1010-00004 · Arbor Health Technologies Inc · Transaction Documents/Restrictive Covenants

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EMPLOYEE NON-COMPETITION AGREEMENT

Pursuant to the Massachusetts Noncompetition Agreement Act (M.G.L. c. 149, § 24L)

August 5, 2022

This Employee Non-Competition Agreement (this "Agreement") is entered into as of August 5, 2022 (the "Effective Date"), by and between:

ARBOR HEALTH TECHNOLOGIES INC., a Delaware corporation with its principal place of business 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 "Employee").

The Company and the Employee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, the Company is engaged in the business of healthcare services and software, including the development, marketing, licensing, and support of cloud-based clinical workflow and revenue cycle management platform solutions delivered through a software-as-a-service ("SaaS") model to healthcare providers, health systems, payors, and related entities throughout the United States;

WHEREAS, the Company desires to employ the Employee in the position of Chief Operating Officer, reporting directly to the Chief Executive Officer, Priya Chandrasekaran, pursuant to the terms and conditions set forth in that certain Executive Employment Agreement of even date herewith between the Company and the Employee (the "Employment Agreement");

WHEREAS, in connection with the Employee's employment, the Employee will have access to, and will be entrusted with, Confidential Information and Trade Secrets of the Company, including but not limited to proprietary technology, product roadmaps, strategic plans, financial data, pricing models, customer and prospect information, and competitive intelligence, and will develop significant relationships with the Company's employees, customers, and business partners;

WHEREAS, the Company and the Employee wish to enter into this Non-Competition Agreement as a condition of the Employee's employment, in compliance with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L (the "Act"), in order to protect the Company's legitimate business interests;

WHEREAS, this Agreement is entered into contemporaneously with the commencement of the Employee's employment, and the Employee's employment with the Company constitutes mutually agreed-upon consideration for this Agreement, in addition to the garden-leave consideration expressly set forth herein;

WHEREAS, the proposed start date of the Employee's employment with the Company is November 1, 2022; and

WHEREAS, the Employee's compensation, benefits, and equity grants are set forth in the Employment Agreement and the Arbor Health Technologies Inc. 2020 Equity Incentive Plan, as amended May 2021 (the "Equity Plan"), and the applicable equity award agreements issued thereunder.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Employee's employment with the Company, the garden-leave consideration described in Section 6, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

SECTION 1: DEFINITIONS

As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Employment Agreement.

1.1 "Board" shall mean the Board of Directors of Arbor Health Technologies Inc.

1.2 "Cause" shall have the meaning ascribed to such term in Section 5.2 of the Employment Agreement.

1.3 "Change in Control" shall have the meaning ascribed to the term "change in control" in Section 8.1 of the Employment Agreement.

1.4 "Company" shall mean Arbor Health Technologies Inc., together with its direct and indirect subsidiaries, affiliates, successors, and assigns, as applicable.

1.5 "Competing Business" shall mean any business, entity, division, or enterprise (including any activity conducted as a sole proprietorship) that satisfies each of the following criteria: (a) is engaged, in whole or in material part, in healthcare information technology, healthcare software-as-a-service (SaaS), clinical workflow technology, or revenue cycle management technology, including the development, marketing, licensing, distribution, implementation, or support of any such products or services; (b) has annual consolidated revenue in excess of Fifty Million Dollars ($50,000,000) in the most recently completed fiscal year or the then-current fiscal year on an annualized basis; and (c) operates in, or provides products or services to customers located in, the United States.

1.6 "Confidential Information" shall mean all non-public, proprietary, or trade secret information of the Company, in whatever form or medium, whether written, oral, electronic, or otherwise, including but not limited to: business plans and strategies; financial data, projections, and models; customer and prospect lists, databases, and account information; pricing strategies, rate cards, and discount structures; product roadmaps and development plans; software source code, object code, and architecture documentation; clinical workflow algorithms and methodologies; revenue cycle management methodologies and processes; marketing strategies and competitive analyses; employee compensation data, organizational charts, and talent assessments; vendor and supplier agreements and terms; research and development data; merger, acquisition, and partnership prospects; and any other information that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value from its disclosure or use.

Notwithstanding the foregoing, Confidential Information shall not include information that: (i) is or becomes publicly available through no act, omission, or fault of the Employee in violation of this Agreement or any other obligation of confidentiality; (ii) was independently developed by the Employee without reference to, reliance upon, or use of the Company's Confidential Information, as demonstrated by contemporaneous written records; or (iii) was rightfully received by the Employee from a third party without restriction on disclosure and without breach of any obligation of confidentiality owed to the Company.

1.7 "Covered Customer" shall mean any customer, client, or business partner of the Company (including any prospective customer, client, or business partner with whom the Company was actively engaged in negotiations or to whom the Company had submitted a proposal) with whom the Employee had material contact, or about whom the Employee obtained Confidential Information, during the last twenty-four (24) months of the Employee's employment with the Company. For purposes of this definition, "material contact" means any direct interaction, communication, or involvement in the management or servicing of the business relationship.

1.8 "Covered Employee" shall mean any individual who is employed by the Company at the level of manager or above at the time of the Employee's termination of employment, or at any time during the twelve (12) months immediately preceding such termination.

1.9 "Employment Agreement" shall mean that certain Executive Employment Agreement between the Company and the Employee dated as of August 5, 2022, as the same may be amended, restated, or supplemented from time to time.

1.10 "Garden-Leave Payment" shall mean the consideration described in Section 6 of this Agreement, payable by the Company to the Employee as consideration for the non-competition covenant set forth in Section 2.

1.11 "Good Reason" shall have the meaning ascribed to such term in Section 5.4 of the Employment Agreement.

1.12 "Restricted Period" shall mean:

(a) with respect to the non-competition covenant set forth in Section 2: the period of eighteen (18) months immediately following the effective date of the Employee's termination of employment with the Company for any reason;

(b) with respect to the employee non-solicitation covenant set forth in Section 3: the period of eighteen (18) months immediately following the effective date of the Employee's termination of employment with the Company for any reason; and

(c) with respect to the customer and business partner non-solicitation covenant set forth in Section 4: the period of twelve (12) months immediately following the effective date of the Employee's termination of employment with the Company for any reason.

1.13 "Termination Date" shall mean the effective date on which the Employee's employment with the Company terminates for any reason, whether initiated by the Company, by the Employee, or by mutual agreement, and regardless of whether such termination is voluntary or involuntary.

1.14 "Trade Secrets" shall mean trade secrets as defined under the Massachusetts Trade Secrets Act, M.G.L. c. 93, § 42, and the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, et seq., including all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing, if (a) the owner thereof has taken reasonable measures to keep such information secret, and (b) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.

SECTION 2: NON-COMPETITION COVENANT

2.1 Non-Competition Restriction. During the Restricted Period applicable to the non-competition covenant (i.e., eighteen (18) months following the Termination Date), the Employee shall not, directly or indirectly, whether on the Employee's own behalf or on behalf of any other person or entity, and whether as an employee, consultant, independent contractor, officer, director, partner, member, manager, stockholder, advisor, agent, or in any other capacity whatsoever:

(a) engage in, manage, operate, finance, or control a Competing Business, or any material portion thereof;

(b) be employed by, render services to, or otherwise assist a Competing Business in any capacity that involves, or is reasonably likely to involve, the performance of duties substantially similar to those performed by the Employee for the Company during the last two (2) years of the Employee's employment; or

(c) assist any person or entity in engaging in a Competing Business in the United States, including by providing strategic advice, introductions to customers or prospects, or access to any information, methods, or processes that are competitive with those of the Company.

The foregoing restriction shall apply throughout the United States. For the avoidance of doubt, the passive ownership of not more than two percent (2%) of the outstanding equity securities of a publicly traded company listed on a national securities exchange shall not, by itself, constitute a violation of this Section 2.1, provided that the Employee does not otherwise participate in the management, operations, or business of such company in a manner that would constitute a violation of the foregoing restrictions.

2.2 Acknowledgment of Reasonableness. The Employee acknowledges and agrees that:

(a) the Employee's services to the Company are of a special, unique, and extraordinary character, and the Employee's position as Chief Operating Officer will afford the Employee intimate knowledge of the Company's operations, strategy, technology, and competitive positioning;

(b) as COO, the Employee will have access to the Company's most sensitive Confidential Information and Trade Secrets, including customer data, product development plans, financial projections, and strategic initiatives, the disclosure or competitive use of which would cause substantial and irreparable injury to the Company;

(c) the restrictions contained in this Section 2, and in this Agreement generally, are reasonable and necessary to protect the Company's legitimate business interests, including its goodwill, customer relationships, Confidential Information, Trade Secrets, and the investment the Company will make in the Employee's training, development, and professional relationships;

(d) the Employee has received independent legal advice from Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110, regarding this Agreement, and the Employee has had a full and fair opportunity to negotiate the terms hereof; and

(e) the restrictions set forth herein will not impose undue hardship on the Employee and will not deprive the Employee of the ability to earn a livelihood, particularly in light of the garden-leave consideration provided in Section 6.

