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

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CONFIDENTIAL — SUBJECT TO FURTHER NEGOTIATION

Third Draft (Near-Final) — September 16, 2022

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

Matter No. 1010-00004 Client No. 81-30294

EMPLOYEE NON-COMPETITION AGREEMENT

This Employee Non-Competition Agreement (this "Agreement") is made and entered into as of ___, 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" or "AHT");

and

Dr. Marcus J. Elliston, an individual residing at 87 Laurel Hill Road, Wellesley, MA 02481 (the "Employee" or "Executive").

The Company and the Employee are sometimes referred to herein collectively as the "Parties" and each individually as a "Party." The anticipated Effective Date of this Agreement is November 1, 2022, coinciding with the Employee's proposed start date as set forth in the Employment Agreement (as defined below).

RECITALS

WHEREAS, the Company is engaged in the business of healthcare services and software-as-a-service ("SaaS"), including the development, marketing, licensing, and support of cloud-based clinical workflow and revenue cycle management platforms for healthcare systems, physician practice groups, ambulatory care facilities, and other healthcare providers throughout the United States, and the Company currently employs approximately 620 employees and reported annual revenue of approximately $127.4 million for fiscal year 2021;

WHEREAS, the Company desires to employ the Employee as Chief Operating Officer of the Company, reporting directly to the Chief Executive Officer, Priya Chandrasekaran, pursuant to an Executive Employment Agreement of even date herewith (the "Employment Agreement"), and the Employee desires to accept such employment on the terms and conditions set forth in the Employment Agreement and this Agreement;

WHEREAS, in connection with such employment, the Employee will have access to and become acquainted with confidential and proprietary information, trade secrets, strategic business plans, customer relationships, employee relationships, vendor relationships, and other sensitive business information of the Company and its affiliates, and the Employee's position as Chief Operating Officer will afford the Employee broad visibility into virtually all aspects of the Company's operations, technology, and commercial strategy;

WHEREAS, the Company's majority equity holder is Ridgeline Capital Partners, LP ("Ridgeline"), a private equity fund that acquired the Company in a take-private transaction in December 2019, and the Company's business involves proprietary technology, algorithms, software architectures, customer data, and long-standing customer relationships that constitute valuable assets warranting protection through reasonable restrictive covenants;

WHEREAS, as a condition of the Employee's employment and receipt of consideration including, without limitation, a base salary of $575,000 per annum, equity awards under the AHT 2020 Equity Incentive Plan (as amended May 2021), performance-based incentive compensation, and other compensation and benefits as set forth more fully in the Employment Agreement, the Employee agrees to be bound by the restrictive covenants set forth herein;

WHEREAS, this Agreement is intended to comply in all respects with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L (the "MNAA"), including all requirements relating to timing of delivery, garden-leave consideration, and the scope and enforceability of non-competition agreements under Massachusetts law; and

WHEREAS, the Employee acknowledges receipt of this Agreement at least ten (10) business days before the commencement of employment and that the Employee has been advised in writing to consult with an attorney before signing this Agreement, and the Employee confirms that the Employee has been represented in connection with the negotiation and execution of this Agreement by Catherine A. Fielding of Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Employee's employment with the Company, the compensation and benefits to be provided to the Employee pursuant to the Employment Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, 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 the Company, as constituted from time to time.

1.2 "Cause" shall have the meaning set forth in the Employment Agreement, including, without limitation, the specific grounds for termination for Cause enumerated in Section 6(c) of the Employment Agreement.

1.3 "Change in Control" shall have the meaning set forth in the Employment Agreement, and shall include, without limitation, any of the following events: (i) the acquisition by any person or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) of more than fifty percent (50%) of the combined voting power of the then-outstanding voting securities of AHT, other than any acquisition by Ridgeline Capital Partners, LP or any of its affiliates, portfolio companies, or managed funds; (ii) the consummation of a merger, consolidation, reorganization, or sale of all or substantially all of the assets of the Company where the holders of the Company's outstanding voting securities immediately prior to such transaction retain less than fifty percent (50%) of the combined voting power of the surviving or resulting entity immediately following such transaction; (iii) the complete liquidation or dissolution of the Company; or (iv) a change in the majority composition of the Board such that individuals who, as of the Effective Date, constitute the Board (together with any directors whose election or nomination was approved by a vote of at least a majority of the directors then in office who were directors as of the Effective Date or whose election or nomination was previously so approved) cease to constitute a majority of the Board.

