EVO Transportation & Energy Services, Inc. (Form: 8-K, Received: 07/25/2019 13:28:34)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): July 19, 2019

EVO Transportation & Energy Services, Inc.

(Exact name of registrant as specified in its charter)

Delaware		000-54218		37-1615850
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

8285 West Lake Pleasant Parkway, Peoria, AZ 85382

(Address of principal executive offices)

877-973-9191

Registrant’s telephone number, including area code:

Not Applicable

( Former name or former address, if changed since last report)

Securities registered pursuant to Section 12(b) of the Act: None

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registration under any of the following provisions ( see General Instruction A.2. below):

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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01

Entry into a Material Definitive Agreement.

The disclosures set forth in Items 2.01, 3.02, and 5.02 below are hereby incorporated by reference into this Item 1.01.

Item 2.01

Completion of Acquisition or Disposition of Assets.

Entry into and Closing of Stock Purchase and Exchange Agreement

On July 19, 2019 but effective July 15, 2019, EVO Transportation & Energy Services, Inc., a Delaware corporation (the “Company”), James C. Finkle, Jr., and Clifford Finkle IV (together, the “Finkle Owners”) entered into and consummated the transactions contemplated by a stock purchase and exchange agreement (the “Purchase and Exchange Agreement”) pursuant to which the Company acquired all of the issued and outstanding equity interests (the “Acquired Interests”) in Courtlandt and Brown Enterprises LLC, a New Jersey limited liability company (“Courtlandt”) and Finkle Transport Inc., a New Jersey corporation (“Finkle”), from the Finkle Owners. As a result of the transaction, Finkle and Courtlandt became wholly-owned subsidiaries of the Company.

Finkle and Courtlandt are based in Clifton, New Jersey and are engaged in the business of fulfilling government contracts for freight trucking services as well as providing freight trucking services to non-government entities, in all cases in Class 8 and tractor-trailer only and specifically excluding last-mile or final-mile delivery. Pursuant to the Purchase and Exchange Agreement, the Company acquired all of the Acquired Interests for $12,000,000, consisting of: (i) $3,125,000 paid by issuance of 1,250,000 shares of Company common stock at a price per share of $2.50; (ii) $1,250,000 in cash; $5,011,364.19 in assumed indebtedness; and (iv) an earnout of up to $2,613,635.81 (the “Earnout”), which is payable in shares of Company common stock at a price per share of $2.50. The Earnout will be calculated within thirty days of the first anniversary of the Purchase and Exchange Agreement and will equal three times EBITDA (as defined in the Purchase and Exchange Agreement) of Courtlandt and Finkle for the twelve months ended June 30, 2019 (subject to a cap of $12,000,000) minus the amounts paid at closing.

The foregoing summary description of the material terms of the Purchase and Exchange Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase and Exchange Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference in its entirety.

Clifford Finkle Employment Agreement

On July 19, 2019, the Company entered into an executive employment agreement effective July 15, 2019 with Clifford Finkle IV (the “Clifford Finkle Employment Agreement”) pursuant to which Clifford Finkle IV will serve as a Vice-President of Finkle. The Clifford Finkle Employment Agreement provides for an initial term of four years, with automatic extensions (absent notice to the contrary) of one year upon the expiration of the initial term or any renewal term. Under the Clifford Finkle Employment Agreement, Mr. Finkle will be entitled to base compensation of $225,000 per year, incentive compensation based on Mr. Finkle’s performance as determined by the Company’s board of directors and awards of stock options pursuant to any plans or arrangements the Company may have in effect from time to time.

If Mr. Finkle is terminated without cause or he resigns with good reason, he will be entitled to receive severance, subject to his execution and non-revocation of a release of claims in favor of the Company and its officers, directors and affiliates, equal to any unpaid base salary, reimbursement for unpaid expenses and all other accrued payments or benefits through his termination date, plus the greater of: (1) his monthly base salary at the level in effect immediately prior to his termination date, multiplied by number of full or partial months, if any, in the period beginning on his termination date and ending on the date his initial employment term would have ended, if later than his termination date or (2) one-half of his annual base salary at the level in effect immediately prior to his termination date.

The Clifford Finkle Employment Agreement also includes a customary confidentiality covenant and one-year post-termination nonsolicitation and non-interference covenants.

James Finkle Employment Agreement

On July 19, 2019, the Company entered into an executive employment agreement effective July 15, 2019 with James C. Finkle, Jr. (the “James Finkle Employment Agreement”) pursuant to which James C. Finkle, Jr. will serve as a Vice-President of Finkle. The James Finkle Employment Agreement provides for an initial term of four years, with automatic extensions (absent notice to the contrary) of one year upon the expiration of the initial term or any renewal term. Under the James Finkle Employment Agreement, Mr. Finkle will be entitled to base compensation of $225,000 per year, incentive compensation based on Mr. Finkle’s performance as determined by the Company’s board of directors and awards of stock options pursuant to any plans or arrangements the Company may have in effect from time to time.

The James Finkle Employment Agreement also includes a customary confidentiality covenant and one-year post-termination nonsolicitation and non-interference covenants.

The foregoing summary descriptions of the material terms of the Clifford Finkle Employment Agreement and the James Finkle Employment Agreement are not complete and are subject to and qualified in their entirety by reference to the text of the employment agreements, copies of which are filed herewith as Exhibit 10.1 and 10.2 and the terms of which are incorporated by reference.

Item 3.02

Unregistered Sales of Equity Securities.

As consideration for the Acquired Interests and pursuant to subscription agreements with James C. Finkle, Jr. and Clifford Finkle IV, on July 19, 2019 but effective July 15, 2019, the Company issued 625,000 shares of common stock, par value $0.0001 per share, to each of James C. Finkle, Jr. and Clifford Finkle IV. The issuance of common stock was made in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act, because the issuance did not involve a public offering, the recipients took the shares for investment and not resale and the Company took appropriate measures to restrict transfer. The Company did not pay underwriter discounts or commissions in connection with the foregoing transaction.

The foregoing summary description of the material terms of the subscription agreements is not complete and is subject to and qualified in its entirety by reference to the text of the subscription agreements, copies of which are filed herewith as Exhibit 10.3 and 10.4 and the terms of which are incorporated by reference.

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Appointment of Eugene Putnam as Chief Financial Officer

On July 22, 2019, the Company appointed Eugene S. Putnam, Jr. as Chief Financial Officer. Prior to joining the Company, Mr. Putnam served as President and Chief Financial Officer of Universal Technical Institute, Inc. (“UTI”) from March 2011 until November 2016. Mr. Putnam served as Executive Vice President and Chief Financial Officer of UTI from July 2008 to March 2011 and as UTI’s interim Chief Financial Officer from January 2008 to July 2008. From June 2005 to May 2007, Mr. Putnam served as Executive Vice President and Chief Financial Officer of Aegis Mortgage Corporation. From July 2003 to June 2005, Mr. Putnam served as President of Coastal Securities L.P., and from March 2001 to March 2003, Mr. Putnam served as Executive Vice President and Chief Financial Officer of Sterling Bancshares, Inc. Mr. Putnam also spent 14 years as Director of Investor Relations and in various corporate finance positions with SunTrust Banks, Inc. Mr. Putnam also serves as a director of Community Bankers Trust Corporation. Mr. Putnam received his MBA from the University of North Carolina at Chapel Hill and holds a BS in Economics from the University of California, Los Angeles.

There are no related party transactions involving Mr. Putnam that are reportable under Item 404(a) of Regulation S-K.

Eugene Putnam Employment Agreement

On July 22, 2019, the Company entered into an executive employment agreement with Eugene Putnam (the “Putnam Employment Agreement”) pursuant to which Mr. Putnam will serve as the Chief Financial Officer of the Company. The Putnam Employment Agreement provides for an initial term of four years, with automatic extensions (absent notice to the contrary) of one year upon the expiration of the initial term or any renewal term. Under the Putnam Employment Agreement, Mr. Putnam will be entitled to base compensation of $230,000 per year, incentive compensation based on Mr. Putnam’s performance as determined by the Company’s board of directors and awards of stock options pursuant to any plans or arrangements the Company may have in effect from time to time.

If Mr. Putnam is terminated without cause or he resigns with good reason, he will be entitled to receive severance, subject to his execution and non-revocation of a release of claims in favor of the Company and its officers, directors and affiliates, equal to any unpaid base salary, reimbursement for unpaid expenses and all other accrued payments or benefits through his termination date, plus the greater of: (1) his monthly base salary at the level in effect immediately prior to his termination date, multiplied by number of full or partial months, if any, in the period beginning on his termination date and ending on the date his initial employment term would have ended, if later than his termination date or (2) one-half of his annual base salary at the level in effect immediately prior to his termination date.

The Putnam Employment Agreement also includes a customary confidentiality covenant and one-year post-termination nonsolicitation and non-interference covenants.

The foregoing summary description of the material terms of the Putnam Employment Agreement is not complete and is subject to and qualified in its entirety by reference to the text of the employment agreement, a copy of which is filed herewith as Exhibit 10.5 and the terms of which are incorporated by reference.

Item 9.01

Financial Statements and Exhibits.

(d)

Exhibits: The following exhibits are filed as part of this report:

Exhibit No.		Description
2.1		Stock Purchase and Exchange dated July 15, 2019 between EVO Transportation & Energy Services, Inc., James C. Finkle, Jr., and Clifford Finkle IV *
10.1		Employment Agreement dated July15, 2019 between EVO Transportation & Energy Services, Inc. and Clifford Finkle IV
10.2		Employment Agreement dated July15, 2019 between EVO Transportation & Energy Services, Inc. and James C. Finkle Jr.
10.3		Subscription Agreement dated July15, 2019 between EVO Transportation & Energy Services, Inc. and Clifford Finkle IV
10.4		Subscription Agreement dated July15, 2019 between EVO Transportation & Energy Services, Inc. and James C. Finkle Jr.
10.5		Employment Agreement dated July22, 2019 between EVO Transportation & Energy Services, Inc. and Eugene S. Putnam, Jr.

* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company hereby agrees to furnish supplementally a copy of any of the omitted schedules upon request by the U.S. Securities and Exchange Commission.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: July 25, 2019	By:	/s/ John P. Yeros
	Its:	Chief Executive Officer

Exhibit 2.1

STOCK PURCHASE AND EXCHANGE AGREEMENT

This Stock Purchase and Exchange Agreement (this “ Agreement ”) is made effective as of July 15, 2019, by and among EVO Transportation & Energy Services, Inc., a Delaware corporation (“ Buyer ”), and the stockholders listed on Exhibit A hereto (each, individually, a “ Seller ” and, collectively, the “ Sellers ”). Buyer and the Sellers may be referred to individually in this Agreement as a “ Party ” and collectively as the “ Parties .” Capitalized Terms used herein and not otherwise defined have the meanings given to such terms in Exhibit B attached hereto.

RECITALS

A. The Sellers own all of the issued and outstanding equity interests (the “ Equity Interests ”) of Courtlandt and Brown LLC and Finkle Transport Inc. (collectively, the “ Companies ,” or, individually, a “ Company ”).

B. The Companies are engaged in the business of fulfilling government contracts for freight trucking services as well as providing freight trucking services to non- government entities, in all cases in Class 8 and tractor-trailer only and specifically excluding last-mile or final-mile delivery (the “ Business ”).

C. The Parties desire to enter into this Agreement whereby the Sellers propose to sell to Buyer, and Buyer proposes to purchase from the Sellers, all of the Equity Interests, such that Buyer will become the sole equity owner of the Companies.

D. Each Seller will receive substantial financial benefit from the transaction set forth in this Agreement and understand that being parties to certain sections of this Agreement (including Section 3.5 ) is a condition to Buyer entering into this Agreement.

AGREEMENTS

In consideration of the representations, warranties, covenants, agreements, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

Article I - SALE AND PURCHASE OF THE EQUITY INTERESTS

1.1 Exchange of Equity Interests . Subject to the terms and conditions set forth herein, at the Closing, each Seller shall sell and deliver to Buyer, and Buyer shall purchase from each Seller, the Equity Interests set forth next to such Seller’s name on Exhibit A , free and clear of all Liens, for the consideration specified in Section 1.2 .

1.2 Purchase Price . The aggregate purchase price to be paid by Buyer to the Sellers (the “ Purchase Price ”) is an amount not to exceed $12,000,000.00 to be paid as follows:

(a) $3,125,000.00 to be paid by delivery of 1,250,000 shares of Buyer’s common stock, par value $0.0001 per share (” Common Stock ”), at a price per share of $2.50 at the Closing (the “ Equity Consideration ”);

(b) $1,250,000.00 of cash to be delivered by Buyer to the Sellers at the Closing by wire transfer of immediately available funds to one or more bank accounts of each Seller identified in writing to Buyer at least two (2) Business Days prior to the Closing Date;

(c) $5,011,364.19 of Indebtedness of the Company (net of Cash) that will be assumed at the Closing by Buyer through the acquisition of the Company; and

(d) The right to be paid an amount (the “ Earnout Amount ”) based on, and in accordance with, the provisions of Section 1.4 below.

1.3 Allocation of Purchase Price . The aggregate Purchase Price payable to the Sellers will be allocated among and paid to the Sellers as set forth on Exhibit A hereto . Further, the Buyer and Sellers hereby agree that any per share price stated in this Agreement (e.g., $2.50 per share) shall be adjusted to reflect any stock split, stock combination, recapitalization, or similar event with respect to the capital stock of the Buyer which occurs after the date hereof.

1.4 Earnout . The Earnout Amount shall be calculated, determined, and paid in the following manner:

(a) Within thirty (30) days after the date that is twelve (12) months from the date of this Agreement, the Sellers shall, in good faith, calculate the Companies’ EBITDA (as defined below) for the period of twelve (12) months ended as of June 30, 2020 (the “ Earnout Period ”). The Sellers shall deliver their proposed EBITDA amount to the Buyer via a written statement showing in reasonable detail the EBITDA calculation (the “ Earnout Statement ”). In addition to the calculation of EBITDA, the Earnout Statement also will calculate three (3) times EBITDA not to exceed $12,000,000 (the “ Total Value ”). The difference between the Total Value and the amount previously paid to Sellers as defined in Sections 1.2 (a), (b), and (c) collectively will be paid, no later than ten (10) days after the delivery of the Earnout Statement, to the Sellers by issuing the Sellers shares of Common Stock, based on a prior per share $2.50, and allocated among the Sellers as set forth on Exhibit A hereto.

(b) “ EBITDA ” shall mean, for the Earnout Period, the consolidated net income of the Companies for the Earnout Period, adjusted by (A) adding (1) depreciation and amortization determined in accordance with GAAP for the Earnout Period, (2) net interest expense for the Earnout Period, (3) income Taxes for the Earnout Period, and (4) the amount of any corporate allocations or overhead charges (including without limitation for items such as accounting, finance, and human resources) or other inter-company charges from the Buyer or any of its Affiliates (other than the Companies) which are charged or applied to any of the Companies.

(c) The Buyer shall not take, or cause any Company to take, any actions in bad faith with the specific intent and purpose of avoiding or reducing the Earnout Amount hereunder. In addition, during the Earnout Period, the Buyer hereby covenants and agrees with the Sellers as follows:

(i) The Buyer shall maintain the separate legal existence of the Companies, and shall not merge or otherwise combine any Company with the Buyer or any other Person, and shall not liquidate, dissolve or wind-down any Company;

(ii) The Buyer shall cause the Companies to maintain separate accounting books and records for the revenues and expenses of the Companies; and

(iii) The Buyer shall not cause any Company to enter into any agreement or transaction with the Buyer or any Affiliate of the Buyer (other than another Company), unless such agreement or transaction is on arms’ length terms and is fair to the applicable Company.

(d) In the event that the Buyer causes any Company to engage in any of the transactions or activities listed in any of clauses (i) through and including (iv) below, and EBITDA is reduced as a result thereof, then the Parties agree that EBITDA shall instead be calculated so as to eliminate the impact of such reduction:

(i) The Buyer shall sell, assign, transfer, or convey any Company’s assets to the Buyer or any Affiliate of the Buyer (other than another Company);

(ii) The Buyer shall cause any Company to make any payment with respect to any indebtedness of the Buyer or any Affiliate of the Buyer (other than another Company);

(iii) The Buyer shall cause any Company to become a guarantor of any indebtedness or other liabilities of the Buyer or any Affiliate of the Buyer (other than another Company); and

(iv) The Buyer shall cause any Company to pledge its assets or equity as collateral for any indebtedness or other liabilities of the Buyer or any Affiliate of the Buyer (other than another Company).

(e) In the event of any Change of Control involving the Buyer, the Sellers shall have the option to accelerate the Earnout Period and the determination of the Earnout Amount such that the Sellers shall have the option to receive the Earnout Amount prior to the consummation of such Change of Control so as to allow the Sellers to participate in such Change of Control and dispose of the shares of Common Stock issuable in respect of the Earnout Amount in such Change of Control.

Article II- CLOSING MATTERS

2.1 Closing . The closing of the purchase and sale of the Equity Interests contemplated by this Agreement (the “ Closing ”) will take place concurrently with the signing of this Agreement by exchanging faxed or e-mailed copies of signed documents. The date of the Closing is the “ Closing Date ” and the Closing will be deemed effective as of 11:59 p.m. local time on the Closing Date.

2.2 Conditions to Buyer’s Obligations . The obligation of Buyer to consummate the transactions contemplated by this Agreement on the Closing Date is subject to the satisfaction of each of the following conditions:

(a) Consents . The Sellers will have obtained and delivered to Buyer all required third party consents set forth on Schedule 2.2(a) .

(b) Release of Liens . The Sellers will have obtained releases of all Liens, other than Permitted Liens, on the assets of the Companies and the Equity Interests. The Sellers will have delivered such payoff letters, discharges of Liens, releases of guarantees and other releases as are reasonably requested by Buyer at or prior to Closing.

(c) Closing Documents . At the Closing, the Sellers will have delivered, or will have caused to be delivered, to Buyer, all of the following documents:

(i) a certificate from the Secretary of each Company certifying the Organizational Documents of each Company;

(ii) a Certificate of Good Standing for each Company from the applicable Secretary of State;

(iii) employment agreements, in the forms attached hereto as Exhibit C , executed by Clifford Finkle IV and James C Finkle, Jr., respectively (the “ Employment Agreements ”);

(iv) subscription agreements, in the forms attached hereto as Exhibit D , executed by each Seller, respectively (the “ Subscription Agreements ”);

(v) certificates or other documents representing the Equity Interests, as well as such stock powers or similar transfer documentation as shall be reasonably requested by Buyer;

(vi) written resignations of the officers and members of the board of directors of each Company, each duly executed by the appropriate parties;

(vii) the original record and minute books, equity ledgers and registers, and company seals, if any, of each Company;

(viii) a certificate of non-foreign status of the Sellers meeting the requirements of Treasury Regulation Section 1.1445-2(b)(2);

(ix) such other documents relating to the transactions contemplated by this Agreement as Buyer may reasonably request prior to Closing.

2.3 Conditions to the Sellers’Obligations . The obligation of the Sellers to consummate the transactions contemplated by this Agreement on the Closing Date is subject to Buyer’s delivery to the Sellers copies of the following:

(i) resolutions duly adopted by Buyer’s board of directors authorizing the execution, delivery and performance of this Agreement;

(ii) the Employment Agreements executed by Buyer;

(iii) the Subscription Agreements countersigned by Buyer;

(iv) one or more stock certifications evidencing the Equity Consideration; and

(v) all other agreements or instruments contemplated hereby and the consummation of the transactions contemplated hereby.

Article III – COVENANTS

3.1 Sales and Transfer Taxes . All sales, use, excise, value-added, goods and services, transfer, recording, documentary, registration, conveyancing and similar Taxes that may be incurred in connection with this Agreement, together with any and all penalties, interest, and additions to Tax with respect thereto will be paid by the Sellers.

3.2 Further Assurances . In case at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as any other Party reasonably may request, all at the cost and expense of the requesting Party.

3.3 Administration of Accounts . All payments and reimbursements received by the Sellers or any entity controlled by Sellers after the Closing Date from any third party in the name of any Company will be held by the Sellers or such entity in trust for the benefit of Buyer. Immediately upon receipt of such payment or reimbursement, the Sellers will pay to Buyer the amount of such payment or reimbursement without right of set-off, offset, or reduction of any kind.

3.4 Confidentiality . Each Seller agrees that such Seller will not use, or permit the use of, any of the information relating to the Business, or relating to Buyer or Buyer’s Affiliates, furnished to such Seller in connection with the transactions contemplated herein (“ Information ”) in a manner or for a purpose detrimental to Buyer or Buyer’s Affiliates, or otherwise than in connection with the transaction, and that it will not disclose, divulge, provide or make accessible (collectively, “ Disclose ” or “ Disclosure ”), or permit any other Person to Disclose, any of the Information to any individual or entity, other than its investment advisors, accountants, counsel and other authorized representatives and agents (collectively, “ Representatives ”), except (a) in connection with any claim, action or proceeding related to the transactions contemplated by this Agreement or any Transaction Document, (b) in connection with preparing, amending or filing any Tax Returns or in connection with any Tax audit or other proceeding, and or (c) as may be required by judicial or administrative process or, in the opinion of his counsel, by other requirements of Law; provided , however , that prior to any Disclosure of any Information permitted hereunder to any Representative, the Sellers will first obtain the recipients’ undertaking to comply with the provisions of this Section 3.4 or substantially similar confidential obligations with respect to such Information.

3.5 Non-Competition; Non-Solicitation; Non-Hire . As additional consideration for Buyer’s entry into this Agreement and consummation of the transactions contemplated hereby, and with the acknowledgement by the Sellers that Buyer would not enter into this Agreement without the benefit of the provisions set forth in this Section 3.5 , each Seller agrees that the following restrictions on such Seller’s activities following the Closing Date are necessary, appropriate and reasonable to protect the Business and other legitimate interests of Buyer and its Affiliates:

(a) Non-Competition . For a period of five years immediately following the Closing Date (the “ Restricted Period ”), each Seller agrees that such Seller will not, anywhere in the U.S., directly or indirectly, on behalf of any Person other than Buyer or its Affiliates, invest in, own, manage, operate, finance, control, advise, render services as an employee, independent contractor, or otherwise, or guarantee the obligations of any Person engaged in the Business; provided, however, that the ownership of less than two percent (2%) of the outstanding equity of any publicly traded company will not by itself be deemed to be a violation of this provision.