2.3 Compliance with the Act. This Agreement is made in compliance with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L. The non-competition restriction set forth in this Section 2 shall not exceed the maximum duration permitted under the Act. In the event that a court of competent jurisdiction determines that the Restricted Period applicable to the non-competition covenant is unreasonable or otherwise exceeds the maximum duration permissible under the Act, the Parties respectfully request that such court reform the restriction to the maximum duration permissible under the Act (currently twelve (12) months), or such shorter period as the court deems reasonable, rather than declaring the restriction void or unenforceable in its entirety. The Parties acknowledge that the Act, as currently in effect, limits the duration of non-competition agreements to twelve (12) months, except in cases where the employee has breached fiduciary duties to the employer or has unlawfully taken property of the employer, in which case a period of up to twenty-four (24) months may be enforceable.

SECTION 3: NON-SOLICITATION OF EMPLOYEES

3.1 Employee Non-Solicitation. During the period of eighteen (18) months immediately following the Termination Date, the Employee shall not, directly or indirectly, whether on the Employee's own behalf or on behalf of any other person or entity:

(a) solicit, recruit, or hire, or attempt to solicit, recruit, or hire, any Covered Employee to leave the Company's employment, or to accept employment or an engagement with any other person, entity, or enterprise;

(b) induce, encourage, or attempt to induce or encourage any Covered Employee to terminate, reduce, or otherwise alter the Covered Employee's employment relationship with the Company; or

(c) assist any person or entity in doing, or attempting to do, any of the foregoing, including by providing names, contact information, compensation data, or other information regarding Covered Employees to any third-party recruiter, headhunter, hiring manager, or employer.

The restriction set forth in this Section 3.1 is limited to employees of the Company at the level of manager and above, as reflected in the definition of "Covered Employee" in Section 1.8 of this Agreement. The Employee acknowledges that this covenant is separate from and in addition to the non-competition restriction set forth in Section 2, and that this non-solicitation covenant is not subject to the specific durational limitations of the Act applicable to non-competition agreements. For the avoidance of doubt, general advertisements or postings that are not specifically targeted at Covered Employees shall not, by themselves, constitute a violation of this Section 3.1; provided, however, that if the Employee becomes aware that a Covered Employee has responded to such a general advertisement or posting and the Employee takes any action to encourage, facilitate, or advance the Covered Employee's candidacy, such action shall constitute a violation of this Section 3.1.

SECTION 4: NON-SOLICITATION OF CUSTOMERS AND BUSINESS PARTNERS

4.1 Customer/Partner Non-Solicitation. During the period of twelve (12) months immediately following the Termination Date, the Employee shall not, directly or indirectly, whether on the Employee's own behalf or on behalf of any other person or entity:

(a) solicit, divert, or take away, or attempt to solicit, divert, or take away, the business or patronage of any Covered Customer for the purpose of providing products or services that are competitive with the products or services offered by the Company;

(b) induce or encourage, or attempt to induce or encourage, any Covered Customer to cease doing business with the Company, to reduce the volume or scope of business conducted with the Company, or to terminate or fail to renew any agreement or arrangement with the Company; or

The restriction set forth in this Section 4.1 is limited to customers and business partners with whom the Employee had material contact, or about whom the Employee obtained Confidential Information, during the last twenty-four (24) months of the Employee's employment with the Company, as reflected in the definition of "Covered Customer" in Section 1.7 of this Agreement. The Employee acknowledges that the Company has invested substantial resources in developing and maintaining its customer and business partner relationships, and that the protection of such relationships constitutes a legitimate business interest of the Company.

SECTION 5: CONFIDENTIALITY AND NON-DISCLOSURE

5.1 Confidentiality Obligation. The Employee shall not, at any time during or after the Employee's employment with the Company (this being a perpetual obligation that survives the termination of employment), directly or indirectly, use, disclose, publish, transmit, transfer, or otherwise make available to any third party any Confidential Information or Trade Secrets of the Company, except:

(a) as required in the faithful performance of the Employee's duties and responsibilities for the Company during the term of the Employee's employment;

(b) as expressly authorized in advance and in writing by the Company's General Counsel or Chief Executive Officer; or

(c) as required by applicable law, regulation, governmental order, or valid legal process, subject to the provisions of Section 5.2 below.

The Employee acknowledges that the Company's Confidential Information and Trade Secrets represent a substantial investment of time, effort, and resources by the Company and that the unauthorized use or disclosure of such information would cause serious competitive harm to the Company.

5.2 Legally Compelled Disclosure. In the event that the Employee becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, court order, or other legal process) to disclose any Confidential Information or Trade Secrets of the Company, the Employee shall:

(a) provide the Company with prompt written notice of such requirement, to the extent legally permissible, so that the Company may seek an appropriate protective order, motion to quash, or other remedy;

(b) cooperate with the Company, at the Company's sole expense, in seeking a protective order or other appropriate remedy to prevent or limit the scope of any required disclosure; and

(c) if, in the absence of a protective order or other remedy, the Employee is nonetheless compelled to disclose Confidential Information, disclose only that portion of the Confidential Information that the Employee is legally required to disclose, and exercise commercially reasonable efforts to ensure that confidential treatment is accorded to any Confidential Information so disclosed.

5.3 Return of Company Property. Upon the termination of the Employee's employment with the Company for any reason, or at any time upon the Company's written request, the Employee shall promptly return to the Company all Company property in the Employee's possession or control, including without limitation all documents, files, records, data, reports, memoranda, correspondence, manuals, notebooks, notes, presentations, prototypes, samples, devices, equipment, computers, laptops, tablets, mobile phones, access cards, keys, key fobs, access credentials, passwords, and all other materials (in any form or format, whether physical or electronic, including copies, excerpts, and summaries thereof) that contain, reflect, embody, or relate to any Confidential Information or Trade Secrets of the Company. The Employee shall not retain any copies, reproductions, or excerpts of any such materials. Upon the Company's request, the Employee shall certify in writing that the Employee has complied with this Section 5.3.

5.4 Defend Trade Secrets Act Notice. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), the Employee is hereby notified that:

(a) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(b) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (i) files any document containing the trade secret under seal and (ii) does not disclose the trade secret except pursuant to court order.

Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or to create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b). Nothing in this Agreement shall limit, restrict, or in any other way affect the Employee's communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.

SECTION 6: GARDEN-LEAVE CONSIDERATION

6.1 Garden-Leave Payment. In accordance with M.G.L. c. 149, § 24L, and as consideration for the non-competition covenant set forth in Section 2 of this Agreement, the Company shall pay the Employee, during the Restricted Period applicable to the non-competition covenant, garden-leave payments equal to fifty percent (50%) of the Employee's highest annualized base salary in effect at any time during the two (2) years immediately preceding the Termination Date (the "Garden-Leave Payment").

Based on the Employee's initial annualized base salary of Five Hundred Seventy-Five Thousand Dollars ($575,000) per annum as set forth in the Employment Agreement, and assuming no increase in base salary during such two-year period, the aggregate Garden-Leave Payment amount shall be Two Hundred Eighty-Seven Thousand Five Hundred Dollars ($287,500) (calculated as $575,000 × 50%), payable in substantially equal installments in accordance with the Company's regular payroll schedule during the eighteen (18)-month non-competition Restricted Period. All Garden-Leave Payments shall be subject to applicable tax withholding and deductions as required by law.

The Garden-Leave Payment constitutes "other mutually-agreed upon consideration" within the meaning of the Act, and the Parties agree that such consideration is adequate and sufficient to support the non-competition covenant herein.

6.2 Conditions to Garden-Leave Payment. The Company's obligation to make Garden-Leave Payments pursuant to Section 6.1 is expressly conditioned upon:

(a) the Employee's continued compliance with all covenants, obligations, and restrictions set forth in this Agreement, including without limitation the non-competition covenant (Section 2), the non-solicitation covenants (Sections 3 and 4), and the confidentiality obligations (Section 5); and

(b) the Employee's execution and non-revocation, within the applicable revocation period, of a general release of claims against the Company in substantially the form attached as Schedule B to the Employment Agreement (the "Release"), such Release to be executed no later than the date specified in the Employment Agreement.

6.3 Forfeiture and Offset.

(a) Forfeiture upon Breach. If the Employee breaches any provision of this Agreement during the Restricted Period, the Company's obligation to make any further Garden-Leave Payments shall immediately cease, and the Company shall have the right to seek repayment from the Employee of all Garden-Leave Payment amounts previously paid, in addition to any other remedies available to the Company at law or in equity.

