1010-00004 · Arbor Health Technologies Inc · Transaction Documents/Equity Awards

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PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT

Calderwood & Harkness LLP One International Place, Suite 3400 Boston, MA 02110

Matter No.: 1010-00004

Reviewed by: Sandra Okafor, Counsel, Corporate/M&A Gregory Tan, Partner, Tax

August 12, 2022

RESTRICTED STOCK UNIT AWARD AGREEMENT

Under the Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021)

DRAFT — August 12, 2022

RESTRICTED STOCK UNIT AWARD AGREEMENT

This Restricted Stock Unit Award Agreement (this "Agreement") is made and entered into as of [●], 2022 (the "Grant Date," which Grant Date is intended to be on or about November 1, 2022, corresponding to the Participant's proposed employment start date), by and between Arbor Health Technologies Inc., a Delaware corporation, with its principal offices located at 400 Brattle Commerce Park, Suite 1200, Cambridge, MA 02138 (the "Company"), and Dr. Marcus J. Elliston, an individual residing at 87 Laurel Hill Road, Wellesley, MA 02481 (the "Participant" or "Grantee").

RECITALS

WHEREAS, the Company maintains the Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021) (the "Plan"), which Plan provides for the grant of equity-based awards to eligible employees, officers, directors, and consultants of the Company and its subsidiaries and affiliates;

WHEREAS, the Compensation Committee of the Board of Directors of the Company (the "Committee") has determined that it is in the best interests of the Company and its stockholders to grant restricted stock units ("RSUs") to the Participant in connection with the Participant's commencement of employment with the Company as Chief Operating Officer, in order to align the Participant's interests with those of the Company's stockholders and to provide the Participant with incentive compensation tied to the long-term performance and value creation of the Company;

WHEREAS, the grant of RSUs contemplated by this Agreement is made as part of the Participant's executive compensation package pursuant to that certain Executive Employment Agreement by and between the Company and the Participant dated as of [●], 2022 (the "Employment Agreement"), which Employment Agreement sets forth the terms and conditions of the Participant's employment with the Company, including base salary, annual bonus opportunity, severance protections, and certain restrictive covenants;

WHEREAS, the grant of RSUs contemplated by this Agreement has been duly authorized and approved by the Committee, including through the designees of Ridgeline Capital Partners, LP, the Company's majority stockholder holding approximately sixty-eight percent (68%) of the Company's outstanding equity, acting through the Committee in accordance with the Company's Certificate of Incorporation, Bylaws, and the Stockholders' Agreement dated as of July 15, 2020, by and among the Company, Ridgeline Capital Partners, LP, Ridgeline Capital Partners Fund IV, LP, Helix Ventures Fund III, LP, and certain other stockholders named therein (the "Stockholders' Agreement"), and the Committee has confirmed that the grant has been authorized within the share reserve of the Plan;

WHEREAS, Helix Ventures Fund III, LP, which holds approximately fourteen percent (14%) of the Company's outstanding equity, possesses certain consent rights with respect to equity issuances under Section 4.7 of the Stockholders' Agreement, and the Company represents that the requisite consents from Helix Ventures Fund III, LP have been obtained or will be obtained prior to the Grant Date as a condition to the effectiveness of this Agreement; and

WHEREAS, the Company and the Participant desire to set forth the terms and conditions governing the RSUs granted hereunder.

NOW, THEREFORE, in consideration of the mutual covenants and agreements 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:

Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan.

Section 1: Grant of Restricted Stock Units

1.1 Grant. The Company hereby grants to the Participant a total of [●] restricted stock units (collectively, the "Award"), subject to the terms and conditions set forth in this Agreement and the Plan. The total number of RSUs comprising the Award represents approximately zero and one-half percent (0.50%) of the fully diluted equity of the Company as of the Grant Date, calculated in accordance with the Company's capitalization table as of such date, inclusive of all outstanding shares, options, restricted stock units, warrants, and other convertible securities. The Award is separate from and in addition to any stock options granted to the Participant under that certain Stock Option Award Agreement by and between the Company and the Participant of even date herewith (the "Stock Option Award Agreement").

1.2 Grant Date. The grant date of the Award shall be [●], 2022 (the "Grant Date"), which date shall be the Participant's first day of active employment with the Company. The proposed Grant Date is November 1, 2022, subject to adjustment if the Participant's actual start date differs from such proposed date. In the event that the Participant's first day of employment is a date other than November 1, 2022, the Grant Date shall automatically be deemed to be such actual first day of employment, and all references to the Grant Date herein shall be construed accordingly.

1.3 Nature of RSUs. Each RSU represents an unfunded, unsecured contractual right of the Participant to receive one (1) share of the Company's common stock, par value $0.0001 per share (the "Common Stock"), or, at the sole discretion of the Committee, the cash equivalent thereof based on the fair market value of one share of Common Stock on the applicable settlement date, upon vesting and settlement in accordance with the terms of this Agreement. The RSUs do not represent actual shares of Common Stock and shall not be treated as property or as a trust fund of any kind. The Participant's rights under this Agreement are limited to those of a general unsecured creditor of the Company.

1.4 No Stockholder Rights Prior to Settlement. The Participant shall have no rights as a stockholder of the Company with respect to any shares of Common Stock underlying the RSUs unless and until such shares are actually issued and delivered to the Participant following vesting and settlement in accordance with the provisions of this Agreement. Without limiting the generality of the foregoing, the Participant shall have no voting rights, no right to receive dividends or other distributions, and no right to participate in any recapitalization, merger, consolidation, or other corporate transaction with respect to any shares of Common Stock underlying the RSUs prior to the actual issuance and delivery of such shares.

Section 2: Vesting

2.1 Vesting Schedule. Subject to the Participant's continued employment with the Company (or any subsidiary or affiliate thereof) through each applicable vesting date, and subject to the acceleration provisions set forth in Sections 4 and 5 below, the RSUs shall vest in three (3) substantially equal annual installments as follows:

(a) First Tranche: Thirty-three and one-third percent (33.33%) of the total number of RSUs comprising the Award shall vest on the first (1st) anniversary of the Grant Date;

(b) Second Tranche: Thirty-three and one-third percent (33.33%) of the total number of RSUs comprising the Award shall vest on the second (2nd) anniversary of the Grant Date; and

(c) Third Tranche: Thirty-three and one-hundredths percent (33.34%) of the total number of RSUs comprising the Award (i.e., all remaining unvested RSUs) shall vest on the third (3rd) anniversary of the Grant Date,

such that one hundred percent (100%) of the RSUs comprising the Award shall be fully vested on the third (3rd) anniversary of the Grant Date. To the extent that the application of the foregoing percentages to the total number of RSUs results in a fractional RSU, the number of RSUs vesting in each of the first and second tranches shall be rounded down to the nearest whole RSU, and the number of RSUs vesting in the third tranche shall be adjusted upward to include any RSUs not vesting in the prior tranches, so that the total number of RSUs vesting across all three tranches equals the total number of RSUs comprising the Award.

2.2 Continuous Employment Requirement. Vesting of the RSUs is contingent upon the Participant's continued active employment with the Company or any of its subsidiaries or affiliates (collectively, the "Company Group") on each applicable vesting date. For the avoidance of doubt, the Participant's transfer of employment between the Company and any subsidiary or affiliate of the Company, or between subsidiaries or affiliates, shall not constitute a termination of employment for purposes of this Section 2 or any other provision of this Agreement, provided that the Participant remains in the continuous employ of a member of the Company Group. Except as expressly provided in Sections 4 and 5 hereof, if the Participant's employment with all members of the Company Group terminates for any reason prior to the applicable vesting date, all RSUs that have not vested as of the date of such termination shall be immediately and automatically forfeited without consideration, and neither the Participant nor any beneficiary, estate, heir, or legal representative of the Participant shall have any further rights or claims with respect to such forfeited RSUs.

2.3 No Proportional Vesting. Except as expressly set forth in Section 4.4 (Death or Disability), there shall be no proportional or partial vesting of RSUs between the scheduled vesting dates. Vesting shall occur only on the specific anniversary dates set forth in Section 2.1 above (or upon the occurrence of an acceleration event as described in Sections 4 and 5). If the Participant's employment terminates at any time between two scheduled vesting dates (for any reason other than those described in Sections 4 and 5), no additional RSUs shall vest by reason of the passage of time between the most recent vesting date and the date of termination.

Section 3: Settlement of RSUs

3.1 Settlement Timing. Vested RSUs shall be settled by the delivery of shares of Common Stock (or, at the sole discretion of the Committee, the cash equivalent thereof based on the fair market value of one share of Common Stock on the applicable settlement date) within thirty (30) days following the applicable vesting date. In the case of accelerated vesting pursuant to Sections 4 or 5, vested RSUs shall be settled within thirty (30) days following the date of the applicable acceleration event. Notwithstanding the foregoing, in no event shall settlement of any RSU occur later than March 15 of the calendar year following the calendar year in which the applicable vesting date (or acceleration event) occurs, in order to ensure compliance with the "short-term deferral" exemption under Treasury Regulation Section 1.409A-1(b)(4) promulgated under Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") ("Section 409A"). The Company shall use commercially reasonable efforts to effect settlement as promptly as practicable following each vesting date.

3.2 Form of Settlement. Settlement of vested RSUs shall be made in whole shares of Common Stock, registered in the name of the Participant (or, in the event of the Participant's death, in the name of the Participant's designated beneficiary or estate, as applicable) on the books and records of the Company. No fractional shares of Common Stock shall be issued. In the event that the application of the vesting schedule or any adjustment under Section 13 would result in the settlement of a fractional share, the number of shares delivered shall be rounded down to the nearest whole share, and the Company shall pay to the Participant a cash amount equal to the fair market value (as determined by the Committee in good faith) of such fractional share as of the applicable settlement date.

3.3 Delivery Mechanism. Shares of Common Stock issued in settlement of vested RSUs shall be delivered via book-entry registration on the Company's stock transfer records and stock ledger, or through such other means as the Committee may determine in its discretion, including, without limitation, delivery to a brokerage account designated by the Participant (if applicable and if such delivery mechanism is available). The Company shall not be obligated to issue any shares of Common Stock until all applicable federal and state securities law requirements have been satisfied. Any shares delivered to the Participant may bear such restrictive legends as the Company deems necessary or advisable to comply with applicable securities laws and the terms of this Agreement, the Plan, and the Stockholders' Agreement.

3.4 Six-Month Delay for Specified Employees. In the event that the Company becomes a publicly traded corporation (including upon the consummation of an initial public offering of the Company's Common Stock or a direct listing), and the Participant is determined to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code and the regulations and guidance promulgated thereunder, and if any settlement of RSUs hereunder would constitute "nonqualified deferred compensation" subject to Section 409A (rather than qualifying for the short-term deferral exemption or another applicable exemption), and such settlement is triggered by the Participant's "separation from service" within the meaning of Section 409A, then notwithstanding any other provision of this Agreement to the contrary, such settlement shall not be made until the earlier of: (i) the date that is six (6) months and one (1) day following the date of the Participant's separation from service; or (ii) the date of the Participant's death. Any RSUs that would otherwise have been settled during such six-month delay period shall be accumulated and settled in a single lump sum payment on the earliest permissible date, together with interest at the applicable federal rate in effect as of the date of the Participant's separation from service. The provisions of this Section 3.4 are intended to comply with Section 409A, as further analyzed in the Section 409A compliance memorandum prepared by Gregory Tan, Partner, Tax, Calderwood & Harkness LLP, dated August 22, 2022, which memorandum has been provided to the Company's General Counsel for reference.