(b) Non-Solicitation . During the Restricted Period, the Sellers will not, directly or indirectly, solicit the business of any Person who is a customer of the Business, or of Buyer or its Affiliates, or cause, induce, or attempt to cause or induce, any customer, supplier, licensee, licensor, franchisee, employee, consultant or other business relation of Buyer or its Affiliates to cease doing business with such parties, to deal with any competitor of Buyer or its Affiliates, or in any way interfere with its relationship with such parties, all of the foregoing as it relates to the Business.

(c) Non-Hire . During the Restricted Period, the Sellers will not, directly or indirectly, on behalf of any Person other than Buyer or its Affiliates, solicit, hire or engage in any capacity any employee of Buyer or its Affiliates (or any person or entity who was an employee of Buyer or its Affiliates within 12 months of the date such hiring or engagement occurs) or solicit or seek to persuade any employee of Buyer or its Affiliates to discontinue such employment.

(d) Modification of Covenant . If a final judgment of a court or tribunal of competent jurisdiction determines that any term or provision contained in this Section 3.5 is invalid or unenforceable, then the Parties agree that the court or tribunal will have the power to reduce the scope, duration or geographic area of the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision. This Section 3.5 will be enforceable as so modified.

(e) Enforcement of Covenant . The Parties agree that the remedy of damages at law for the breach of any of the covenants contained in this Section 3.5 is an inadequate remedy. In recognition of the irreparable harm that a violation by any of the Sellers of any of the covenants, agreements or obligations arising under this Section 3.5 would cause Buyer or its Affiliates, each of the Sellers agrees that in addition to any other remedies or relief afforded by law, a preliminary and permanent injunction against an actual or threatened violation or violations may be issued against such Seller without showing actual monetary damages or posting of a bond or other security. In the event of an action to enforce the covenants in this Section 3.5 , the prevailing Party will be entitled to be reimbursed by the other Party for reasonable attorney’s fees and other expenses incurred by the prevailing Party with respect to such enforcement action; provided, however, Buyer will be entitled to be reimbursed by the applicable Seller in the event such Seller challenges the enforceability or reasonableness of any of the provisions of this Section 3.5 . Each of Buyer’s Affiliates will have the right to enforce the Seller’s obligations set forth in this Section 3.5 . In addition, in the event any of the Sellers violates any provisions of this Section 3.5 , then, in such event the period of the violation will be added to the Restricted Period for such Seller set forth in such section.

3.6 Certain Tax Matters .

(a) Tax Returns . The Sellers will prepare, or cause to be prepared, and file, or cause to be timely filed, all Tax Returns for the Company for all Tax periods ending on or prior to the Closing Date. The Sellers will timely pay all Taxes due with respect to all Tax Returns of the Company for all Tax periods ending on or prior to the Closing Date. The Sellers will provide any pending Tax Returns of the Company relating to Tax periods ending on or prior to the Closing Date to Buyer for review at least ten (10) Business Days prior to filing, and the Sellers will reflect any reasonable comments made by Buyer on such Tax Returns. Notwithstanding the foregoing, the Sellers will not cause the Company to extend or amend any Tax Returns with respect to any Tax period ending on or prior to the Closing Date without the prior written consent of Buyer. Buyer will prepare and timely file, or cause to be prepared and timely filed, all Tax Returns required to be filed by the Company for all Tax periods beginning after the Closing Date. Buyer will timely pay all Taxes due with respect to all Tax periods beginning after the Closing Date.

(b) Straddle Period . In the case of any taxable period that includes (but does not end on) the Closing Date (a “ Straddle Period ”), (i) the amount of any Taxes based on or measured by income, gain, or receipts of the Company for the Pre-Closing Tax Period will be determined based on an interim closing of the books as of the close of business on the Closing Date (with any net operating losses being first applied to the interim period ending on the Closing Date (to the extent available under applicable Law) and, therefore, first inuring to the benefit of the Sellers); and (ii) the amount of other Taxes of the Company for a Straddle Period that relates to the Pre-Closing Tax Period will be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date, and the denominator of which is the number of days in such Straddle Period. The Sellers will timely pay all Taxes relating to that portion of the Straddle Period up to and including the Closing Date. Buyer will timely pay all Taxes relating to that portion of the Straddle Period after the Closing Date. If any Tax is due from the Sellers with respect to the portion of the Straddle Period ending on the Closing Date, the Sellers shall be provided with a copy of the applicable Tax Return and Buyer’s calculation and documentation of the Sellers’ portion of the Tax due. Buyer will prepare and timely file, or cause to be prepared and timely filed, all Tax Returns required to be filed by the Company for any Straddle Period.

(c) Cooperation; Audit . After the Closing Date, Buyer and the Sellers will, and will cause their respective Affiliates to, cooperate reasonably in the preparation of all Tax Returns of the Company and will provide, or cause to be provided, to the requesting Party any records or other information requested by such Party in connection therewith. The Sellers, on the one hand, and Buyer, on the other hand, will give prompt notice to each other of any proposed adjustment to Taxes for the Pre-Closing Tax Period or the Straddle Period. Promptly upon receipt by either Party of any notification or indication (whether written or oral) from any taxing authority that it intends to investigate or audit any Tax Return of the Company for any Tax period ending on or prior to the Closing Date, the Party receiving such information will notify the other Party and convey such information to the other Party in writing. Each Party will cooperate with the other in connection with any Tax investigation, Tax audit, or other Tax proceeding; provided, however, Buyer will be entitled to represent the Company on any Tax investigation, Tax audit, or other Tax proceeding that arises after the Closing Date provided Buyer will allow the Sellers to reasonably participate at the Sellers’ own cost and expense to the extent such matter could reasonably result in an indemnification claim against the Sellers pursuant to this Agreement. A Party will be reimbursed for reasonable out-of-pocket expenses incurred in taking any action reasonably requested by the other Party or Parties under this Section 3.6(d) ; provided, however, that the foregoing will not alter any indemnification rights to which the Parties are entitled under this Agreement.

3.7 Release by Sellers . Effective as of the Closing, in consideration of the mutual covenants and agreements contained herein, including the consideration to be received by the Sellers, the Sellers hereby irrevocably release and forever discharge the Company and Buyer, and their respective Affiliates, officers, managers, directors, members, partners (general or limited), agents, and employees, and the successors, heirs, assigns, executors and administrators to the foregoing (collectively, the “ Released Parties ”), of and from any and all manner or causes of action and actions, claims, suits, rights, debts, sums of money, covenants, contracts, damages and judgments whatsoever, in law or in equity, which the Sellers ever had, now have or which the Sellers can, shall or may have, against the Released Parties, whether known or unknown, suspected or unsuspected, matured or unmatured, fixed or contingent, for, upon or by reason of any matter relating to any Company or its Affiliates, and arising at any time on or prior to the Closing Date, whether in the Sellers’s capacity as an equityholder, director, manager, officer, employee, holder of Indebtedness or otherwise, and the Released Parties shall not have liability with respect thereto; provided, however, that such release shall not will not apply to (a) obligations owing to the Sellers arising pursuant to any of the Transaction Documents, (b) any causes of action and actions, claims, suits, rights, debts, sums of money, covenants, contracts, damages and/or judgments which may not be released under applicable Law, (c) any causes of action and actions, claims, suits, rights, debts, sums of money, covenants, contracts, damages and judgments to the extent based on events occurring after the Closing Date, (d) any rights to receive benefits or vested amounts under or to participate in any Company’s employee benefit plans and/or pension plans or programs, or (e) any claims to indemnification (whether provided by contract, by Law, or pursuant to any Company’s Organizational Documents) or insurance coverage, including but not limited to so-called “ D&O coverage ”, that any Seller may have with respect to any claims made or threatened against such Seller in his capacity as a director, manager, officer or employee of any Company.

3.8 Directors’ and Officers’ Indemnification . Buyer agrees that all rights to indemnification as provided in any indemnification agreements or in Organizational Documents of any Company for the benefit of any current or former directors, officers and employees of such Company as in effect as of the date hereof with respect to matters occurring at or prior to the Closing shall survive the Closing. Prior to the Closing, the Company shall purchase a six-year tail insurance policy (the “ Tail Policy ”) covering each Person who was a director or officer of any Company at any time prior to the Closing with respect to claims arising from facts or events that occurred on or prior to the Closing, on coverage terms that are equivalent to the coverage terms of the policies of directors’ and officers’ liability and fiduciary liability insurance in effect for the Companies as of the date of this Agreement. The provisions of this Section 3.8 (i) shall not be terminated or modified in such a manner as to adversely affect any Person to whom this Section 3.8 applies without the consent of such Person and (ii) shall be in addition to any other rights a Person may have under the Organizational Documents of each Company or any indemnification agreements, under applicable Law, or otherwise. In the event Buyer or any Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Buyer or such Company, as applicable, assume the obligations of Buyer and such Company set forth in this Section 3.8 .

Article IV - REPRESENTATIONS AND WARRANTIES OF
THE Sellers

The Sellers jointly and severally represent and warrant to Buyer that the statements contained in this Article IV are true and correct as of the date hereof except as set forth in the corresponding schedule of the disclosure schedules attached hereto (the “ Disclosure Schedules ”).

4.1 Organization and Qualification . Each Company is duly organized, validly existing corporation in good standing under the Laws of the state of its incorporation or organization. Each Company has all the requisite power, authority, and capacity to own, lease, and operate its assets and to carry on the Business as the same was and is now being conducted by it. Each Company is qualified to transact business as a foreign entity and is in good standing under the Laws of each jurisdiction in which the nature of its business or the ownership or leasing of its properties requires such qualification, except where the failure to so qualify has not and would not reasonably be expected to have a Material Adverse Effect on the Companies, taken together. The Sellers have heretofore delivered to Buyer complete and correct copies of each Company’s Organizational Documents now in effect, and no Company is in default under or in violation of any provision of its Organizational Documents.

4.2 Power and Authority; Enforceability . The Sellers have all power and authority to enter into and consummate the transactions contemplated by this Agreement and any ancillary agreements (the “ Transaction Documents ”) to which it is a party. The execution and delivery of the Transaction Documents by the Sellers and the consummation of the transactions contemplated by the Transaction Documents to which the Sellers are a party have been duly authorized by all necessary action on the part of each Seller. The Transaction Documents have been duly executed and delivered by the Sellers, and such Transaction Documents constitute the legal, valid and binding obligations of each Seller, enforceable against each Seller in accordance with their respective terms, except to the extent that (a) their enforceability may be limited by applicable bankruptcy, insolvency, reorganization, or other Laws affecting the enforcement of creditor’s rights generally, and (b) the availability of equitable remedies is subject to the discretion of the court before which any such proceeding may be brought.

4.3 No Conflict . Neither the execution and delivery of this Agreement nor the performance of the provisions hereof or the transactions contemplated hereby: (a) violate or conflict with any Company’s Organizational Documents; (b) violate or conflict with any Law, rule, regulation, writ, judgment, injunction, decree, determination, award or other order of any court, government or governmental agency or instrumentality, domestic or foreign, that is applicable to any Company; or (c) will result in a breach of any of the terms or conditions of, or constitute a default under, any mortgage, note, bond, indenture, material agreement, license or other instrument or obligation to which any Company or any Seller is a party or by which any of their respective properties or assets may be bound or affected. Except as set forth on Schedule 4.3 , the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not require any material authorization, material consent, material approval, material exemption or other material action by or notice to any Governmental Entity or other third party, under any Material Contract or Governmental Contract to which any Company is bound, or any law, statute, rule or regulation or order, judgment or decree to which any Company is subject.

4.4 Capitalization . The capitalization of each Company is as set forth on Schedule 4.4 . The Equity Interests set forth on Schedule 4.4 constitute all of the outstanding Equity Interests of each Company and are validly issued, fully paid and non-assessable. There are (i) no outstanding subscriptions, options, calls, Contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any rights plan, and any right of conversion or exchange under any outstanding security, instrument or other agreement, obligating any Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional equity interests of any Company, respectively, or obligating any Company to grant, extend or enter into any such agreement or commitment, and (ii) no voting trusts, proxies or other agreements or understandings to which any Company or the Sellers are a party or are bound with respect to the voting of any of the Equity Interests of any Company. Each Seller has good and valid title to and beneficial ownership in the Equity Interests set forth on Schedule 4.4 and such Equity Interests are free and clear of all Liens (excluding restrictions on transfer under applicable securities Laws). No Company has an equity interest in any direct or indirect subsidiary.

4.5 Financial Statements; Undisclosed Liabilities and Defaults .

(a) The Companies have delivered to Buyer the unaudited balance sheets of the Companies as of December 31, 2018 and December 31, 2017 and the related statements of income, stockholders’ equity and cash flows for the fiscal years then ended. All of the foregoing financial statements are collectively referred to herein as the “Financial Statements.” The Financial Statements have been prepared in accordance with GAAP and fairly present, in all material respects, the financial condition and results of operation of the Companies at the dates and for the periods indicated therein. The Companies’ accounting practices have been consistently applied for all periods represented by the Financial Statements.

(b) The Financial Statements have been prepared and presented based upon and in conformity with the Companies’ books and records. The Companies have no undisclosed Liabilities, Indebtedness, or obligations, except for (a) liabilities and obligations incurred since December 31, 2018 in the Ordinary Course of Business, (b) liabilities and obligations incurred since December 31, 2018 pursuant to or in connection with this Agreement or the transactions contemplated hereby, (c) liabilities and obligations disclosed in this Agreement (or its Schedules) or (d) other liabilities or obligations which, individually or in the aggregate, would not reasonably be expected to exceed $100,000. Neither any Company nor any Seller is in (or has received written notice of any) default under or with respect to any judgment, order, writ, injunction or decree of any court or any Governmental Entity relating to (or that could reasonably be expected to affect in an adverse manner) the Business in any material respect. There does not exist any default by any Company, by any Seller, or by any other Person, or event that, with notice or lapse of time, or both, would constitute a default under any agreement entered into by any Company or by any Seller that could reasonably be expected to adversely affect the Business in any material respect.

4.6 Reserved .

4.7 Compliance with Laws .

(a) Each Company is in material compliance with all applicable Laws with respect to the Business.

(b) Each Company holds all material permits, approvals, registrations, franchises, licenses, certificates, accreditations and other authorizations of all Governmental Entities (the “ Permits ”) required for the conduct of the Business and all such Permits are set forth on Schedule 4.7 . Each Company has complied with and is in compliance with the terms and conditions of such Permits in all material respects. Each Company has not received any written notices that it is in material violation of any of the terms or conditions of such Permits. Each Company has taken all reasonable action to maintain such Permits. No loss or expiration of any such Permit is pending or, to the Knowledge of the Company, threatened other than expiration in accordance with the terms thereof. Except as set forth on Schedule 4.7 , the Permits owned or used by each Company immediately prior to the Closing will be available for use by Buyer on the same terms and conditions immediately subsequent to the Closing.

4.8 Past Claims . Schedule 4.8 lists all suits, proceedings (including any arbitration proceedings), orders, investigations, or claims against any Company in relation to the Business at law or in equity that have occurred since January 1, 2016.

4.9 Title to Assets; Sufficiency . Except as set forth on Schedule 4.9(a) , each Company holds good and marketable title to all of its property and assets, free and clear of any Liens. No Person (other than a Company, or any licensor or any lessor of any assets to a Company) has any right or interest in the assets of any Company, including the right to grant interests in the assets to third parties. Except as set forth on Schedule 4.9(a) , all of the tangible assets are at each Company’s locations and not in possession of unrelated parties. The assets owned, licensed or leased by each Company are all those assets necessary to conduct the Business as presently conducted in all material respects and will allow Buyer to continue to operate the Business in all material respects in the same manner immediately following the Closing Date. The equipment, machinery, fixtures, vehicles, computer hardware and furniture owned, leased or used by each Company is in good repair and operating condition (subject to ordinary wear and tear). All accounts and notes receivable of each Company represent amounts receivable for goods actually delivered or services actually provided (or in the case of notes and non-trade receivables, represent amounts receivable in respect of other bona fide business transactions), are currently not subject to any counterclaims, and have been billed and are generally due and payable within 30 days after billing, and to the Knowledge of the Company, except as set forth on Schedule 4.9(b) , are fully collectible in the Ordinary Course of Business.

4.10 Indebtedness and Guarantees . Except as set forth on Schedule 4.10 , each Company has no Indebtedness ( Schedule 4.10 accurately states the outstanding balance of all Indebtedness as of the Closing Date) and no Company guarantees the Indebtedness of any third party.

4.11 Material Contracts . Schedule 4.11 contains a complete and accurate list of all Material Contracts with respect to the Business. Except as set forth on Schedule 4.11 , each Company has performed all obligations required to be performed by it to date under its Material Contracts in all material respects, and, to the Knowledge of the Company, there are no defaults by any other party thereto, and no event has occurred (or failed to occur) that, with the passing of time or the giving of notice or both would constitute a default by any Company under any such Material Contract in any material respect, including the consummation of the transactions contemplated by this Agreement, and no consent, permission, waiver or approval is required to be obtained from, and no penalty, assessment or special payment is required to be paid to, and no notice is required to be sent to, any third party in order to preserve for Buyer the benefits of the Material Contracts immediately after the consummation of the transactions contemplated by this Agreement. Each Material Contract is in full force and effect and constitutes a legal, valid, binding agreement of the Company party thereto and, to the Knowledge of the Company, each other party thereto. Buyer has been supplied with a true and correct copy of all written Material Contracts and true and correct written summaries of all oral Material Contracts or agreements.

4.12 Government Contracts and Government Bids .

(a) Schedule 4.12 contains a complete and accurate list of each Government Contract the period of performance of which has not yet expired or been terminated (each, a “ Current Government Contract ”). The Companies have delivered to Buyer complete and correct copies of each Current Government Contract; to the Knowledge of the Company, each Current Government Contract was legally awarded to any Company, and each Current Government Contract is valid, binding and in full force and effect and enforceable against the applicable Company in accordance with its terms.

(b) (i) Each Company is not in breach of or default under any Current Government Contract, and, to the Knowledge of the Company, no event has occurred which, with the giving of notice or the lapse of time or both, would constitute such a breach or default by such Company; (ii) each Company is in compliance with all applicable Laws, including the Federal Acquisition Regulation (“ FAR ”); Cost Accounting Standards; Service Contract Act of 1963, as amended (including requirements for paying applicable Service Contract Act wage rate and fringe benefit rates); the Truth in Negotiations Act; and the Anti-Kickback Act, where and as applicable to each Current Government Contract or Government Bid; (iii) since January 1, 2016, each representation and certification made by any Company in connection with a Government Contract or Government Bid was current, accurate and complete in all material respects as of its effective date, and such Company has complied in all material respects with the terms of all Government Contracts; (iv) to the Knowledge of the Company, there are no outstanding or pending claims, requests for equitable adjustment or contract disputes in excess of One Hundred Thousand Dollars ($100,000) arising under or relating to a Government Contract or Government Bid; and (v) to the Knowledge of the Company, no Current Government Contract or Government Bid is currently the subject of any bid protest before any Governmental Entity.

(c) Since January 1, 2016, (i) neither any Company nor any Seller (as defined in FAR 52.209-5) has been debarred, suspended or excluded from participation in, or the award of, Government Contracts or doing business with any Governmental Entity, no suspension, debarment, or exclusion action has been commenced or, to the Knowledge of the Company, threatened against any Company or any of its officers or employees, and there exist no circumstances that require any Company to answer any of the questions in FAR 52.209-5 in the affirmative; (ii) no Governmental Entity under a Government Contract has notified any Company in writing of any breach or violation of any applicable Law or of any certification, representation, clause, provision or requirement of any such Government Contract; (iii) each Company has not received any written notice of termination for default, cure notice or show cause notice pertaining to any Government Contract; (iv) each Company has not received any written notice of an unresolved significant weakness or deficiency with respect to the cost accounting system of such Company; (v) each Company has not received written notice from any Governmental Entity or other counterparty to a Government Contract that the counterparty to such Government Contract (A) has ceased or will cease to be a customer of any Company (other than due to an expiration of the Government Contract), (B) intends to terminate or materially modify (including by materially decreasing the rate or amount of services obtained from the Company) any Government Contract, (C) intends to change the type of contracting vehicle for the services provided pursuant to such Government Contract in a manner that may preclude any Company from continuing to provide such services or (D) seeks to convert any Government Contract that establishes an exclusive or single source purchasing arrangement or relationship between such counterparty and such Company into a non-exclusive or multi-source arrangement or relationship; and (vi) each Company has not made any voluntary or mandatory disclosures to any Governmental Entity with respect to any material misstatement, significant overpayment or violation of applicable Law arising under or relating to any Government Contract or Government Bid, nor has any violation occurred for which any Company is required to make any such disclosure to a Governmental Entity.

(d) Since January 1, 2016, to the Knowledge of the Company, each Company has not been the subject or target of any audit, subpoena, investigation, prosecution or administrative proceeding related to any Government Contract or Government Bid. Since January 1, 2016, each Company has not received any written notice of any pending or threatened audit, subpoena, investigation, prosecution or administrative proceeding related to any Government Contract or Government Bid.

4.13 Insurance . Each Company is currently insured by insurers unaffiliated with such Company with respect to their properties, assets and operation of the Business in such amounts and against such risks that are set forth on Schedule 4.13 . With respect to each insurance policy held by any Company (a) the policy is legal, valid, binding and in full force and effect; and (b) each Company is not in default under the policy in any material respect. Except as listed in Schedule 4.13 , there are no claims by any Company pending under any such policies and each Company has not been informed in writing that coverage has been questioned, denied or disputed by the underwriters of such policies with respect to any such claims. All premiums under such insurance policies which are due and payable have been paid in full, no such policy provides for retrospective or retroactive premium adjustments, and each Company has not received written notice of any material increase in the premium under, or the cancellation or non-renewal of, any such policy.