(b) Severance Offset. Garden-Leave Payments shall not be offset against any severance payments the Employee may be entitled to receive under the Employment Agreement or any other arrangement between the Parties; provided, however, that if the Employee receives severance payments under the Employment Agreement (or any successor agreement) that, in the aggregate, equal or exceed the total Garden-Leave Payment amount that would otherwise be payable under Section 6.1, such severance payments shall be deemed to satisfy the Company's Garden-Leave Payment obligation under this Section 6, and no additional Garden-Leave Payment shall be due. For the avoidance of doubt, if the severance payments are less than the total Garden-Leave Payment amount, the Company shall pay the difference between the Garden-Leave Payment amount and the severance payments received by the Employee.

SECTION 7: INVENTION ASSIGNMENT

7.1 Assignment of Inventions. The Employee agrees that all inventions, discoveries, improvements, innovations, works of authorship, software programs, algorithms, databases, processes, methods, systems, designs, trade secrets, and other intellectual property, whether or not patentable or copyrightable (collectively, "Inventions"), that the Employee conceives, develops, creates, reduces to practice, or contributes to, alone or jointly with others, during the period of the Employee's employment with the Company, and that:

(a) relate to the Company's actual or reasonably anticipated business, research, or development activities;

(b) result from, or arise in connection with, work performed by the Employee for the Company or any task assigned to the Employee by the Company; or

(c) are created, in whole or in part, using the Company's resources, facilities, equipment, supplies, or Confidential Information;

shall be and remain the sole and exclusive property of the Company. The Employee hereby irrevocably assigns and transfers to the Company all right, title, and interest in and to all such Inventions, including all intellectual property rights therein (including all patents, copyrights, trademarks, trade secrets, and any other proprietary rights), throughout the world, in perpetuity. To the extent that any such Invention constitutes a "work made for hire" under the United States Copyright Act, 17 U.S.C. § 101 et seq., the Employee agrees that the Company shall be deemed the author thereof. To the extent that any such Invention does not qualify as a work made for hire, the Employee hereby assigns and transfers to the Company all right, title, and interest in and to such Invention, including all copyrights therein.

7.2 Disclosure. The Employee shall promptly and fully disclose to the Company in writing all Inventions conceived, developed, created, or reduced to practice by the Employee, whether alone or jointly with others, during the period of the Employee's employment with the Company, to enable the Company to determine whether such Inventions fall within the scope of Section 7.1.

7.3 Cooperation. The Employee shall, during and after the Employee's employment with the Company, at the Company's sole expense, execute all documents and take all actions reasonably requested by the Company to perfect, register, maintain, and enforce the Company's rights in and to any Inventions assigned to the Company hereunder, including without limitation: executing patent applications, copyright registration applications, assignments, declarations, and oaths; providing testimony and evidence in support of patent prosecution, copyright registration, and intellectual property enforcement proceedings; and cooperating fully with the Company and its attorneys in connection with any litigation, administrative proceedings, or other actions relating to such Inventions. The Employee hereby irrevocably appoints the Company as the Employee's attorney-in-fact, with full power of substitution, to execute and deliver any such documents on the Employee's behalf, solely in the event that the Employee fails or refuses to do so within a reasonable time after the Company's request, and the Employee acknowledges that this appointment is coupled with an interest and is irrevocable.

7.4 Prior Inventions. The Employee has listed on Schedule A to the Employment Agreement all inventions, patents, patent applications, and other intellectual property developed, conceived, or owned by the Employee prior to the commencement of the Employee's employment with the Company that the Employee wishes to exclude from the scope of Section 7.1 (collectively, "Prior Inventions"). If no Prior Inventions are listed on Schedule A, the Employee represents and warrants that no such Prior Inventions exist. The Employee shall not incorporate, or permit to be incorporated, any Prior Invention into any Company product, process, or service without the Company's prior written consent. If the Employee does incorporate, or the Company requests that the Employee incorporate, a Prior Invention into any Company product, process, or service, the Employee hereby grants to the Company a non-exclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide, sublicensable license to use, reproduce, modify, distribute, display, perform, make, have made, sell, offer for sale, and import such Prior Invention as part of or in connection with such Company product, process, or service.

7.5 Exception for Certain Inventions. Notwithstanding the foregoing, this Section 7 does not apply to any Invention that the Employee develops entirely on the Employee's own time, without using any of the Company's equipment, supplies, facilities, resources, or Confidential Information, and that does not relate to the Company's actual or reasonably anticipated business, research, or development activities.

SECTION 8: REMEDIES

8.1 Injunctive Relief. The Employee acknowledges and agrees that any breach or threatened breach of this Agreement by the Employee would cause the Company immediate, substantial, and irreparable harm for which monetary damages alone would be inadequate and difficult to calculate. Accordingly, the Employee agrees that the Company shall be entitled to seek and obtain temporary, preliminary, and permanent injunctive relief, as well as specific performance, in any court of competent jurisdiction to enforce any provision of this Agreement and to restrain any actual or threatened breach hereof, without the necessity of posting a bond or other security and without the need to demonstrate actual damages. The Employee further agrees not to raise any defense based on the adequacy of monetary damages or the availability of a remedy at law in any proceeding brought by the Company to obtain equitable relief.

8.2 Tolling. If the Employee violates any restriction contained in Sections 2, 3, or 4 of this Agreement, the applicable Restricted Period shall be automatically extended by a period of time equal to the duration of such violation, so that the Company receives the full benefit of the bargained-for restrictive period. The Employee acknowledges that this tolling provision is reasonable and necessary to ensure that the Company receives the protection for which it has contracted.

8.3 Cumulative Remedies. The remedies set forth in this Agreement are cumulative and shall be in addition to any and all other remedies available to the Company at law or in equity, including without limitation claims for breach of contract, breach of fiduciary duty, misappropriation of trade secrets, unfair competition, and tortious interference. The pursuit of injunctive relief by the Company shall not preclude the Company from simultaneously or subsequently seeking monetary damages, including recovery of Garden-Leave Payments previously made, disgorgement of profits, or any other relief to which the Company may be entitled.

8.4 Attorneys' Fees. In any action, suit, or proceeding arising out of or related to this Agreement or the enforcement of any provision hereof, the prevailing Party shall be entitled to recover from the non-prevailing Party its reasonable attorneys' fees, costs, and expenses (including expert witness fees and costs of appeal), as determined by the court.

SECTION 9: REPRESENTATIONS AND WARRANTIES OF THE EMPLOYEE

9.1 No Conflicting Obligations. The Employee represents and warrants that the execution, delivery, and performance of this Agreement, and the Employee's employment with the Company, does not and will not violate, conflict with, or constitute a breach of, or default under, any other agreement, obligation, covenant, or duty to which the Employee is a party or by which the Employee is bound, whether written or oral, including without limitation any employment agreement, non-competition agreement, non-solicitation agreement, confidentiality agreement, or similar agreement or obligation with any prior employer, including Pinnacle Care Systems, Inc. The Employee further represents and warrants that the Employee has provided the Company with copies of all agreements with prior employers that may restrict the Employee's ability to perform the Employee's duties for the Company or that may otherwise be implicated by the Employee's employment with the Company.

9.2 Independent Legal Advice. The Employee acknowledges that the Employee has been advised, in writing, to consult with an attorney before signing this Agreement, as required by M.G.L. c. 149, § 24L. The Employee further acknowledges and confirms that the Employee has, in fact, consulted with independent legal counsel — specifically, Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110, Attention: Catherine A. Fielding — regarding the terms, conditions, and implications of this Agreement, and that the Employee enters into this Agreement with a full understanding of its legal effect and consequences.

9.3 Voluntary Execution. The Employee acknowledges that the Employee has carefully read this Agreement in its entirety, understands all of its terms, conditions, and provisions, and enters into this Agreement voluntarily, knowingly, and without fraud, duress, undue influence, or coercion of any kind. The Employee acknowledges that the Employee has had a reasonable and adequate opportunity to consider the terms of this Agreement and to negotiate any terms the Employee desired to negotiate.

9.4 Receipt of Agreement. The Employee acknowledges receipt of this Agreement in the form and manner required by the Act, including receipt prior to a formal offer of employment or, if later, at least ten (10) business days before the commencement of the Employee's employment with the Company. The Employee further acknowledges that the Agreement was provided to the Employee together with a written notice advising the Employee to consult with an attorney.

