereto shall be binding upon the Parties or shall be effective to interpret, change, or restrict
the provisions of this Agreement, and oral changes will have no effect unless made in writing and signed or initialed by all Parties
hereto. The Parties agree that Employee’s obligations to Ideanomics herein are in addition to and not in lieu of, any and all obligations
Employee owes Ideanomics under applicable statutory and common law.
(b) Employee
Obligations. Employee hereby represents and warrants to Ideanomics that Employee is not subject to any non-competition, non-solicitation,
or confidentiality agreement or obligations with a prior employer or any other Person (“Continuing Agreements”) that prohibits
him, her, or them from performing any work or service he or she has committed to perform for Ideanomics, and further represents that
Employee’s performance of his, her, or their obligations hereunder will not violate any such obligations. To the extent that Employee
has any preexisting obligations to a prior employer relating to prohibited activities or restrictive covenants in connection with such
Employee’s successor employment, Employee is hereby advised to maintain compliance with all such agreements and prohibitions
for the duration of their term. Ideanomics will not accept usage of intellectual property in any form belonging to a predecessor employer
and hereby instruct Employee to adhere to any restrictions regarding the solicitation of such prior employer’s clients or customers
if contractually obligated to do so. Employee shall indemnify, defend, and hold harmless and shall reimburse Ideanomics for all costs
and reasonable attorney’s fees incurred in connection with any
Continuing Agreement, including both during
pre-litigation and litigation.
(c) Governing
Law; Jurisdiction. This Agreement shall be governed by, construed under, and enforced in accordance with the laws of the State of New
York without regard to conflicts of law principles to the maximum extent permitted by applicable law. Employee acknowledges and agrees
that Ideanomics’ maintain headquarters in New York and directs training and business activity from its Texas headquarters and therefore
Employee has had substantial contact with the State of New York. Jurisdiction and venue for all purposes shall be deemed to lie exclusively
in New York County, New York. Any suit, action, litigation or proceeding arising out of or relating to this Agreement shall be brought
solely and exclusively in any state or federal court of competent jurisdiction located in New York county, New York, and the Parties
hereto each irrevocably and unconditionally submit to the personal jurisdiction and venue of such courts as provided above for the purposes
set forth herein and expressly waive any claim of improper forum or venue and any claim that such courts are an inconvenient forum.
(d) Assignment.
This Agreement shall be assignable by Ideanomics without the prior written consent of the Employee. This Agreement shall inure to the
benefit of and be enforceable by any parent, subsidiary, sister company, successor, and assign of Ideanomics, including any successor
or assign to all or substantially all of the business and/or assets of Ideanomics, whether direct or indirect, by purchase, merger, consolidation,
acquisition of stock or otherwise, without the need for further consent by the Employee.
(e) Legal
Fees and Costs. If a legal action is initiated by Ideanomics, on one hand, and Employee, on the other hand, related to or arising out
of this Agreement, including any action to construe or enforce any provision hereof and/or the alleged performance or non-performance
of any right or obligation established hereunder, then any and all fees, costs and expenses reasonably incurred by the prevailing party
or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing documents or taking
any other action in respect of such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.
(f) Waiver
of Jury Trial. The Parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include
various complicated legal and factual issues and therefore knowingly, voluntarily, and intentionally waive trial by jury in any proceeding
with respect to, in connection with, or arising out of this Agreement, or the validity, interpretation, or enforcement hereof. This provision
is a material inducement for Ideanomics and the Employee to enter into this Agreement.
(g) Legal
Representation. Employee represents and warrants to Ideanomics that in connection with this Agreement and the transactions contemplated
herein, that he or she has had the right and opportunity to be represented by legal counsel and the right to have legal counsel review
this Agreement before signing, and/or has been represented by legal counsel of Employee’s own choosing. Employee represents, understands,
and agrees that he/she has not relied upon any legal or other advice, comments, or other statements made by any attorney or legal counselor
for Ideanomics.
(h) Interpretation.
Each party has had the opportunity to review this Agreement and consult with legal counsel of their choosing. Accordingly, any rule of
construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this
Agreement.
(i) Application
of this Agreement. Employee hereby agrees that the obligations set forth above and the definitions of “Confidential Information,”
“Proprietary Information,” and “Inventions” contained herein shall be equally applicable to any work performed
by employee, and any Confidential Information, Proprietary Information, and Inventions relating thereto, for the Company prior to the
execution of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF,
the undersigned hereby execute this Agreement effective as of the Effective Date.
EMPLOYEE
IDEANOMICS, INC.
| Kevin Fleming | |
| | |
| Printed Name: |
Kevin Fleming | |
| Title: | Head of Human Resources | |