4.14 Intellectual Property . Set forth on Schedule 4.14 is a list of patents, patent rights, patent applications, trademarks, trademark applications and registrations, trade dress, service marks, service mark applications, trade names, social media accounts and registrations, domain names and copyrights owned by or registered in the name of any Company and used in the Business in any material respect, or of which any Company is a licensor or licensee or in which any Company has any right, and in each case a brief description of the nature of such right. Each Company is not subject to any license or royalty obligation relating to any product or service of the Business that any Company now markets or has marketed in the three past years. Except as set forth on Schedule 4.14 , the Companies own all rights in, or possesses adequate licenses or other rights to use, all patents, patent applications, trademarks, trademark applications and registrations, trade dress, service marks, service mark applications and registrations, proprietary rights, trade names, social media accounts and registrations, domain names, copyrights, designs, website content, technology, trade secrets and know-how used to conduct the Business as conducted prior to Closing (collectively, “ Intellectual Property ”). To the Knowledge of the Company, the Intellectual Property does not infringe or conflict upon the right of any third party, and to the Knowledge of the Company there has not been, and are, no infringing uses by third parties of the Intellectual Property owned by any Company. No Seller owns or has any interest in the Intellectual Property used by any Company in connection with the Business (other than an indirect interest solely by virtue of being an owner of a Company). No past or present employee or independent contractor (including consultants) of any Company has retained any ownership interest in or to any Intellectual Property, ideas, inventions, processes, works of authorship and other work products that relate to the Business, that were conceived, created, authored or developed, in whole or in part, by such employee or independent contractor while an employee of or contractor any Company, as the case may be.

4.15 Real Property . Each Company does not own any real property relating to the Business, nor has it ever owned any real property relating to the Business. Schedule 4.15 sets forth the address of each parcel of real estate leased by any Company (“ Leased Real Property ”), a true and complete list of all leases for each such Leased Real Property, and the amount of security deposit for each such Leased Real Property. Each Company has not collaterally assigned or granted any other security interest in any Leased Real Property or any interest therein. Each Contract for Leased Real Property is the legal, valid, binding, enforceable obligation of the Company party thereto and, to the Knowledge of the Company, each other party thereto and is in full force and effect, and such Company’s possession and quiet enjoyment of the Leased Real Property under such lease has not been disturbed, and there are no disputes with any lessor respect to such lease. Neither any Company nor, to the Knowledge of the Company, any other party to the lease is in breach or default in any material respect under such lease, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such lease.

4.16 Labor Matters . Each Company is in compliance with all Laws with respect to employment and employment practices, terms and conditions of employment and wages and hours (including the Employee Retirement Income Security Act of 1974, as amended, and the Contract Service Act, as amended), including requirements for paying applicable Service Contract Act wage rate and fringe benefit rates, and each Company is not engaged in any unfair labor practice and, to the Knowledge of the Company, has not been threatened with a possible claim for any such practice. Each Company has properly classified its employees and independent contractors. Except as set forth in Schedule 4.16 , each Company is not, and has not been for the past five years, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization (collectively, “ Union "), and there is not, and has not been for the past five years, any Union representing or purporting to represent any employee of any Company, and no Union or group of employees is seeking or in the past five years has sought to organize employees for the purpose of collective bargaining. Except as set forth in Schedule 4.16 , there has never been in the past five years, nor (to the Knowledge of the Company) has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting any Company or any of its employees. Except as set forth in Schedule 4.16 , each Company has no duty to bargain with any Union.

4.17 Tax Matters . Schedule 4.17 contains a list of states, territories, and jurisdictions (whether foreign or domestic) in which any Company files Tax Returns. Each Company has filed all Tax Returns that it was required to file. All such filed Tax Returns were true, correct, and complete in all material respects. Except as set forth on Schedule 4.17 , all Taxes due and payable prior to Closing by each Company have been paid. Each Company has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee. There are no Liens on any of the assets of any Company that arose in connection with any failure (or alleged failure) to pay any Tax. There is not outstanding any written notice received by any Company from any Governmental Entity that it is subject to an audit or investigation that could result in the payment of additional Taxes. Each Company is not a party to any Tax allocation, sharing, indemnity or similar agreement. Each Company has no Liability for the Taxes of any Person, as a transferee or successor, by Contract, or otherwise.

4.18 Absence of Certain Developments . Since January 1, 2018, each Company has conducted the Business in the Ordinary Course of Business consistent with past practice, including, but not limited to, cash management, collection of receivables, payment of payables, and maintenance of Inventory, pricing and credit practices.

4.19 Related Party Transactions . Except as set forth on Schedule 4.19 , each Company is not currently a party to any Related Party Transaction in connection with the Business and has not been a party to any such Related Party Transaction since January 1, 2017.

4.20 Safety Rating . Except as set forth on Schedule 4.20 , each Company has now, and since the commencement of the operation of the Business has maintained, an overall “Satisfactory” safety rating or has not been rated, and as of February 28, 2019, except as set forth on Schedule 4.20 , maintained Compliance, Safety and Accountability scores (“ CSA Scores ”) below the “alert” threshold in each of the seven categories assessed by the DOT in connection therewith. Neither any Seller nor any Company has received any written notice of any intended, pending or proposed audit of the Business by the DOT or any other Governmental Entity having jurisdiction over any Company’s operation of the Business.

4.21 Litigation . Except as set forth on Schedule 4.21 , there are no, and in the past three years there have been no, actions, audits, administrative charges, suits, proceedings, arbitrations, orders, or investigations pending or, to the Knowledge of the Company, threatened, against any Company or any officer, director or employee thereof in relation to the Business. Each Company is not subject to any judgment, order, award or decree of any Governmental Entity (other than orders generally applicable to other businesses operating in the industry in which the Business operates).

4.22 Brokerage and Finder’s Fees . Neither any Company nor any Seller has incurred and none will incur any brokerage, finder, or similar fee in connection with the transactions contemplated by the Transaction Documents to which any of them are a party.

4.23 Vendors . The Companies have provided Buyer accurate and complete lists of the names and addresses of the 20 largest vendors of the Business from whom the Companies have purchased either supplies or inventories for the past 2 fiscal years (ended December 31, 2018 and December 31, 2017).

4.24 Environmental Matters .

(a) Each Company is, and at all times in the last five years has been, in compliance with all applicable Environmental Laws in all material respects. Each Company holds and has timely applied for renewal of all material permits or other authorizations under Environmental Laws that are required for (i) the occupancy, use and operation of its properties and assets, and (ii) the operation and conduct of such Company and the Business.

(b) Each Company has not received any outstanding and unresolved written notices, reports, or other information regarding any actual or alleged violation of Environmental Laws by any Company, or any Liabilities or potential Liabilities, including any remedial obligations, arising under Environmental Laws and relating to any Company or its properties. There are no pending or, to the Knowledge of the Company, threatened, claims, Liens, or other restrictions of any nature, resulting from any violation or failure to comply with any applicable Environmental Law, with respect to or affecting any of the properties currently occupied, used or operated by any Company. There are no present or past Releases or threatened Releases, or presence of any Hazardous Substances, which could reasonably be expected to form the basis for any litigation against any Company or that could reasonably be expected to result in the imposition of any Liability on any Company, in each case under Environmental Laws.

(c) During the period of (i) each Company’s occupancy, use or operation of any property, or (ii) each Company’s participation in the management of any property, there were no Releases or threatened Releases of any Hazardous Substances in, on, under or affecting any such property, and such Company has not placed, held, located, Released, transported or disposed of any Hazardous Substances on, under, from or at any such property or any other property other than in compliance with applicable Environmental Laws. To the Knowledge of the Company, no above ground or underground storage tanks, asbestos-containing materials, lead-based paint, toxic mold or polychlorinated biphenyls are or have been present at any property currently or formerly leased or operated by any Company. Each Company has not sent or disposed of Hazardous Substances to or at a site which, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), or any similar state, federal or foreign law, has been listed or proposed for listing on the “National Priorities List” or its state equivalent.

(d) The Companies have delivered to Buyer correct and complete copies of all environmental studies or reports (including, but not limited to, any Phase I or Phase II reports and compliance audits), pleadings, analytical data, monitoring data, permits required under Environmental Laws, and other material records and correspondence concerning compliance with Environmental Laws relating to the occupancy, use and operation of its properties and the operation of the Business that are in the possession or reasonable control of the Sellers.

4.25 Employee Benefit Plans . Set forth on Schedule 4.25 is a complete list of all pension, profit sharing, retirement, stock purchase, stock option, bonus, incentive compensation and deferred compensation plans, life, health, dental, accident or disability, workers’ compensation or other employee welfare benefit plans (insured or self-insured), educational assistance, pre-tax premium or flexible spending account plans, supplemental or executive benefit plans, non-qualified retirement plans, severance or separation plans, and any other employee benefit plans, practices, policies or arrangements of any kind, whether written or oral, which are currently maintained by any Company for the benefit of any of their respective employees (including former employees), or under which any Company has any current or potential Liability with respect to any employee or former employee or the dependents of any such person, including any “employee benefit plan” which is subject to the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”) (herein collectively referred to as “ Employee Benefit Plans ” and individually as an “ Employee Benefit Plan ”). All Employee Benefit Plans comply in form and in operation in all material respects with their terms, the applicable requirements of ERISA, the Code and all applicable Laws. Each Company has complied with the terms of all Employee Benefit Plans and related Contracts in all material respects. Buyer has been supplied with a true and correct copy of all written Employee Benefit Plans and true and correct written summaries of all oral Employee Benefit Plans. With respect to the Employee Benefit Plans, no event has occurred and, there exists no condition or set of circumstances, in connection with which any Company could reasonably be expected to subject to any material Liability (other than for routine claims for benefits in the ordinary course) under the terms of the Employee Benefit Plans or any applicable Law. Each Company does not sponsor or participate in (i) a pension plan that is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, (ii) a “multi-employer pension plan,” as defined in Section 3(37) of ERISA, (iii) a “multiple employer welfare arrangement,” as defined in Section 3(40) of ERISA, (iv) a “multiple employer plan,” as defined in Section 413 of the Code, (v) a “welfare benefits trust” or “voluntary employees beneficiary association,” as defined in Sections 419, 419A or 501(c)(9) of the Code, or (vi) a plan or arrangement providing for post-employment health or life insurance coverage, except as otherwise required by Section 4980B of the Code or similar state Laws and at the sole expense of the individual.

4.26 Accounts; Powers of Attorney .

4.28 Schedule 4.26 . sets forth a correct and complete list of all accounts or safe deposit boxes at any bank or other financial institution of any Company, and the names of all Persons authorized to draw thereon or have access thereto. No Person holds a power of attorney to act on behalf of any Company.

4.29 No Other Representations and Warranties Except for the representations and warranties contained in Article IV (as modified by the Schedules hereto) (collectively, the “ Express Representations ”), none of the Company, any Seller, or any other Person makes any other express or implied representation or warranty with respect to the Company, the Business, or any Seller or the transactions contemplated by this Agreement, and the Company and the Sellers hereby expressly disclaim all liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Buyer or any of its Affiliates or representatives (including but not limited to any opinion, information, projection, or advice that may have been or may be provided to Buyer by any director, officer, employee, agent, consultant, or representative of the Company, the Sellers or any of their respective Affiliates). Neither the Company nor any Seller makes any representation or warranty to Buyer regarding the probable success or profitability of the Company or the Business. Nothing in this Section 4.28 shall impair Buyer’s or any Buyer Indemnified Party’s rights and remedies in the case of fraud.

Article V - REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to the Sellers that the statements contained in this Article V are true and correct as of the date hereof:

5.1 Organization and Qualification . Buyer is a corporation duly incorporated, validly existing and in good standing under the Laws of Delaware. Buyer is qualified to transact business as a foreign entity and is in good standing under the Laws of each jurisdiction in which the nature of its business or the ownership or leasing of its properties requires such qualification, except where the failure to so qualify has not and would not reasonably be expected to have a Material Adverse Effect on Buyer. Buyer has heretofore delivered to the Sellers complete and correct copies of Buyer’s Organizational Documents now in effect, and Buyer is not in default under or in violation of any provision of its Organizational Documents.

5.2 Power and Authority; Enforceability . Buyer has all requisite corporate power and authority to enter into and consummate the transactions contemplated by the Transaction Documents to which Buyer is a party. The execution and delivery by Buyer of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby have been duly authorized by all necessary action on the part of Buyer. The Transaction Documents have been duly executed and delivered by Buyer and constitute the legal, valid and binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms, except to the extent that (a) their enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other Laws affecting the enforcement of creditor’s rights generally, and (b) the availability of equitable remedies is subject to the discretion of the court before which any such proceeding may be brought.

5.3 No Conflict . Neither the execution and delivery of this Agreement nor the performance of the provisions hereof or the transactions contemplated hereby: (a) violate or conflict with Buyer’s Organizational Documents; (b) violate or conflict with any Law, rule, regulation, writ, judgment, injunction, decree, determination, award or other order of any court, government or governmental agency or instrumentality, domestic or foreign, that is applicable to Buyer; or (c) will result in a breach of any of the terms or conditions of, or constitute a default under, any material mortgage, note, bond, indenture, agreement, license or other instrument or obligation to which Buyer is a party or by which any of its properties or assets may be bound or affected. Except as set forth on Schedule 5.3 , the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby do not require any material authorization, consent, approval, exemption or other material action by or notice to any Governmental Entity or other third party, under any material Contract to which Buyer is bound, or any law, statute, rule or regulation or order, judgment or decree to which Buyer is subject.

5.4 Capitalization . The capitalization of Buyer immediately prior to the issuance of the Equity Consideration hereunder is as set forth on Schedule 5.4 . The Equity Interests set forth on Schedule 5.4 constitute all of the outstanding Equity Interests of Buyer immediately prior to the issuance of the Equity Consideration hereunder and are validly issued, fully paid and non-assessable. Other than for the Equity Consideration under this Agreement, there are (i) no outstanding subscriptions, options, calls, Contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any rights plan, and any right of conversion or exchange under any outstanding security, instrument or other agreement, obligating Buyer to issue, deliver or sell, or cause to be issued, delivered or sold, additional equity interests of Buyer, or obligating Buyer to grant, extend or enter into any such agreement or commitment, and (ii) no voting trusts, proxies or other agreements or understandings to which Buyer is a party or bound with respect to the voting of any of the Equity Interests of Buyer.

5.5 Financial Statements . Buyer has delivered to the Sellers the unaudited balance sheets of Buyer as of December 31, 2018 and December 31, 2017 and the related statements of income, stockholders’ equity and cash flows for the fiscal years then ended. All of the foregoing financial statements are collectively referred to herein as the “ Buyer Financial Statements .” The Buyer Financial Statements have been prepared in accordance with GAAP and fairly present, in all material respects, the financial condition and results of operation of Buyer at the dates and for the periods indicated therein.

5.6 Litigation . Except as set forth on Schedule 5.6 , there are no, and in the past three years there have been no, actions, audits, administrative charges, suits, proceedings, arbitrations, orders, or investigations pending or, to the knowledge of Buyer, threatened, against Buyer or any officer, director or employee thereof in respect of Buyer’s business. Buyer is not subject to any judgment, order, award or decree of any Governmental Entity (other than orders generally applicable to other businesses operating in the industry in which Buyer operates).

5.7 Brokerage and Finder’s Fees . Buyer has not incurred and will not incur any brokerage, finder, or similar fee in connection with the transactions contemplated by the Transaction Documents to which Buyer is a party.

5.8 Buyer Acknowledgements . Notwithstanding anything contained in this Agreement to the contrary, Buyer acknowledges and agrees that neither the Company nor any Seller is making any representations or warranties whatsoever, express or implied, beyond the Express Representations, and neither the Company nor any Seller shall have or be subject to any liability to Buyer or any other Person resulting from the distribution to Buyer of, or Buyer’s use of or reliance on, any other information. Any claims Buyer may have for breach of representation or warranty shall be based solely on the Express Representations. Buyer further represents and warrants that none of the Company, any Seller or any of their respective Affiliates nor any other Person has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Company, the Business, the Sellers, or the transactions contemplated by this Agreement not expressly set forth in Article IV of this Agreement, and none of the Company, the Sellers, or any of their respective Affiliates or any other Person will have or be subject to any liability to Buyer or any other Person resulting from the distribution to Buyer or its representatives or Buyer’s use of, any such information, including any confidential memoranda distributed on behalf of the Company relating to the Company or the Business or other publications or data room information made available to Buyer or its representatives, or any other document or information in any form made available to Buyer or its representatives in connection with the sale of the Company and the transactions contemplated hereby. Buyer acknowledges that it has conducted to its satisfaction, its own independent investigation of the condition, operations and business of the Company and the Business and, in making its determination to proceed with the transactions contemplated by this Agreement, Buyer has relied on the results of its own independent investigation. Nothing in this Section 5.8 shall impair Buyer’s or any Buyer Indemnified Party’s rights and remedies in the case of fraud.

Article VI- INDEMNIFICATION

6.1 Survival of Representations, Warranties, Covenants and Agreements . The representations, warranties, covenants and agreements in this Agreement and the Disclosure Schedules attached hereto or in any writing delivered by any Party to any of the other Parties in connection with this Agreement will survive (a) for a period of 12 months after the Closing Date for representations and warranties except as set forth in subpart (b), (b) indefinitely for the representations and warranties set forth in Sections 4.1 , 4.2 , 4.4 , 4.10 , 4.17 , and 4.22 (collectively, the “ Fundamental Representations ”) and those set forth in Sections 5.1 , 5.2 , 5.4 , and 5.7 , (c) indefinitely for claims based on fraud or intentional misrepresentation, and (d) indefinitely for all covenants and agreements that by their terms contemplate performance after the Closing Date, unless specified otherwise by their terms. Notwithstanding the above, so long as written notice of a claim (in reasonable detail, including a description of the alleged breaches of this Agreement and a good faith estimate of the amount of Losses claimed) is given on or prior to the expiration of survival period, such claim will continue to survive until such matter is resolved.

6.2 General Indemnification .

(a) Indemnification by Buyer . Buyer agrees that it will indemnify, defend, and hold harmless the Sellers and their respective heirs and assigns (the “ Seller Indemnified Parties ”), from, against and in respect of any and all Losses imposed on, sustained, incurred or suffered by or asserted against the Sellers directly or indirectly, whether or not due to a third-party claim, arising out of, resulting from: (i) any breach of, or inaccuracy in, any representation or warranty of Buyer in Article V of this Agreement; and (ii) a breach of any covenant or agreement of Buyer contained in this Agreement.

(b) Indemnification by the Sellers . The Sellers agree to indemnify, defend and hold harmless Buyer and its Affiliates, directors, managers, officers, equityholders, members, partners, and their respective successors and assigns (the “ Buyer Indemnified Parties ”) from, against and in respect of any Losses imposed on, sustained, incurred or suffered by or asserted against any of Buyer Indemnified Parties directly or indirectly, whether or not due to a third-party claim, arising out of, resulting from or in connection with: (i) a breach of any representation or warranty of Sellers in Article IV of this Agreement; (ii) a breach of any covenant or agreement of any Seller made in this Agreement; (iii) any unpaid Taxes of the Company for any Pre-Closing Tax Period, including, without limitation, any liability Buyer may have under any applicable bulk sale or bulk transfer Law; and (iv) any Outstanding Transaction Expenses of the Company.

(i) The rights of Buyer will not be affected notwithstanding any investigation or examination conducted with respect to, or any knowledge acquired (or capable of being acquired) about the accuracy or inaccuracy of or compliance with, any representation, warranty, covenant, agreement, undertaking or obligation made by or on behalf of the Sellers, except as set forth in this Agreement or in the Disclosure Schedules.

(ii) Notwithstanding the foregoing, the Sellers will not be obligated to indemnify and hold Buyer harmless for a claim pursuant to Section 6.2(b)(i) for such Losses unless and until the aggregate amount of such items exceeds $350,000 (the “ Deductible ”) in which case the Losses will be recoverable as to any Losses in excess of the Deductible and subject to the Cap (as hereinafter defined). The aggregate amount of all payments made by the Sellers in satisfaction of claims for indemnification pursuant to Section 6.2(b)(i) will not exceed $1,200,000.00 (the “ Cap ”) and, unless otherwise agreed in writing by the Sellers in their sole discretion, the obligations of any Seller to any Buyer Indemnified Party pursuant to such section will be met solely by one or more of the Sellers forfeiting a portion of the Equity Consideration, with the amount of Equity Consideration to be forfeited to be determined based on the amount of Losses and a price per share of the greater of $2.50 per share and the then current fair market value per share, which, for so long as the Buyer’s Common Stock is publicly traded, shall be based on the average closing trading price of the Common Stock over the period of ten (10) trading days prior to such forfeiture. The limitations set forth in this Section 6.2(c)(ii) , including the obligation to satisfy Losses via forfeiture of a portion of the Equity Consideration, do not apply to Losses related to or arising out of any claims asserted by Buyer for claims brought pursuant to the Fundamental Representations, pursuant to portions of Section 6.2(b) other than Section 6.2(b)(i) , or with respect to claims based on fraud or intentional misrepresentation. Notwithstanding anything to the contrary in this Section 6.2(c)(ii) , in no event shall any Seller be responsible for any indemnification hereunder in excess of the total amount of the Purchase Price payable to such Seller hereunder, and for any indemnification claim to which the Cap does not apply, each Seller shall have the option as to whether to satisfy all or any portion of such claim by paying cash, by surrendering any portion of the Equity Consideration (with the valuation thereof for such purposes being based on the greater of $2.50 per share (which amount shall be subject to adjustment in the event of any stock split, combination or similar event) or the then current fair market value per share, which, for so long as the Buyer’s Common Stock is publicly traded, shall be based on the average closing trading price of the Common Stock over the period of ten (10) trading days prior to such forfeiture), or any combination of the foregoing. Notwithstanding the foregoing in this Section 6.2(c)(ii) , with respect to up to a total of $600,000 in claims in the aggregate for indemnification pursuant to Section 6.2(b)(i) where Buyer has incurred actual out-of-pocket cash costs, Buyer shall be entitled to demand cash payment from Sellers for such claims, rather than receive forfeited or surrendered Equity Consideration for such claims as set forth above.

(iii) For the purposes of determining the existence of any breach of a representation, warranty, covenant, or agreement made by the Sellers, and for determining the amount of any indemnifiable Losses, each representation, warranty, covenant, and agreement made by the Sellers (whether made herein or in any other document, agreement or instrument delivered in connection herewith or therewith) will be deemed made without any qualifications or limitations as to materiality (including without limitation any qualifications or limitations made by reference to a Material Adverse Effect).

(d) Tax Treatment of Indemnity Payments . All payments made pursuant to any indemnification obligations under this Agreement, will be treated as adjustments to the Purchase Price for Tax purposes and such agreed treatment will govern for purposes of this Agreement, unless otherwise required by applicable Laws.

(e) Offset . Buyer will have the right to set off the indemnification obligations of the Sellers actually owed pursuant to this Article VI against any other payments, if any, due from Buyer to the Sellers (excluding any amounts under any Employment Agreement), and in all cases subject to the applicable provisions of Section 6.2(c)(ii) .