1.4 "Competing Business" shall mean any business or enterprise (including any division, group, franchise, or operating unit thereof) that is engaged in healthcare information technology and/or software-as-a-service ("healthcare IT/SaaS"), including, without limitation, the development, licensing, marketing, sale, implementation, or support of software platforms, applications, or technology solutions designed for or primarily used by healthcare providers, healthcare systems, hospitals, physician practices, or other healthcare organizations, and that generates annual revenue in excess of Fifty Million Dollars ($50,000,000) and operates within the United States. For the avoidance of doubt, the term "Competing Business" shall expressly exclude any entity engaged solely in (a) pharmaceutical manufacturing or distribution, (b) medical device manufacturing, design, or distribution, or (c) clinical care delivery (including, without limitation, hospital operations, physician practice management, or ambulatory care services) without a healthcare IT/SaaS component as described in this Section 1.4.

1.5 "Confidential Information" shall mean all non-public, confidential, or proprietary information relating to the Company's business, operations, products, services, technology, customers, employees, vendors, or financial affairs, in any form or medium (whether written, oral, electronic, or otherwise), including, but not limited to: (a) trade secrets as defined under the Massachusetts Uniform Trade Secrets Act, M.G.L. c. 93, §§ 42–42G, and the federal Defend Trade Secrets Act of 2016, 18 U.S.C. §§ 1831–1839; (b) proprietary software source code, object code, algorithms, data models, architectures, and technical specifications; (c) customer and prospect lists, customer account information, customer utilization data, and customer-specific pricing and contract terms; (d) pricing data, rate cards, discount structures, and fee schedules; (e) financial information, including revenue projections, cost structures, profit margins, budgets, and financial models; (f) business plans, strategic plans, marketing plans, product roadmaps, and competitive analyses; (g) product development plans, research and development initiatives, and pipeline information; (h) employee compensation data, including salary structures, bonus plans, equity award data, and retention strategies; (i) vendor terms, supplier agreements, and procurement strategies; (j) merger and acquisition targets, due diligence materials, and integration plans; and (k) 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: (a) is or becomes publicly available or generally known to the public other than as a result of the Employee's breach of this Agreement or any other confidentiality obligation owed to the Company; (b) was known to the Employee prior to the Company's disclosure thereof, as demonstrated by written records in the Employee's possession predating such disclosure; (c) is received by the Employee from a third party who is not, to the Employee's knowledge, under a confidentiality obligation to the Company with respect to such information; or (d) is independently developed by the Employee without use of, reference to, or reliance upon any Confidential Information, as demonstrated by contemporaneous written records.

1.6 "Customer" shall mean any person or entity that was a customer, client, account, or business partner of the Company (including any affiliate of the Company) at any time during the twenty-four (24) months immediately preceding the Employee's last day of employment with the Company, and with whom the Employee had material contact during such twenty-four (24) month period. For purposes of this definition, "material contact" means (a) direct personal interaction between the Employee and the customer (whether in person, by telephone, by videoconference, or by email or other written correspondence) regarding the Company's products, services, or business relationship; (b) the Employee's direct supervision of or managerial responsibility for the account team or personnel responsible for the customer relationship; or (c) the Employee's participation in strategic decisions, pricing determinations, contract negotiations, or executive-level discussions regarding such customer.

1.7 "Employment Agreement" shall mean the Executive Employment Agreement between the Company and the Employee, dated as of the same date as this Agreement, as may be amended from time to time in accordance with its terms.

1.8 "Garden Leave Period" shall mean the Non-Compete Restricted Period as defined in Section 2.1 of this Agreement, during which the Company is obligated to provide garden-leave compensation to the Employee in accordance with Section 6.