Section 4: Termination of Employment

4.1 Termination for Cause. In the event that the Participant's employment with the Company Group is terminated by the Company for "Cause" (as such term is defined in the Employment Agreement), all RSUs that have not vested as of the effective date of such termination shall be immediately and automatically forfeited as of such date without any action required on the part of the Company, and neither the Participant nor any beneficiary, estate, heir, or legal representative of the Participant shall have any further rights, claims, or interests with respect to such forfeited RSUs. No settlement shall be made with respect to any RSUs forfeited pursuant to this Section 4.1. For the avoidance of doubt, any RSUs that have vested and been settled prior to the date of termination for Cause shall not be affected by such termination, except to the extent provided in Section 9 (Restrictive Covenants and Forfeiture).

4.2 Voluntary Resignation Without Good Reason. In the event that the Participant voluntarily resigns from employment with the Company Group without "Good Reason" (as such term is defined in the Employment Agreement), all RSUs that have not vested as of the effective date of such resignation shall be immediately and automatically forfeited as of such date without any action required on the part of the Company, and neither the Participant nor any beneficiary, estate, heir, or legal representative of the Participant shall have any further rights, claims, or interests with respect to such forfeited RSUs. No settlement shall be made with respect to any RSUs forfeited pursuant to this Section 4.2.

4.3 Termination Without Cause or Resignation for Good Reason (No Change in Control). In the event that the Participant's employment with the Company Group is terminated by the Company without Cause, or the Participant resigns from employment for Good Reason (each as defined in the Employment Agreement), and such termination or resignation does not occur within twenty-four (24) months following a Change in Control (as defined in Section 5.1 below), then, subject to the conditions set forth below, twenty-five percent (25%) of the RSUs that are then unvested as of the effective date of such termination or resignation shall immediately vest as of such date. The remaining seventy-five percent (75%) of the then-unvested RSUs shall be immediately and automatically forfeited as of such date without consideration. The accelerated vesting of RSUs pursuant to this Section 4.3 shall be in addition to (and not in lieu of) any RSUs that have already vested in accordance with the vesting schedule set forth in Section 2.1 prior to the date of such termination or resignation.

Notwithstanding the foregoing, the accelerated vesting of RSUs pursuant to this Section 4.3 is expressly conditioned upon the Participant's timely execution and non-revocation of the General Release of Claims substantially in the form attached as Schedule B to the Employment Agreement (the "Release"), within the timeframes specified in the Employment Agreement (which requires execution within twenty-one (21) days following the date of termination, or forty-five (45) days in the case of a group termination, and permits revocation within seven (7) days following execution). If the Participant does not timely execute the Release, or if the Participant revokes the Release within the applicable revocation period, no accelerated vesting shall occur under this Section 4.3, and all then-unvested RSUs shall be forfeited.

For reference, the Employment Agreement provides that, upon a termination without Cause or resignation for Good Reason outside the Change in Control period, the Participant shall also be entitled to the following severance benefits (subject to execution of the Release): (i) twelve (12) months of continued base salary; (ii) a pro-rata annual bonus for the year of termination; and (iii) twelve (12) months of continued COBRA health insurance premium reimbursement at a cost of approximately $2,150 per month. The accelerated vesting of RSUs under this Section 4.3 is in addition to such severance benefits.

4.4 Death or Disability. In the event of the Participant's death or "Disability" (as such term is defined in the Plan), a pro-rata portion of the next tranche of RSUs scheduled to vest shall vest as of the date of the Participant's death or Disability (as applicable). The pro-rata portion shall be calculated by multiplying the number of RSUs in the next scheduled tranche by a fraction, the numerator of which is the number of full calendar months elapsed since the most recent vesting date (or since the Grant Date, if no vesting has yet occurred) through and including the month in which the death or Disability occurs, and the denominator of which is twelve (12). All remaining unvested RSUs (i.e., all RSUs not vesting pursuant to the foregoing pro-rata calculation and not previously vested) shall be immediately and automatically forfeited as of the date of the Participant's death or Disability. Settlement of RSUs vesting under this Section 4.4 shall be made in accordance with Section 3.

4.5 Non-Renewal of Employment Term. In the event that the Company elects not to renew the term of the Employment Agreement by providing ninety (90) days' written notice of non-renewal in accordance with the provisions of the Employment Agreement, such non-renewal shall be treated as a termination of the Participant's employment by the Company without Cause for all purposes of this Agreement, including for purposes of Section 4.3 (if no Change in Control has occurred within the applicable period) and Section 5.2 (if a Change in Control has occurred within the applicable period). The Participant's election not to renew the Employment Agreement shall be treated as a voluntary resignation without Good Reason for purposes of this Agreement.

Section 5: Change in Control

5.1 Definition of "Change in Control." For purposes of this Agreement, a "Change in Control" shall mean the occurrence of any of the following events:

(i) The acquisition by any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than Ridgeline Capital Partners, LP, Ridgeline Capital Partners Fund IV, LP, or any of their respective affiliates, managed funds, or successors (collectively, the "Ridgeline Entities"), of beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of more than fifty percent (50%) of the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors;

(ii) The consummation of a merger, consolidation, reorganization, business combination, or similar transaction involving the Company, or the sale, lease, exchange, or other disposition of all or substantially all of the assets of the Company, in each case in which the stockholders of the Company immediately prior to such transaction retain, directly or indirectly, less than fifty percent (50%) of the combined voting power of the outstanding voting securities of the surviving, resulting, or acquiring entity (or its ultimate parent entity) immediately following such transaction;

(iii) The complete liquidation or dissolution of the Company, other than in connection with a transaction described in clause (ii) above in which the stockholders of the Company retain fifty percent (50%) or more of the combined voting power of the surviving or resulting entity; or

(iv) A change in the composition of the Board of Directors of the Company (the "Board") such that the individuals who, as of the Grant Date, constitute the Board (together with any new directors whose election by the Board or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the directors then still in office who were either directors as of the Grant Date or whose election or nomination for election was previously so approved) (collectively, the "Continuing Directors") cease for any reason to constitute at least a majority of the directors then serving on the Board.

For the avoidance of doubt, the Ridgeline Entities carve-out set forth in clause (i) above is consistent with the corresponding definition of "Change in Control" in the Employment Agreement and reflects the intended interaction between this Agreement and the drag-along rights and other provisions set forth in favor of the Ridgeline Entities under the Stockholders' Agreement. A transaction initiated or consummated by or among the Ridgeline Entities (including a sale, transfer, or other disposition of the Ridgeline Entities' equity interest in the Company) shall not constitute a Change in Control unless such transaction otherwise satisfies clause (ii), (iii), or (iv) above.

5.2 Double-Trigger Acceleration upon Change in Control. If, within twenty-four (24) months following the consummation of a Change in Control, the Participant's employment with the Company (or any successor thereto, or any member of the Company Group) is terminated by the Company (or its successor) without Cause, or the Participant resigns from employment for Good Reason (each as defined in the Employment Agreement) (a "Qualifying CIC Termination"), then, subject to the conditions set forth below, one hundred percent (100%) of the RSUs that are then unvested as of the effective date of such Qualifying CIC Termination shall immediately vest in full as of such date.

The accelerated vesting of RSUs pursuant to this Section 5.2 is expressly conditioned upon the Participant's timely execution and non-revocation of the Release within the timeframes specified in the Employment Agreement. If the Participant does not timely execute the Release, or if the Participant revokes the Release within the applicable revocation period, no accelerated vesting shall occur under this Section 5.2, and all then-unvested RSUs shall be forfeited.

For reference, in connection with a Qualifying CIC Termination, the Employment Agreement provides the following severance benefits (subject to execution of the Release, and in addition to the full acceleration of equity awards contemplated herein): (i) twenty-four (24) months of continued base salary (annual base salary of $575,000, for a total of $1,150,000); (ii) two times (2×) the Participant's target annual bonus ($431,250 target annual bonus × 2 = $862,500); (iii) eighteen (18) months of continued COBRA health insurance premium reimbursement (estimated at $2,150 per month, for a total of approximately $38,700); and (iv) full acceleration of all equity awards, including the RSUs subject to this Agreement and the stock options subject to the Stock Option Award Agreement. The total estimated value of the Change in Control severance package, exclusive of equity acceleration, is approximately $2,051,200.

5.3 No Single-Trigger Acceleration. For the avoidance of doubt, the occurrence of a Change in Control alone, without a Qualifying CIC Termination occurring within the twenty-four (24)-month period following such Change in Control, shall not result in any accelerated vesting of the RSUs. The RSUs shall continue to vest in accordance with the vesting schedule set forth in Section 2.1 following a Change in Control, subject to the assumption, substitution, or other treatment of the RSUs pursuant to Section 5.4 below.

5.4 Treatment of RSUs upon Change in Control Transaction. In connection with a Change in Control, the Committee may, in its sole and absolute discretion, provide for one or more of the following treatments of the outstanding RSUs (whether vested or unvested):

(a) Assumption or Substitution. The surviving, resulting, or acquiring entity (or its parent) in the Change in Control transaction may assume the RSUs or substitute equivalent equity awards relating to the securities of such surviving, resulting, or acquiring entity (or its parent), with appropriate adjustments to the number and kind of shares or units and other terms of the RSUs to preserve the economic value of the Award as of the date of the Change in Control;

(b) Conversion to Cash Right. The RSUs may be converted into a right to receive cash or other consideration in an amount equal to the per-share consideration received by stockholders of the Company in the Change in Control transaction, with settlement to occur on the same schedule as would have applied to the RSUs absent the conversion (or, in the case of vested RSUs, as promptly as practicable following the Change in Control); or

(c) Cancellation and Cash-Out. The RSUs may be cancelled, with payment to the Participant (within thirty (30) days following the Change in Control) of a cash amount equal to the product of (x) the number of vested RSUs (including RSUs that vest on an accelerated basis pursuant to this Section 5) and (y) the per-share consideration received by stockholders of the Company in the Change in Control transaction, less any applicable tax withholding.

Notwithstanding Section 5.3, if the surviving, resulting, or acquiring entity in the Change in Control transaction does not assume or substitute the RSUs (or provide substantially equivalent replacement awards) in connection with such transaction, then one hundred percent (100%) of the then-unvested RSUs shall vest immediately prior to the consummation of the Change in Control transaction, and such RSUs shall be settled in accordance with the provisions of this Section 5.4 or Section 3, as applicable. This provision is intended to ensure that the Participant is not deprived of the economic value of the Award in circumstances where the RSUs will cease to exist upon consummation of the Change in Control and no replacement award is provided.