(f) D&O Claims . Notwithstanding anything herein to the contrary elsewhere in this Agreement, each Seller hereby agrees that such Seller will not make any claim for indemnification against Buyer, Buyer Indemnified Parties, or the Company in respect of any Losses for which the Sellers are responsible under the indemnification provisions of this Article VI by reason of the fact that he was a controlling person, manager, director, officer, or representative of the Company.

(g) For purposes of computing the aggregate amount of indemnifiable claims against Sellers, the amount of each claim for Losses by any Buyer Indemnified Party shall be deemed to be an amount equal to, and any payments by Sellers shall be limited to, the amount of such Losses that remain after deducting therefrom (i) any third party insurance proceeds and any indemnity, contributions or other similar payment payable by any third party with respect thereto, and (ii) any net Tax benefit actually realized (on a cash with and without basis) by any Buyer Indemnified Party or any Affiliate thereof with respect to the Losses or items giving rise to such claim for indemnification, in each case net of costs of realizing such amounts or benefits and, in the case of clause (i), net of any increase in future premiums of the applicable policy related to such recovery. If any such proceeds, benefits or recoveries are received by any Buyer Indemnified Party (or any of its Affiliates) with respect to any Losses after any Buyer Indemnified Party has been paid with respect thereto, such Buyer Indemnified Party (or such Affiliate) shall pay to the Sellers the amount of such proceeds, benefits or recoveries (up to the amount of the Losses for which such Buyer Indemnified Party has been paid).

(h) Upon making any payment to any Buyer Indemnified Party in respect of any Losses, the Sellers will, to the extent of such payment, be subrogated to all rights of such Buyer Indemnified Party (and its Affiliates) against any third party in respect of the Losses to which such payment relates. Such Buyer Indemnified Party (and its Affiliates) and the Sellers will execute upon request all instruments reasonably necessary to evidence or further perfect such subrogation rights.

6.3 Sole Remedy . The provisions of this Article VI set forth the exclusive rights and remedies of the Parties to seek or obtain damages or any other remedy or relief whatsoever from any Party with respect to matters arising under or in connection with this Agreement and the transactions contemplated hereby, in addition to claims for fraud. The Parties agree that, excluding any claim for injunctive or other equitable relief or for fraud, the indemnification provisions of this Article VI are intended to provide the sole and exclusive remedy as to all claims either the Sellers, on the one hand, and Buyer, on the other hand, may have arising from or relating to this Agreement and the transactions contemplated hereby.

6.4 Indemnification Procedures . Promptly after any Buyer Indemnified Party has received notice of or has knowledge of any claim by a person not party to this Agreement (“ Third Person ”) or the commencement of any action or proceeding by a Third Person, the Buyer Indemnified Party shall, as a condition precedent to a claim with respect thereto being made against any Seller, give the Sellers written notice of such claim or the commencement of such action or proceeding; provided, however, that delay or failure to provide such notice shall not relieve the Sellers of any obligation hereunder except and then solely to the extent such delay or failure increased materially the Losses sought by any Buyer Indemnified Party. Upon written notice to the Sellers within thirty (30) days of the Buyer Indemnified Party’s receipt of notice of a claim, the Sellers (at their own expense) shall have the right and shall be given the opportunity to assume and conduct, at its sole expense, the defense of such claim, action or proceeding. If the Sellers have assumed such defense, the Buyer Indemnified Parties shall have the right to employ separate counsel in any such claim, suit, or proceeding or to participate in the defense thereof, but the fees and expenses of such counsel shall not be included as part of any Losses incurred by any Buyer Indemnified Party and shall not be payable by the Sellers so long as the Sellers diligently and in good faith defend the claim, action, or proceeding; provided, however, that such Buyer Indemnified Party will be entitled to so participate at the expense of the Sellers if in the written opinion of counsel to the Buyer Indemnified Party a material conflict exists between the Sellers and the Buyer Indemnified Party. The Sellers shall not make any settlement with respect to any such claim, action, or proceeding without the prior consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. No Buyer Indemnified Party shall make any settlement with respect to any such claim, action, or proceeding without the prior consent of the Sellers, which consent shall not be unreasonably withheld, conditioned or delayed. The Party or Parties conducting the defense of any such claim, action, or proceeding shall keep the other Parties reasonably apprised of all significant developments with respect thereto, including all settlement negotiations and offers.

Article VII - MISCELLANEOUS PROVISIONS

7.1 Expenses . Except as expressly set forth herein, the Parties will each bear their own costs and expenses relating to the negotiation and the implementation of the transactions contemplated hereby, including, without limitation, fees and expenses of legal counsel, accountants, investment bankers, brokers or finders, printers, copiers, consultants or other representatives, whether or not such transactions are consummated.

7.2 Amendment and Modification; Waivers, Third-Party Beneficiary . This Agreement may be amended, or any provision of this Agreement may be waived upon the approval, in a writing, executed by Buyer and the Sellers. This Agreement will not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns, other than: (i) the Released Parties, who are intended third-party beneficiaries of the provisions set forth in Section 3.7 , (ii) the current and former directors, officers and employees referenced in Section 3.8 , who are intended third-party beneficiaries of the provisions set forth in Section 3.8 , and (iii) the Buyer Indemnified Parties and the Seller Indemnified Parties, who are intended third-party beneficiaries of the provisions set forth in Article VI . Any waiver or consent will be effective only in the specific instance and for the specific purpose for which it is given.

7.3 Notices . All notices, requests, demands and other communications required or permitted hereunder will be made in writing and will be deemed to have been duly given and effective: (a) on the date of delivery, if delivered personally; (b) on the first Business Day following the date of dispatch if delivered by a recognized next-day courier service; (c) on the earlier of the fourth (4 ^th ) day after mailing or the date of the return receipt acknowledgment, if mailed, postage prepaid, by certified or registered mail, return receipt requested; or (d) on the date of transmission, if sent by e-mail (with confirmation of receipt by the recipient), facsimile, telecopy, telegraph, telex or other similar telegraphic communications equipment. All notices hereunder must be delivered to the following addresses:

If to any Seller :

James C. Finkle, Jr.

1230 McCarter Hwy.

Newark, NJ 07104

Email: jfinkle@finkletrucking.com

and to

Clifford Finkle IV

1230 McCarter Hwy.

Newark, NJ 07104

Email: cfinkle@finkletrucking.com

With copies to the following, which will not constitute notice:

Lowenstein Sandler LLP

1251 Avenue of the Americas

New York, New York 10020

Attn: Matthew Savare

Email: msavare@lowenstein.com

If to Buyer :

EVO Transportation & Energy Services, Inc.

Attn: John Yeros, CEO

8285 West Lake Pleasant Parkway

Peoria, AZ 85382

Email: jyeros@evocng.com

With copies to the following, which will not constitute notice:

Fredrikson & Byron, P.A.

200 South Sixth Street, Suite 4000

Minneapolis, MN 55402-1425

Attn: Frank B. Bennett

Email: fbennett@fredlaw.com

7.4 Assignment . This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns, except that neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated by any Party without the prior written consent of the other Parties, which consent will not be unreasonably withheld. Notwithstanding the foregoing, (i) Buyer may assign in whole or in part its rights and obligations pursuant to this Agreement to one or more of their Affiliates (but no such assignment shall relieve Buyer of any of its obligations hereunder), (ii) Buyer may assign this Agreement and its rights and obligations under this Agreement in connection with a merger or consolidation involving Buyer, or in connection with a sale of substantially all of the equity or assets of Buyer or other disposition of substantially all of the Business (provided the assignment will not relieve Buyer of its obligations pursuant to this Agreement), and (iii) Buyer may assign any or all of its rights pursuant to this Agreement or the Transaction Documents, including its rights to indemnification, to any of its lender(s) as collateral security.

7.5 Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement and the legal relations among the Parties hereto will be governed by and construed in accordance with the internal substantive Laws of the State of Delaware (without regard to the Laws of conflict that might otherwise apply and result in the application of the laws of another jurisdiction to this Agreement and the legal relations among the Parties hereto) as to all matters, including without limitation matters of validity, construction, effect, performance and remedies. Each of the Parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of Delaware and of the United States located in Wilmington, Delaware, for the purposes of any such action or other proceeding arising out of this Agreement or any transaction contemplated hereby. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR ANY TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF. The Buyer and the Sellers specifically represent and warrant that they were represented by legal counsel and obtained legal advice regarding this Section 7.5 and other provisions of this Agreement.

7.6 Counterparts . This Agreement may be executed simultaneously with original, facsimile, or. pdf signatures in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

7.7 Headings . The headings of the sections and subsections of this Agreement are inserted for convenience only and will not constitute a part hereof.

7.8 Entire Agreement . This Agreement and the exhibits and other writings referred to in this Agreement or any such exhibit or other writing are part of this Agreement, together embody the entire agreement and understanding of the Parties hereto in respect of the transactions contemplated by this Agreement. This Agreement supersedes all prior agreements and understandings between the Parties with respect to the transaction or transactions contemplated by this Agreement.

7.9 Severability . Provisions of this Agreement will be interpreted to be valid and enforceable under applicable Law to the extent that such interpretation does not materially alter this Agreement; provided, however, that if any such provision will become invalid or unenforceable under applicable Law such provision will be stricken to the extent necessary and the remainder of such provisions and the remainder of this Agreement will continue in full force and effect.

7.10 Cumulative Remedies; Specific Performance . All rights and remedies of a Party hereto are cumulative of each other and of every other right or remedy such Party may otherwise have at law or in equity, and the exercise of one or more rights or remedies will not prejudice or impair the concurrent or subsequent exercise of other rights or remedies. Buyer will expressly be entitled to specific performance as a remedy.

7.11 Publicity . No Party will issue any press release or make any other public statement relating to the transactions contemplated hereby unless (a) agreed to by the other Parties, or (b) required by Law or court order and any such release or statement will be subject to prior review by the other Parties.

7.12 Disclosure Schedules . Disclosure of any fact or item in any Schedule hereto referenced by a particular Section in this Agreement shall be deemed to have been disclosed with respect to every other Section in this Agreement to the extent that such disclosure is set forth with such specificity that it is readily apparent on the face of such disclosure that such disclosure is applicable to such Sections. The specification of any dollar amount in the representations or warranties contained in this Agreement or the inclusion of any specific item in any Schedule hereto is not intended to imply that such amounts, or higher or lower amounts or the items so included or other items, are or are not material, and no Party shall use the fact of the setting of such amounts or the inclusion of any such item in any dispute or controversy as to whether any obligation, items or matter not described herein or included in a Schedule is or is not material for purposes of this Agreement. Unless this Agreement specifically provides otherwise, neither the specification of any item or matter in any representation or warranty contained in this Agreement nor the inclusion of any specific item in any Schedule hereto is intended to imply that such item or matter, or other items or matters, are or are not in the Ordinary Course of Business, and no Party shall use the fact of the setting forth or the inclusion of any such item or matter in any dispute or controversy between the Parties as to whether any obligation, item or matter not described herein or included in any Schedule is or is not in the Ordinary Course of Business for purposes of this Agreement.

[ Signature Page Follows ]

IN WITNESS WHEREOF, the Parties hereto have caused this Share Exchange Agreement to be duly executed as of the day and year first above written.

SELLERS:	BUYER:

/s/ James C. Finkle, Jr.	EVO TRANSPORTATION & ENERGY SERVICES, INC.
James C. Finkle, Jr.

	By:	/s/ Damon Cuzick
/s/ Clifford Finkle IV	Name:	Damon Cuzick
Clifford Finkle IV	Its: President

Signature Page to Stock Purchase and Exchange Agreement

EXHIBIT A

Sellers

Seller	Equity Interests Owned by Seller			Equity Consideration To be issued to Seller at Closing	Cash Consideration To be paid to Seller at Closing		Earnout Amount
James C. Finkle, Jr.		50	%	625,000 shares of Common Stock	$	625,000.00		50	%
Clifford Finkle IV		50	%	625,000 shares of Common Stock	$	625,000.00		50	%

A- 1

EXHIBIT B

DEFINITIONS

As used in this Agreement, the following terms will have the meanings indicated below.

“ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “ Control ” or “ Controlling ” or “ Controlled by ” will mean, when used with respect to any specified Person, the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by Contract or otherwise.

“ Business Day ” means any day other than Saturday or Sunday on which banks are open for business in Phoenix, Arizona and New York, New York.

“ Cash ” means cash and cash equivalents (excluding any cash required to cover checks or other similar payments that have been made by any Company but have not yet cleared).

“ Change of Control ” shall mean (i) a direct or indirect sale of all or substantially all of the assets of the Buyer to any Person, and (ii) a sale of shares of capital stock of the Buyer, or a merger, consolidation, recapitalization or other transaction, resulting directly or indirectly in more than 50% of the voting power of the Buyer being held directly or indirectly by a Person or group of Persons acting in concert.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Company Indebtedness ” means the Indebtedness set forth on Schedule 4.10 .

“ Contracts ” means all oral or written contracts, agreements, instruments and other documents to which a Person is a party or by which it or its assets is or are bound.

“ DOT ” means the United States Department of Transportation.

“ Environmental Law ” means all Laws: (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal, or remediation of any Hazardous Substances. The term “ Environmental Law ” includes the following (including their implementing regulations, any state analogs or any similar laws in foreign jurisdictions): the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; and the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.

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“ GAAP ” means U.S. generally accepted accounting principles, consistently applied.

“ Government Bid ” means any outstanding bid, offer or proposal which, if accepted or successful, would result in a Current Government Contract.

“ Government Contract ” means any prime contract, subcontract, purchase order, task order, delivery order, basic ordering agreement, pricing agreement, teaming agreement, letter contract, joint venture or other similar written arrangement between any Company, on the one hand, and (i) any Governmental Entity or (ii) any higher-tier contractor of a Governmental Entity in its capacity as a higher-tier contractor, on the other hand. A purchase order, a task order or a delivery order under a Government Contract shall not constitute a separate Government Contract, for purposes of this definition, but shall be part of the Government Contract to which it relates.

“ Governmental Entity ” means any court, administrative agency or commission, self-regulatory organization or other foreign, domestic, or quasi-governmental authority or instrumentality.

“ Hazardous Substances ” means all hazardous substances, as that term is defined in the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), solid waste, hazardous waste and any other individual or class of pollutants, contaminants, toxins, chemicals, substances, wastes or materials in their solid, liquid or gaseous phase, defined, regulated, classified or identified under any Environmental Law, including without limitation petroleum, petroleum products, friable asbestos, molds, urea formaldehyde, radioactive materials and polychlorinated biphenyls.

“ Indebtedness ” means, with respect to any Person at any date, without duplication: (a) all obligations of such Person for borrowed money or in respect of loans or advances; (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (c) all obligations in respect of letters of credit, whether or not drawn, and bankers’ acceptances issued for the account of such Person; (d) all capital lease liabilities of such Person determined in accordance with GAAP; (e) all guarantees of such Person in connection with any of the foregoing; (f) the deferred purchase price of property or services (including any earn-out, seller note or other deferred purchase price, however structured, but excluding trade payables or accruals incurred in the Ordinary Course of Business); (g) any accrued interest, prepayment premiums or penalties or other costs or expenses related to any of the foregoing; and (h) all obligations or indebtedness of any Company owed to any Seller.

“ Information ” as used herein will not include any information relating to a Person, which the Party disclosing such information can show: (a) to have been in its possession prior to its receipt from another Party hereto; (b) to be now or to later become generally available to the public through no fault of the disclosing Party; (c) to have been available to the public at the time of its receipt by the disclosing Party; (d) to have been received separately by the disclosing Party in an unrestricted manner from an individual or entity entitled to disclose such information; or (e) to have been developed independently by the disclosing Party without regard to any information received in connection with this transaction.

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“ Insider ” means (a) any officer, director, or owner of any Company; (b) any individual related by blood, marriage or adoption to any individual listed in clause (a) hereof; or (c) any Person in which any individual listed in clauses (a) or (b) hereof has a beneficial interest of at least 10% (excluding any publicly traded security).

“ Inventory ” of any Company means all inventories of raw materials, work-in-process and finished goods, inventory in transit, office supplies, backlog, and service and repair parts, supplies and components held for resale, including any of the foregoing purchased subject to conditional sales or title retention agreements in favor of any third party, together with related packaging materials and all rights of such Company against suppliers of such inventories.

“ Knowledge ” means the actual knowledge of such Person after reasonable inquiry, and “ Knowledge ” as it is applied to the Company, means the actual knowledge of the Sellers, after reasonable inquiry of employees of the Companies reasonably expected to have relevant information.

“ Law ” means any federal, state, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty.

“ Liability ” or “ Liabilities ” means any liability or obligation of whatever kind or nature (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

“ Lien ” means any mortgage, pledge, deed of trust, assignment, lien, charge, encumbrance, judgment, pledge or security interest of any kind or nature whatsoever or any claim of right of any third-party, or the interest of a vendor or lessor under any conditional sale Contract, capital lease or other title retention Contract.

“ Losses ” means any and all losses, liabilities, damages, fees, direct and reasonably foreseeable indirect damages (including consequential and incidental damages and lost profits to the extent reasonably foreseeable, but excluding punitive damages unless owed to a third party), and costs and expenses (including reasonable out-of-pocket costs of investigation and defense and reasonable fees and expenses of lawyers, experts and other professionals).

“ Material Adverse Effect ” means any event, change, circumstance, occurrence, effect or state of facts that is or could reasonably be expected to be materially adverse to the business, assets, liabilities, condition (financial or otherwise), results of operations, or prospects of the Business.

“ Material Contract ” means:

(i) each Contract of any Company involving aggregate consideration in excess of $100,000;

B- 3

(ii) all Contracts that require any Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;

(iii) all Contracts that provide for the indemnification by any Company of any Person (other than customers in the Ordinary Course of Business) or the assumption of any Tax, environmental or other Liability of any Person;

(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person (other than customers in the Ordinary Course of Business) or any real property (whether by merger, sale of stock, sale of assets or otherwise);

(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any Company is a party;

(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements);

(vii) except for Contracts relating to trade receivables, all Contracts relating to Indebtedness;

(viii) all Government Contracts;

(ix) all Contracts that limit or purport to limit the ability of any Company to compete in any line of business or with any Person or in any geographic area or during any period of time;

(x) any Contracts to which any Company is a party that provide for any joint venture, partnership or similar arrangement by any Company;

(xi) all Contracts between or among any Company, on the one hand, and any Seller or any Affiliate of a Seller (other than a Company), on the other hand; and

(xii) all collective bargaining agreements or Contracts with any Union to which any Company is a party.

“ Ordinary Course of Business ” means the ordinary course of the Business, consistent with past practice, including with regard to nature, frequency, and magnitude.

“ Organizational Documents ” means the articles or certificate of incorporation, bylaws, limited liability company agreement, partnership agreement or other governing documents of an entity.

“ Outstanding Transaction Expenses ” means fees and expenses that the Parties hereto have mutually agreed that Buyer will pay on any Company’s or any Seller’s behalf at Closing relating to the negotiation, execution and delivery of this Agreement and the other Transaction Documents.

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“ Permitted Lien ” means (a) Liens related to the Company Indebtedness, (b) Liens for Taxes not yet due and payable or that are being contested in good faith, (c) statutory Liens of landlords with respect to leased real property, (d) Liens of carriers, warehousemen, mechanics, materialmen, and repairmen incurred in the Ordinary Course of Business and not yet delinquent, and (e) in the case of leased real property, in addition to items (b), (c), and (d), zoning, building, or other restrictions, variances, covenants, rights of way, encumbrances, easements and other minor irregularities in title, none of which, individually or in the aggregate, interfere in any material respect with the present use of or occupancy of the affected parcel by any Company.

“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, trust, unincorporated organization, Governmental Entity, or other legally recognized entity.

“ Pre-Closing Tax Period ” means any Tax period ending on or prior to the Closing Date and the portion of any Straddle Period up to and including the Closing Date.

“ Related Party Transaction ” means any Contract, arrangement, or understanding under which any Company or its Insiders (a) has borrowed any monies from or has outstanding any indebtedness or other similar obligations to any Company or its Affiliates; (b) owns any direct or indirect interest of any kind in, or is a director, officer, member, employee, partner, equity owner, consultant or lender to, or borrower from, or has the right to participate in the management, operations or profits of, any Person which is (i) a competitor, supplier, customer, distributor, lessor, tenant, creditor or debtor of any Company, or (ii) participates in any transaction to which any Company is a party; or (c) is or has been in the last three years a party to any Contract, arrangement, understanding or transaction with any Company.

“ Release ” or “ Released ” will have the meaning specified in 42 U.S.C. § 9601.

“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, directors or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof.

“ Tax Return ” means all returns, declarations, reports, statements, computations and other documents required to be filed with any Governmental Entity in respect of Taxes.

“ Taxes ” means federal, state, county, local, foreign or other income, gross receipts, ad valorem, franchise, profits, sales or use, transfer, registration, excise, utility, environmental, communications, real or personal property, membership interest, license, payroll, wage or other withholding, employment, social security, severance, stamp, occupation, alternative or add-on minimum, estimated and other taxes of any kind whatsoever (including deficiencies, penalties, additions to tax, and interest attributable thereto) whether disputed or not.

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EXHIBIT C

FormS of Employment Agreement

[ See attached .]

C- 1

EXHIBIT D

Form of Subscription Agreement

[ See attached .]

D-1

Exhibit 10.1

EMPLOYMENT AGREEMENT

This Employment Agreement (the “ Agreement ”) is entered into and effective as of July 15, 2019 (the “ Effective Date ”), by and between EVO Transportation & Energy Services, Inc. (the “ Company ”) and Clifford Finkle IV (“ Executive ”).

1. Duties and Scope of Employment.

(a) Positions and Duties. During the Employment Term (as defined below), Executive will be employed as the Vice-President of Finkle Transport, Inc. Executive’s authority, duties, and responsibilities will correspond to Executive’s position and will include any particular authority, duties, and responsibilities reasonably consistent with the Executive’s position that the Company may assign to Executive from time to time.