SECTION 10: EXCEPTIONS AND CARVE-OUTS FROM NON-COMPETITION COVENANT

10.1 Termination Without Cause or for Good Reason. Notwithstanding anything in this Agreement to the contrary, the non-competition restriction set forth in Section 2 shall not apply if the Employee's employment with the Company is terminated by the Company without Cause (as defined in the Employment Agreement) or if the Employee resigns for Good Reason (as defined in the Employment Agreement), unless the Company affirmatively elects to enforce the non-competition restriction by commencing Garden-Leave Payments in accordance with Section 6. In the event of a termination without Cause or a resignation for Good Reason, the Company shall have thirty (30) days following the Termination Date to notify the Employee in writing of the Company's election to enforce the non-competition restriction and to commence Garden-Leave Payments. If the Company does not provide such notice and commence payments within the thirty (30)-day period, the non-competition restriction in Section 2 shall be deemed waived and unenforceable. For the avoidance of doubt, the non-solicitation covenants in Sections 3 and 4 and the confidentiality obligations in Section 5 shall remain in full force and effect regardless of the circumstances of the Employee's termination.

10.2 Layoff or Workforce Reduction. The non-competition restriction set forth in Section 2 shall not apply if the Employee's employment with the Company is terminated as part of a reduction in force, layoff, or organizational restructuring, unless the Company affirmatively elects to enforce the non-competition restriction by commencing Garden-Leave Payments in accordance with Section 6. The procedures for election and notice set forth in Section 10.1 shall apply mutatis mutandis to any termination described in this Section 10.2.

10.3 Change in Control. In the event of a Change in Control (as defined in the Employment Agreement), if the Employee's employment is terminated by the Company (or any successor thereto) without Cause, or the Employee resigns for Good Reason, in either case within twenty-four (24) months following the effective date of such Change in Control, the non-competition restriction set forth in Section 2 shall remain subject to the terms and conditions of Section 2, provided that the Company (or its successor) elects to enforce such restriction by commencing Garden-Leave Payments in accordance with Section 6. Any Garden-Leave Payments made under this Section 10.3 shall be in addition to, and shall not reduce or offset, any change-in-control severance payments, enhanced benefits, or accelerated vesting of equity awards to which the Employee may be entitled under the Employment Agreement or the Equity Plan.

10.4 Prohibited Categories. The Parties acknowledge and agree that, pursuant to the Act, this Agreement does not apply to, and shall not be enforced against, any individual in a category excluded from non-competition agreements under the Act, including without limitation: (a) employees who are classified as non-exempt under the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1); (b) undergraduate or graduate students, whether employed as interns or in any other short-term capacity; and (c) employees who are terminated without cause or laid off (except to the extent the Company elects to enforce the non-competition restriction by providing Garden-Leave Payments as set forth in Sections 10.1 and 10.2 above). The Employee represents, warrants, and confirms that the Employee does not fall within any prohibited category under the Act, and that the Employee is classified as an exempt employee under the Fair Labor Standards Act.

SECTION 11: GENERAL PROVISIONS

11.1 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 or conflict of law provision or rule (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.

11.2 Jurisdiction and Venue. Any action, suit, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in the Commonwealth of Massachusetts, including the Superior Court of Middlesex County, the United States District Court for the District of Massachusetts, or such other court of competent jurisdiction within the Commonwealth, and each Party hereby irrevocably consents to the exclusive personal jurisdiction and venue of such courts for such purpose. Each Party waives any objection it may now or hereafter have to the laying of venue of any such action in any such court, and any claim that any such action brought in any such court has been brought in an inconvenient forum.

11.3 Severability. If any provision, clause, or part of this Agreement, or the application thereof to any person or circumstance, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision, clause, or part of this Agreement, and the remaining provisions, clauses, and parts shall remain in full force and effect and shall be enforced as if the invalid, illegal, or unenforceable provision had not been included herein. In the event that any court of competent jurisdiction determines that any restriction contained in this Agreement is overbroad, unreasonable, or unenforceable as written, the Parties hereby authorize and request such court to reform such restriction to the maximum extent enforceable under applicable law, including by reducing the scope, duration, geographic area, or range of activities covered thereby, so that such restriction may be enforced to the fullest extent permitted by law. The Parties intend that each provision of this Agreement shall be interpreted in a manner that renders it valid and enforceable, and the Parties agree that this blue-pencil and reformation authority is essential to the enforceability of this Agreement.

11.4 Integration / Entire Agreement. This Agreement, together with the Employment Agreement, the equity award agreements issued pursuant to the Equity Plan, and any other agreements expressly referenced herein or therein, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, and negotiations, whether written or oral, relating to such subject matter. No statement, representation, warranty, covenant, or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change, or restrict, the express terms and provisions of this Agreement.

11.5 Amendment and Waiver. This Agreement may not be amended, modified, supplemented, or waived except by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver by either Party of any breach of or default under this Agreement shall be deemed a waiver of any subsequent breach or default.

11.6 Assignment. The Employee may not assign, delegate, or otherwise transfer this Agreement or any of the Employee's rights, duties, or obligations hereunder without the prior written consent of the Company. Any attempted assignment in violation of this Section 11.6 shall be null and void. The Company may assign this Agreement, and all of its rights and obligations hereunder, to any successor to, or acquirer of, all or substantially all of the business or assets of the Company, whether by merger, consolidation, sale of assets, reorganization, or otherwise, and this Agreement shall inure to the benefit of and be binding upon the Company's successors and assigns.

11.7 Notices. All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed 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) transmitted by email with confirmation of receipt, in each case addressed as follows:

If to the Company:

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

Attention: General Counsel (Aaron Whitfield)

Email: awhitfield@arborhealthtech.com

If to the Employee:

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

Email: m.elliston@personal-email.com

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

Fielding & Rowe LLP 101 Federal Street, Suite 2600 Boston, MA 02110

Attention: Catherine A. Fielding

Email: cfielding@fieldingrowellp.com

Either Party may change its address for notices by giving written notice of such change in accordance with this Section 11.7.

11.8 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 portable document format (PDF) transmission shall constitute valid and effective execution and delivery for all purposes.

11.9 Survival. The obligations of the Employee under Section 2 (Non-Competition), Section 3 (Non-Solicitation of Employees), Section 4 (Non-Solicitation of Customers and Business Partners), Section 5 (Confidentiality and Non-Disclosure), and Section 7 (Invention Assignment), and the Company's obligations under Section 6 (Garden-Leave Consideration), shall survive the termination of the Employee's employment with the Company and the expiration or termination of the Employment Agreement, in each case for the duration of the applicable Restricted Period or, in the case of confidentiality obligations and invention assignment obligations, in perpetuity. The provisions of Sections 8 (Remedies), 9 (Representations and Warranties), 10 (Exceptions and Carve-Outs), and 11 (General Provisions) shall likewise survive termination of employment to the extent necessary to give effect to the Parties' rights and obligations thereunder.

11.10 Construction. The headings and captions in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement. References to "Sections" are to sections of this Agreement unless otherwise specified. The terms "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." The word "or" is not exclusive. References to "days" shall mean calendar days unless otherwise specified. This Agreement has been negotiated by the Parties with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party as the drafter shall not apply to any construction or interpretation hereof.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Parties have executed this Employee Non-Competition Agreement as of the date first written above.

ARBOR HEALTH TECHNOLOGIES INC.

By: ________

Name: Priya Chandrasekaran

Title: Chief Executive Officer

Date: ________

EMPLOYEE

________________________________________

Dr. Marcus J. Elliston

Date: ________

ACKNOWLEDGMENT OF RECEIPT AND CONSULTATION WITH COUNSEL (Massachusetts Noncompetition Agreement Act Compliance)

The undersigned Employee hereby acknowledges and confirms each of the following:

(a) This Agreement was provided to the Employee before a formal offer of employment was made by the Company, or at least ten (10) business days before the commencement of the Employee's employment with the Company, whichever is later, in compliance with the requirements of the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L;

(b) The Employee has been advised in writing by the Company to consult with an attorney prior to signing this Agreement; and

(c) The Employee has, in fact, consulted with independent legal counsel — specifically, Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110, Attention: Catherine A. Fielding — regarding the terms, conditions, and implications of this Agreement, and the Employee's rights and obligations hereunder, and the Employee is signing this Agreement with a full understanding of its legal effect and consequences.

The Employee further acknowledges that the Employee has retained a copy of this Agreement for the Employee's personal records.

EMPLOYEE ACKNOWLEDGMENT

________________________________________

Dr. Marcus J. Elliston

Date: ________

This Agreement constitutes a First Draft prepared by counsel for Arbor Health Technologies Inc. and is subject to further negotiation and revision.