Section 6: Section 280G Provisions

6.1 Best-Net Cutback. In the event that the vesting and settlement of RSUs under this Agreement, together with any other payments, benefits, or other amounts to which the Participant is or may become entitled from the Company, any affiliate of the Company, or any person whose actions result in a Change in Control (collectively, the "Total Payments"), would constitute "parachute payments" within the meaning of Section 280G of the Code, and would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then the aggregate amount of the Total Payments shall be reduced (but not below zero) to the largest amount that would result in no portion of the Total Payments being subject to the Excise Tax (the "Safe Harbor Amount"), but only if the net after-tax benefit to the Participant of the Total Payments reduced to the Safe Harbor Amount (after taking into account all applicable federal, state, and local income taxes, employment taxes, and the Excise Tax) would be greater than or equal to the net after-tax benefit to the Participant of the Total Payments without such reduction (after taking into account all applicable federal, state, and local income taxes, employment taxes, and the Excise Tax) (the "Best-Net Reduction"). If the net after-tax benefit of the unreduced Total Payments (after payment of the Excise Tax) exceeds the net after-tax benefit of the reduced Total Payments, then no reduction shall be made, and the Participant shall be responsible for the payment of any Excise Tax.

6.2 Order of Reduction. In the event that a Best-Net Reduction is applicable pursuant to Section 6.1, the Total Payments shall be reduced in the following order, to the extent necessary to achieve the Safe Harbor Amount:

(i) First, any cash severance payments payable to the Participant pursuant to the Employment Agreement or any other agreement;

(ii) Second, any other cash amounts payable to the Participant that are treated as parachute payments, including any cash bonuses, incentive compensation, or other cash payments;

(iii) Third, any non-cash benefits or perquisites that are valued as parachute payments, including COBRA continuation coverage and other health and welfare benefits; and

(iv) Fourth, acceleration of vesting of equity awards, with the acceleration of vesting of RSUs under this Agreement being reduced last (after any reduction in the acceleration of vesting of stock options or other equity awards).

Within each category described above, the reduction shall be applied in reverse chronological order (i.e., the payment or benefit with the latest scheduled payment date shall be reduced first).

6.3 No Gross-Up. In no event shall the Company or any affiliate of the Company be required to provide a tax gross-up payment to the Participant with respect to any Excise Tax imposed under Section 4999 of the Code, or with respect to any federal, state, or local income tax, employment tax, or other tax arising from the vesting, settlement, or other treatment of the RSUs or any other payments or benefits payable to the Participant.

6.4 Determination by Accountants. All determinations required to be made under this Section 6, including whether a Best-Net Reduction is applicable, the amount of the Safe Harbor Amount, the amount of any Excise Tax, and the assumptions to be utilized in arriving at such determinations, shall be made by the Company's independent registered public accounting firm or such other nationally recognized independent accounting firm as may be designated by the Company (currently Hargrove & Sinclair CPAs, 75 Ashbury Asset Advisors, Suite 1400, Boston, MA 02109; lead engagement partner: Malcolm R. Sinclair, CPA) (the "Accounting Firm"). The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to the Company and the Participant within fifteen (15) business days of the date on which a determination is requested by either party (or such earlier time as is required under the Code). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The determination of the Accounting Firm shall be conclusive and binding upon the Company and the Participant, absent manifest error. If the Accounting Firm determines that no Excise Tax is payable by the Participant, it shall furnish the Participant with a written opinion to that effect.

Section 7: Section 409A Compliance

7.1 Intent to Comply. This Agreement is intended to comply with, or be exempt from, the requirements of Section 409A, and shall be interpreted and administered accordingly. The RSUs granted hereunder are intended to qualify for the "short-term deferral" exemption set forth in Treasury Regulation Section 1.409A-1(b)(4), pursuant to which amounts are not treated as "deferred compensation" subject to Section 409A if they are paid within the applicable short-term deferral period. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A or its qualification for an exemption from Section 409A, the provision shall be read in such a manner so that all payments and benefits hereunder either comply with Section 409A or are exempt from Section 409A. In no event shall the Company be required to modify the terms of this Agreement in a manner that would increase the economic cost to the Company of the Award.

7.2 Prohibition on Acceleration. Notwithstanding any other provision of this Agreement, the Company shall not accelerate the time or schedule of any settlement of RSUs in a manner that would violate Section 409A or the regulations and guidance promulgated thereunder. Any provision of this Agreement that would result in the acceleration of settlement in a manner inconsistent with Section 409A shall be modified to the minimum extent necessary to comply with Section 409A.

7.3 Separation from Service. For purposes of this Agreement, a termination of the Participant's employment shall be deemed to occur only upon a "separation from service" within the meaning of Section 409A and Treasury Regulation Section 1.409A-1(h), taking into account the default provisions thereof. The determination of whether a separation from service has occurred shall be made in accordance with the Company's established practices and procedures, applied consistently, to the extent consistent with Section 409A.

7.4 No Guarantee of Tax Treatment. The Company makes no representation, warranty, or guarantee to the Participant regarding the tax treatment of the RSUs under Section 409A, Section 280G, or any other provision of the Code, or under any state or local tax law. The Participant acknowledges that the Participant is solely responsible for the Participant's own tax obligations and for any taxes, penalties, interest, or additional amounts that may arise under Section 409A or any other applicable law in connection with the RSUs, and that the Company shall have no liability to the Participant or any other person in the event that any provision of this Agreement is determined not to comply with or be exempt from Section 409A.

Section 8: Tax Withholding

8.1 Withholding Obligation. The Company shall have the right and obligation to deduct from any settlement of RSUs hereunder (or from any other compensation or amounts payable to the Participant by the Company or any member of the Company Group) an amount sufficient to satisfy all applicable federal, state, and local income tax withholding obligations, Federal Insurance Contributions Act (FICA) tax obligations (including both employee and employer portions of Social Security and Medicare taxes), and any other tax withholding obligations arising from the vesting, settlement, or other disposition of the RSUs. The Participant shall be responsible for all taxes imposed on the Participant in connection with the RSUs, including any taxes arising upon the vesting, settlement, or subsequent sale or disposition of shares received upon settlement.

8.2 Methods of Withholding. The withholding obligations described in Section 8.1 may be satisfied, at the discretion of the Committee or at the election of the Participant (subject to Committee approval), by any one or a combination of the following methods:

(a) Share Withholding. The Company may withhold from the shares of Common Stock otherwise deliverable to the Participant upon settlement of vested RSUs a number of whole shares having a fair market value (as determined by the Committee in good faith as of the settlement date) sufficient to satisfy the applicable withholding obligation. Share withholding pursuant to this clause (a) shall not exceed the number of shares having a fair market value equal to the maximum statutory withholding rate applicable to the Participant (or such lesser rate as the Committee may determine);

(b) Delivery of Previously Owned Shares. The Participant may deliver to the Company shares of Common Stock already owned by the Participant (free and clear of any liens, claims, encumbrances, or security interests) having a fair market value sufficient to satisfy the applicable withholding obligation;

(c) Cash Payment. The Participant may make a cash payment to the Company in an amount sufficient to satisfy the applicable withholding obligation; or

(d) Combination. Any combination of the foregoing methods, as approved by the Committee.

The Company shall have no obligation to deliver shares of Common Stock or make any cash payment to the Participant until the applicable withholding obligations have been satisfied in full.

Section 9: Restrictive Covenants and Forfeiture

9.1 Condition on Compliance. The vesting and settlement of RSUs under this Agreement, and the Participant's right to retain any shares of Common Stock (or cash amounts) received upon settlement of RSUs, are expressly conditioned upon the Participant's full compliance with the restrictive covenants set forth in the Employment Agreement and the Employee Non-Competition Agreement entered into by and between the Company and the Participant (the "Non-Competition Agreement"), including, without limitation, the following covenants:

(a) Non-Competition. A twelve (12)-month post-termination non-competition covenant, which prohibits the Participant from engaging in, or providing services to, any healthcare information technology or software-as-a-service (SaaS) company with annual revenues in excess of fifty million dollars ($50,000,000) operating in the United States, during the twelve (12)-month period following the termination of the Participant's employment with the Company for any reason;

(b) Employee Non-Solicitation. An eighteen (18)-month post-termination employee non-solicitation covenant, which prohibits the Participant from soliciting, recruiting, hiring, or inducing any employee of the Company or any member of the Company Group who holds the title of manager or above to leave the employ of the Company or any member of the Company Group, during the eighteen (18)-month period following the termination of the Participant's employment with the Company for any reason;

(c) Customer and Partner Non-Solicitation. A twelve (12)-month post-termination customer and partner non-solicitation covenant, which prohibits the Participant from soliciting, diverting, or appropriating the business of any customer, client, vendor, or strategic partner of the Company or any member of the Company Group with whom the Participant had material contact during the last twenty-four (24) months of the Participant's employment, during the twelve (12)-month period following the termination of the Participant's employment with the Company for any reason; and

(d) Confidentiality. A perpetual confidentiality and non-disclosure obligation with respect to the Company's confidential information, trade secrets, and proprietary data, as set forth in the Employment Agreement and the Non-Competition Agreement.

9.2 Clawback for Violation. If the Participant materially breaches any of the restrictive covenants described in Section 9.1 (as determined by the Committee in good faith), then in addition to any other remedies available to the Company at law or in equity, the Company shall have the right to:

(a) immediately forfeit all RSUs that have not vested and been settled as of the date of such breach, and any such unvested RSUs shall be automatically cancelled without consideration; and

(b) require the Participant to repay to the Company an amount equal to the fair market value (as determined by the Committee in good faith as of the applicable settlement date) of any shares of Common Stock received by the Participant upon settlement of RSUs during the twelve (12)-month period preceding such breach (or the net after-tax proceeds received by the Participant upon the sale or other disposition of any such shares, if greater). Such repayment obligation shall be enforceable by the Company through any legal means available, including setoff against any amounts otherwise payable to the Participant.

9.3 Clawback Policy. The RSUs granted hereunder, and any shares of Common Stock or cash amounts received upon settlement of the RSUs, shall be subject to any clawback, recoupment, or compensation recovery policy that the Company may adopt, amend, or maintain from time to time, whether adopted before or after the date of this Agreement, including any policy adopted to comply with applicable law, the rules and regulations of any securities exchange on which the Company's securities are listed, or any regulatory requirement (including, without limitation, the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules promulgated thereunder by the Securities and Exchange Commission). By accepting the Award, the Participant acknowledges and agrees that the RSUs and any shares or cash received upon settlement thereof are subject to any such clawback, recoupment, or recovery policy, and the Participant agrees to cooperate with the Company in connection with the implementation and enforcement of any such policy.

Section 10: Transferability

10.1 Non-Transferable. The RSUs may not be sold, transferred, pledged, assigned, encumbered, or otherwise alienated or hypothecated, whether voluntarily or involuntarily, by operation of law or otherwise, other than (a) by will or the laws of descent and distribution, or (b) pursuant to a qualified domestic relations order, as defined in Section 414(p) of the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended. Any attempted sale, transfer, pledge, assignment, encumbrance, alienation, or hypothecation of the RSUs in violation of this Section 10.1 shall be null and void and of no force or effect, and shall not be recognized by the Company. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors, and assigns of the Participant.