(b) Obligations. During the Employment Term, Executive is required to diligently perform his assigned duties and to diligently observe all of his obligations to the Company. Executive agrees to devote his full business time and efforts, energy and skill to his employment at the Company, and Executive agrees to apply all his skill and experience to the performance of his duties and advancing the Company’s interests. The foregoing shall not preclude Executive from (i) engaging in civic, charitable or religious activities (including serving as a director, trustee or officer) or, with the prior written consent of the Company, from serving on the boards of directors of other companies, or serving on the boards or holding the positions of other companies listed on Exhibit B hereto or (ii) engaging in investments, including but not limited to real estate investments and acting as the general partner or manager thereof, as long as such activities do not interfere or conflict with Executive’s responsibilities to or his abilities to perform his duties hereunder. During the Employment Term, Executive may not perform services as an employee or consultant of any Competing Business and Executive will not assist any Competing Business in competing with the Company or in preparing to engage in competition with the business or proposed business of the Company. Executive shall comply with and be bound by Company’s operating policies, procedures, and practices from time to time in effect during his employment that apply to all executive-level employees of the Company. By signing this Agreement, Executive confirms to the Company that he has no contractual commitments or other legal obligations that would prohibit him from performing his duties for the Company.

(c) Employment Term. The term of this Agreement shall be four (4) years commencing on the Effective Date, unless terminated earlier pursuant to the terms herein (the “ Initial Term ”). Unless earlier terminated pursuant to the terms herein, the Initial Term shall be automatically renewed for consecutive additional one-year terms (each, a “ Renewal Term ”) upon the expiration of the Initial Term or any Renewal Term unless the Company or Executive delivers to the other at least 90 days prior to the expiration of the Initial Term or the then-current Renewal Term, as the case may be, a written notice specifying that the term of Executive’s employment will not be renewed at the end of the Initial Term or the then-current Renewal Term, as the case may be. Like the Initial Term, the then-current Renewal Term is subject to earlier termination pursuant to the terms herein. The Executive’s period of employment hereunder is referred herein as the “ Employment Term, ” whether the Initial Term, the then-current Renewal Term, or the shorter period through the date of an earlier termination thereof as provided elsewhere herein. The notice of non-renewal given by the Company is referred to herein as the “ Company’s Non-Renewal .” The notice of non-renewal given by Executive is referred to herein as the Executive’s Non-Renewal.”

(d) Place of Performance. Executive will initially primarily report to the principal office of Finkle Trucking, an Affiliate of the Company which is currently located in the Newark, New Jersey area. Executive understands and agrees that his duties will include reasonable travel, including but not limited to travel to offices of the Company, its Affiliates, and such other business travel as is reasonably necessary and appropriate to the performance of Executive’s duties hereunder, subject to reimbursement of expenses pursuant to Section 6 below.

2. At-Will Employment. The parties agree that Executive’s employment with the Company will be “at-will” employment and may be terminated at any time, upon at least 30 days’ prior written notice, either by the Company without Cause (in any such case, “ Company’s At-Will Termination ”) or by Executive without Good Reason (in any such case, “ Executive’s At-Will Termination ”). Executive understands and agrees that neither his job performance for, nor promotions, commendations, bonuses or the like from, the Company give rise to or in any way serve as the basis for modification, amendment, or extension, by implication or otherwise, of his employment with the Company. However, as described in this Agreement, Executive may be entitled to Severance Pay (defined below) and Severance Benefits (defined below) depending upon the circumstances of the termination of the Employment Term as set forth in Section 7(b) below.

3. Compensation.

(a) Initial Base Salary. During the Employment Term, the Company will pay Executive an annual base salary as compensation for his services (the “ Base Salary ”) at the initial rate of $225,000. The Base Salary will be paid periodically in accordance with the Company’s normal payroll practices. The Base Salary will be subject to review and adjustments will be made based upon the Company’s standard practices.

(b) Annual Incentive Bonus. During the Employment Term, Executive will be eligible to earn an annual incentive bonus (an “ Annual Bonus ”) under the same or substantially same bonus arrangement, plan or program as in effect for other executive-level employees of the Company from time to time and based upon the same general objective standards as are applied to the other executive-level employees of Company, provided that Executive’s personal performance objectives shall be unique to his role as Vice-President of Finkle Transport, Inc. Consistent therewith, the Board of Directors of the Company (the “ Board ”) (or a committee of the Board, if applicable) will determine Executive’s target bonus opportunity and the criteria for earning such bonus, as well as Executive’s achievement of such criteria, and the amount of the Annual Bonus earned and payable to Executive for such year. Any Annual Bonus that is earned and becomes payable pursuant to this Section 3(b) will be paid no later than March 15 of the calendar year immediately following the calendar year to which the Annual Bonus relates. Executive’s Annual Bonus for calendar year 2019 shall be prorated on a weekly basis for his period of employment in such year. Executive must remain employed by the Company through December 31 of the applicable calendar year to be eligible to earn an Annual Bonus for such year; provided, however, that if the Employment Term ends prior to December 31 by reason of either termination by Executive for Good Reason or by the Company’s At-Will Termination, the Annual Bonus for such partial calendar year shall be prorated on a weekly basis for his period of employment in such year. The determinations of the Board (or a committee thereof) with respect to the Annual Bonus will be final and binding unless there is direct evidence that the determination was in violation of the terms and provision of this Section 3(b) or the applicable program, plan or arrangement.

(c) Equity. During the Employment Term, Executive will be eligible to receive awards of stock options pursuant to the same or substantially same stock option arrangement, plan or program as in effect for other executive-level employees of the Company from time to time and based upon the same objective standards as are applied to the other executive-level employees of Company. Consistent therewith, the Board (or a committee of the Board, if applicable) will determine whether Executive will be granted any such equity awards and the terms of any such award in accordance with the terms of the applicable program, plan or arrangement that may be in effect from time to time.

4. Employee Benefits. During the Employment Term, Executive will be entitled to participate in the employee benefit plans and programs currently and hereafter maintained by the Company or its applicable Affiliate of general applicability to other executive-level employees and to employees generally of the Company, subject to eligibility requirements and the applicable terms and conditions of the subject plan or program and the determination of any committee uniformly administering such plan or program. The Company reserves the right to cancel or change the benefit plans and programs it offers to its employees at any time. In addition, the Company will cause Executive to be covered by a directors and officers liability insurance policy in an amount and scope of coverage customary for the size and industry of the Company’s business (but in no event less than $2,000,000) commencing on the date of this Agreement.

5. Vacation. During the Employment Term, Executive will be entitled to paid vacation of not less than 20 days per calendar year, prorated for any partial calendar year of employment, in accordance with the Company’s standard vacation policy (including, without limitation, its policy on the maximum accrual, carry-over and payout), with the timing and duration of specific vacations mutually and reasonably agreed to by Executive and the Company.

6. Expenses. During the Employment Term, the Company will reimburse Executive for reasonable travel, lodging, meal, entertainment or other expenses incurred by Executive in the furtherance of or in connection with the performance of Executive’s duties hereunder, in accordance with the Company’s expense reimbursement policy as in effect from time to time.

7. Accrued Obligations; Severance; COBRA.

(a) Accrued Obligations. Upon the termination or expiration of the Employment Term for any reason, Company shall pay to Executive the following: (i) all unpaid Base Salary through the last day of the Employment Term; (ii) all unreimbursed expenses that otherwise are payable to Executive pursuant to Section 6 above, and (iii) all other accrued payments or benefits to which Executive is entitled and has earned under the terms of any applicable compensation, bonus, award or similar arrangement, plan or program, subject to Section 3(b) with respect to bonus accrual and eligibility (collectively, the “ Accrued Obligations ”). The Accrued Obligations shall be paid to Executive in a lump sum in cash within thirty (30) days following the termination or expiration of the Employment Term, unless otherwise required by law or the terms of the applicable arrangement, plan or program, in which case the same shall be paid as soon as required thereunder.

(b) Severance. If the Employment Term ends by reason of either termination by Executive for Good Reason or by the Company’s At-Will Termination, the Company shall pay to Executive the greater of (as applicable, “ Severance Pay ”) (i) an amount equal to the product of (A) the number of full or partial months, if any, in the period beginning on the date the Employment Term ended and ending on the date the Initial Term would have ended, if later than the date the Employment Term actually ended, multiplied by (B) Executive’s monthly Base Salary (as in effect immediately prior to the termination date) or (ii) an amount equal to one-half of Executive’s annual Base Salary (as in effect immediately prior to the termination date). The Severance Pay shall be paid by the Company to Executive in substantially equal monthly installments over a number of months equal to (x) if clause (i) above is applicable, the number of months determined under clause (A) and (y) if clause (ii) above is applicable, twelve (12) months, without reduction or set off (other than as provided in Section 11(a) below), in accordance with the Company’s standard payroll procedures, provided that the revocation period(s) referred to in the Release Agreement set forth in Section 8(a) below have expired without revocation. If the Employment Terms ends by reason of termination by the Company for Cause, by the Company’s Non-Renewal or Executive’s Non-Renewal of the Initial Term or any Renewal Term, by Executive’s At-Will Termination, or due to Executive’s death or disability, no Severance Pay will be owing or paid to Executive.

(c) COBRA. If the Employment Term ends by reason of either termination by Executive for Good Reason or by the Company’s At-Will Termination, to the extent Executive and Executive’s spouse and/or dependent children properly (and timely) elect COBRA continuation coverage under the Company’s group health insurance plan, the Company shall pay, on Executive’s behalf, all of the premiums due for such coverage for a period beginning on the date the Employment Term so ended and ending on the earliest to occur of (as applicable, “ Severance Benefits ”) (i) the date on which Executive is no longer entitled to COBRA continuation coverage under the Company’s group health insurance plan, (ii) the last day of the month that includes or immediately precedes the first day that Executive is covered under another employer’s group health insurance plan or (iii) the last day of the month in which Executive receives his final Severance Pay payment; provided, however, that notwithstanding the foregoing or any other provision in this Agreement to the contrary, the Company may unilaterally amend this Section 7(c) or eliminate the benefit provided hereunder, upon written notice to Executive, but only if and to the extent necessary to avoid the imposition of excise taxes, penalties or similar charges on the Company, including, without limitation, under Code Section 4980D. If the Employment Term ends by reason of termination by the Company for Cause, by the Company’s Non-Renewal or Executive’s Non-Renewal of the Initial Term or any Renewal Term, by Executive’s At-Will Termination, or due to Executive’s death or disability, no Severance Benefits will be owing to Executive.

8. Conditions to Receipt of Severance Pay and Severance Benefits.

(a) Release of Claims. The receipt of Severance Pay and Severance Benefits will be subject to Executive signing, delivering, not revoking and complying with a general release and waiver of claims in favor of the Company and its officers, directors and affiliates in substantially the form attached hereto as Exhibit A .

(b) Compliance with Covenants. The receipt of Severance Pay and Severance Benefits will be subject to Executive’s compliance with Sections 9(a), 9(b), 9(c) and 9(d) of this Agreement. In the event Executive breaches any of Sections 9(a), 9(b), 9(c) or 9(d), (i) all remaining payments of Severance Pay and/or Severance Benefits to which Executive otherwise is entitled pursuant to Section 7(b) and Section 7(c) will immediately cease, and (ii) Executive will repay, or cause to be repaid, to the Company the full amount of any payments of Severance Pay and Severance Benefits previously paid by the Company to Executive or on behalf of Executive pursuant to Section 7(b) and/or Section 7(c) prior to the date of such breach.

9. Restrictive Covenants.

(a) Non-Competition. In recognition of the consideration provided herein, and in connection with the protection of the Company’s trade secrets and customer contacts, Executive agrees that, during the Employment Term and ending on the later to occur of (i) the twelve (12) month anniversary following the termination or expiration of the Employment Term or (ii) the last day of the Severance Pay period as set forth in Section 7(b) (as applicable, the “ Restricted Period ”), Executive shall not either directly or indirectly, whether for consideration or otherwise: (i) engage in (except on behalf of the Company or any of its Affiliates), or compete with the Company or any of its Affiliates in, a Competing Business anywhere in the Territory (any such entity, a “ Competing Entity ”); or (ii) form or assist others in forming, be employed by, perform services for, become an officer, director, member or partner of, or participant in, or consultant or independent contractor to, invest in or own any interest in (whether through equity or debt securities), assist (financially or otherwise) or lend Executive’s name, counsel or assistance to, any Competing Entity.

(b) Non-Solicitation. In recognition of the consideration provided herein, Executive agrees that, during the Restricted Period, Executive shall not either directly or indirectly, whether for consideration or otherwise: (i) solicit or accept business from any customer of the Company for the purpose of providing goods or services in a Competing Business or solicit or induce any customer of the Company to terminate, reduce or alter in a manner adverse to the Company, any existing business arrangement or agreement with the Company, (ii) be employed by any customer of the Company or (iii) solicit, hire, attempt to solicit or attempt to hire any person who is or was an employee of the Company or any of its Affiliates at any time during the twelve (12) months prior to such solicitation or hire. The restrictions set forth in this Section 9(b) shall not prohibit any form of general advertising or solicitation that is not directed at a specific person or entity or does not relate to a Competing Business.

(c) Non-Disclosure and Non-Use of Confidential Information. At all times both during the Employment Term and for five (5) years thereafter (except with regard to trade secrets, for so long as such information remains a trade secret), Executive agrees that he will not, either directly or indirectly, (i) divulge, use, disclose (in any way or in any manner, including by posting on the Internet), reproduce, distribute, or reverse engineer or otherwise provide Confidential Information to any person, firm, corporation, reporter, author, producer or similar person or entity; (ii) take any action that would make available Confidential Information to the general public in any form; (iii) take any action that uses Confidential Information to solicit any customer of the Company or prospective customer (with whom the Company has had a substantive discussion on it becoming a customer of the Company within the immediately preceding twelve (12) months) in violation of Section 9(b); or (iv) take any action that uses Confidential Information for solicitation of, or marketing for, any service or product on Executive’s behalf or on behalf of any entity other than the Company or its Affiliates with which Executive was in fact associated, except (as to the foregoing clauses (i) through and including (iv) above) (A) as required in connection with the performance of such Executive’s duties to the Company or any of its Affiliates, (B) as required to be included in any report, statement or testimony requested by any municipal, state or national regulatory body having jurisdiction over Executive, (C) as required in response to any summons or subpoena or in connection with any litigation, (D) to the extent necessary in order to comply with any law, order, regulation, ruling or governmental request applicable to Executive, (E) as required in connection with an audit by any taxing authority, or (F) as permitted by the express written consent of the Company.

(i) In the event Executive is required to disclose Confidential Information pursuant to any of the foregoing exceptions, Executive shall promptly notify the Company of such pending disclosure and assist the Company (at the Company’s sole expense, which will be advanced to Executive whenever reasonable to do so) in seeking a protective order or in objecting to such request, summons or subpoena with regard to the Confidential Information. If the Company does not obtain such relief prior to the time that Executive is required to disclose such Confidential Information, Executive may disclose that portion of the Confidential Information (A) which counsel to Executive advises Executive that he is required to disclose or (B) which could subject Executive to be liable for contempt or suffer censure or penalty. In such cases, Executive shall promptly provide the Company with a copy of the Confidential Information so disclosed. This provision applies without limitation to unauthorized use of Confidential Information in any medium, including film, videotape, audiotape and writings of any kind (including books, articles, emails, texts, blogs and websites).

(ii) Executive is hereby notified, pursuant to the federal Defend Trade Secrets Act of 2016 (“ DTSA ”), that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (C) where the disclosure of a trade secret is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, Executive is hereby notified under the DTSA that, if an individual files a lawsuit for retaliation by an employer for reporting a suspected violation of law, the individual may disclose a trade secret to his or her attorney and use the trade secret information in the court proceeding if the individual (Y) files any document containing the trade secret under seal; and (Z) does not disclose the trade secret, except pursuant to court order.

(d) Inventions and Patents; Third Party Information. The results and proceeds of Executive’s services to the Company (during the Employment Term), including, without limitation, any works of authorship related to the Company resulting from Executive’s services during Executive’s employment with the Company and any works in progress will be works-made-for-hire. The Company will be deemed the sole owner throughout the universe of such works-made-for-hire and any and all rights of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed, with the right to use the same in perpetuity in any manner the Company determines in its sole discretion without any further payment to Executive whatsoever. If, for any reason, any of such results and proceeds will not legally be a work-made-for-hire or there are any rights which do not accrue to the Company under the preceding sentence, then Executive hereby irrevocably assigns and agrees to assign to the Company any and all of Executive’s right, title and interest thereto, including, without limitation, any and all copyrights, patents, trade secrets, trademarks and/or other rights of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed. The Company will have the right to use the same in perpetuity throughout the universe in any manner the Company determines without any further payment to Executive whatsoever. Executive will, from time to time, as may be reasonably requested by the Company, and at the Company’s sole expense, sign such documents and assist the Company to establish or document the Company’s exclusive ownership of any and all rights in any such results and proceeds, including, without limitation, the execution of appropriate copyright or patent applications or assignments. To the extent Executive has any rights in any such results and proceeds that cannot be assigned in the manner described above, Executive unconditionally and irrevocably waives the right to enforce such unassignable rights. This Section 9(d) is subject to, and will not be deemed to limit, restrict or constitute any waiver by the Company of, any rights of ownership to which the Company may be entitled by operation of law by virtue of the Company being Executive’s employer. This Agreement does not apply to an invention or other works of authorship for which no equipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Executive’s own time, and (i) which does not relate (A) directly to the business of the Company or (B) to the Company’s actual or demonstrably anticipated research or development, or (ii) which does not result from any work performed by Executive for the Company hereunder.

(e) Enforcement; Remedies. Executive acknowledges that the covenants set forth in Sections 9(a), 9(b), 9(c) and 9(d) impose a reasonable restraint on Executive in light of the business and activities of the Company and its Affiliates. Executive acknowledges that a breach of Sections 9(a), 9(b), 9(c) or 9(d) by Executive will cause serious and potentially irreparable harm to the Company and its Affiliates. Executive therefore acknowledges that a breach of Sections 9(a), 9(b), 9(c) or 9(d) by Executive cannot be adequately compensated in an action for damages at law, and equitable relief would be necessary to protect the Company and its Affiliates from a violation of this Agreement and from the harm which this Agreement is intended to prevent. By reason thereof, Executive acknowledges that the Company is entitled, in addition to any other remedies it may have under this Agreement or otherwise, to preliminary and permanent injunctive and other equitable relief to prevent or curtail any breach or threatened breach of this Agreement. Executive acknowledges, however, that no specification in this Agreement of a specific legal or equitable remedy may be construed as a waiver of or prohibition against pursuing other legal or equitable remedies in the event of a breach of this Agreement by Executive. If Executive breaches this Section 9 as determined by a court of competent jurisdiction, Executive shall pay the reasonable attorneys’ fees and costs incurred by the Company in connection with enforcing its rights under this Agreement.

(f) Modification. In the event that any provision or term of this Sections 9(a), 9(b), 9(c) or 9(d), or any word, phrase, clause, sentence or other portion thereof (including, without limitation, the geographic and temporal restrictions and provisions contained in Sections 9(a) or 9(b)) is held to be unenforceable or invalid for any reason, such provision or portion thereof will be modified or deleted in such a manner as to be effective for the maximum period of time, the maximum geographical area, and otherwise to the maximum extent as to which it may be enforceable under applicable law. Such modified restriction(s) shall be enforced by a court having jurisdiction. In the event that such modification is not possible, because each of Executive’s obligations in Sections 9(a), 9(b), 9(c) and 9(d) is a separate and independent covenant, any unenforceable obligation shall be severed and all remaining obligations shall be enforceable.

10. Definitions. For purposes of this Agreement, the following defined terms have the following meanings:

(a) “ Affiliate ” means, with respect to the Company, any corporation, limited liability company, partnership, business trust or organization, or other entity directly or indirectly controlling, controlled by or under common control with the Company, where control means holding more than 50% of both the voting interests of the entity and the authority to direct the management and policies of the entity.

(b) “ Cause ” means any of the following: (i) Executive’s conviction of, or plea of guilty or nolo contendere to, a misdemeanor involving dishonesty, wrongful taking of property, immoral conduct, bribery or extortion or any felony; (ii) willful material misconduct by Executive in connection with the business of the Company and its Affiliates; (iii) Executive’s continued and willful failure to perform substantially his responsibilities to the Company under this Agreement; (iv) Executive’s material breach of this Agreement; (v) Executive’s fraud, theft or material dishonesty against the Company, its Affiliates or its customers; (vi) Executive’s willful and material breach of the Company’s written code of conduct and business ethics or other material written policy, procedure or guideline in effect from time to time and applicable to the Company’s employees generally relating to personal conduct; or (vii) Executive’s willful attempt to obstruct or willful failure to cooperate when with any investigation authorized by the Board or any governmental or self-regulatory entity. Any determination of Cause by the Company shall be made by a resolution approved by a majority of the members of the Board, provided that with respect to Sections 10(a)(ii), 10(a)(iii), 10(a)(iv), 10(a)(vi) and 10(a)(vii) and notwithstanding any other provision of this Agreement to the contrary, Company shall not terminate the Employment Term for Cause unless (x) the Company notifies Executive in writing of such determination within ninety (90) days following the Company’s first knowledge of the existence thereof (which notice specifically identifies the reasons and details therefore), (y) Executive fails to remedy the same within thirty (30) days after the date on which he received such notice (the “ Remedial Period ”), and (z) the Company terminates the Employment Term for Cause within thirty (30) days after the end of the Remedial Period.

(d) “ Competing Business ” means a business that is engaged in providing freight trucking services, or any other business in which the Company or any of its Subsidiaries is then-currently engaged or was engaged at any time in the twelve (12) month period prior to Executive’s last day of employment with the Company (provided such other business is reasonably related to freight trucking services), or a business that is engaged in the acquisition or operation of compressed natural gas fueling stations. Notwithstanding the foregoing, Competing Business specifically excludes ADF Freight, Inc., a corporation organized under the laws of the state of New Jersey and owned by Alexis Finkle (“ ADF Freight ”); provided that ADF Freight shall not be permitted to bid for, or provide, any freight trucking services to the U.S. Postal Service.