EMPLOYEE NON-COMPETITION AGREEMENT
Pursuant to the Massachusetts Noncompetition Agreement Act (M.G.L. c. 149, § 24L)
August 5, 2022
This Employee Non-Competition Agreement (this "Agreement") is entered into as of August 5, 2022 (the "Effective Date"), by and between:
ARBOR HEALTH TECHNOLOGIES INC., a Delaware corporation with its principal place of business 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 "Employee").
The Company and the Employee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Company is engaged in the business of healthcare services and software, including the development, marketing, licensing, and support of cloud-based clinical workflow and revenue cycle management platform solutions delivered through a software-as-a-service ("SaaS") model to healthcare providers, health systems, payors, and related entities throughout the United States;
WHEREAS, the Company desires to employ the Employee in the position of Chief Operating Officer, reporting directly to the Chief Executive Officer, Priya Chandrasekaran, pursuant to the terms and conditions set forth in that certain Executive Employment Agreement of even date herewith between the Company and the Employee (the "Employment Agreement");
WHEREAS, in connection with the Employee's employment, the Employee will have access to, and will be entrusted with, Confidential Information and Trade Secrets of the Company, including but not limited to proprietary technology, product roadmaps, strategic plans, financial data, pricing models, customer and prospect information, and competitive intelligence, and will develop significant relationships with the Company's employees, customers, and business partners;
WHEREAS, the Company and the Employee wish to enter into this Non-Competition Agreement as a condition of the Employee's employment, in compliance with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L (the "Act"), in order to protect the Company's legitimate business interests;
WHEREAS, this Agreement is entered into contemporaneously with the commencement of the Employee's employment, and the Employee's employment with the Company constitutes mutually agreed-upon consideration for this Agreement, in addition to the garden-leave consideration expressly set forth herein;
WHEREAS, the proposed start date of the Employee's employment with the Company is November 1, 2022; and
WHEREAS, the Employee's compensation, benefits, and equity grants are set forth in the Employment Agreement and the Arbor Health Technologies Inc. 2020 Equity Incentive Plan, as amended May 2021 (the "Equity Plan"), and the applicable equity award agreements issued thereunder.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Employee's employment with the Company, the garden-leave consideration described in Section 6, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1: DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Employment Agreement.
1.1 "Board" shall mean the Board of Directors of Arbor Health Technologies Inc.
1.2 "Cause" shall have the meaning ascribed to such term in Section 5.2 of the Employment Agreement.
1.3 "Change in Control" shall have the meaning ascribed to the term "change in control" in Section 8.1 of the Employment Agreement.
1.4 "Company" shall mean Arbor Health Technologies Inc., together with its direct and indirect subsidiaries, affiliates, successors, and assigns, as applicable.
1.5 "Competing Business" shall mean any business, entity, division, or enterprise (including any activity conducted as a sole proprietorship) that satisfies each of the following criteria: (a) is engaged, in whole or in material part, in healthcare information technology, healthcare software-as-a-service (SaaS), clinical workflow technology, or revenue cycle management technology, including the development, marketing, licensing, distribution, implementation, or support of any such products or services; (b) has annual consolidated revenue in excess of Fifty Million Dollars ($50,000,000) in the most recently completed fiscal year or the then-current fiscal year on an annualized basis; and (c) operates in, or provides products or services to customers located in, the United States.
1.6 "Confidential Information" shall mean all non-public, proprietary, or trade secret information of the Company, in whatever form or medium, whether written, oral, electronic, or otherwise, including but not limited to: business plans and strategies; financial data, projections, and models; customer and prospect lists, databases, and account information; pricing strategies, rate cards, and discount structures; product roadmaps and development plans; software source code, object code, and architecture documentation; clinical workflow algorithms and methodologies; revenue cycle management methodologies and processes; marketing strategies and competitive analyses; employee compensation data, organizational charts, and talent assessments; vendor and supplier agreements and terms; research and development data; merger, acquisition, and partnership prospects; and any other information that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value from its disclosure or use.
Notwithstanding the foregoing, Confidential Information shall not include information that: (i) is or becomes publicly available through no act, omission, or fault of the Employee in violation of this Agreement or any other obligation of confidentiality; (ii) was independently developed by the Employee without reference to, reliance upon, or use of the Company's Confidential Information, as demonstrated by contemporaneous written records; or (iii) was rightfully received by the Employee from a third party without restriction on disclosure and without breach of any obligation of confidentiality owed to the Company.
1.7 "Covered Customer" shall mean any customer, client, or business partner of the Company (including any prospective customer, client, or business partner with whom the Company was actively engaged in negotiations or to whom the Company had submitted a proposal) with whom the Employee had material contact, or about whom the Employee obtained Confidential Information, during the last twenty-four (24) months of the Employee's employment with the Company. For purposes of this definition, "material contact" means any direct interaction, communication, or involvement in the management or servicing of the business relationship.
1.8 "Covered Employee" shall mean any individual who is employed by the Company at the level of manager or above at the time of the Employee's termination of employment, or at any time during the twelve (12) months immediately preceding such termination.
1.9 "Employment Agreement" shall mean that certain Executive Employment Agreement between the Company and the Employee dated as of August 5, 2022, as the same may be amended, restated, or supplemented from time to time.
1.10 "Garden-Leave Payment" shall mean the consideration described in Section 6 of this Agreement, payable by the Company to the Employee as consideration for the non-competition covenant set forth in Section 2.
1.11 "Good Reason" shall have the meaning ascribed to such term in Section 5.4 of the Employment Agreement.
1.12 "Restricted Period" shall mean:
(a) with respect to the non-competition covenant set forth in Section 2: the period of eighteen (18) months immediately following the effective date of the Employee's termination of employment with the Company for any reason;
(b) with respect to the employee non-solicitation covenant set forth in Section 3: the period of eighteen (18) months immediately following the effective date of the Employee's termination of employment with the Company for any reason; and
(c) with respect to the customer and business partner non-solicitation covenant set forth in Section 4: the period of twelve (12) months immediately following the effective date of the Employee's termination of employment with the Company for any reason.
1.13 "Termination Date" shall mean the effective date on which the Employee's employment with the Company terminates for any reason, whether initiated by the Company, by the Employee, or by mutual agreement, and regardless of whether such termination is voluntary or involuntary.
1.14 "Trade Secrets" shall mean trade secrets as defined under the Massachusetts Trade Secrets Act, M.G.L. c. 93, § 42, and the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, et seq., including all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing, if (a) the owner thereof has taken reasonable measures to keep such information secret, and (b) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.
SECTION 2: NON-COMPETITION COVENANT
2.1 Non-Competition Restriction. During the Restricted Period applicable to the non-competition covenant (i.e., eighteen (18) months following the Termination Date), the Employee shall not, directly or indirectly, whether on the Employee's own behalf or on behalf of any other person or entity, and whether as an employee, consultant, independent contractor, officer, director, partner, member, manager, stockholder, advisor, agent, or in any other capacity whatsoever:
(a) engage in, manage, operate, finance, or control a Competing Business, or any material portion thereof;
(b) be employed by, render services to, or otherwise assist a Competing Business in any capacity that involves, or is reasonably likely to involve, the performance of duties substantially similar to those performed by the Employee for the Company during the last two (2) years of the Employee's employment; or
(c) assist any person or entity in engaging in a Competing Business in the United States, including by providing strategic advice, introductions to customers or prospects, or access to any information, methods, or processes that are competitive with those of the Company.
The foregoing restriction shall apply throughout the United States. For the avoidance of doubt, the passive ownership of not more than two percent (2%) of the outstanding equity securities of a publicly traded company listed on a national securities exchange shall not, by itself, constitute a violation of this Section 2.1, provided that the Employee does not otherwise participate in the management, operations, or business of such company in a manner that would constitute a violation of the foregoing restrictions.
2.2 Acknowledgment of Reasonableness. The Employee acknowledges and agrees that:
(a) the Employee's services to the Company are of a special, unique, and extraordinary character, and the Employee's position as Chief Operating Officer will afford the Employee intimate knowledge of the Company's operations, strategy, technology, and competitive positioning;
(b) as COO, the Employee will have access to the Company's most sensitive Confidential Information and Trade Secrets, including customer data, product development plans, financial projections, and strategic initiatives, the disclosure or competitive use of which would cause substantial and irreparable injury to the Company;
(c) the restrictions contained in this Section 2, and in this Agreement generally, are reasonable and necessary to protect the Company's legitimate business interests, including its goodwill, customer relationships, Confidential Information, Trade Secrets, and the investment the Company will make in the Employee's training, development, and professional relationships;