10.2 Beneficiary Designation. The Participant may designate one or more beneficiaries to receive shares of Common Stock (or cash, as applicable) upon the Participant's death in connection with the settlement of vested RSUs (including RSUs that vest upon the Participant's death pursuant to Section 4.4) by filing a written beneficiary designation with the Company (or its designated agent) in the form prescribed by the Committee. The Participant may change or revoke any such designation at any time by filing a new written designation with the Company. If no valid beneficiary designation is on file with the Company at the time of the Participant's death, any shares or other amounts payable upon the Participant's death shall be paid to the Participant's estate.

Section 11: Rights Under the Plan

11.1 Subject to Plan Terms. This Agreement and the Award evidenced hereby are subject to all of the terms, conditions, limitations, and provisions of the Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021), a copy of which has been provided to the Participant (or will be provided to the Participant prior to or concurrently with the execution of this Agreement), and which is incorporated herein by reference and made a part hereof as if fully set forth herein. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms and conditions of the Plan, the terms and conditions of the Plan shall control and govern.

11.2 Plan Share Reserve. The RSUs granted hereunder have been authorized and issued from the share reserve of the Plan. The Company represents that the Plan has sufficient authorized and available shares to accommodate the grant of RSUs contemplated by this Agreement, as confirmed in the equity award structuring memorandum dated August 10, 2022, prepared by Sandra Okafor, Counsel, Corporate/M&A, Calderwood & Harkness LLP, and Devon Archer, Associate, Calderwood & Harkness LLP, which memorandum verified the Plan's capacity to accommodate the Participant's 0.50% RSU grant (as well as the separate 1.25% stock option grant being made to the Participant under the Stock Option Award Agreement). If, at any time, the share reserve of the Plan is insufficient to permit the settlement of vested RSUs in shares of Common Stock, the Committee may, in its discretion, settle such RSUs in cash in accordance with the terms of this Agreement and the Plan.

11.3 Committee Authority. The Committee shall have full and exclusive authority to interpret, construe, and administer this Agreement and the Plan, to establish, amend, and rescind rules and regulations relating to the Plan and this Agreement, and to make all determinations necessary or advisable for the administration of this Agreement and the Plan. All decisions, determinations, and interpretations of the Committee shall be final, conclusive, and binding upon the Participant and all other persons claiming any rights under this Agreement or the Plan.

Section 12: No Employment Rights

12.1 Nothing contained in this Agreement shall confer upon the Participant any right to continued employment with the Company or any member of the Company Group, nor shall this Agreement interfere with or restrict in any way the right of the Company to terminate the Participant's employment at any time, with or without Cause, subject to the terms and conditions of the Employment Agreement. The Participant's employment with the Company is and shall remain subject to the terms of the Employment Agreement.

12.2 The grant of RSUs evidenced by this Agreement does not create any obligation on the part of the Company or the Committee to grant additional RSUs, stock options, or other equity or incentive awards to the Participant in the future, whether under the Plan or otherwise, and shall not be construed as establishing a precedent for any future grant. Each grant of equity awards is made at the sole discretion of the Committee and may differ in amount, terms, and conditions from any prior or subsequent grant.

Section 13: Adjustments

13.1 Capital Changes. In the event of any stock split, reverse stock split, stock dividend, recapitalization, reclassification, reorganization, merger, consolidation, combination, exchange of shares, spin-off, extraordinary distribution, or other similar change in the Company's capital structure or in the outstanding shares of Common Stock, the number and kind of shares of Common Stock (or other securities) subject to the RSUs shall be equitably and proportionately adjusted by the Committee in accordance with the terms of the Plan, in order to prevent dilution or enlargement of the rights of the Participant under this Agreement. Any such adjustment shall be made by the Committee in its sole discretion, and the Committee's determination shall be final, conclusive, and binding.

13.2 Fractional Shares. No fractional shares of Common Stock shall be issued as a result of any adjustment made pursuant to Section 13.1. In the event that any adjustment would result in the issuance of a fractional share, the number of shares subject to the RSUs shall be rounded down to the nearest whole share, and the Participant shall receive a cash payment equal to the fair market value (as determined by the Committee in good faith) of such fractional share.

Section 14: Governing Law and Dispute Resolution

14.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to any choice of law or conflict of law rules or provisions (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Commonwealth of Massachusetts.

14.2 Jurisdiction and Venue. The parties irrevocably submit to the exclusive jurisdiction of the state courts of the Commonwealth of Massachusetts located in Suffolk County, Massachusetts, and the United States District Court for the District of Massachusetts, for purposes of any suit, action, or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each party irrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any such suit, action, or proceeding in any such court, and any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.

14.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PLAN, THE RSUS, OR THE ACTIONS OF THE COMPANY OR THE COMMITTEE IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT THEREOF. EACH PARTY CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.

Section 15: Miscellaneous Provisions

15.1 Entire Agreement. This Agreement, together with the Plan, the Employment Agreement, the Non-Competition Agreement, and the Stock Option Award Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof (including the grant, vesting, settlement, and forfeiture of the RSUs) and supersedes all prior and contemporaneous negotiations, representations, warranties, commitments, offers, contracts, and agreements of the parties, whether written or oral, relating to such subject matter. No prior drafts of this Agreement shall be used in the interpretation or construction of this Agreement.

15.2 Amendment. This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by both the Company and the Participant; provided, however, that the Committee may amend, modify, or supplement this Agreement unilaterally (without the Participant's consent) to the extent necessary or advisable to comply with applicable law (including, without limitation, Section 409A or Section 280G of the Code) or to the extent that such amendment, modification, or supplement does not materially and adversely affect the Participant's rights hereunder. Any amendment, modification, or supplement that materially and adversely affects the Participant's rights under this Agreement shall require the Participant's prior written consent.

15.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions shall continue in full force and effect. To the extent permitted by applicable law, the parties hereby waive any provision of law that renders any provision of this Agreement invalid, illegal, or unenforceable in any respect. If any provision is held to be invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify such provision to the minimum extent necessary to make it valid, legal, and enforceable while preserving the original intent of the parties.

15.4 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when (a) delivered personally, (b) sent by registered or certified mail, return receipt requested, postage prepaid, (c) sent by nationally recognized overnight courier service, or (d) sent by email (with confirmation of receipt), addressed as follows:

If to the Company:

Arbor Health Technologies Inc. 400 Brattle Commerce Park, Suite 1200 Cambridge, MA 02138

Attn: Aaron Whitfield, General Counsel

Email: awhitfield@arborhealthtech.com

If to the Participant:

Dr. Marcus J. Elliston 87 Laurel Hill Road Wellesley, MA 02481

With a copy to the Participant's counsel (which shall not constitute notice):

Catherine A. Fielding, Esq. Fielding & Rowe LLP 101 Federal Street, Suite 2600 Boston, MA 02110

Email: cfielding@fieldingrowellp.com

Either party may change its address for purposes of this Section 15.4 by giving written notice of such change to the other party in the manner set forth above.

15.5 Waiver. No waiver by either party of any breach or default of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision, nor shall any waiver constitute a continuing waiver of the same provision on any future occasion. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of such party's right to enforce such provision in the future.

15.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of (a) the Company and its successors and assigns (including any entity that acquires all or substantially all of the assets or equity of the Company, whether by merger, consolidation, acquisition, or otherwise), and (b) the Participant and the Participant's heirs, executors, administrators, legal representatives, and permitted assigns. The Company may assign its rights and obligations under this Agreement to any successor or assign without the Participant's consent. The Participant may not assign the Participant's rights or obligations under this Agreement except as expressly permitted by Section 10.

15.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by facsimile or electronic transmission (including by PDF) shall be as effective as delivery of a manually executed counterpart.

15.8 Section Headings. The section headings used in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement.

Section 16: Participant's Acknowledgment

By executing this Agreement, the Participant hereby acknowledges and agrees as follows:

(a) The Participant has received a copy of the Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021), and has had a full and adequate opportunity to review the Plan and to understand its terms and provisions, including the definitions of capitalized terms used in this Agreement that are defined in the Plan;

(b) The Participant has had the opportunity to consult with the Participant's own independent legal counsel (Catherine A. Fielding, Esq., of Fielding & Rowe LLP) and tax advisors regarding the terms and conditions of this Agreement, the Plan, and the tax consequences of the RSUs, and the Participant has either consulted with such advisors or has voluntarily elected not to do so;

(c) The Participant understands that the RSUs are subject to forfeiture as described in this Agreement, including upon termination of employment, material breach of restrictive covenants, and the application of any clawback or recoupment policy, and the Participant voluntarily accepts such risk of forfeiture;

(d) The Participant understands and acknowledges the Section 409A provisions set forth in Section 7 of this Agreement, including the potential six (6)-month delay in settlement for specified employees in the event the Company becomes a publicly traded corporation, and the Participant agrees that the Company shall have no liability to the Participant for any taxes, penalties, or interest arising under Section 409A;

(e) The Participant understands and acknowledges the Section 280G best-net cutback provisions set forth in Section 6 of this Agreement, and that in no event will the Company provide a tax gross-up payment to the Participant with respect to any excise taxes imposed under Section 4999 of the Code; and

(f) The Participant hereby consents to the collection, use, processing, and transfer of the Participant's personal data by the Company, its affiliates, and their respective agents and service providers for purposes of implementing, administering, and managing this Agreement and the Plan, including the transfer of such personal data to third parties as may be necessary or appropriate in connection with the administration of the Plan and this Agreement or as required by applicable law.

IN WITNESS WHEREOF, the parties have executed this Restricted Stock Unit Award Agreement as of the date first written above.

ARBOR HEALTH TECHNOLOGIES INC.

By: ________

Name: Priya Chandrasekaran

Title: Chief Executive Officer

Date: ________

PARTICIPANT

________________________________________

Dr. Marcus J. Elliston

Date: ________

EXHIBIT AND APPENDIX REFERENCES

The following documents are referenced in this Agreement and are incorporated herein by reference or are otherwise relevant to the Award:

1. Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021) — The Plan governing the Award, incorporated herein by reference. A copy of the Plan has been provided to the Participant (or will be provided to the Participant prior to or concurrently with the execution of this Agreement).

2. Executive Employment Agreement — The Executive Employment Agreement by and between the Company and the Participant, dated as of [●], 2022, setting forth the terms and conditions of the Participant's employment as Chief Operating Officer of the Company, including base salary, annual bonus opportunity, severance protections, Change in Control severance, and definitions of "Cause" and "Good Reason" referenced herein.

3. Employee Non-Competition Agreement — The Employee Non-Competition Agreement by and between the Company and the Participant, setting forth the restrictive covenants referenced in Section 9 of this Agreement, including non-competition, employee non-solicitation, customer/partner non-solicitation, and confidentiality obligations.

4. Stock Option Award Agreement — The Stock Option Award Agreement by and between the Company and the Participant, dated as of [●], 2022, evidencing the grant of stock options to purchase shares of Common Stock representing 1.25% of the fully diluted equity of the Company, made concurrently with the Award.