(e) “ Confidential Information ” means confidential or proprietary information and/or techniques of the Company or its Affiliates entrusted to, developed by, or made available by the Company or any of its Affiliates to Executive during the Employment Term, whether in writing, in computer form, reduced to a tangible form in any medium, or conveyed orally, that is not generally known by others in the form in which it is or was used by the Company or its Affiliates. Examples of Confidential Information include, without limitation: (i) sales, sales volume, sales methods, sales proposals, business plans or statements of work; (ii) customers of the Company, prospective customer (with whom the Company has had a substantive discussion on it becoming a customer of the Company within the immediately preceding twelve (12) months), and customer records, including contact and preference information; (iii) costs of goods or services charged by vendors and suppliers to the Company; (iii) prices charged to specific customers and non-public general price lists and similar pricing information; (iv) terms of contracts with customer; (vii) non- public information and materials describing or relating to the financial condition and affairs of the Company or its Affiliates, including but not limited to, financial statements, budgets, projections financial and/or investment performance information, research reports, personnel matters, products, services, operating procedures, organizational responsibilities and marketing matters, policies or procedures; (viii) non-public information and materials describing existing or new processes, products and services of the Company or its Affiliates, including marketing materials, analytical data and techniques, and product, service or marketing concepts under development, and the status of such development; (ix) the business or strategic plans of the Company or its Affiliates; (x) the information technology systems, network designs, computer program code, and application practices of the Company or its Affiliates; (xi) acquisition candidates of the Company or its Affiliates or any studies or assessments relating thereto; and (xii) trade secrets. In addition and notwithstanding the foregoing, Confidential Information does not include either (y) information that, other than as a result of a breach by Executive of this Agreement, is or becomes generally known to and available for use by the public and (z) information that is, at any time, either on the Company’s website or is in brochures, advertising and other materials furnished or provided to customers of the Company and prospective customer (with whom the Company has had a substantive discussion on it becoming a customer of the Company within the immediately preceding twelve (12) months).

(f) “ Disability ” means Executive’s inability to perform one or more essential functions of his position, after taking into account reasonable accommodations, by reason of any medically diagnosed physical or mental impairment and such inability continues for a period of at least six (6) months in any twelve (12) month period. A determination of such Disability will be made by a physician reasonably acceptable to the Company and Executive (or, if applicable, his spouse or legal representative).

(g) “ Good Reason ” means the occurrence of any of the following events, without the written consent of Executive:

(i) any reduction in Executive’s Base Salary (as it may have been increased after the Effective Date), except by no more than ten percent (10%) as part of an across the board salary reduction uniformly applied to all executive-level employees of the Company;

(ii) any material reduction in Executive’s authority, duties or responsibilities or the assignment to Executive of any duties that are inconsistent with his position or;

(iii) any relocation of Employee’s place of employment with the Company to a location greater than twenty-five miles from the location specified in Section 1(d); or

(iv) any other action or inaction that constitutes a material breach by the Company of this Agreement or any other agreement under which Executive provides services to the Company or any of its Affiliates.

Notwithstanding any other provision of this Agreement to the contrary, Executive shall not terminate the Employment Term for Good Reason unless (A) Executive notifies the Company in writing of the condition that Executive believes constitutes Good Reason within ninety (90) days following the Executive’s first knowledge of the existence thereof (which notice specifically identifies such condition and the details regarding its existence), (ii) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “ Remedial Period ”), and (iii) Executive terminates the Employment Term within thirty (30) days after the end of the Remedial Period for Good Reason.

(h) “ Section 409A ” means Section 409A of the Code and the Treasury Regulations issued thereunder.

(i) “ Territory ” means any State in the United States in which the Company and its Affiliates then-currently conduct their business or have conducted their business at any time in the prior twelve (12) months.

11. Tax Matters

Withholding. All payments made pursuant to this Agreement will be

(a) subject to withholding of taxes as required by applicable law.

(b) Responsibility. Notwithstanding anything to the contrary herein, the Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Section 409A or any other legal requirement from Executive or any other individual to the Company or any of its Affiliates, except as provided below. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its Affiliates with respect to any such tax, economic or legal consequences; provided, however, if any amount payable pursuant to this Agreement is included in Executive’s gross income under Section 409A(a)(1)(A) of the Code, then (i) Executive shall be responsible for the payment of the income taxes imposed on such payment and the amount of interest under Section 409A(a)(1)(B)(i)(I) of the Code and (ii) the Company shall be responsible for the payment of the amount due under Section 409A(a)(1)(B)(i)(II) of the Code within 30 days after such time as a final determination is made that such amount is due and payable by Executive (whether by an agreed assessment, a decision upon administrative appeal, or a decision by a court having jurisdiction). The parties intend that the payment under the preceding clause (ii) will comply with Treasury Regulation Sections 1.409A-3(i)(1)(i), 1.409A-3(i)(1)(v) and 1.409A-3(i)(1)(v).

(c) Section 409A. The parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulations Section 1.409A-1(b)(4), the involuntary separation pay plan exception described in Treasury Regulations Section 1.409A-1(b)(9)(iii), or otherwise. To the extent Section 409A is applicable to this Agreement and any such payments and benefits, the parties intend that this Agreement and such payments and benefits comply with the deferral, payout and other limitations and restrictions imposed under Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary:

(i) if at the time Executive’s employment hereunder terminates, Executive is a “specified employee,” as defined in Treasury Regulations Section 1.409A-1(i) and determined using the identification methodology selected by the Company from time to time, or if none, the default methodology, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Section 409A, any and all amounts payable under this Agreement on account of such termination of employment that would (but for this provision) be payable within six (6) months following the date of termination, shall instead be paid in a lump sum on the first day of the seventh month following the date on which Executive’s employment terminates or, if earlier, upon Executive’s death;

(ii) a termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service,” as defined in Treasury Regulations Section 1.409A-1(h) after giving effect to the presumptions contained therein, and, for purposes of any such provision of this Agreement, references to “terminate,” “termination,” “termination of employment” and like terms shall mean separation from service;

(iii) each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments; and

(iv) with regard to any provision in this Agreement that provides for reimbursement of expenses or in-kind benefits, except for any expense, reimbursement or in-kind benefit provided pursuant to this Agreement that does not constitute a “deferral of compensation,” within the meaning of Treasury Regulations Section 1.409A-1(b), (A) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (B) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, and (C) such payments shall be made no later than two and a half months after the end of the calendar year in which the expenses were incurred.

12. Assignment. This Agreement and Executive’s rights under this Agreement are personal to Executive and shall not be assignable by Executive. The Company may, by written notice to Executive, assign this Agreement to any affiliated or successor to all or substantially all of the business and assets the Company and then only so long as such affiliate or successor assumes and agrees, in such form and substance as is reasonably satisfactory to Executive, to perform all of the Company’s duties, responsibilities, obligations and liabilities hereunder, including without limitation upon the termination of the Employment Term; provided, however, the termination of Executive’s employment hereunder by such affiliate or successor and the immediate hiring and continuation of Executive’s employment by such affiliate or successor upon the identical terms and provisions of this Agreement shall not be deemed to constitute a termination of the Employment Term. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

13. Notices. All notices, requests, demands and other communications called for hereunder will be in writing and will be deemed given (a) on the date of delivery if delivered personally, (b) one (1) day after being sent by a reputable commercial overnight service, or (c) four (4) days after being mailed by registered or certified mail, return receipt requested, prepaid and addressed to the parties or their successors at the following addresses, or at such other addresses as the parties may later designate in writing:

If to the Company:

EVO Transportation & Energy Services, Inc.

8285 West Lake Pleasant Parkway
Peoria, AZ 85382
Attention: John P. Yeros

If to Executive, to him at:

1230 McCarter Hwy.

Newark, NJ 07104

Email: cfinkle@finkletrucking.com

14. Severability. In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue in full force and effect without said provision.

15. Integration. This Agreement represents the entire agreement and understanding between the parties as to the subject matter herein and supersedes all prior or contemporaneous agreements whether written or oral. No waiver, alteration or modification of any of the provisions of this Agreement will be binding unless in writing that specifically refers to this Agreement and is signed by Executive and a duly authorized representative of the Company.

16. Waiver of Breach. The waiver of a breach of any term or provision of this Agreement must be in writing and will not operate as or be construed to be a waiver of any other previous or subsequent breach of this Agreement.

17. Headings. All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement.

18. Governing Law. This Agreement will be construed and interpreted in accordance with, and any dispute or controversy arising from any breach or asserted breach of this Agreement will be governed by, the laws of the State of New Jersey without regard to any choice of law rules. Any action brought to enforce or interpret this Agreement must be brought in the state or federal courts for the State of New Jersey, and the parties hereby consent to the jurisdiction and venue of such courts in the event of any dispute. Each of the parties knowingly and voluntarily waives all right to trial by jury in any action or proceeding arising out of or relating to this Agreement, Executive’s employment by the Company, or for recognition or enforcement of any judgment.

19. Acknowledgment. Executive acknowledges that he has had the opportunity to discuss this Agreement with and obtain advice from his private attorney, has had sufficient time to, and has carefully read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement.

20. Counterparts. This Agreement may be executed in counterparts, and may delivered personally or by facsimile or electronic transmission, and each counterpart will have the same force and effect as an original and will constitute an effective, binding agreement on the part of each of the undersigned parties.

{Signature Page Follows}

IN WITNESS WHEREOF, each of the parties has executed this Employment Agreement, in the case of the Company by its duly authorized officer, as of the Effective Date in the preamble hereof.

COMPANY:
EVO Transportation & Energy Services, Inc.

By:	/s/ Damon Cuzick
Name: Damon Cuzick
Title: President
Date: July 15, 2019

EXECUTIVE:

By:	/s/ Clifford Finkle IV
Name: Clifford Finkle IV
Date: July 15, 2019

Exhibit A

Form of Release

[Date]

[Via _____________]

Personal and Confidential

Executive

[Executive Address]

Re:

Separation Agreement and Release

Dear Executive:

As you know, your employment with EVO Transportation & Energy Services, Inc. (the “Company”) ended effective at the close of business on [Date] pursuant to Section 2 of your Executive Employment Agreement with the Company dated July 1, 2019 (the “Employment Agreement”). The purpose of this Separation Agreement and Release letter (“Agreement”) is to set forth the specific separation pay and benefits that the Company will provide you as set forth in Section 2 of your Employment Agreement in exchange for your agreement to the terms and conditions of this Agreement. Capitalized terms used but not defined in this Agreement have the meanings assigned to them in the Employment Agreement.

By your signature below, you agree to the following terms and conditions:

1. End of Employment . Your employment with the Company ended effective at the close of business on [Date]. Upon your receipt of your final paycheck, which includes payment for services through [Date], you will have received all wages, compensation and benefits owed to you by virtue of your employment with the Company or termination thereof, except for those expressly described in this Agreement. If applicable, information regarding your right to elect COBRA coverage will be sent to you via separate letter.

You are not eligible for any other payments or benefits by virtue of your employment with the Company or termination thereof except for those expressly described in this Agreement. You will not receive the separation pay and benefits described in Section 2 of this Agreement if you (i) do not sign this Agreement and return it to the Company by the Offer Expiration, (ii) rescind this Agreement after signing it, or (iii) violate any of the terms and conditions set forth in this Agreement.

2. Separation Pay and Benefits . Specifically in consideration of your signing this Agreement and subject to the limitations, obligations, and other provisions contained in this Agreement, the Company agrees as follows:

a. [See Employment Agreement]

3. Release of Claims . Specifically in consideration of the separation pay and benefits described in Section 2, and the release provided to you by the Company below, by signing this Agreement you, for yourself and anyone who has or obtains legal rights or claims through you, agree to the following:

a. Subject to and except as provided in Section 3.d below, you hereby do release and forever discharge the “Released Parties” (as defined in Section 2.e. below) of and from any and all manner of claims, demands, actions, causes of action, administrative claims, liability, damages, claims for punitive or liquidated damages, claims for attorney’s fees, costs and disbursements, individual or class action claims, or demands of any kind whatsoever, you have or might have against them or any of them, whether known or unknown, in law or equity, contract or tort, arising out of or in connection with your employment or independent contractor engagement with the Company, or the termination of that employment or engagement, or otherwise, and however originating or existing, from the beginning of time through the date of your signing this Agreement.

b. This release includes, without limiting the generality of the foregoing, any claims you may have for, wages, bonuses, commissions, penalties, deferred compensation, vacation, sick, and/or paid time off (PTO) pay, separation pay and/or benefits; tortious conduct, defamation, libel, slander, invasion of privacy, negligence, emotional distress; breach of implied or express contract, estoppel; wrongful discharge (based on contract, common law, or statute, including any federal, state or local statute or ordinance prohibiting discrimination or retaliation in employment); violation of any of the following: the United States Constitution, the Wisconsin Constitution, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq ., Wisconsin Fair Employment Act, Wisconsin Wage Claim and Payment Law, Wisconsin Business Closing and Mass Layoff Law, Wisconsin Cessation of Health Care Benefits Law, Wisconsin Family and Medical Leave Law, Wisconsin Personnel Records Statute, Wisconsin Employment Peace Act, any paid sick leave law, any local human rights ordinance, Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq ., the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq ., the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq ., the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq ., the National Labor Relations Act, 29 U.S.C. § 151 et seq ., the Sarbanes-Oxley Act, 15 U.S.C. § 7201 et seq .; any claim for retaliation; all waivable claims arising under Wisconsin and local statutes. You hereby waive any and all relief not provided for in this Agreement. You understand and agree that, by signing this Agreement, you waive and release any claim to employment with the Company.

c. If you file, or have filed on your behalf, a charge, complaint, or action, you agree that the payments and benefits described above in Sections 1 and 2 hereof are in complete satisfaction of any and all claims in connection with such charge, complaint, or action and you waive, and agree not to take, any award of money or other damages from such charge, complaint, or action. Notwithstanding the foregoing, you do not waive your right to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a governmental agency.

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d. You are not, by signing this Agreement, releasing or waiving (1) any vested interest you may have in any 401(k) or profit sharing plan by virtue of your employment with the Company, (2) any rights or claims that may arise after the Agreement is signed, (3) the post-employment payments and benefits specifically promised to you under Sections 1 and 2 of this Agreement, (4) the right to assert claims or institute legal action for the purpose of enforcing the provisions of this Agreement, (5) any rights you have to workers compensation benefits, (6) any rights you have under unemployment compensation benefits laws, (7) the right to file a charge or complaint with a governmental agency such as the Equal Employment Opportunity Commission (“EEOC”), the National Labor Relations Board (“NLRB”), the Occupational Safety and Health Administration (“OSHA”), the Securities and Exchange Commission (“SEC”) or any other federal, state or local governmental agency, subject to Section 2(c) above, (8) the right to communicate with, testify, assist, or participate in an investigation, hearing, or proceeding conducted by, the EEOC, NLRB, OSHA, SEC or other governmental agency, (9) any rights you may have under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), or (10) any rights arising under any agreements between you and the Company related to any equity interests you may have in the Company (11) any and all rights to indemnification and advancement or reimbursement of expenses pursuant to the Company’s charter, bylaws or other governing documents or coverage under any director and officer liability insurance policy, or (12) any rights arising under that certain Stock Purchase and Exchange Agreement, effective as of July 1, 2019, by and among the Company and the stockholders listed on Exhibit A thereto.

e. The “Released Parties,” as used in this Agreement, shall mean the Company and its parent, subsidiaries, divisions, affiliated entities, insurers, if any, and its and their present and former officers, directors, shareholders, trustees, employees, agents, attorneys, representatives and consultants, and the successors and assigns of each, whether in their individual or official capacities, and the current and former trustees or administrators of any pension or other benefit plan applicable to the employees or former employees of the Released Parties in their official and individual capacities.

4. Notice of Right to Consult Attorney and Twenty-One (21) Calendar Day Consideration Period . By signing this Agreement, you acknowledge and agree that the Company has informed you by this Agreement that (1) you have the right to consult with an attorney of your choice prior to signing this Agreement, and (2) you are entitled to at least Twenty-One (21) calendar days from your receipt of this Agreement to consider whether the terms are acceptable to you. You have the right, if you choose, to sign this Agreement prior to the expiration of the Twenty-One (21) day period.

5. Notification of Rights under the Federal Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.) . You are hereby notified of your right to rescind the release of claims contained in Section 3 with regard to claims arising under the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq .), within seven (7) calendar days of your signing this Agreement. In order to be effective, the rescission must (a) be in writing; (b) delivered to John P. Yeros, CEO, EVO Transportation & Energy Services, Inc., 8285 West Lake Pleasant Parkway, Peoria, AZ 85382, by hand or mail within the required period; and (c) if delivered by mail, the rescission must be postmarked within the required period, properly addressed to John P. Yeros, as set forth above, and sent by certified mail, return receipt requested. You understand and agree that if you rescind any part of this Agreement in accordance with this Section 5, the Company will have no obligation to provide you the payments and benefits described in Section 2 of this Agreement and you will be obligated to return to the Company any payment(s) and benefits already received in connection with Section 2 of this Agreement.

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6. Return of Property . You acknowledge and agree that all documents and materials relating to the business of, or the services provided by, the Company are the sole property of the Company. You agree and represent that you have returned to the Company all of its property, including but not limited to, all data, files, documents and property within your possession or control, which in any manner relate to the business of, or the duties and services you performed on behalf of the Company.

7. On-Going Obligations . If you breach any term of this Agreement or Section 9 of your Employment Agreement as determined by a court of competent jurisdiction, the Company shall be entitled to its available legal and equitable remedies, including but not limited to suspending and recovering any and all payments and benefits made or to be made under Section 2 of this Agreement and payment by you of its attorneys’ fees and costs. If the Company seeks and/or obtains relief from an alleged breach of this Agreement, all of the provisions of this Agreement shall remain in full force and effect.

8. Cooperation . You agree that through ______________ [THE SEVERANCE PERIOD], you will respond to the Company in a timely manner via email or telephone should it have questions for you regarding your work for the Company such as, but not limited to, status of projects, location of data and documents, and passwords, provided that such questions must be reasonable in volume and time commitment.

9. Non-Disparagement and Confidentiality . You promise and agree not to disparage the Released Parties, the Company’s employees, products or services.

10. Remedies . In the event of litigation arising out of this Agreement or the Employment Agreement, the prevailing party will be entitled to an award of its costs and reasonable attorneys’ fees. If either party breaches any term of this Agreement or the Employment Agreement, as determined by a court of competent jurisdiction, the prevailing party shall be entitled to its available legal and equitable remedies. For Company, this also includes but is not limited to suspending and recovering any and all payments and benefits made or to be made under Section 2 of this Agreement. If the Company seeks and/or obtains relief from an alleged breach of this Agreement, all of the provisions of this Agreement shall remain in full force and effect.

11. Non-Admission . It is expressly understood that this Agreement does not constitute, nor shall it be construed as, an admission by the Released Parties or you of any liability or unlawful conduct whatsoever. The Released Parties and you specifically deny any liability or unlawful conduct.

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12. Successors and Assigns . This Agreement is personal to you and may not be assigned by you without the written agreement of the Company. The rights and obligations of this Agreement shall inure to the successors and assigns of the Released Parties.

13. Enforceability . If a court finds any term of this Agreement to be invalid, unenforceable, or void, the parties agree that the court shall modify such term to make it enforceable to the maximum extent possible. If the term cannot be modified, the parties agree that the term shall be severed and all other terms of this Agreement shall remain in effect.

14. Law, Jurisdiction and Venue, Jury Trial Waiver . This Agreement will be construed and interpreted in accordance with, and any dispute or controversy arising from any breach or asserted breach of this Agreement will be governed by, the laws of the State of New Jersey, without regard to any choice of law rules. Any action brought to enforce or interpret this Agreement must be brought in the state or federal courts for the State of New Jersey, and the parties hereby consent to the jurisdiction and venue of such courts in the event of any dispute. Each of the parties knowingly and voluntarily waives all right to trial by jury in any action or proceeding arising out of or relating to this Agreement or for recognition or enforcement of any judgment.

15. Full Agreement . This Agreement contains the full agreement between you and the Released Parties as to your employment with the Company or termination thereof and may not be modified, altered, or changed in any way except by written agreement signed by both parties. The parties agree that this Agreement supersedes and terminates any and all other written and oral agreements and understandings between the parties as to your employment with the Company or termination thereof. Notwithstanding the foregoing, if you have previously signed an agreement or agreements with the Company containing confidentiality, trade secret, noncompetition, nonsolicitation, intellectual property, return of property, and/or similar provisions your obligations under such agreement(s) (including, without limitation, under Section 9 of your Employment Agreement) shall continue in full force and effect according to their terms and will survive the termination of your employment.

16. Counterparts . This Agreement may be executed by facsimile or electronic transmission and in counterparts, each of which shall be deemed an original and all of which shall constitute one instrument.

17. Acknowledgment of Reading and Understanding . By signing this Agreement, you acknowledge that you have read this Agreement, including the release of claims contained in Section 3, and understand that the release of claims is a full and final release of all claims you may have against the Company and the other entities and individuals covered by the release. By signing, you also acknowledge and agree that you have entered into this Agreement knowingly and voluntarily.

The deadline for accepting this Agreement is 5:00 p.m. on the 22nd calendar day following your receipt of this Agreement (the “Offer Expiration”). If not accepted by such time, the offer contained herein will expire. After you have reviewed this Agreement and obtained whatever advice and counsel you consider appropriate regarding it, please evidence your agreement to the provisions set forth in this Agreement by dating and signing the Agreement. Please then return a signed Agreement to me no later than the Offer Expiration. Please keep a copy for your records.

We wish you all the best.

Sincerely,

EVO Transportation & Energy Services, Inc.

A- 5

ACKNOWLEDGMENT AND SIGNATURE

By signing below, I, ________________________, acknowledge and agree to the following:

●

I have had adequate time to consider whether to sign this Separation Agreement and Release.

●

I have read this Separation Agreement and Release carefully.

●

I understand and agree to all of the terms of the Separation Agreement and Release.

●

I am knowingly and voluntarily releasing my claims against the Company and the other persons and entities defined as the Released Parties.

●

I have not, in signing this Agreement, relied upon any statements or explanations made by the Company except as for those specifically set forth in this Separation Agreement and Release.

●

I intend this Separation Agreement and Release to be legally binding.

●

I am signing this Separation Agreement and Release on or after my last day of employment with the Company.

Accepted this__ day _______________________________ of , 20__.

_______________________________

A- 6

Exhibit B

Existing Outside Positions

Montclair Kimberley Academy- Trustee

Partners for Health Foundation - Trustee

B-1

Exhibit 10.2

EMPLOYMENT AGREEMENT

1. Duties and Scope of Employment.

3. Compensation.

7. Accrued Obligations; Severance; COBRA.

8. Conditions to Receipt of Severance Pay and Severance Benefits.

9. Restrictive Covenants.

10. Definitions. For purposes of this Agreement, the following defined terms have the following meanings:

(g) “ Good Reason ” means the occurrence of any of the following events, without the written consent of Executive:

(ii) any material reduction in Executive’s authority, duties or responsibilities or the assignment to Executive of any duties that are inconsistent with his position or;

(iii) any relocation of Employee’s place of employment with the Company to a location greater than twenty-five miles from the location specified in Section 1(d); or

(h) “ Section 409A ” means Section 409A of the Code and the Treasury Regulations issued thereunder.