(d) the Employee has received independent legal advice from Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110, regarding this Agreement, and the Employee has had a full and fair opportunity to negotiate the terms hereof; and
(e) the restrictions set forth herein will not impose undue hardship on the Employee and will not deprive the Employee of the ability to earn a livelihood, particularly in light of the garden-leave consideration provided in Section 6.
2.3 Compliance with the Act. This Agreement is made in compliance with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L. The non-competition restriction set forth in this Section 2 shall not exceed the maximum duration permitted under the Act. In the event that a court of competent jurisdiction determines that the Restricted Period applicable to the non-competition covenant is unreasonable or otherwise exceeds the maximum duration permissible under the Act, the Parties respectfully request that such court reform the restriction to the maximum duration permissible under the Act (currently twelve (12) months), or such shorter period as the court deems reasonable, rather than declaring the restriction void or unenforceable in its entirety. The Parties acknowledge that the Act, as currently in effect, limits the duration of non-competition agreements to twelve (12) months, except in cases where the employee has breached fiduciary duties to the employer or has unlawfully taken property of the employer, in which case a period of up to twenty-four (24) months may be enforceable.
SECTION 3: NON-SOLICITATION OF EMPLOYEES
3.1 Employee Non-Solicitation. During the period of eighteen (18) months immediately following the Termination Date, the Employee shall not, directly or indirectly, whether on the Employee's own behalf or on behalf of any other person or entity:
(a) solicit, recruit, or hire, or attempt to solicit, recruit, or hire, any Covered Employee to leave the Company's employment, or to accept employment or an engagement with any other person, entity, or enterprise;
(b) induce, encourage, or attempt to induce or encourage any Covered Employee to terminate, reduce, or otherwise alter the Covered Employee's employment relationship with the Company; or
(c) assist any person or entity in doing, or attempting to do, any of the foregoing, including by providing names, contact information, compensation data, or other information regarding Covered Employees to any third-party recruiter, headhunter, hiring manager, or employer.
The restriction set forth in this Section 3.1 is limited to employees of the Company at the level of manager and above, as reflected in the definition of "Covered Employee" in Section 1.8 of this Agreement. The Employee acknowledges that this covenant is separate from and in addition to the non-competition restriction set forth in Section 2, and that this non-solicitation covenant is not subject to the specific durational limitations of the Act applicable to non-competition agreements. For the avoidance of doubt, general advertisements or postings that are not specifically targeted at Covered Employees shall not, by themselves, constitute a violation of this Section 3.1; provided, however, that if the Employee becomes aware that a Covered Employee has responded to such a general advertisement or posting and the Employee takes any action to encourage, facilitate, or advance the Covered Employee's candidacy, such action shall constitute a violation of this Section 3.1.
SECTION 4: NON-SOLICITATION OF CUSTOMERS AND BUSINESS PARTNERS
4.1 Customer/Partner Non-Solicitation. During the period of twelve (12) months immediately following the Termination Date, the Employee shall not, directly or indirectly, whether on the Employee's own behalf or on behalf of any other person or entity:
(a) solicit, divert, or take away, or attempt to solicit, divert, or take away, the business or patronage of any Covered Customer for the purpose of providing products or services that are competitive with the products or services offered by the Company;
(b) induce or encourage, or attempt to induce or encourage, any Covered Customer to cease doing business with the Company, to reduce the volume or scope of business conducted with the Company, or to terminate or fail to renew any agreement or arrangement with the Company; or
(c) otherwise interfere with, disrupt, or damage the relationship between the Company and any Covered Customer.
The restriction set forth in this Section 4.1 is limited to customers and business partners with whom the Employee had material contact, or about whom the Employee obtained Confidential Information, during the last twenty-four (24) months of the Employee's employment with the Company, as reflected in the definition of "Covered Customer" in Section 1.7 of this Agreement. The Employee acknowledges that the Company has invested substantial resources in developing and maintaining its customer and business partner relationships, and that the protection of such relationships constitutes a legitimate business interest of the Company.
SECTION 5: CONFIDENTIALITY AND NON-DISCLOSURE
5.1 Confidentiality Obligation. The Employee shall not, at any time during or after the Employee's employment with the Company (this being a perpetual obligation that survives the termination of employment), directly or indirectly, use, disclose, publish, transmit, transfer, or otherwise make available to any third party any Confidential Information or Trade Secrets of the Company, except:
(a) as required in the faithful performance of the Employee's duties and responsibilities for the Company during the term of the Employee's employment;
(b) as expressly authorized in advance and in writing by the Company's General Counsel or Chief Executive Officer; or
(c) as required by applicable law, regulation, governmental order, or valid legal process, subject to the provisions of Section 5.2 below.
The Employee acknowledges that the Company's Confidential Information and Trade Secrets represent a substantial investment of time, effort, and resources by the Company and that the unauthorized use or disclosure of such information would cause serious competitive harm to the Company.
5.2 Legally Compelled Disclosure. In the event that the Employee becomes legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, court order, or other legal process) to disclose any Confidential Information or Trade Secrets of the Company, the Employee shall:
(a) provide the Company with prompt written notice of such requirement, to the extent legally permissible, so that the Company may seek an appropriate protective order, motion to quash, or other remedy;
(b) cooperate with the Company, at the Company's sole expense, in seeking a protective order or other appropriate remedy to prevent or limit the scope of any required disclosure; and
(c) if, in the absence of a protective order or other remedy, the Employee is nonetheless compelled to disclose Confidential Information, disclose only that portion of the Confidential Information that the Employee is legally required to disclose, and exercise commercially reasonable efforts to ensure that confidential treatment is accorded to any Confidential Information so disclosed.
5.3 Return of Company Property. Upon the termination of the Employee's employment with the Company for any reason, or at any time upon the Company's written request, the Employee shall promptly return to the Company all Company property in the Employee's possession or control, including without limitation all documents, files, records, data, reports, memoranda, correspondence, manuals, notebooks, notes, presentations, prototypes, samples, devices, equipment, computers, laptops, tablets, mobile phones, access cards, keys, key fobs, access credentials, passwords, and all other materials (in any form or format, whether physical or electronic, including copies, excerpts, and summaries thereof) that contain, reflect, embody, or relate to any Confidential Information or Trade Secrets of the Company. The Employee shall not retain any copies, reproductions, or excerpts of any such materials. Upon the Company's request, the Employee shall certify in writing that the Employee has complied with this Section 5.3.
5.4 Defend Trade Secrets Act Notice. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), the Employee is hereby notified that:
(a) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (i) files any document containing the trade secret under seal and (ii) does not disclose the trade secret except pursuant to court order.
Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or to create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b). Nothing in this Agreement shall limit, restrict, or in any other way affect the Employee's communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to the governmental agency or entity.
SECTION 6: GARDEN-LEAVE CONSIDERATION
6.1 Garden-Leave Payment. In accordance with M.G.L. c. 149, § 24L, and as consideration for the non-competition covenant set forth in Section 2 of this Agreement, the Company shall pay the Employee, during the Restricted Period applicable to the non-competition covenant, garden-leave payments equal to fifty percent (50%) of the Employee's highest annualized base salary in effect at any time during the two (2) years immediately preceding the Termination Date (the "Garden-Leave Payment").
Based on the Employee's initial annualized base salary of Five Hundred Seventy-Five Thousand Dollars ($575,000) per annum as set forth in the Employment Agreement, and assuming no increase in base salary during such two-year period, the aggregate Garden-Leave Payment amount shall be Two Hundred Eighty-Seven Thousand Five Hundred Dollars ($287,500) (calculated as $575,000 × 50%), payable in substantially equal installments in accordance with the Company's regular payroll schedule during the eighteen (18)-month non-competition Restricted Period. All Garden-Leave Payments shall be subject to applicable tax withholding and deductions as required by law.
The Garden-Leave Payment constitutes "other mutually-agreed upon consideration" within the meaning of the Act, and the Parties agree that such consideration is adequate and sufficient to support the non-competition covenant herein.
6.2 Conditions to Garden-Leave Payment. The Company's obligation to make Garden-Leave Payments pursuant to Section 6.1 is expressly conditioned upon:
(a) the Employee's continued compliance with all covenants, obligations, and restrictions set forth in this Agreement, including without limitation the non-competition covenant (Section 2), the non-solicitation covenants (Sections 3 and 4), and the confidentiality obligations (Section 5); and
(b) the Employee's execution and non-revocation, within the applicable revocation period, of a general release of claims against the Company in substantially the form attached as Schedule B to the Employment Agreement (the "Release"), such Release to be executed no later than the date specified in the Employment Agreement.
6.3 Forfeiture and Offset.
(a) Forfeiture upon Breach. If the Employee breaches any provision of this Agreement during the Restricted Period, the Company's obligation to make any further Garden-Leave Payments shall immediately cease, and the Company shall have the right to seek repayment from the Employee of all Garden-Leave Payment amounts previously paid, in addition to any other remedies available to the Company at law or in equity.