5. Schedule A (Prior Inventions Disclosure) — The Participant'

PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT
Calderwood & Harkness LLP One International Place, Suite 3400 Boston, MA 02110
Matter No.: 1010-00004
Reviewed by: Sandra Okafor, Counsel, Corporate/M&A Gregory Tan, Partner, Tax
August 12, 2022
RESTRICTED STOCK UNIT AWARD AGREEMENT
Under the Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021)
DRAFT — August 12, 2022
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Restricted Stock Unit Award Agreement (this "Agreement") is made and entered into as of [●], 2022 (the "Grant Date," which Grant Date is intended to be on or about November 1, 2022, corresponding to the Participant's proposed employment start date), by and between Arbor Health Technologies Inc., a Delaware corporation, with its principal offices located at 400 Brattle Commerce Park, Suite 1200, Cambridge, MA 02138 (the "Company"), and Dr. Marcus J. Elliston, an individual residing at 87 Laurel Hill Road, Wellesley, MA 02481 (the "Participant" or "Grantee").
RECITALS
WHEREAS, the Company maintains the Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021) (the "Plan"), which Plan provides for the grant of equity-based awards to eligible employees, officers, directors, and consultants of the Company and its subsidiaries and affiliates;
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the "Committee") has determined that it is in the best interests of the Company and its stockholders to grant restricted stock units ("RSUs") to the Participant in connection with the Participant's commencement of employment with the Company as Chief Operating Officer, in order to align the Participant's interests with those of the Company's stockholders and to provide the Participant with incentive compensation tied to the long-term performance and value creation of the Company;
WHEREAS, the grant of RSUs contemplated by this Agreement is made as part of the Participant's executive compensation package pursuant to that certain Executive Employment Agreement by and between the Company and the Participant dated as of [●], 2022 (the "Employment Agreement"), which Employment Agreement sets forth the terms and conditions of the Participant's employment with the Company, including base salary, annual bonus opportunity, severance protections, and certain restrictive covenants;
WHEREAS, the grant of RSUs contemplated by this Agreement has been duly authorized and approved by the Committee, including through the designees of Ridgeline Capital Partners, LP, the Company's majority stockholder holding approximately sixty-eight percent (68%) of the Company's outstanding equity, acting through the Committee in accordance with the Company's Certificate of Incorporation, Bylaws, and the Stockholders' Agreement dated as of July 15, 2020, by and among the Company, Ridgeline Capital Partners, LP, Ridgeline Capital Partners Fund IV, LP, Helix Ventures Fund III, LP, and certain other stockholders named therein (the "Stockholders' Agreement"), and the Committee has confirmed that the grant has been authorized within the share reserve of the Plan;
WHEREAS, Helix Ventures Fund III, LP, which holds approximately fourteen percent (14%) of the Company's outstanding equity, possesses certain consent rights with respect to equity issuances under Section 4.7 of the Stockholders' Agreement, and the Company represents that the requisite consents from Helix Ventures Fund III, LP have been obtained or will be obtained prior to the Grant Date as a condition to the effectiveness of this Agreement; and
WHEREAS, the Company and the Participant desire to set forth the terms and conditions governing the RSUs granted hereunder.
NOW, THEREFORE, in consideration of the mutual covenants and agreements 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:
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan.
Section 1: Grant of Restricted Stock Units
1.1 Grant. The Company hereby grants to the Participant a total of [●] restricted stock units (collectively, the "Award"), subject to the terms and conditions set forth in this Agreement and the Plan. The total number of RSUs comprising the Award represents approximately zero and one-half percent (0.50%) of the fully diluted equity of the Company as of the Grant Date, calculated in accordance with the Company's capitalization table as of such date, inclusive of all outstanding shares, options, restricted stock units, warrants, and other convertible securities. The Award is separate from and in addition to any stock options granted to the Participant under that certain Stock Option Award Agreement by and between the Company and the Participant of even date herewith (the "Stock Option Award Agreement").
1.2 Grant Date. The grant date of the Award shall be [●], 2022 (the "Grant Date"), which date shall be the Participant's first day of active employment with the Company. The proposed Grant Date is November 1, 2022, subject to adjustment if the Participant's actual start date differs from such proposed date. In the event that the Participant's first day of employment is a date other than November 1, 2022, the Grant Date shall automatically be deemed to be such actual first day of employment, and all references to the Grant Date herein shall be construed accordingly.
1.3 Nature of RSUs. Each RSU represents an unfunded, unsecured contractual right of the Participant to receive one (1) share of the Company's common stock, par value $0.0001 per share (the "Common Stock"), or, at the sole discretion of the Committee, the cash equivalent thereof based on the fair market value of one share of Common Stock on the applicable settlement date, upon vesting and settlement in accordance with the terms of this Agreement. The RSUs do not represent actual shares of Common Stock and shall not be treated as property or as a trust fund of any kind. The Participant's rights under this Agreement are limited to those of a general unsecured creditor of the Company.
1.4 No Stockholder Rights Prior to Settlement. The Participant shall have no rights as a stockholder of the Company with respect to any shares of Common Stock underlying the RSUs unless and until such shares are actually issued and delivered to the Participant following vesting and settlement in accordance with the provisions of this Agreement. Without limiting the generality of the foregoing, the Participant shall have no voting rights, no right to receive dividends or other distributions, and no right to participate in any recapitalization, merger, consolidation, or other corporate transaction with respect to any shares of Common Stock underlying the RSUs prior to the actual issuance and delivery of such shares.
Section 2: Vesting
2.1 Vesting Schedule. Subject to the Participant's continued employment with the Company (or any subsidiary or affiliate thereof) through each applicable vesting date, and subject to the acceleration provisions set forth in Sections 4 and 5 below, the RSUs shall vest in three (3) substantially equal annual installments as follows:
(a) First Tranche: Thirty-three and one-third percent (33.33%) of the total number of RSUs comprising the Award shall vest on the first (1st) anniversary of the Grant Date;
(b) Second Tranche: Thirty-three and one-third percent (33.33%) of the total number of RSUs comprising the Award shall vest on the second (2nd) anniversary of the Grant Date; and
(c) Third Tranche: Thirty-three and one-hundredths percent (33.34%) of the total number of RSUs comprising the Award (i.e., all remaining unvested RSUs) shall vest on the third (3rd) anniversary of the Grant Date,
such that one hundred percent (100%) of the RSUs comprising the Award shall be fully vested on the third (3rd) anniversary of the Grant Date. To the extent that the application of the foregoing percentages to the total number of RSUs results in a fractional RSU, the number of RSUs vesting in each of the first and second tranches shall be rounded down to the nearest whole RSU, and the number of RSUs vesting in the third tranche shall be adjusted upward to include any RSUs not vesting in the prior tranches, so that the total number of RSUs vesting across all three tranches equals the total number of RSUs comprising the Award.
2.2 Continuous Employment Requirement. Vesting of the RSUs is contingent upon the Participant's continued active employment with the Company or any of its subsidiaries or affiliates (collectively, the "Company Group") on each applicable vesting date. For the avoidance of doubt, the Participant's transfer of employment between the Company and any subsidiary or affiliate of the Company, or between subsidiaries or affiliates, shall not constitute a termination of employment for purposes of this Section 2 or any other provision of this Agreement, provided that the Participant remains in the continuous employ of a member of the Company Group. Except as expressly provided in Sections 4 and 5 hereof, if the Participant's employment with all members of the Company Group terminates for any reason prior to the applicable vesting date, all RSUs that have not vested as of the date of such termination shall be immediately and automatically forfeited without consideration, and neither the Participant nor any beneficiary, estate, heir, or legal representative of the Participant shall have any further rights or claims with respect to such forfeited RSUs.
2.3 No Proportional Vesting. Except as expressly set forth in Section 4.4 (Death or Disability), there shall be no proportional or partial vesting of RSUs between the scheduled vesting dates. Vesting shall occur only on the specific anniversary dates set forth in Section 2.1 above (or upon the occurrence of an acceleration event as described in Sections 4 and 5). If the Participant's employment terminates at any time between two scheduled vesting dates (for any reason other than those described in Sections 4 and 5), no additional RSUs shall vest by reason of the passage of time between the most recent vesting date and the date of termination.
Section 3: Settlement of RSUs
3.1 Settlement Timing. Vested RSUs shall be settled by the delivery of shares of Common Stock (or, at the sole discretion of the Committee, the cash equivalent thereof based on the fair market value of one share of Common Stock on the applicable settlement date) within thirty (30) days following the applicable vesting date. In the case of accelerated vesting pursuant to Sections 4 or 5, vested RSUs shall be settled within thirty (30) days following the date of the applicable acceleration event. Notwithstanding the foregoing, in no event shall settlement of any RSU occur later than March 15 of the calendar year following the calendar year in which the applicable vesting date (or acceleration event) occurs, in order to ensure compliance with the "short-term deferral" exemption under Treasury Regulation Section 1.409A-1(b)(4) promulgated under Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") ("Section 409A"). The Company shall use commercially reasonable efforts to effect settlement as promptly as practicable following each vesting date.
3.2 Form of Settlement. Settlement of vested RSUs shall be made in whole shares of Common Stock, registered in the name of the Participant (or, in the event of the Participant's death, in the name of the Participant's designated beneficiary or estate, as applicable) on the books and records of the Company. No fractional shares of Common Stock shall be issued. In the event that the application of the vesting schedule or any adjustment under Section 13 would result in the settlement of a fractional share, the number of shares delivered shall be rounded down to the nearest whole share, and the Company shall pay to the Participant a cash amount equal to the fair market value (as determined by the Committee in good faith) of such fractional share as of the applicable settlement date.
3.3 Delivery Mechanism. Shares of Common Stock issued in settlement of vested RSUs shall be delivered via book-entry registration on the Company's stock transfer records and stock ledger, or through such other means as the Committee may determine in its discretion, including, without limitation, delivery to a brokerage account designated by the Participant (if applicable and if such delivery mechanism is available). The Company shall not be obligated to issue any shares of Common Stock until all applicable federal and state securities law requirements have been satisfied. Any shares delivered to the Participant may bear such restrictive legends as the Company deems necessary or advisable to comply with applicable securities laws and the terms of this Agreement, the Plan, and the Stockholders' Agreement.
3.4 Six-Month Delay for Specified Employees. In the event that the Company becomes a publicly traded corporation (including upon the consummation of an initial public offering of the Company's Common Stock or a direct listing), and the Participant is determined to be a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code and the regulations and guidance promulgated thereunder, and if any settlement of RSUs hereunder would constitute "nonqualified deferred compensation" subject to Section 409A (rather than qualifying for the short-term deferral exemption or another applicable exemption), and such settlement is triggered by the Participant's "separation from service" within the meaning of Section 409A, then notwithstanding any other provision of this Agreement to the contrary, such settlement shall not be made until the earlier of: (i) the date that is six (6) months and one (1) day following the date of the Participant's separation from service; or (ii) the date of the Participant's death. Any RSUs that would otherwise have been settled during such six-month delay period shall be accumulated and settled in a single lump sum payment on the earliest permissible date, together with interest at the applicable federal rate in effect as of the date of the Participant's separation from service. The provisions of this Section 3.4 are intended to comply with Section 409A, as further analyzed in the Section 409A compliance memorandum prepared by Gregory Tan, Partner, Tax, Calderwood & Harkness LLP, dated August 22, 2022, which memorandum has been provided to the Company's General Counsel for reference.
Section 4: Termination of Employment