11. Tax Matters

Withholding. All payments made pursuant to this Agreement will be

(a) subject to withholding of taxes as required by applicable law.

If to the Company:

EVO Transportation & Energy Services, Inc.

8285 West Lake Pleasant Parkway
Peoria, AZ 85382
Attention: John P. Yeros

If to Executive:

1230 McCarter Hwy.

Newark, NJ 07104

Email: jfinkle@finkletrucking.com

17. Headings. All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement.

{Signature Page Follows}

IN WITNESS WHEREOF, each of the parties has executed this Employment Agreement, in the case of the Company by its duly authorized officer, as of the Effective Date in the preamble hereof.

COMPANY:
EVO Transportation & Energy Services, Inc.

By:	/s/ Damon Cuzick
Name: Damon Cuzick
Title: President
Date: July 15, 2019

EXECUTIVE:

By:	/s/ James C. Finkle, Jr.
Name: James C. Finkle, Jr.
Date: July 15, 2019

Exhibit A

Form of Release

[Date]

[Via _____________]

Personal and Confidential

Executive

[Executive Address]

Re:

Separation Agreement and Release

Dear Executive:

By your signature below, you agree to the following terms and conditions:

a. [See Employment Agreement]

A- 2

A- 3

9. Non-Disparagement and Confidentiality . You promise and agree not to disparage the Released Parties, the Company’s employees, products or services.

A- 4

We wish you all the best.

Sincerely,

EVO Transportation & Energy Services, Inc.

A- 5

ACKNOWLEDGMENT AND SIGNATURE

By signing below, I, ________________________, acknowledge and agree to the following:

●

I have had adequate time to consider whether to sign this Separation Agreement and Release.

●

I have read this Separation Agreement and Release carefully.

●

I understand and agree to all of the terms of the Separation Agreement and Release.

●

I am knowingly and voluntarily releasing my claims against the Company and the other persons and entities defined as the Released Parties.

●

I have not, in signing this Agreement, relied upon any statements or explanations made by the Company except as for those specifically set forth in this Separation Agreement and Release.

●

I intend this Separation Agreement and Release to be legally binding.

●

I am signing this Separation Agreement and Release on or after my last day of employment with the Company.

Accepted this ____ day of_______________________________ , 20__.

_______________________________

A- 6

Exhibit B

Existing Outside Positions

None

B-1

Exhibit 10.3

THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE SECURITIES PURCHASED HEREUNDER MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT TO REGISTRATION OR EXEMPTION FROM REQUIREMENTS THEREUNDER.

EVO Transportation & Energy Services, Inc.

SUBSCRIPTION AGREEMENT

This Subscription Agreement (this “ Agreement ”) is made as of July 15, 2019 between EVO Transportation & Energy Services, Inc., a Delaware corporation (the “ Company ”) and Clifford Finkle IV (the “ Subscriber ”).

On the date hereof, the Subscriber and the Company consummated the transactions contemplated by that certain Stock Purchase and Exchange Agreement dated as of even date herewith (the “ Purchase Agreement ”), pursuant to which the outstanding Equity Interests (as defined in the Purchase Agreement) issued to Subscriber converted into the right to receive, among other things as set forth in the Purchase Agreement, 625,000 shares of Common Stock of the Company.

Pursuant to the terms of, and conditioned on the consummation of the closing under, the Purchase Agreement, Subscriber is willing to purchase, and the Company is willing to issue and sell to the Subscriber, the number of shares of common stock of the Company (the “ Securities ”) set forth on Exhibit A hereto, all on the terms and subject to the conditions set forth herein and in the Purchase Agreement.

1 . Subscription and Purchase Price.

(a) Subscription . On the terms and subject to the conditions set forth herein and in the Purchase Agreement, the undersigned hereby subscribes for and agrees to purchase the Securities set forth on Exhibit A hereto, on the date of the closing under the Purchase Agreement and subject to the consummation of such closing under the Purchase Agreement.

(b) The Subscriber understands and agrees that, subject to applicable laws, by executing this Agreement, he, she or it is entering into a binding agreement.

2. Subscriber’s Representations, Warranties and Agreements

The undersigned hereby acknowledges, agrees with and represents and warrants to the Company and its affiliates, as follows, in each case as of the date hereof:

(a) The undersigned has full power and authority to enter into this Agreement, the execution and delivery of which has been duly authorized, if applicable, and this Agreement constitutes a valid and legally binding obligation of the undersigned.

(b) The undersigned acknowledges his, her or its understanding that the offering and sale of the Securities is intended to be exempt from registration under the Securities Act of 1933, as amended (the “ Securities Act ”), by virtue of Section 4(a)(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“ Regulation D ”). In furtherance thereof, the undersigned represents and warrants to the Company and its affiliates as follows:

(i) The undersigned is acquiring the Securities solely for the undersigned’s own beneficial account, for investment purposes, and not with view to, or resale in connection with, any distribution of the Securities;

(ii) The undersigned has the financial ability to bear the economic risk of his, her or its investment, has adequate means for providing for their current needs and contingencies, and has no need for liquidity with respect to the investment in the Company;

(iii) The undersigned and the undersigned’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, “ Advisors ”), have received all documents requested by the undersigned or Advisors, if any, and have carefully reviewed them and understand the information contained therein, prior to the execution of this Agreement; and

(iv) The undersigned (together with his, her or its Advisors, if any) has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the prospective investment in the Securities. If other than an individual, the undersigned also represents it has not been organized solely for the purpose of acquiring the Securities.

(c) The information in the Investor Questionnaire (attached as Appendix A ) completed and executed by the undersigned (the “ Investor Questionnaire ”) is true and accurate in all respects, and the undersigned is an “accredited investor,” as that term is defined in Rule 501(a) of Regulation D.

(d) The undersigned has relied on the advice of, or has consulted with, only his, her or its Advisors. Each Advisor, if any, is capable of evaluating the merits and risks of an investment in the Securities, and each Advisor, if any, has disclosed to the undersigned in writing (a copy of which is annexed to this Agreement) the specific details of any and all past, present or future relationships, actual or contemplated, between the Advisor and the Company or any affiliate thereof.

(e) The undersigned represents, warrants and agrees that he, she or it will not sell or otherwise transfer the Securities without registration under the Securities Act or an exemption therefrom, and fully understands and agrees that the undersigned must bear the economic risk of his, her or its purchase because, among other reasons, the Securities have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities laws of such states, or an exemption from such registration is available. In particular, the undersigned is aware that the Securities are “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act (“ Rule 144 ”), and they may not be sold pursuant to Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also understands that, except as set forth in Section 4(a) of this Agreement, the Company is under no obligation to register the Securities on his, her or its behalf or to assist them in complying with any exemption from registration under the Securities Act or applicable state securities laws. The undersigned understands that any sales or transfers of the Securities are further restricted by state securities laws.

(f) No representations or warranties have been made to the undersigned by the Company, other than any representations of the Company contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement, and in subscribing for the Securities the undersigned is not relying upon any representations other than those contained herein or in the Purchase Agreement or in any document referred to in the Purchase Agreement.

(g) The undersigned understands and acknowledges that his, her or its purchase of the Securities is a speculative investment that involves a high degree of risk and the potential loss of their entire investment and has carefully read and considered the matters set forth in the Company’s reports filed with the U.S. Securities and Exchange Commission (“ SEC ”), including in particular the matters under the caption “Risk Factors” contained in the Company’s Annual Report on Form 10-K filed with the SEC on April 17, 2018 and the subsequently filed Quarterly Reports on Form 10-Q.

(h) The undersigned understands and agrees that the Securities may bear substantially the following legend until (i) such Securities shall have been registered under the Securities Act and effectively disposed of in accordance with a registration statement that has been declared effective or (ii) in the opinion of counsel for the Company such Securities may be sold without registration under the Securities Act, as well as any applicable “blue sky” or state securities laws:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.

(i) Neither the SEC nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the offering or confirmed the accuracy or determined the adequacy of any information provided to Subscriber. This offering has not been reviewed by any Federal, state or other regulatory authority.

(j) The undersigned and his, her or its Advisors, if any, have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning the offering of the Securities and the business, financial condition, results of operations and prospects of the Company, and all such questions have been answered to the full satisfaction of the undersigned and his, her or its Advisors, if any.

(k) The undersigned is unaware of, is in no way relying on, and did not become aware of the offering of the Securities through or as a result of, any form of general solicitation or general advertising including, without limitation, any article, notice, advertisement or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or electronic mail over the Internet, in connection with the offering and sale of the Securities and is not subscribing for Securities and did not become aware of the offering of the Securities through or as a result of any seminar or meeting to which the undersigned was invited by, or any solicitation of a subscription by, a person not previously known to the undersigned in connection with investments in securities generally.

(l) The undersigned has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.

(m) The undersigned is not relying on the Company with respect to the legal, tax, economic and related considerations of an investment in the Securities, and the undersigned has relied on the advice of, or has consulted with, only his, her or its own Advisors.

(n) The undersigned acknowledges that any estimates or forward-looking statements or projections included in the Company’s filings with the SEC were prepared by the management of the Company in good faith, but that the attainment of any such projections, estimates or forward-looking statements cannot be guaranteed by the Company or its management and should not be relied upon.

(o) No oral or (except as set forth herein or in the Purchase Agreement or the documents referred to therein) written representations have been made, or oral or written information furnished, to the undersigned or his, her or its Advisors, if any, in connection with the offering of the Securities.

(p) The undersigned agrees, acknowledges and understands that during the period commencing on the date hereof through the Company’s public announcement of the transactions contemplated by the Purchase Agreement, the undersigned will not directly or indirectly, through related parties, affiliates or otherwise, purchase, sell “short” or “short against the box” (as those terms are generally understood) any equity security of the Company.

(q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.

3. Notices to Subscriber

(a) THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC, ANY STATE SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THIS OFFERING OR THE ACCURACY OR ADEQUACY OF ANY INFORMATION PROVIDED TO SUBSCRIBER. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.

(b) THE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT, AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. SUBSCRIBER SHOULD BE AWARE THAT HE MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.

4. Miscellaneous Provisions

(a) Piggy-Back Registration . If at any time on or after the date hereof, the Company proposes to file any registration statement (other than any registration on Form S-4, S-8 or any other similarly inappropriate form, or any successor forms thereto) under the Securities Act covering a public offering of the Company’s common stock, it will notify the Subscriber at least ten (10) days prior to each such filing and will use its best efforts to include in such Registration Statement (to the extent permitted by applicable regulation), the Securities purchased by the Subscriber hereunder and/or any shares of common stock issued pursuant to the Buyer Note (as defined in the Purchase Agreement) to the extent requested by the Subscriber within five (5) days after receipt of notice of such filing (which request shall specify the shares of common stock of the Company intended to be sold or disposed of by the Subscriber and describe the nature of any proposed sale or other disposition thereof); provided , however , that if a greater number of shares of the Company’s common stock is offered for participation in the proposed offering than in the reasonable opinion of the managing underwriter (if any) of the proposed offering can be accommodated without adversely affecting the proposed offering, then the amount of shares of common stock of the Company proposed to be offered by the Subscriber for registration, as well as the number of securities of any other selling stockholders participating in the registration, will be proportionately reduced to a number deemed satisfactory by the managing underwriter. The Company will bear all expenses and fees incurred in connection with the preparation, filing, and amendment of the registration statement with the SEC, except that the Subscriber shall pay all fees, disbursements and expenses of any counsel or expert retained by the Subscriber and all underwriting discounts and commissions, filing fees and any transfer or other taxes relating to the Securities included in the registration statement. The Subscriber agrees to cooperate with the Company in the preparation and filing of any registration statement, and in the furnishing of information concerning the Subscriber for inclusion therein, or in any efforts by the Company to establish that the proposed sale is exempt under the Securities Act as to any proposed distribution.

(b) Modification . Neither this Agreement, nor any provisions hereof, may be waived, modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, modification, discharge or termination is sought.

(c) Survival . The undersigned’s representations and warranties made in this Subscription Agreement survive the execution and delivery of this Agreement and the delivery of the Securities.

(d) Notices . Any party may send any notice, request, demand, claim or other communication hereunder to the undersigned at the address set forth on the signature page of this Agreement or to the Company at the address set forth above using any means (including personal delivery, expedited courier, messenger service, fax, ordinary mail or email), but no such notice, request, demand, claim or other communication will be deemed to have been duly given unless and until it actually is received by the intended recipient. Any party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other parties written notice in the manner herein set forth.

(e) Binding Effect . Except as otherwise provided herein, this Agreement is binding upon, and inures to the benefit of, the parties to this Agreement and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person or entity, the obligation of the undersigned is joint and several and the agreements, representations, warranties and acknowledgments contained herein are deemed to be made by, and are binding upon, each such person or entity and his, her or its heirs, executors, administrators, successors, legal representatives and assigns. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter thereof and merges and supersedes all prior discussions, agreements and understandings of any and every nature among them.

(f) Assignability . This Agreement is not transferable or assignable by the undersigned, except that the rights of Subscriber under Section 4(a) hereof are transferrable and assignable by the undersigned upon written notice of such transfer or assignment to the Company as part of any transfer of any Securities and/or any shares of common stock issued pursuant to the Buyer Note (as defined in the Purchase Agreement) by the undersigned to such Subscriber’s spouse, children (whether natural, step or by adoption), grandchildren (whether natural, step or by adoption), named beneficiary, sibling, parents or to a trust, partnership or limited liability company solely for the benefit of one or more of any of such Persons.

(g) Governing Law and Venue . This Agreement is governed by and construed in accordance with the laws of the State of Delaware, without giving effect to conflicts of law principles. Each party to this Agreement hereby irrevocably submits to the exclusive jurisdiction and venue of the state courts of the State of Delaware or the United States District Court located in the State of Delaware for the purpose of any action between the parties arising in whole or in part under or in connection with this Agreement.

(h) Counterparts . This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

[Remainder of page left intentionally blank]

ALL SUBSCRIBERS MUST COMPLETE THIS PAGE

IN WITNESS WHEREOF, the undersigned has executed this Agreement as of July 15, 2019.

Manner in which Title is to be held (Please Check One ):

1.	☐	Individual	7.	☐	Trust/Estate/Pension or Profit Sharing Plan Date Opened:______________

2.	☒	Joint Tenants with Right of Survivorship	8.	☐	As a Custodian for
					______________________________________
					Under the Uniform Gift to Minors Act of the State of
					______________________________________

3.	☐	Community Property	9.	☐	Married with Separate Property

4.	☐	Tenants in Common	10.	☐	Keogh

5.	☐	Corporation/Partnership/ Limited Liability Company	11.	☐	Tenants by the Entirety

6.	☐	IRA

ALTERNATIVE DISTRIBUTION INFORMATION

To direct distribution to a party other than the registered owner, complete the information below. YOU MUST COMPLETE THIS SECTION IF THIS IS AN IRA INVESTMENT.

Name of Firm (Bank, Brokerage, Custodian): _________________________________________________________

Account Name: _____________________________________________________________________________ ____

Account Number: _____________________________________________________________________________ __

Representative Name: ____________________________________________________________________________

Representative Phone Number: _____________________________________________________________________

Address: _______________________________________________________________________________________

City, State, Zip: __________________________________________________________________________________

IF MORE THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL SUBSCRIBERS MUST COMPLETE THE NEXT PAGE.
SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE THE PAGE THEREAFTER.

EXECUTION BY NATURAL PERSONS

	Clifford and Alexis Finkle
	Exact Name in Which Title is to be Held

Clifford Finkle		Alexis Finkle
Name (Please Print)		Name of Additional Subscriber


Residence: Number and Street		Address of Additional Subscriber


City, State and Zip Code		City, State and Zip Code


Social Security Number		Social Security Number


Telephone Number		Telephone Number


Fax Number (if available)		Fax Number (if available)


E-Mail		E-Mail (if available)

/s/ Clifford Finkle		/s/ Alexis Finkle
(Signature)		(Signature of Additional Subscriber)

ACCEPTED as of July 15, 2019, on behalf of the Company.

	By:	/s/ Damon Cuzick
		President

EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY

(e.g., corporation, partnership, LLC, trust, etc.)

Name of Entity (Please Print)

Date of Incorporation or Organization:


State of Principal Office:


Federal Taxpayer Identification Number:


Office Address


City, State and Zip Code


Telephone Number


Fax Number (if available)


E-Mail (if available)

	By:
		Name:
		Title:




	Address

ACCEPTED as of _________, 2019, on behalf of the Company.

	By:
		President

Appendix A

INVESTOR QUESTIONNAIRE

Instructions: Check all boxes below which correctly describe you.

☐

The Subscriber is ( i ) a bank, as defined in Section 3(a)(2) of the Securities Act of 1933, as amended (the “ Securities Act ”), ( ii ) a savings and loan association or other institution, as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in an individual or fiduciary capacity, ( iii ) a broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), ( iv ) an insurance company as defined in Section 2(13) of the Securities Act, ( v ) an investment company registered under the Investment Company Act of 1940, as amended (the “ Investment Company Act ”), ( vi ) a business development company as defined in Section 2(a)(48) of the Investment Company Act, ( vii ) a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301 (c) or (d) of the Small Business Investment Act of 1958, as amended, ( viii ) a plan established and maintained by a state, its political subdivisions, or an agency or instrumentality of a state or its political subdivisions, for the benefit of its employees and you have total assets in excess of $5,000,000, or ( ix ) an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”) and ( 1 ) the decision that you shall subscribe for and purchase the Securities, is made by a plan fiduciary, as defined in Section 3(21) of ERISA, which is either a bank, savings and loan association, insurance company, or registered investment adviser, (2) you have total assets in excess of $5,000,000 and the decision that you shall subscribe for and purchase the Securities is made solely by persons or entities that are accredited investors, as defined in Rule 501 of Regulation D promulgated under the Securities Act (“ Regulation D ”) or ( 3 ) you are a self-directed plan and the decision that you shall subscribe for and purchase the Securities is made solely by persons or entities that are accredited investors.

☐

The Subscriber is a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940, as amended.

☐

The Subscriber is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “ Code ”), a corporation, Massachusetts or similar business trust or a partnership, in each case not formed for the specific purpose of making an investment in the Securities and with total assets in excess of $5,000,000.

☐

The Subscriber is a director or executive officer of the Company.

☒

The Subscriber is a natural person whose individual net worth, or joint net worth with my spouse, exceeds $1,000,000 at the time of my subscription for and purchase of the Securities. For purposes of this Subscription Agreement, “net worth” means the excess of total assets at fair market value, including real and personal property, but excluding the value of your primary residence, over total liabilities. Total liabilities excludes any mortgage on the primary residence in an amount of up to the home’s estimated fair market value, but includes (i) any mortgage amount in excess of the home’s fair market value and (ii) any mortgage amount that was borrowed during the 60-day period before the closing date for the sale of Securities for the purpose of investing in the Securities.

☐

The Subscriber is a natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with my spouse in excess of $300,000 in each of the two most recent years, and who has a reasonable expectation of reaching the same income level in the current year.

A- 1

Appendix A

☐

The Subscriber is a trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Securities, whose subscription for and purchase of the Securities is directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D.

☐

The Subscriber is an entity in which all of the equity owners are persons or entities described in one of the preceding paragraphs. Note : For Subscribers attempting to qualify under this item, each equity owner must complete, sign and return to the Company a separate copy of this Questionnaire).

☐

The Subscriber does NOT meet any of the foregoing categories.

The undersigned hereby represents and warrants that all of its answers to this Investor Questionnaire are true as of the date of its execution of the Subscription Agreement pursuant to which it purchased Securities of the Company.

Clifford B. Finkle IV		Alexis D. Finkle
Name of Subscriber [please print]		Name of Co-Subscriber [please print]

/s/ Clifford B. Finkle IV		/s/ Alexis Finkle
Signature of Subscriber (Entities please		Signature of Co-Subscriber
provide signature of Subscriber’s duly
authorized signatory.)

		7-17-19
Name of Signatory (Entities only)		Date


Title of Signatory (Entities only)

A- 2

EXHIBIT A

SUBSCRIPTION SECURITIES

625,000 shares of Common Stock

Exhibit 10.4

EVO Transportation & Energy Services, Inc.

SUBSCRIPTION AGREEMENT

This Subscription Agreement (this “ Agreement ”) is made as of July 15, 2019 between EVO Transportation & Energy Services, Inc., a Delaware corporation (the “ Company ”) and James Finkle, Jr. (the “ Subscriber ”).

1 .

Subscription and Purchase Price.

(b) The Subscriber understands and agrees that, subject to applicable laws, by executing this Agreement, he, she or it is entering into a binding agreement.

Subscriber’s Representations, Warranties and Agreements

The undersigned hereby acknowledges, agrees with and represents and warrants to the Company and its affiliates, as follows, in each case as of the date hereof:

(q) The foregoing representations, warranties and agreements will survive the completion of the issuance of the Securities hereunder.

Notices to Subscriber

Miscellaneous Provisions

(c) Survival . The undersigned’s representations and warranties made in this Subscription Agreement survive the execution and delivery of this Agreement and the delivery of the Securities.

(h) Counterparts . This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

[Remainder of page left intentionally blank]

ALL SUBSCRIBERS MUST COMPLETE THIS PAGE

IN WITNESS WHEREOF, the undersigned has executed this Agreement as of July 15, 2019.

Manner in which Title is to be held (Please Check One ):

1.	☒	Individual	7.	☐	Trust/Estate/Pension or Profit Sharing Plan Date Opened:______________

2.	☐	Joint Tenants with Right of Survivorship	8.	☐	As a Custodian for
					______________________________________
					Under the Uniform Gift to Minors Act of the State of
					______________________________________

3.	☐	Community Property	9.	☐	Married with Separate Property

4.	☐	Tenants in Common	10.	☐	Keogh

5.	☐	Corporation/Partnership/ Limited Liability Company	11.	☐	Tenants by the Entirety

6.	☐	IRA

ALTERNATIVE DISTRIBUTION INFORMATION

To direct distribution to a party other than the registered owner, complete the information below. YOU MUST COMPLETE THIS SECTION IF THIS IS AN IRA INVESTMENT.

Name of Firm (Bank, Brokerage, Custodian): ____________________________________________________________

Account Name: _____________________________________________________________________________ ____

Account Number: _____________________________________________________________________________ __

Representative Name: ____________________________________________________________________________

Representative Phone Number: _____________________________________________________________________

Address: ______________________________________________________________________________________

City, State, Zip: _________________________________________________________________________________

IF MORE THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL SUBSCRIBERS MUST COMPLETE THE NEXT PAGE.
SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE THE PAGE THEREAFTER.