(b) Severance Offset. Garden-Leave Payments shall not be offset against any severance payments the Employee may be entitled to receive under the Employment Agreement or any other arrangement between the Parties; provided, however, that if the Employee receives severance payments under the Employment Agreement (or any successor agreement) that, in the aggregate, equal or exceed the total Garden-Leave Payment amount that would otherwise be payable under Section 6.1, such severance payments shall be deemed to satisfy the Company's Garden-Leave Payment obligation under this Section 6, and no additional Garden-Leave Payment shall be due. For the avoidance of doubt, if the severance payments are less than the total Garden-Leave Payment amount, the Company shall pay the difference between the Garden-Leave Payment amount and the severance payments received by the Employee.
SECTION 7: INVENTION ASSIGNMENT
7.1 Assignment of Inventions. The Employee agrees that all inventions, discoveries, improvements, innovations, works of authorship, software programs, algorithms, databases, processes, methods, systems, designs, trade secrets, and other intellectual property, whether or not patentable or copyrightable (collectively, "Inventions"), that the Employee conceives, develops, creates, reduces to practice, or contributes to, alone or jointly with others, during the period of the Employee's employment with the Company, and that:
(a) relate to the Company's actual or reasonably anticipated business, research, or development activities;
(b) result from, or arise in connection with, work performed by the Employee for the Company or any task assigned to the Employee by the Company; or
(c) are created, in whole or in part, using the Company's resources, facilities, equipment, supplies, or Confidential Information;
shall be and remain the sole and exclusive property of the Company. The Employee hereby irrevocably assigns and transfers to the Company all right, title, and interest in and to all such Inventions, including all intellectual property rights therein (including all patents, copyrights, trademarks, trade secrets, and any other proprietary rights), throughout the world, in perpetuity. To the extent that any such Invention constitutes a "work made for hire" under the United States Copyright Act, 17 U.S.C. § 101 et seq., the Employee agrees that the Company shall be deemed the author thereof. To the extent that any such Invention does not qualify as a work made for hire, the Employee hereby assigns and transfers to the Company all right, title, and interest in and to such Invention, including all copyrights therein.
7.2 Disclosure. The Employee shall promptly and fully disclose to the Company in writing all Inventions conceived, developed, created, or reduced to practice by the Employee, whether alone or jointly with others, during the period of the Employee's employment with the Company, to enable the Company to determine whether such Inventions fall within the scope of Section 7.1.
7.3 Cooperation. The Employee shall, during and after the Employee's employment with the Company, at the Company's sole expense, execute all documents and take all actions reasonably requested by the Company to perfect, register, maintain, and enforce the Company's rights in and to any Inventions assigned to the Company hereunder, including without limitation: executing patent applications, copyright registration applications, assignments, declarations, and oaths; providing testimony and evidence in support of patent prosecution, copyright registration, and intellectual property enforcement proceedings; and cooperating fully with the Company and its attorneys in connection with any litigation, administrative proceedings, or other actions relating to such Inventions. The Employee hereby irrevocably appoints the Company as the Employee's attorney-in-fact, with full power of substitution, to execute and deliver any such documents on the Employee's behalf, solely in the event that the Employee fails or refuses to do so within a reasonable time after the Company's request, and the Employee acknowledges that this appointment is coupled with an interest and is irrevocable.
7.4 Prior Inventions. The Employee has listed on Schedule A to the Employment Agreement all inventions, patents, patent applications, and other intellectual property developed, conceived, or owned by the Employee prior to the commencement of the Employee's employment with the Company that the Employee wishes to exclude from the scope of Section 7.1 (collectively, "Prior Inventions"). If no Prior Inventions are listed on Schedule A, the Employee represents and warrants that no such Prior Inventions exist. The Employee shall not incorporate, or permit to be incorporated, any Prior Invention into any Company product, process, or service without the Company's prior written consent. If the Employee does incorporate, or the Company requests that the Employee incorporate, a Prior Invention into any Company product, process, or service, the Employee hereby grants to the Company a non-exclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide, sublicensable license to use, reproduce, modify, distribute, display, perform, make, have made, sell, offer for sale, and import such Prior Invention as part of or in connection with such Company product, process, or service.
7.5 Exception for Certain Inventions. Notwithstanding the foregoing, this Section 7 does not apply to any Invention that the Employee develops entirely on the Employee's own time, without using any of the Company's equipment, supplies, facilities, resources, or Confidential Information, and that does not relate to the Company's actual or reasonably anticipated business, research, or development activities.
SECTION 8: REMEDIES
8.1 Injunctive Relief. The Employee acknowledges and agrees that any breach or threatened breach of this Agreement by the Employee would cause the Company immediate, substantial, and irreparable harm for which monetary damages alone would be inadequate and difficult to calculate. Accordingly, the Employee agrees that the Company shall be entitled to seek and obtain temporary, preliminary, and permanent injunctive relief, as well as specific performance, in any court of competent jurisdiction to enforce any provision of this Agreement and to restrain any actual or threatened breach hereof, without the necessity of posting a bond or other security and without the need to demonstrate actual damages. The Employee further agrees not to raise any defense based on the adequacy of monetary damages or the availability of a remedy at law in any proceeding brought by the Company to obtain equitable relief.
8.2 Tolling. If the Employee violates any restriction contained in Sections 2, 3, or 4 of this Agreement, the applicable Restricted Period shall be automatically extended by a period of time equal to the duration of such violation, so that the Company receives the full benefit of the bargained-for restrictive period. The Employee acknowledges that this tolling provision is reasonable and necessary to ensure that the Company receives the protection for which it has contracted.
8.3 Cumulative Remedies. The remedies set forth in this Agreement are cumulative and shall be in addition to any and all other remedies available to the Company at law or in equity, including without limitation claims for breach of contract, breach of fiduciary duty, misappropriation of trade secrets, unfair competition, and tortious interference. The pursuit of injunctive relief by the Company shall not preclude the Company from simultaneously or subsequently seeking monetary damages, including recovery of Garden-Leave Payments previously made, disgorgement of profits, or any other relief to which the Company may be entitled.
8.4 Attorneys' Fees. In any action, suit, or proceeding arising out of or related to this Agreement or the enforcement of any provision hereof, the prevailing Party shall be entitled to recover from the non-prevailing Party its reasonable attorneys' fees, costs, and expenses (including expert witness fees and costs of appeal), as determined by the court.
SECTION 9: REPRESENTATIONS AND WARRANTIES OF THE EMPLOYEE
9.1 No Conflicting Obligations. The Employee represents and warrants that the execution, delivery, and performance of this Agreement, and the Employee's employment with the Company, does not and will not violate, conflict with, or constitute a breach of, or default under, any other agreement, obligation, covenant, or duty to which the Employee is a party or by which the Employee is bound, whether written or oral, including without limitation any employment agreement, non-competition agreement, non-solicitation agreement, confidentiality agreement, or similar agreement or obligation with any prior employer, including Pinnacle Care Systems, Inc. The Employee further represents and warrants that the Employee has provided the Company with copies of all agreements with prior employers that may restrict the Employee's ability to perform the Employee's duties for the Company or that may otherwise be implicated by the Employee's employment with the Company.
9.2 Independent Legal Advice. The Employee acknowledges that the Employee has been advised, in writing, to consult with an attorney before signing this Agreement, as required by M.G.L. c. 149, § 24L. The Employee further acknowledges and confirms that the Employee has, in fact, consulted with independent legal counsel — specifically, Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110, Attention: Catherine A. Fielding — regarding the terms, conditions, and implications of this Agreement, and that the Employee enters into this Agreement with a full understanding of its legal effect and consequences.
9.3 Voluntary Execution. The Employee acknowledges that the Employee has carefully read this Agreement in its entirety, understands all of its terms, conditions, and provisions, and enters into this Agreement voluntarily, knowingly, and without fraud, duress, undue influence, or coercion of any kind. The Employee acknowledges that the Employee has had a reasonable and adequate opportunity to consider the terms of this Agreement and to negotiate any terms the Employee desired to negotiate.
9.4 Receipt of Agreement. The Employee acknowledges receipt of this Agreement in the form and manner required by the Act, including receipt prior to a formal offer of employment or, if later, at least ten (10) business days before the commencement of the Employee's employment with the Company. The Employee further acknowledges that the Agreement was provided to the Employee together with a written notice advising the Employee to consult with an attorney.
SECTION 10: EXCEPTIONS AND CARVE-OUTS FROM NON-COMPETITION COVENANT