4.1 Termination for Cause. In the event that the Participant's employment with the Company Group is terminated by the Company for "Cause" (as such term is defined in the Employment Agreement), all RSUs that have not vested as of the effective date of such termination shall be immediately and automatically forfeited as of such date without any action required on the part of the Company, and neither the Participant nor any beneficiary, estate, heir, or legal representative of the Participant shall have any further rights, claims, or interests with respect to such forfeited RSUs. No settlement shall be made with respect to any RSUs forfeited pursuant to this Section 4.1. For the avoidance of doubt, any RSUs that have vested and been settled prior to the date of termination for Cause shall not be affected by such termination, except to the extent provided in Section 9 (Restrictive Covenants and Forfeiture).
4.2 Voluntary Resignation Without Good Reason. In the event that the Participant voluntarily resigns from employment with the Company Group without "Good Reason" (as such term is defined in the Employment Agreement), all RSUs that have not vested as of the effective date of such resignation shall be immediately and automatically forfeited as of such date without any action required on the part of the Company, and neither the Participant nor any beneficiary, estate, heir, or legal representative of the Participant shall have any further rights, claims, or interests with respect to such forfeited RSUs. No settlement shall be made with respect to any RSUs forfeited pursuant to this Section 4.2.
4.3 Termination Without Cause or Resignation for Good Reason (No Change in Control). In the event that the Participant's employment with the Company Group is terminated by the Company without Cause, or the Participant resigns from employment for Good Reason (each as defined in the Employment Agreement), and such termination or resignation does not occur within twenty-four (24) months following a Change in Control (as defined in Section 5.1 below), then, subject to the conditions set forth below, twenty-five percent (25%) of the RSUs that are then unvested as of the effective date of such termination or resignation shall immediately vest as of such date. The remaining seventy-five percent (75%) of the then-unvested RSUs shall be immediately and automatically forfeited as of such date without consideration. The accelerated vesting of RSUs pursuant to this Section 4.3 shall be in addition to (and not in lieu of) any RSUs that have already vested in accordance with the vesting schedule set forth in Section 2.1 prior to the date of such termination or resignation.
Notwithstanding the foregoing, the accelerated vesting of RSUs pursuant to this Section 4.3 is expressly conditioned upon the Participant's timely execution and non-revocation of the General Release of Claims substantially in the form attached as Schedule B to the Employment Agreement (the "Release"), within the timeframes specified in the Employment Agreement (which requires execution within twenty-one (21) days following the date of termination, or forty-five (45) days in the case of a group termination, and permits revocation within seven (7) days following execution). If the Participant does not timely execute the Release, or if the Participant revokes the Release within the applicable revocation period, no accelerated vesting shall occur under this Section 4.3, and all then-unvested RSUs shall be forfeited.
For reference, the Employment Agreement provides that, upon a termination without Cause or resignation for Good Reason outside the Change in Control period, the Participant shall also be entitled to the following severance benefits (subject to execution of the Release): (i) twelve (12) months of continued base salary; (ii) a pro-rata annual bonus for the year of termination; and (iii) twelve (12) months of continued COBRA health insurance premium reimbursement at a cost of approximately $2,150 per month. The accelerated vesting of RSUs under this Section 4.3 is in addition to such severance benefits.
4.4 Death or Disability. In the event of the Participant's death or "Disability" (as such term is defined in the Plan), a pro-rata portion of the next tranche of RSUs scheduled to vest shall vest as of the date of the Participant's death or Disability (as applicable). The pro-rata portion shall be calculated by multiplying the number of RSUs in the next scheduled tranche by a fraction, the numerator of which is the number of full calendar months elapsed since the most recent vesting date (or since the Grant Date, if no vesting has yet occurred) through and including the month in which the death or Disability occurs, and the denominator of which is twelve (12). All remaining unvested RSUs (i.e., all RSUs not vesting pursuant to the foregoing pro-rata calculation and not previously vested) shall be immediately and automatically forfeited as of the date of the Participant's death or Disability. Settlement of RSUs vesting under this Section 4.4 shall be made in accordance with Section 3.
4.5 Non-Renewal of Employment Term. In the event that the Company elects not to renew the term of the Employment Agreement by providing ninety (90) days' written notice of non-renewal in accordance with the provisions of the Employment Agreement, such non-renewal shall be treated as a termination of the Participant's employment by the Company without Cause for all purposes of this Agreement, including for purposes of Section 4.3 (if no Change in Control has occurred within the applicable period) and Section 5.2 (if a Change in Control has occurred within the applicable period). The Participant's election not to renew the Employment Agreement shall be treated as a voluntary resignation without Good Reason for purposes of this Agreement.
Section 5: Change in Control
5.1 Definition of "Change in Control." For purposes of this Agreement, a "Change in Control" shall mean the occurrence of any of the following events:
(i) The acquisition by any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than Ridgeline Capital Partners, LP, Ridgeline Capital Partners Fund IV, LP, or any of their respective affiliates, managed funds, or successors (collectively, the "Ridgeline Entities"), of beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of more than fifty percent (50%) of the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors;
(ii) The consummation of a merger, consolidation, reorganization, business combination, or similar transaction involving the Company, or the sale, lease, exchange, or other disposition of all or substantially all of the assets of the Company, in each case in which the stockholders of the Company immediately prior to such transaction retain, directly or indirectly, less than fifty percent (50%) of the combined voting power of the outstanding voting securities of the surviving, resulting, or acquiring entity (or its ultimate parent entity) immediately following such transaction;
(iii) The complete liquidation or dissolution of the Company, other than in connection with a transaction described in clause (ii) above in which the stockholders of the Company retain fifty percent (50%) or more of the combined voting power of the surviving or resulting entity; or
(iv) A change in the composition of the Board of Directors of the Company (the "Board") such that the individuals who, as of the Grant Date, constitute the Board (together with any new directors whose election by the Board or whose nomination for election by the stockholders of the Company was approved by a vote of a majority of the directors then still in office who were either directors as of the Grant Date or whose election or nomination for election was previously so approved) (collectively, the "Continuing Directors") cease for any reason to constitute at least a majority of the directors then serving on the Board.
For the avoidance of doubt, the Ridgeline Entities carve-out set forth in clause (i) above is consistent with the corresponding definition of "Change in Control" in the Employment Agreement and reflects the intended interaction between this Agreement and the drag-along rights and other provisions set forth in favor of the Ridgeline Entities under the Stockholders' Agreement. A transaction initiated or consummated by or among the Ridgeline Entities (including a sale, transfer, or other disposition of the Ridgeline Entities' equity interest in the Company) shall not constitute a Change in Control unless such transaction otherwise satisfies clause (ii), (iii), or (iv) above.
5.2 Double-Trigger Acceleration upon Change in Control. If, within twenty-four (24) months following the consummation of a Change in Control, the Participant's employment with the Company (or any successor thereto, or any member of the Company Group) is terminated by the Company (or its successor) without Cause, or the Participant resigns from employment for Good Reason (each as defined in the Employment Agreement) (a "Qualifying CIC Termination"), then, subject to the conditions set forth below, one hundred percent (100%) of the RSUs that are then unvested as of the effective date of such Qualifying CIC Termination shall immediately vest in full as of such date.
The accelerated vesting of RSUs pursuant to this Section 5.2 is expressly conditioned upon the Participant's timely execution and non-revocation of the Release within the timeframes specified in the Employment Agreement. If the Participant does not timely execute the Release, or if the Participant revokes the Release within the applicable revocation period, no accelerated vesting shall occur under this Section 5.2, and all then-unvested RSUs shall be forfeited.
For reference, in connection with a Qualifying CIC Termination, the Employment Agreement provides the following severance benefits (subject to execution of the Release, and in addition to the full acceleration of equity awards contemplated herein): (i) twenty-four (24) months of continued base salary (annual base salary of $575,000, for a total of $1,150,000); (ii) two times (2×) the Participant's target annual bonus ($431,250 target annual bonus × 2 = $862,500); (iii) eighteen (18) months of continued COBRA health insurance premium reimbursement (estimated at $2,150 per month, for a total of approximately $38,700); and (iv) full acceleration of all equity awards, including the RSUs subject to this Agreement and the stock options subject to the Stock Option Award Agreement. The total estimated value of the Change in Control severance package, exclusive of equity acceleration, is approximately $2,051,200.
5.3 No Single-Trigger Acceleration. For the avoidance of doubt, the occurrence of a Change in Control alone, without a Qualifying CIC Termination occurring within the twenty-four (24)-month period following such Change in Control, shall not result in any accelerated vesting of the RSUs. The RSUs shall continue to vest in accordance with the vesting schedule set forth in Section 2.1 following a Change in Control, subject to the assumption, substitution, or other treatment of the RSUs pursuant to Section 5.4 below.
5.4 Treatment of RSUs upon Change in Control Transaction. In connection with a Change in Control, the Committee may, in its sole and absolute discretion, provide for one or more of the following treatments of the outstanding RSUs (whether vested or unvested):
(a) Assumption or Substitution. The surviving, resulting, or acquiring entity (or its parent) in the Change in Control transaction may assume the RSUs or substitute equivalent equity awards relating to the securities of such surviving, resulting, or acquiring entity (or its parent), with appropriate adjustments to the number and kind of shares or units and other terms of the RSUs to preserve the economic value of the Award as of the date of the Change in Control;
(b) Conversion to Cash Right. The RSUs may be converted into a right to receive cash or other consideration in an amount equal to the per-share consideration received by stockholders of the Company in the Change in Control transaction, with settlement to occur on the same schedule as would have applied to the RSUs absent the conversion (or, in the case of vested RSUs, as promptly as practicable following the Change in Control); or
(c) Cancellation and Cash-Out. The RSUs may be cancelled, with payment to the Participant (within thirty (30) days following the Change in Control) of a cash amount equal to the product of (x) the number of vested RSUs (including RSUs that vest on an accelerated basis pursuant to this Section 5) and (y) the per-share consideration received by stockholders of the Company in the Change in Control transaction, less any applicable tax withholding.
Notwithstanding Section 5.3, if the surviving, resulting, or acquiring entity in the Change in Control transaction does not assume or substitute the RSUs (or provide substantially equivalent replacement awards) in connection with such transaction, then one hundred percent (100%) of the then-unvested RSUs shall vest immediately prior to the consummation of the Change in Control transaction, and such RSUs shall be settled in accordance with the provisions of this Section 5.4 or Section 3, as applicable. This provision is intended to ensure that the Participant is not deprived of the economic value of the Award in circumstances where the RSUs will cease to exist upon consummation of the Change in Control and no replacement award is provided.
Section 6: Section 280G Provisions
6.1 Best-Net Cutback. In the event that the vesting and settlement of RSUs under this Agreement, together with any other payments, benefits, or other amounts to which the Participant is or may become entitled from the Company, any affiliate of the Company, or any person whose actions result in a Change in Control (collectively, the "Total Payments"), would constitute "parachute payments" within the meaning of Section 280G of the Code, and would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then the aggregate amount of the Total Payments shall be reduced (but not below zero) to the largest amount that would result in no portion of the Total Payments being subject to the Excise Tax (the "Safe Harbor Amount"), but only if the net after-tax benefit to the Participant of the Total Payments reduced to the Safe Harbor Amount (after taking into account all applicable federal, state, and local income taxes, employment taxes, and the Excise Tax) would be greater than or equal to the net after-tax benefit to the Participant of the Total Payments without such reduction (after taking into account all applicable federal, state, and local income taxes, employment taxes, and the Excise Tax) (the "Best-Net Reduction"). If the net after-tax benefit of the unreduced Total Payments (after payment of the Excise Tax) exceeds the net after-tax benefit of the reduced Total Payments, then no reduction shall be made, and the Participant shall be responsible for the payment of any Excise Tax.