EXECUTION BY NATURAL PERSONS


	Exact Name in Which Title is to be Held

James Finkle
Name (Please Print)		Name of Additional Subscriber


Residence: Number and Street		Address of Additional Subscriber


City, State and Zip Code		City, State and Zip Code


Social Security Number		Social Security Number


Telephone Number		Telephone Number


Fax Number (if available)		Fax Number (if available)


E-Mail		E-Mail (if available)

/s/ James Finkle
(Signature)		(Signature of Additional Subscriber)

ACCEPTED as of July 15, 2019, on behalf of the Company.

	By:	/s/ Damon Cuizk
		President

EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY

(e.g., corporation, partnership, LLC, trust, etc.)

Name of Entity (Please Print)

Date of Incorporation or Organization:


State of Principal Office:


Federal Taxpayer Identification Number:


Office Address


City, State and Zip Code


Telephone Number


Fax Number (if available)


E-Mail (if available)

	By:
		Name:
		Title:




	Address

ACCEPTED as of ________, 2019, on behalf of the Company.

	By:	_________________________________
		President

Appendix A

INVESTOR QUESTIONNAIRE

Instructions: Check all boxes below which correctly describe you.

☐

The Subscriber is a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940, as amended.

☐

☒

The Subscriber is a director or executive officer of the Company.

☒

☐

A- 1

Appendix A

☐

The Subscriber does NOT meet any of the foregoing categories.

James Finkle
Name of Subscriber [please print]		Name of Co-Subscriber [please print]

/s/ James Finkle
Signature of Subscriber (Entities please		Signature of Co-Subscriber
provide signature of Subscriber’s duly
authorized signatory.)

		7/17/2019
Name of Signatory (Entities only)		Date


Title of Signatory (Entities only)

A- 2

EXHIBIT A

SUBSCRIPTION SECURITIES

625,000 shares of Common Stock

Exhibit 10.5

EXECUTIVE EMPLOYMENT AGREEMENT

This Executive Employment Agreement (the “ Agreement ”) is entered into and effective as of July 22, 2019 (the “ Effective Date ”), by and between EVO Transportation & Energy Services, Inc. (the “ Company ”) and Eugene S. Putnam, Jr. (“ Executive ”).

1. Duties and Scope of Employment.

(a) Positions and Duties. During the Employment Term (as defined below), Executive will be employed as the Chief Financial Officer of the Company. Executive’s authority, duties, and responsibilities will correspond to Executive’s position and will include any particular authority, duties, and responsibilities consistent with the Executive’s position that the Company may assign to Executive from time to time.

(b) Obligations. During the Employment Term, Executive is required to faithfully and conscientiously perform his assigned duties and to diligently observe all of his obligations to the Company. Executive agrees to devote his full business time and efforts, energy and skill to his employment at the Company, and Executive agrees to apply all his skill and experience to the performance of his duties and advancing the Company’s interests. The foregoing shall not preclude Executive from (i) engaging in civic, charitable or religious activities (including serving as a director, trustee or officer) or, with the prior written consent of the Company, from serving on the boards of directors of other companies or (ii) engaging in investments, including but not limited to real estate investments and acting as the general partner or manager thereof, as long as such activities do not interfere or conflict with Executive’s responsibilities to or his abilities to perform his duties hereunder. During the Employment Term, Executive may not perform services as an employee or consultant of any other competitive organization and Executive will not assist any other person or organization in competing with the Company or in preparing to engage in competition with the business or proposed business of the Company. Executive shall comply with and be bound by Company’s operating policies, procedures, and practices from time to time in effect during his employment that apply to all executive-level employees of the Company. By signing this Agreement, Executive confirms to the Company that he has no contractual commitments or other legal obligations that would prohibit him from performing his duties for the Company.

(c) Employment Term. The term of this Agreement shall be four (4) years commencing on the Effective Date, unless terminated earlier pursuant to the terms herein (the “ Initial Term ”). Unless earlier terminated pursuant to the terms herein, the Initial Term shall be automatically renewed for consecutive additional one-year terms (each, a “ Renewal Term ”) upon the expiration of the Initial Term or any Renewal Term unless the Company or Executive delivers to the other at least 90 days prior to the expiration of the Initial Term or the then-current Renewal Term, as the case may be, a written notice specifying that the term of Executive’s employment will not be renewed at the end of the Initial Term or the then-current Renewal Term, as the case may be. Like the Initial Term, the then-current Renewal Term is subject to earlier termination pursuant to the terms herein. The Executive’s period of employment hereunder is referred herein as the “ Employment Term, ” whether the Initial Term, the then-current Renewal Term, or the shorter period through the date of an earlier termination thereof as provided elsewhere herein The notice of non-renewal given by the Company is referred to herein as the “ Company’s Non-Renewal .” The notice of non-renewal given by Executive is referred to herein as the “ Executive’s Non-Renewal .”

(d) Place of Performance. Executive will initially primarily report to the principal office of the Company, which is currently located in the Phoenix, AZ area. Executive understands and agrees that his duties will include reasonable travel, including but not limited to travel to offices of the Company, its Affiliates, and such other business travel as is reasonably necessary and appropriate to the performance of Executive’s duties hereunder, subject to reimbursement of expenses pursuant to Section 6 below.

2. At-Will Employment. The parties agree that Executive’s employment with the Company will be “at-will” employment and may be terminated at any time, upon written notice, either by the Company without Cause (in any such case, “ Company’s At-Will Termination ”) or by Executive without Good Reason (in any such case, “ Executive’s At-Will Termination ”). Executive understands and agrees that neither his job performance for, nor promotions, commendations, bonuses or the like from, the Company give rise to or in any way serve as the basis for modification, amendment, or extension, by implication or otherwise, of his employment with the Company. However, as described in this Agreement, Executive may be entitled to Severance Pay (defined below) and Severance Benefits (defined below) depending upon the circumstances of the termination of the Employment Term as set forth in Section 7(b) below.

3. Compensation.

(a) Initial Base Salary. During the Employment Term, the Company will pay Executive an annual base salary as compensation for his services (the “ Base Salary ”) at the initial rate of $230,000.00. The Base Salary will be paid periodically in accordance with the Company’s normal payroll practices. The Base Salary will be subject to review and adjustments will be made based upon the Company’s standard practices.

(b) Annual Incentive Bonus. During the Employment Term, Executive will be eligible to earn an annual incentive bonus (an “ Annual Bonus ”) under the same or substantially same bonus arrangement, plan or program as in effect for other executive-level employees of the Company from time to time and based upon the same general objective standards as are applied to the other executive-level employees of Company, provided that Executive’s personal performance objectives shall be unique to his role as Chief Financial Officer. Consistent therewith, the Board (or a committee of the Board, if applicable) will determine Executive’s target bonus opportunity and the criteria for earning such bonus, as well as Executive’s achievement of such criteria, and the amount of the Annual Bonus earned and payable to Executive for such year. Any Annual Bonus that is earned and becomes payable pursuant to this Section 3(b) will be paid no later than March 15 of the calendar year immediately following the calendar year to which the Annual Bonus relates. Executive’s Annual Bonus for calendar year 2019 shall be prorated on a weekly basis for his period of employment in such year. Executive must remain employed by the Company through December 31 of the applicable calendar year to be eligible to earn an Annual Bonus for such year; provided, however, that if the Employment Term ends prior to December 31 by reason of either termination by Executive for Good Reason or by the Company’s At-Will Termination, the Annual Bonus for such partial calendar year shall be prorated on a weekly basis for his period of employment in such year. The determinations of the Board (or a committee thereof) with respect to the Annual Bonus will be final and binding unless there is direct evidence that the determination was in violation of the terms and provision of this Section 3(b) or the applicable program, plan or arrangement.

4. Employee Benefits. During the Employment Term, Executive will be entitled to participate in the employee benefit plans and programs currently and hereafter maintained by the Company of general applicability to other executive-level employees and to employees generally of the Company, subject to eligibility requirements and the applicable terms and conditions of the subject plan or program and the determination of any committee uniformly administering such plan or program. The Company reserves the right to cancel or change the benefit plans and programs it offers to its employees at any time. In addition, the Company will cause Executive to be covered by a directors and officers liability insurance policy in an amount and scope of coverage customary for the size and industry of the Company’s business (but in no event less than $2,000,000) commencing on the date of this Agreement.

7. Accrued Obligations; Severance; COBRA.

(b) Severance. If the Employment Term ends by reason of either termination by Executive for Good Reason or by the Company’s At-Will Termination, the Company shall pay to Executive the greater of (as applicable, “ Severance Pay ”) (i) an amount equal to the product of (A) the number of full or partial months, if any, in the period beginning on the date the Employment Term ended and ending on the date the Initial Term would have ended, if later than the date the Employment Term actually ended, multiplied by (B) Executive’s monthly Base Salary (as in effect immediately prior to the termination date) or (ii) an amount equal to one-half of Executive’s annual Base Salary (as in effect immediately prior to the termination date). The Severance Pay shall be paid by the Company to Executive in substantially equal monthly installments, without reduction or set off (other than as provided in Section 11(a) below), in accordance with the Company’s standard payroll procedures, commencing on the 60th day following the termination or expiration of the Employment Term, provided that the revocation period(s) set forth in the Release Agreement set forth in Section 8(a) below have expired without revocation. If the Employment Terms ends by reason of termination by the Company for Cause, by the Company’s Non-Renewal or Executive’s Non-Renewal of the Initial Term or any Renewal Term, by Executive’s At-Will Termination, or due to Executive’s death or disability, no Severance Pay will be owing or paid to Executive.

8. Conditions to Receipt of Severance Pay and Severance Benefits.

(a) Release of Claims. The receipt of Severance Pay and Severance Benefits will be subject to Executive signing, delivering, not revoking and complying with a general release and waiver of claims in favor of the Company and its officers, directors and affiliates which general release and waiver of claims shall be in a form prepared by the Company, in its reasonable discretion.

9. Restrictive Covenants.

(c) Non-Disclosure and Non-Use of Confidential Information. At all times both during the Employment Term and for five (5) years thereafter (except with regard to trade secrets, for so long as such information remains a trade secret), Executive agrees that he will not, either directly or indirectly, (i) divulge, use, disclose (in any way or in any manner, including by posting on the Internet), reproduce, distribute, or reverse engineer or otherwise provide Confidential Information to any person, firm, corporation, reporter, author, producer or similar person or entity; (ii) take any action that would make available Confidential Information to the general public in any form; (iii) take any action that uses Confidential Information to solicit any customer of the Company or prospective customer (with whom the Company has had a substantive discussion on it becoming a customer of the Company within the immediately preceding twelve (12) months) in violation of Section 9(b); or (iv) take any action that uses Confidential Information for solicitation of, or marketing for, any service or product on Executive’s behalf or on behalf of any entity other than the Company or its Affiliates with which Executive was in fact associated, except (A) as required in connection with the performance of such Executive’s duties to the Company or any of its Affiliates, (B) as required to be included in any report, statement or testimony requested by any municipal, state or national regulatory body having jurisdiction over Executive, (C) as required in response to any summons or subpoena or in connection with any litigation, (D) to the extent necessary in order to comply with any law, order, regulation, ruling or governmental request applicable to Executive, (E) as required in connection with an audit by any taxing authority, or (F) as permitted by the express written consent of the Company.

(d) Inventions and Patents; Third Party Information. The results and proceeds of Executive’s services to the Company (whether prior to or during the Employment Term), including, without limitation, any works of authorship related to the Company resulting from Executive’s services during Executive’s employment with the Company and any works in progress will be works-made-for-hire. The Company will be deemed the sole owner throughout the universe of such works-made-for-hire and any and all rights of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed, with the right to use the same in perpetuity in any manner the Company determines in its sole discretion without any further payment to Executive whatsoever. If, for any reason, any of such results and proceeds will not legally be a work-made-for-hire or there are any rights which do not accrue to the Company under the preceding sentence, then Executive hereby irrevocably assigns and agrees to assign to the Company any and all of Executive’s right, title and interest thereto, including, without limitation, any and all copyrights, patents, trade secrets, trademarks and/or other rights of whatsoever nature therein, whether or not now or hereafter known, existing, contemplated, recognized or developed. The Company will have the right to use the same in perpetuity throughout the universe in any manner the Company determines without any further payment to Executive whatsoever. Executive will, from time to time, as may be reasonably requested by the Company, and at the Company’s sole expense, sign such documents and assist the Company to establish or document the Company’s exclusive ownership of any and all rights in any such results and proceeds, including, without limitation, the execution of appropriate copyright or patent applications or assignments. To the extent Executive has any rights in any such results and proceeds that cannot be assigned in the manner described above, Executive unconditionally and irrevocably waives the right to enforce such unassignable rights. This Section 9(d) is subject to, and will not be deemed to limit, restrict or constitute any waiver by the Company of, any rights of ownership to which the Company may be entitled by operation of law by virtue of the Company being Executive’s employer. This Agreement does not apply to an invention or other works of authorship for which no equipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Executive’s own time, and (i) which does not relate (A) directly to the business of the Company or (B) to the Company’s actual or demonstrably anticipated research or development, or (ii) which does not result from any work performed by Executive for the Company hereunder.

(e) Enforcement; Remedies. Executive acknowledges that the covenants set forth in Sections 9(a), 9(b), 9(c) and 9(d) impose a reasonable restraint on Executive in light of the business and activities of the Company and its Affiliates. Executive acknowledges that a breach of Sections 9(a), 9(b), 9(c) or 9(d) by Executive will cause serious and potentially irreparable harm to the Company and its Affiliates. Executive therefore acknowledges that a breach of Sections 9(a), 9(b), 9(c) or 9(d) by Executive cannot be adequately compensated in an action for damages at law, and equitable relief would be necessary to protect the Company and its Affiliates from a violation of this Agreement and from the harm which this Agreement is intended to prevent. By reason thereof, Executive acknowledges that the Company is entitled, in addition to any other remedies it may have under this Agreement or otherwise, to preliminary and permanent injunctive and other equitable relief to prevent or curtail any breach or threatened breach of this Agreement. Executive acknowledges, however, that no specification in this Agreement of a specific legal or equitable remedy may be construed as a waiver of or prohibition against pursuing other legal or equitable remedies in the event of a breach of this Agreement by Executive. If Executive breaches this Section 9, Executive shall pay the reasonable attorneys’ fees and costs incurred by the Company in connection with enforcing its rights under this Agreement.

(f) Modification. In the event that any provision or term of this Sections 9(a), 9(b), 9(c) or 9(d), or any word, phrase, clause, sentence or other portion thereof (including, without limitation, the geographic and temporal restrictions and provisions contained in Sections 9(a) or 9(b)) is held to be unenforceable or invalid for any reason, such provision or portion thereof will be modified or deleted in such a manner as to be effective for the maximum period of time, the maximum geographical area, and otherwise to the maximum extent as to which it may be enforceable under applicable law. Such modified restriction(s) shall be enforced by a court having jurisdiction. In the event that such modification is not possible, because each of Executive’s obligations in Sections 9(a), 9(b), 9(c) and 9(d) is a separate and independent covenant, any unenforceable obligation shall be severed, and all remaining obligations shall be enforceable.

10. Definitions. For purposes of this Agreement, the following defined terms have the following meanings:

(d) “ Competing Business ” means (i) a business that is engaged in the acquisition or operation of compressed natural gas fueling stations, (ii) a business that is engaged in providing freight trucking services, or (iii) any other business in which the Company or any of its Affiliates is then-currently engaged or was engaged at any time in the twelve (12) month period prior to Executive’s last day of employment with the Company.

(e) “ Confidential Information ” means confidential or proprietary information and/or techniques of the Company or its Affiliates entrusted to, developed by, or made available by the Company or any of its Affiliates to Executive during the Employment Term, whether in writing, in computer form, reduced to a tangible form in any medium, or conveyed orally, that is not generally known by others in the form in which it is or was used by the Company or its Affiliates. Examples of Confidential Information include, without limitation: (i) sales, sales volume, sales methods, sales proposals, business plans or statements of work; (ii) customers of the Company, prospective customer (with whom the Company has had a substantive discussion on it becoming a customer of the Company within the immediately preceding twelve (12) months), and customer records, including contact and preference information; (iii) costs of goods or services charged by vendors and suppliers to the Company; (iii) prices charged to specific customers and non-public general price lists and similar pricing information; (iv) terms of contracts with customer; (vii) non- public information and materials describing or relating to the financial condition and affairs of the Company or its Affiliates, including but not limited to, financial statements, budgets, projections financial and/or investment performance information, research reports, personnel matters, products, services, operating procedures, organizational responsibilities and marketing matters, policies or procedures; (viii) non-public information and materials describing existing or new processes, products and services of the Company or its Affiliates, including marketing materials, analytical data and techniques, and product, service or marketing concepts under development, and the status of such development; (ix) the business or strategic plans of the Company or its Affiliates; (x) the information technology systems, network designs, computer program code, and application practices of the Company or its Affiliates; (xi) acquisition candidates of the Company or its Affiliates or any studies or assessments relating thereto; and (xii) trademarks, service marks, trade secrets, trade names and logos. In addition and notwithstanding the foregoing, Confidential Information does not include either (y) information that, other than as a result of a breach by Executive of this Agreement, is or becomes generally known to and available for use by the public and (z) information that is, at any time, either on the Company’s website or is in brochures, advertising and other materials furnished or provided to customers of the Company and prospective customer (with whom the Company has had a substantive discussion on it becoming a customer of the Company within the immediately preceding twelve (12) months).

(f) “ Disability ” means Executive’s inability to perform one or more essential functions of his position, after taking into account reasonable accommodations, by reason of any medically diagnosed physical or mental impairment and such inability continues for a period of at least 120 consecutive calendar days. A determination of such Disability will be made by a physician reasonably acceptable to the Company and Executive (or, if applicable, his spouse or legal representative).

(g) “ Good Reason ” means the occurrence of any of the following events, without the written consent of Executive:

(ii) any material reduction in Executive’s authority, duties or responsibilities or the assignment to Executive of any duties that are inconsistent with his position or;

(iii) any other action or inaction that constitutes a material breach by the Company of this Agreement or any other agreement under which Executive provides services to the Company or any of its Affiliates.

(h) “ Section 409A ” means Section 409A of the Code and the Treasury Regulations issued thereunder.

11. Tax Matters

Withholding. All payments made pursuant to this Agreement will be

(a) subject to withholding of taxes as required by applicable law.

(d) Limitation on Payments Under Certain Circumstances.

(i) Notwithstanding any other provision of this Agreement to the contrary, in the event that Executive becomes entitled to receive or receives any payments, options, awards or benefits (including, without limitation, the monetary value of any non-cash benefits and the accelerated vesting of stock awards) under any agreement, arrangement, plan or program with the Company or any person affiliated with the Company (collectively, the “ Payments ”), that may separately or in the aggregate constitute “parachute payments” within the meaning of Code Section 280G and the Treasury regulations promulgated thereunder (“ Section 280G ”) and it is determined that, but for this Section 12(d)(i), any of the Payments will be subject to any excise tax pursuant to Code Section 4999 or any similar or successor provision (the “ Excise Tax ”), the Company shall pay to Executive either (i) the full amount of the Payments or (ii) an amount equal to the Payments reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “ Capped Payments ”), whichever of the foregoing amounts results in the receipt by Executive, on an after-tax basis (with consideration of all taxes incurred in connection with the Payments, including the Excise Tax), of the greatest amount of Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. For purposes of determining whether Executive would receive a greater after-tax benefit from the Capped Payments than from receipt of the full amount of the Payments and for purposes of Section 11(d)(iii) (if applicable), Executive shall be deemed to pay federal, state and local taxes at the highest marginal rate of taxation for the applicable calendar year.

(ii) All computations and determinations called for by Sections 11(d)(i) and 11(d)(iii) shall be made and reported in writing to the Company and Executive by a third-party service provider selected by the Company and Executive (the “ Tax Advisor ”), and all such computations and determinations shall be conclusive and binding on the Company and Executive. For purposes of such calculations and determinations, the Tax Advisor may rely on reasonable, good faith interpretations concerning the application of Code Sections 280G and 4999. The Company and Executive shall furnish to the Tax Advisor such information and documents as the Tax Advisor may reasonably request in order to make their required calculations and determinations. The Company shall bear all fees and expenses charged by the Tax Advisor in connection with its services.

(iii) In the event that Section 11(d)(i) applies and a reduction is required to be applied to the Payments thereunder, the Payments shall be reduced by the Company in a manner and order of priority that provides Executive with the largest net after-tax value; provided that payments of equal after-tax present value shall be reduced in the reverse order of payment. Notwithstanding anything to the contrary herein, any such reduction shall be structured in a manner intended to comply with Section 409A.

If to the Company:

EVO Transportation & Energy Services, Inc.

8285 West Lake Pleasant Parkway
Peoria, AZ 85382
Attention: John P. Yeros

If to Executive:

Eugene S. Putnam, Jr.

___________

Phoenix, AZ

17. Headings. All captions and section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement.

18. Governing Law. This Agreement will be construed and interpreted in accordance with, and any dispute or controversy arising from any breach or asserted breach of this Agreement will be governed by, the laws of the State of Arizona without regard to any choice of law rules. Any action brought to enforce or interpret this Agreement must be brought in the state or federal courts for the State of Arizona, and the parties hereby consent to the jurisdiction and venue of such courts in the event of any dispute. Each of the parties knowingly and voluntarily waives all right to trial by jury in any action or proceeding arising out of or relating to this Agreement, Executive’s employment by the Company, or for recognition or enforcement of any judgment.

20. Counterparts. This Agreement may be executed in counterparts and may delivered personally or by facsimile or electronic transmission, and each counterpart will have the same force and effect as an original and will constitute an effective, binding agreement on the part of each of the undersigned parties.

{Signature Page Follows}

IN WITNESS WHEREOF, each of the parties has executed this Employment Agreement, in the case of the Company by its duly authorized officer, as of the Effective Date in the preamble hereof.

COMPANY:
EVO Transportation & Energy Services, Inc.

By:	/s/ John Yeros
Name:	John Yeros
Title:	CEO
Date:	July __, 2019

EXECUTIVE:

By:	/s/ Eugene S. Putnam, Jr.
Name:	Eugene S. Putnam, Jr.
Date:	July 22, 2019