1.9 "Good Reason" shall have the meaning set forth in the Employment Agreement, including, without limitation, the specific grounds for resignation for Good Reason and the notice and cure procedures enumerated in Section 6(d) of the Employment Agreement.

1.10 "Manager-Level Employee" shall mean any employee of the Company or any of its affiliates holding the title of Manager or above, including, without limitation, any individual holding the title of Senior Manager, Director, Senior Director, Vice President, Senior Vice President, Executive Vice President, and any C-suite officer (e.g., Chief Executive Officer, Chief Financial Officer, Chief Technology Officer, Chief Operating Officer, Chief Revenue Officer, Chief Human Resources Officer, or any similar title).

1.11 "MNAA" shall mean the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L, as amended from time to time, together with all rules, regulations, and guidance issued thereunder.

1.12 "Restricted Period" shall mean, as applicable, (a) the Non-Compete Restricted Period as defined in Section 2.1, (b) the Employee Non-Solicitation Restricted Period as defined in Section 3.1, or (c) the Customer Non-Solicitation Restricted Period as defined in Section 4.1.

1.13 "Territory" shall mean the United States of America, including all fifty (50) states, the District of Columbia, and all territories and possessions of the United States.

SECTION 2: NON-COMPETITION COVENANT

2.1 Non-Competition Restriction. During the term of the Employee's employment with the Company and for a period of twelve (12) months immediately following the date of the termination of the Employee's employment with the Company for any reason (such twelve-month post-employment period, the "Non-Compete Restricted Period"), the Employee shall not, directly or indirectly, whether individually or as a principal, agent, employee, officer, director, consultant, advisor, independent contractor, partner, joint venturer, member, equity holder, owner (other than as a passive holder of not more than two percent (2%) of the outstanding equity securities of a company whose securities are listed on a national securities exchange or traded in the over-the-counter market), financier, or in any other capacity whatsoever:

(a) engage in, render services to, or provide assistance (whether operational, strategic, managerial, financial, technical, or otherwise) to any Competing Business within the Territory;

(b) establish, found, incorporate, acquire, manage, operate, finance, control, or participate in the ownership or management of any Competing Business within the Territory; or

(c) solicit or accept employment, engagement, or any compensated or uncompensated position with any Competing Business for the purpose of performing duties or functions substantially similar to those performed by the Employee for the Company during the twenty-four (24) months immediately preceding the Employee's termination of employment.

2.2 Scope Limitations. The non-competition restriction set forth in Section 2.1 applies only to Competing Businesses as specifically defined in Section 1.4 of this Agreement — that is, healthcare IT/SaaS companies generating annual revenue in excess of $50,000,000 and operating within the United States. The Parties acknowledge and agree that this scope was the subject of good-faith negotiation between the Parties and their respective counsel, and was reduced from an initial broader formulation proposed by the Company that would have encompassed all healthcare technology and services businesses regardless of revenue threshold. The Parties further acknowledge that the scope, geographic extent, and duration of the non-competition restriction, as narrowed through negotiation, reflect a reasonable limitation that is no broader than necessary to protect the Company's legitimate business interests, including its Confidential Information, trade secrets, goodwill, customer relationships, and substantial investment in the Employee's knowledge and training.

2.3 Carve-Outs. Notwithstanding Section 2.1, the Employee shall not be restricted from:

(a) engaging in the practice of medicine, clinical patient care, or any other medical or healthcare delivery activity, provided that such activity does not involve the Employee providing services to, or on behalf of, a Competing Business as defined in Section 1.4;

(b) serving on the board of directors, advisory board, or similar governing body of a non-profit healthcare organization, charitable institution, or industry association that does not compete with the Company in the healthcare IT/SaaS market;

(c) engaging in academic teaching, lecturing, research, scholarly writing, or publishing activities at any college, university, medical school, research institution, or similar educational institution, provided that such activities do not involve the disclosure of Confidential Information in violation of Section 5; or