6.2 Order of Reduction. In the event that a Best-Net Reduction is applicable pursuant to Section 6.1, the Total Payments shall be reduced in the following order, to the extent necessary to achieve the Safe Harbor Amount:
(i) First, any cash severance payments payable to the Participant pursuant to the Employment Agreement or any other agreement;
(ii) Second, any other cash amounts payable to the Participant that are treated as parachute payments, including any cash bonuses, incentive compensation, or other cash payments;
(iii) Third, any non-cash benefits or perquisites that are valued as parachute payments, including COBRA continuation coverage and other health and welfare benefits; and
(iv) Fourth, acceleration of vesting of equity awards, with the acceleration of vesting of RSUs under this Agreement being reduced last (after any reduction in the acceleration of vesting of stock options or other equity awards).
Within each category described above, the reduction shall be applied in reverse chronological order (i.e., the payment or benefit with the latest scheduled payment date shall be reduced first).
6.3 No Gross-Up. In no event shall the Company or any affiliate of the Company be required to provide a tax gross-up payment to the Participant with respect to any Excise Tax imposed under Section 4999 of the Code, or with respect to any federal, state, or local income tax, employment tax, or other tax arising from the vesting, settlement, or other treatment of the RSUs or any other payments or benefits payable to the Participant.
6.4 Determination by Accountants. All determinations required to be made under this Section 6, including whether a Best-Net Reduction is applicable, the amount of the Safe Harbor Amount, the amount of any Excise Tax, and the assumptions to be utilized in arriving at such determinations, shall be made by the Company's independent registered public accounting firm or such other nationally recognized independent accounting firm as may be designated by the Company (currently Hargrove & Sinclair CPAs, 75 Ashbury Asset Advisors, Suite 1400, Boston, MA 02109; lead engagement partner: Malcolm R. Sinclair, CPA) (the "Accounting Firm"). The Accounting Firm shall provide its determination, together with detailed supporting calculations and documentation, to the Company and the Participant within fifteen (15) business days of the date on which a determination is requested by either party (or such earlier time as is required under the Code). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The determination of the Accounting Firm shall be conclusive and binding upon the Company and the Participant, absent manifest error. If the Accounting Firm determines that no Excise Tax is payable by the Participant, it shall furnish the Participant with a written opinion to that effect.
Section 7: Section 409A Compliance
7.1 Intent to Comply. This Agreement is intended to comply with, or be exempt from, the requirements of Section 409A, and shall be interpreted and administered accordingly. The RSUs granted hereunder are intended to qualify for the "short-term deferral" exemption set forth in Treasury Regulation Section 1.409A-1(b)(4), pursuant to which amounts are not treated as "deferred compensation" subject to Section 409A if they are paid within the applicable short-term deferral period. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A or its qualification for an exemption from Section 409A, the provision shall be read in such a manner so that all payments and benefits hereunder either comply with Section 409A or are exempt from Section 409A. In no event shall the Company be required to modify the terms of this Agreement in a manner that would increase the economic cost to the Company of the Award.
7.2 Prohibition on Acceleration. Notwithstanding any other provision of this Agreement, the Company shall not accelerate the time or schedule of any settlement of RSUs in a manner that would violate Section 409A or the regulations and guidance promulgated thereunder. Any provision of this Agreement that would result in the acceleration of settlement in a manner inconsistent with Section 409A shall be modified to the minimum extent necessary to comply with Section 409A.
7.3 Separation from Service. For purposes of this Agreement, a termination of the Participant's employment shall be deemed to occur only upon a "separation from service" within the meaning of Section 409A and Treasury Regulation Section 1.409A-1(h), taking into account the default provisions thereof. The determination of whether a separation from service has occurred shall be made in accordance with the Company's established practices and procedures, applied consistently, to the extent consistent with Section 409A.
7.4 No Guarantee of Tax Treatment. The Company makes no representation, warranty, or guarantee to the Participant regarding the tax treatment of the RSUs under Section 409A, Section 280G, or any other provision of the Code, or under any state or local tax law. The Participant acknowledges that the Participant is solely responsible for the Participant's own tax obligations and for any taxes, penalties, interest, or additional amounts that may arise under Section 409A or any other applicable law in connection with the RSUs, and that the Company shall have no liability to the Participant or any other person in the event that any provision of this Agreement is determined not to comply with or be exempt from Section 409A.
Section 8: Tax Withholding
8.1 Withholding Obligation. The Company shall have the right and obligation to deduct from any settlement of RSUs hereunder (or from any other compensation or amounts payable to the Participant by the Company or any member of the Company Group) an amount sufficient to satisfy all applicable federal, state, and local income tax withholding obligations, Federal Insurance Contributions Act (FICA) tax obligations (including both employee and employer portions of Social Security and Medicare taxes), and any other tax withholding obligations arising from the vesting, settlement, or other disposition of the RSUs. The Participant shall be responsible for all taxes imposed on the Participant in connection with the RSUs, including any taxes arising upon the vesting, settlement, or subsequent sale or disposition of shares received upon settlement.
8.2 Methods of Withholding. The withholding obligations described in Section 8.1 may be satisfied, at the discretion of the Committee or at the election of the Participant (subject to Committee approval), by any one or a combination of the following methods:
(a) Share Withholding. The Company may withhold from the shares of Common Stock otherwise deliverable to the Participant upon settlement of vested RSUs a number of whole shares having a fair market value (as determined by the Committee in good faith as of the settlement date) sufficient to satisfy the applicable withholding obligation. Share withholding pursuant to this clause (a) shall not exceed the number of shares having a fair market value equal to the maximum statutory withholding rate applicable to the Participant (or such lesser rate as the Committee may determine);
(b) Delivery of Previously Owned Shares. The Participant may deliver to the Company shares of Common Stock already owned by the Participant (free and clear of any liens, claims, encumbrances, or security interests) having a fair market value sufficient to satisfy the applicable withholding obligation;
(c) Cash Payment. The Participant may make a cash payment to the Company in an amount sufficient to satisfy the applicable withholding obligation; or
(d) Combination. Any combination of the foregoing methods, as approved by the Committee.
The Company shall have no obligation to deliver shares of Common Stock or make any cash payment to the Participant until the applicable withholding obligations have been satisfied in full.
Section 9: Restrictive Covenants and Forfeiture
9.1 Condition on Compliance. The vesting and settlement of RSUs under this Agreement, and the Participant's right to retain any shares of Common Stock (or cash amounts) received upon settlement of RSUs, are expressly conditioned upon the Participant's full compliance with the restrictive covenants set forth in the Employment Agreement and the Employee Non-Competition Agreement entered into by and between the Company and the Participant (the "Non-Competition Agreement"), including, without limitation, the following covenants:
(a) Non-Competition. A twelve (12)-month post-termination non-competition covenant, which prohibits the Participant from engaging in, or providing services to, any healthcare information technology or software-as-a-service (SaaS) company with annual revenues in excess of fifty million dollars ($50,000,000) operating in the United States, during the twelve (12)-month period following the termination of the Participant's employment with the Company for any reason;
(b) Employee Non-Solicitation. An eighteen (18)-month post-termination employee non-solicitation covenant, which prohibits the Participant from soliciting, recruiting, hiring, or inducing any employee of the Company or any member of the Company Group who holds the title of manager or above to leave the employ of the Company or any member of the Company Group, during the eighteen (18)-month period following the termination of the Participant's employment with the Company for any reason;
(c) Customer and Partner Non-Solicitation. A twelve (12)-month post-termination customer and partner non-solicitation covenant, which prohibits the Participant from soliciting, diverting, or appropriating the business of any customer, client, vendor, or strategic partner of the Company or any member of the Company Group with whom the Participant had material contact during the last twenty-four (24) months of the Participant's employment, during the twelve (12)-month period following the termination of the Participant's employment with the Company for any reason; and
(d) Confidentiality. A perpetual confidentiality and non-disclosure obligation with respect to the Company's confidential information, trade secrets, and proprietary data, as set forth in the Employment Agreement and the Non-Competition Agreement.
9.2 Clawback for Violation. If the Participant materially breaches any of the restrictive covenants described in Section 9.1 (as determined by the Committee in good faith), then in addition to any other remedies available to the Company at law or in equity, the Company shall have the right to:
(a) immediately forfeit all RSUs that have not vested and been settled as of the date of such breach, and any such unvested RSUs shall be automatically cancelled without consideration; and
(b) require the Participant to repay to the Company an amount equal to the fair market value (as determined by the Committee in good faith as of the applicable settlement date) of any shares of Common Stock received by the Participant upon settlement of RSUs during the twelve (12)-month period preceding such breach (or the net after-tax proceeds received by the Participant upon the sale or other disposition of any such shares, if greater). Such repayment obligation shall be enforceable by the Company through any legal means available, including setoff against any amounts otherwise payable to the Participant.
9.3 Clawback Policy. The RSUs granted hereunder, and any shares of Common Stock or cash amounts received upon settlement of the RSUs, shall be subject to any clawback, recoupment, or compensation recovery policy that the Company may adopt, amend, or maintain from time to time, whether adopted before or after the date of this Agreement, including any policy adopted to comply with applicable law, the rules and regulations of any securities exchange on which the Company's securities are listed, or any regulatory requirement (including, without limitation, the requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules promulgated thereunder by the Securities and Exchange Commission). By accepting the Award, the Participant acknowledges and agrees that the RSUs and any shares or cash received upon settlement thereof are subject to any such clawback, recoupment, or recovery policy, and the Participant agrees to cooperate with the Company in connection with the implementation and enforcement of any such policy.
Section 10: Transferability
10.1 Non-Transferable. The RSUs may not be sold, transferred, pledged, assigned, encumbered, or otherwise alienated or hypothecated, whether voluntarily or involuntarily, by operation of law or otherwise, other than (a) by will or the laws of descent and distribution, or (b) pursuant to a qualified domestic relations order, as defined in Section 414(p) of the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended. Any attempted sale, transfer, pledge, assignment, encumbrance, alienation, or hypothecation of the RSUs in violation of this Section 10.1 shall be null and void and of no force or effect, and shall not be recognized by the Company. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors, and assigns of the Participant.
10.2 Beneficiary Designation. The Participant may designate one or more beneficiaries to receive shares of Common Stock (or cash, as applicable) upon the Participant's death in connection with the settlement of vested RSUs (including RSUs that vest upon the Participant's death pursuant to Section 4.4) by filing a written beneficiary designation with the Company (or its designated agent) in the form prescribed by the Committee. The Participant may change or revoke any such designation at any time by filing a new written designation with the Company. If no valid beneficiary designation is on file with the Company at the time of the Participant's death, any shares or other amounts payable upon the Participant's death shall be paid to the Participant's estate.