10.1 Termination Without Cause or for Good Reason. Notwithstanding anything in this Agreement to the contrary, the non-competition restriction set forth in Section 2 shall not apply if the Employee's employment with the Company is terminated by the Company without Cause (as defined in the Employment Agreement) or if the Employee resigns for Good Reason (as defined in the Employment Agreement), unless the Company affirmatively elects to enforce the non-competition restriction by commencing Garden-Leave Payments in accordance with Section 6. In the event of a termination without Cause or a resignation for Good Reason, the Company shall have thirty (30) days following the Termination Date to notify the Employee in writing of the Company's election to enforce the non-competition restriction and to commence Garden-Leave Payments. If the Company does not provide such notice and commence payments within the thirty (30)-day period, the non-competition restriction in Section 2 shall be deemed waived and unenforceable. For the avoidance of doubt, the non-solicitation covenants in Sections 3 and 4 and the confidentiality obligations in Section 5 shall remain in full force and effect regardless of the circumstances of the Employee's termination.
10.2 Layoff or Workforce Reduction. The non-competition restriction set forth in Section 2 shall not apply if the Employee's employment with the Company is terminated as part of a reduction in force, layoff, or organizational restructuring, unless the Company affirmatively elects to enforce the non-competition restriction by commencing Garden-Leave Payments in accordance with Section 6. The procedures for election and notice set forth in Section 10.1 shall apply mutatis mutandis to any termination described in this Section 10.2.
10.3 Change in Control. In the event of a Change in Control (as defined in the Employment Agreement), if the Employee's employment is terminated by the Company (or any successor thereto) without Cause, or the Employee resigns for Good Reason, in either case within twenty-four (24) months following the effective date of such Change in Control, the non-competition restriction set forth in Section 2 shall remain subject to the terms and conditions of Section 2, provided that the Company (or its successor) elects to enforce such restriction by commencing Garden-Leave Payments in accordance with Section 6. Any Garden-Leave Payments made under this Section 10.3 shall be in addition to, and shall not reduce or offset, any change-in-control severance payments, enhanced benefits, or accelerated vesting of equity awards to which the Employee may be entitled under the Employment Agreement or the Equity Plan.
10.4 Prohibited Categories. The Parties acknowledge and agree that, pursuant to the Act, this Agreement does not apply to, and shall not be enforced against, any individual in a category excluded from non-competition agreements under the Act, including without limitation: (a) employees who are classified as non-exempt under the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1); (b) undergraduate or graduate students, whether employed as interns or in any other short-term capacity; and (c) employees who are terminated without cause or laid off (except to the extent the Company elects to enforce the non-competition restriction by providing Garden-Leave Payments as set forth in Sections 10.1 and 10.2 above). The Employee represents, warrants, and confirms that the Employee does not fall within any prohibited category under the Act, and that the Employee is classified as an exempt employee under the Fair Labor Standards Act.
SECTION 11: GENERAL PROVISIONS
11.1 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 or conflict of law provision or rule (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.
11.2 Jurisdiction and Venue. Any action, suit, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in the Commonwealth of Massachusetts, including the Superior Court of Middlesex County, the United States District Court for the District of Massachusetts, or such other court of competent jurisdiction within the Commonwealth, and each Party hereby irrevocably consents to the exclusive personal jurisdiction and venue of such courts for such purpose. Each Party waives any objection it may now or hereafter have to the laying of venue of any such action in any such court, and any claim that any such action brought in any such court has been brought in an inconvenient forum.
11.3 Severability. If any provision, clause, or part of this Agreement, or the application thereof to any person or circumstance, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision, clause, or part of this Agreement, and the remaining provisions, clauses, and parts shall remain in full force and effect and shall be enforced as if the invalid, illegal, or unenforceable provision had not been included herein. In the event that any court of competent jurisdiction determines that any restriction contained in this Agreement is overbroad, unreasonable, or unenforceable as written, the Parties hereby authorize and request such court to reform such restriction to the maximum extent enforceable under applicable law, including by reducing the scope, duration, geographic area, or range of activities covered thereby, so that such restriction may be enforced to the fullest extent permitted by law. The Parties intend that each provision of this Agreement shall be interpreted in a manner that renders it valid and enforceable, and the Parties agree that this blue-pencil and reformation authority is essential to the enforceability of this Agreement.
11.4 Integration / Entire Agreement. This Agreement, together with the Employment Agreement, the equity award agreements issued pursuant to the Equity Plan, and any other agreements expressly referenced herein or therein, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, and negotiations, whether written or oral, relating to such subject matter. No statement, representation, warranty, covenant, or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change, or restrict, the express terms and provisions of this Agreement.
11.5 Amendment and Waiver. This Agreement may not be amended, modified, supplemented, or waived except by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver by either Party of any breach of or default under this Agreement shall be deemed a waiver of any subsequent breach or default.
11.6 Assignment. The Employee may not assign, delegate, or otherwise transfer this Agreement or any of the Employee's rights, duties, or obligations hereunder without the prior written consent of the Company. Any attempted assignment in violation of this Section 11.6 shall be null and void. The Company may assign this Agreement, and all of its rights and obligations hereunder, to any successor to, or acquirer of, all or substantially all of the business or assets of the Company, whether by merger, consolidation, sale of assets, reorganization, or otherwise, and this Agreement shall inure to the benefit of and be binding upon the Company's successors and assigns.
11.7 Notices. All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed 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) transmitted by email with confirmation of receipt, in each case addressed as follows:
If to the Company:
Arbor Health Technologies Inc. 400 Brattle Commerce Park, Suite 1200 Cambridge, MA 02138
Attention: General Counsel (Aaron Whitfield)
Email: awhitfield@arborhealthtech.com
If to the Employee:
Dr. Marcus J. Elliston 87 Laurel Hill Road Wellesley, MA 02481
Email: m.elliston@personal-email.com
With a copy to the Employee's counsel (which shall not constitute notice):
Fielding & Rowe LLP 101 Federal Street, Suite 2600 Boston, MA 02110
Attention: Catherine A. Fielding
Email: cfielding@fieldingrowellp.com
Either Party may change its address for notices by giving written notice of such change in accordance with this Section 11.7.
11.8 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 portable document format (PDF) transmission shall constitute valid and effective execution and delivery for all purposes.
11.9 Survival. The obligations of the Employee under Section 2 (Non-Competition), Section 3 (Non-Solicitation of Employees), Section 4 (Non-Solicitation of Customers and Business Partners), Section 5 (Confidentiality and Non-Disclosure), and Section 7 (Invention Assignment), and the Company's obligations under Section 6 (Garden-Leave Consideration), shall survive the termination of the Employee's employment with the Company and the expiration or termination of the Employment Agreement, in each case for the duration of the applicable Restricted Period or, in the case of confidentiality obligations and invention assignment obligations, in perpetuity. The provisions of Sections 8 (Remedies), 9 (Representations and Warranties), 10 (Exceptions and Carve-Outs), and 11 (General Provisions) shall likewise survive termination of employment to the extent necessary to give effect to the Parties' rights and obligations thereunder.
11.10 Construction. The headings and captions in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of this Agreement. References to "Sections" are to sections of this Agreement unless otherwise specified. The terms "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation." The word "or" is not exclusive. References to "days" shall mean calendar days unless otherwise specified. This Agreement has been negotiated by the Parties with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any Party as the drafter shall not apply to any construction or interpretation hereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have executed this Employee Non-Competition Agreement as of the date first written above.
ARBOR HEALTH TECHNOLOGIES INC.
By: ________
Name: Priya Chandrasekaran
Title: Chief Executive Officer
Date: ________
EMPLOYEE
________________________________________
Dr. Marcus J. Elliston
Date: ________
ACKNOWLEDGMENT OF RECEIPT AND CONSULTATION WITH COUNSEL (Massachusetts Noncompetition Agreement Act Compliance)
The undersigned Employee hereby acknowledges and confirms each of the following:
(a) This Agreement was provided to the Employee before a formal offer of employment was made by the Company, or at least ten (10) business days before the commencement of the Employee's employment with the Company, whichever is later, in compliance with the requirements of the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L;
(b) The Employee has been advised in writing by the Company to consult with an attorney prior to signing this Agreement; and
(c) The Employee has, in fact, consulted with independent legal counsel — specifically, Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110, Attention: Catherine A. Fielding — regarding the terms, conditions, and implications of this Agreement, and the Employee's rights and obligations hereunder, and the Employee is signing this Agreement with a full understanding of its legal effect and consequences.
The Employee further acknowledges that the Employee has retained a copy of this Agreement for the Employee's personal records.
EMPLOYEE ACKNOWLEDGMENT
________________________________________
Dr. Marcus J. Elliston
Date: ________
This Agreement constitutes a First Draft prepared by counsel for Arbor Health Technologies Inc. and is subject to further negotiation and revision.

EMPLOYEE NON-COMPETITION AGREEMENT

RECITALS

SECTION 1: DEFINITIONS

SECTION 2: NON-COMPETITION COVENANT

SECTION 3: NON-SOLICITATION OF EMPLOYEES

SECTION 4: NON-SOLICITATION OF CUSTOMERS AND BUSINESS PARTNERS

SECTION 5: CONFIDENTIALITY AND NON-DISCLOSURE

SECTION 6: GARDEN-LEAVE CONSIDERATION

SECTION 7: INVENTION ASSIGNMENT

SECTION 8: REMEDIES

SECTION 9: REPRESENTATIONS AND WARRANTIES OF THE EMPLOYEE

SECTION 10: EXCEPTIONS AND CARVE-OUTS FROM NON-COMPETITION COVENANT

SECTION 11: GENERAL PROVISIONS

ARBOR HEALTH TECHNOLOGIES INC.

EMPLOYEE

EMPLOYEE ACKNOWLEDGMENT

Record

Parties

Dates

Amounts