Section 11: Rights Under the Plan
11.1 Subject to Plan Terms. This Agreement and the Award evidenced hereby are subject to all of the terms, conditions, limitations, and provisions of the Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021), a copy of which has been provided to the Participant (or will be provided to the Participant prior to or concurrently with the execution of this Agreement), and which is incorporated herein by reference and made a part hereof as if fully set forth herein. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms and conditions of the Plan, the terms and conditions of the Plan shall control and govern.
11.2 Plan Share Reserve. The RSUs granted hereunder have been authorized and issued from the share reserve of the Plan. The Company represents that the Plan has sufficient authorized and available shares to accommodate the grant of RSUs contemplated by this Agreement, as confirmed in the equity award structuring memorandum dated August 10, 2022, prepared by Sandra Okafor, Counsel, Corporate/M&A, Calderwood & Harkness LLP, and Devon Archer, Associate, Calderwood & Harkness LLP, which memorandum verified the Plan's capacity to accommodate the Participant's 0.50% RSU grant (as well as the separate 1.25% stock option grant being made to the Participant under the Stock Option Award Agreement). If, at any time, the share reserve of the Plan is insufficient to permit the settlement of vested RSUs in shares of Common Stock, the Committee may, in its discretion, settle such RSUs in cash in accordance with the terms of this Agreement and the Plan.
11.3 Committee Authority. The Committee shall have full and exclusive authority to interpret, construe, and administer this Agreement and the Plan, to establish, amend, and rescind rules and regulations relating to the Plan and this Agreement, and to make all determinations necessary or advisable for the administration of this Agreement and the Plan. All decisions, determinations, and interpretations of the Committee shall be final, conclusive, and binding upon the Participant and all other persons claiming any rights under this Agreement or the Plan.
Section 12: No Employment Rights
12.1 Nothing contained in this Agreement shall confer upon the Participant any right to continued employment with the Company or any member of the Company Group, nor shall this Agreement interfere with or restrict in any way the right of the Company to terminate the Participant's employment at any time, with or without Cause, subject to the terms and conditions of the Employment Agreement. The Participant's employment with the Company is and shall remain subject to the terms of the Employment Agreement.
12.2 The grant of RSUs evidenced by this Agreement does not create any obligation on the part of the Company or the Committee to grant additional RSUs, stock options, or other equity or incentive awards to the Participant in the future, whether under the Plan or otherwise, and shall not be construed as establishing a precedent for any future grant. Each grant of equity awards is made at the sole discretion of the Committee and may differ in amount, terms, and conditions from any prior or subsequent grant.
Section 13: Adjustments
13.1 Capital Changes. In the event of any stock split, reverse stock split, stock dividend, recapitalization, reclassification, reorganization, merger, consolidation, combination, exchange of shares, spin-off, extraordinary distribution, or other similar change in the Company's capital structure or in the outstanding shares of Common Stock, the number and kind of shares of Common Stock (or other securities) subject to the RSUs shall be equitably and proportionately adjusted by the Committee in accordance with the terms of the Plan, in order to prevent dilution or enlargement of the rights of the Participant under this Agreement. Any such adjustment shall be made by the Committee in its sole discretion, and the Committee's determination shall be final, conclusive, and binding.
13.2 Fractional Shares. No fractional shares of Common Stock shall be issued as a result of any adjustment made pursuant to Section 13.1. In the event that any adjustment would result in the issuance of a fractional share, the number of shares subject to the RSUs shall be rounded down to the nearest whole share, and the Participant shall receive a cash payment equal to the fair market value (as determined by the Committee in good faith) of such fractional share.
Section 14: Governing Law and Dispute Resolution
14.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to any choice of law or conflict of law rules or provisions (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Commonwealth of Massachusetts.
14.2 Jurisdiction and Venue. The parties irrevocably submit to the exclusive jurisdiction of the state courts of the Commonwealth of Massachusetts located in Suffolk County, Massachusetts, and the United States District Court for the District of Massachusetts, for purposes of any suit, action, or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each party irrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any such suit, action, or proceeding in any such court, and any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
14.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PLAN, THE RSUS, OR THE ACTIONS OF THE COMPANY OR THE COMMITTEE IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT THEREOF. EACH PARTY CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
Section 15: Miscellaneous Provisions
15.1 Entire Agreement. This Agreement, together with the Plan, the Employment Agreement, the Non-Competition Agreement, and the Stock Option Award Agreement, constitutes the entire agreement between the parties with respect to the subject matter hereof (including the grant, vesting, settlement, and forfeiture of the RSUs) and supersedes all prior and contemporaneous negotiations, representations, warranties, commitments, offers, contracts, and agreements of the parties, whether written or oral, relating to such subject matter. No prior drafts of this Agreement shall be used in the interpretation or construction of this Agreement.
15.2 Amendment. This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by both the Company and the Participant; provided, however, that the Committee may amend, modify, or supplement this Agreement unilaterally (without the Participant's consent) to the extent necessary or advisable to comply with applicable law (including, without limitation, Section 409A or Section 280G of the Code) or to the extent that such amendment, modification, or supplement does not materially and adversely affect the Participant's rights hereunder. Any amendment, modification, or supplement that materially and adversely affects the Participant's rights under this Agreement shall require the Participant's prior written consent.
15.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions shall continue in full force and effect. To the extent permitted by applicable law, the parties hereby waive any provision of law that renders any provision of this Agreement invalid, illegal, or unenforceable in any respect. If any provision is held to be invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify such provision to the minimum extent necessary to make it valid, legal, and enforceable while preserving the original intent of the parties.
15.4 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when (a) delivered personally, (b) sent by registered or certified mail, return receipt requested, postage prepaid, (c) sent by nationally recognized overnight courier service, or (d) sent by email (with confirmation of receipt), addressed as follows:
If to the Company:
Arbor Health Technologies Inc. 400 Brattle Commerce Park, Suite 1200 Cambridge, MA 02138
Attn: Aaron Whitfield, General Counsel
Email: awhitfield@arborhealthtech.com
If to the Participant:
Dr. Marcus J. Elliston 87 Laurel Hill Road Wellesley, MA 02481
With a copy to the Participant's counsel (which shall not constitute notice):
Catherine A. Fielding, Esq. Fielding & Rowe LLP 101 Federal Street, Suite 2600 Boston, MA 02110
Email: cfielding@fieldingrowellp.com
Either party may change its address for purposes of this Section 15.4 by giving written notice of such change to the other party in the manner set forth above.
15.5 Waiver. No waiver by either party of any breach or default of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision, nor shall any waiver constitute a continuing waiver of the same provision on any future occasion. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver of such party's right to enforce such provision in the future.
15.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of (a) the Company and its successors and assigns (including any entity that acquires all or substantially all of the assets or equity of the Company, whether by merger, consolidation, acquisition, or otherwise), and (b) the Participant and the Participant's heirs, executors, administrators, legal representatives, and permitted assigns. The Company may assign its rights and obligations under this Agreement to any successor or assign without the Participant's consent. The Participant may not assign the Participant's rights or obligations under this Agreement except as expressly permitted by Section 10.
15.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by facsimile or electronic transmission (including by PDF) shall be as effective as delivery of a manually executed counterpart.
15.8 Section Headings. The section headings used in this Agreement are for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement.
Section 16: Participant's Acknowledgment
By executing this Agreement, the Participant hereby acknowledges and agrees as follows:
(a) The Participant has received a copy of the Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021), and has had a full and adequate opportunity to review the Plan and to understand its terms and provisions, including the definitions of capitalized terms used in this Agreement that are defined in the Plan;
(b) The Participant has had the opportunity to consult with the Participant's own independent legal counsel (Catherine A. Fielding, Esq., of Fielding & Rowe LLP) and tax advisors regarding the terms and conditions of this Agreement, the Plan, and the tax consequences of the RSUs, and the Participant has either consulted with such advisors or has voluntarily elected not to do so;
(c) The Participant understands that the RSUs are subject to forfeiture as described in this Agreement, including upon termination of employment, material breach of restrictive covenants, and the application of any clawback or recoupment policy, and the Participant voluntarily accepts such risk of forfeiture;
(d) The Participant understands and acknowledges the Section 409A provisions set forth in Section 7 of this Agreement, including the potential six (6)-month delay in settlement for specified employees in the event the Company becomes a publicly traded corporation, and the Participant agrees that the Company shall have no liability to the Participant for any taxes, penalties, or interest arising under Section 409A;
(e) The Participant understands and acknowledges the Section 280G best-net cutback provisions set forth in Section 6 of this Agreement, and that in no event will the Company provide a tax gross-up payment to the Participant with respect to any excise taxes imposed under Section 4999 of the Code; and
(f) The Participant hereby consents to the collection, use, processing, and transfer of the Participant's personal data by the Company, its affiliates, and their respective agents and service providers for purposes of implementing, administering, and managing this Agreement and the Plan, including the transfer of such personal data to third parties as may be necessary or appropriate in connection with the administration of the Plan and this Agreement or as required by applicable law.
IN WITNESS WHEREOF, the parties have executed this Restricted Stock Unit Award Agreement as of the date first written above.
ARBOR HEALTH TECHNOLOGIES INC.
By: ________
Name: Priya Chandrasekaran
Title: Chief Executive Officer
Date: ________
PARTICIPANT
________________________________________
Dr. Marcus J. Elliston
Date: ________
EXHIBIT AND APPENDIX REFERENCES
The following documents are referenced in this Agreement and are incorporated herein by reference or are otherwise relevant to the Award:
1.  Arbor Health Technologies Inc. 2020 Equity Incentive Plan (as amended May 2021) — The Plan governing the Award, incorporated herein by reference. A copy of the Plan has been provided to the Participant (or will be provided to the Participant prior to or concurrently with the execution of this Agreement).
2.  Executive Employment Agreement — The Executive Employment Agreement by and between the Company and the Participant, dated as of [●], 2022, setting forth the terms and conditions of the Participant's employment as Chief Operating Officer of the Company, including base salary, annual bonus opportunity, severance protections, Change in Control severance, and definitions of "Cause" and "Good Reason" referenced herein.
3.  Employee Non-Competition Agreement — The Employee Non-Competition Agreement by and between the Company and the Participant, setting forth the restrictive covenants referenced in Section 9 of this Agreement, including non-competition, employee non-solicitation, customer/partner non-solicitation, and confidentiality obligations.
4.  Stock Option Award Agreement — The Stock Option Award Agreement by and between the Company and the Participant, dated as of [●], 2022, evidencing the grant of stock options to purchase shares of Common Stock representing 1.25% of the fully diluted equity of the Company, made concurrently with the Award.
5.  Schedule A (Prior Inventions Disclosure) — The Participant'

PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT

RESTRICTED STOCK UNIT AWARD AGREEMENT

RESTRICTED STOCK UNIT AWARD AGREEMENT

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ARBOR HEALTH TECHNOLOGIES INC.

PARTICIPANT

EXHIBIT AND APPENDIX REFERENCES

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