(d) providing services to any division, subsidiary, or business unit of an entity that would otherwise constitute a Competing Business, provided that (i) such division, subsidiary, or business unit is not itself engaged in healthcare IT/SaaS, (ii) the Employee does not provide any services, advice, or assistance relating to the entity's healthcare IT/SaaS business, and (iii) the Employee implements reasonable safeguards (including, as appropriate, an ethical wall or similar arrangement) to ensure that the Employee does not receive or have access to information relating to the entity's healthcare IT/SaaS business during the Non-Compete Restricted Period. The Employee shall provide the Company with written notice at least fifteen (15) days prior to commencing any engagement under this subsection (d), including a description of the proposed role, the division or subsidiary involved, and the safeguards to be implemented.

2.4 MNAA Compliance — Timing and Notice. The Company represents that it has provided, or shall provide, the Employee with a copy of this Agreement at least ten (10) business days before the commencement of employment, in compliance with M.G.L. c. 149, § 24L(b). This Agreement is being entered into at the time of the Employee's hiring by the Company. The Company has advised the Employee in writing, prior to the delivery of this Agreement, to consult with an attorney of the Employee's choosing before executing this Agreement, and the Employee confirms receipt of such written advisement.

SECTION 3: NON-SOLICITATION OF EMPLOYEES

3.1 Employee Non-Solicitation Restriction. During the term of the Employee's employment with the Company and for a period of eighteen (18) months immediately following the date of the termination of the Employee's employment with the Company for any reason (such eighteen-month post-employment period, the "Employee Non-Solicitation Restricted Period"), the Employee shall not, directly or indirectly, whether individually or through or on behalf of any other person or entity:

(a) solicit, recruit, hire, or engage, or attempt to solicit, recruit, hire, or engage, any Manager-Level Employee to leave the employ of the Company or any of its subsidiaries, affiliates, or related entities, whether for employment, consulting, independent contracting, or any other engagement;

(b) assist, cooperate with, or encourage any third party (including, without limitation, any Competing Business, recruiter, headhunter, search firm, or other employer) in soliciting, recruiting, hiring, or engaging any Manager-Level Employee of the Company or any of its subsidiaries, affiliates, or related entities; or

(c) knowingly interfere with, disrupt, or attempt to interfere with or disrupt the employment or other relationship between the Company (or any of its subsidiaries, affiliates, or related entities) and any Manager-Level Employee.

3.2 Scope. The restriction set forth in Section 3.1 applies only to individuals who (a) are Manager-Level Employees of the Company or its affiliates at the time of the solicitation, recruitment, hiring, or other prohibited activity, and (b) were Manager-Level Employees of the Company or its affiliates at any point during the twelve (12) months immediately preceding the Employee's last day of employment with the Company. For the avoidance of doubt, the restriction in Section 3.1 shall not prohibit the Employee from (a) providing a personal reference or recommendation for any Manager-Level Employee in response to a request from such Manager-Level Employee or a prospective employer, provided that the Employee does not otherwise solicit, recruit, or encourage such Manager-Level Employee to leave the Company, or (b) hiring or engaging any Manager-Level Employee who independently contacts the Employee or independently responds to a general advertisement, job posting, or recruitment campaign that is not specifically targeted at or directed toward employees of the Company. For purposes of this Section 3.2, a "general advertisement" includes online job postings on publicly available job boards, social media platforms (including Westmark Health IT), or the Employee's new employer's career website, but does not include any direct message, InMail, personal outreach, or targeted communication to a specific Manager-Level Employee.

SECTION 4: NON-SOLICITATION OF CUSTOMERS AND BUSINESS PARTNERS

4.1 Customer Non-Solicitation Restriction. During the term of the Employee's employment with the Company and for a period of twelve (12) months immediately following the date of the termination of the Employee's employment with the Company for any reason (such twelve-month post-employment period, the "Customer Non-Solicitation Restricted Period"), the Employee shall not, directly or indirectly, whether individually or through or on behalf of any other person or entity:

(a) solicit, divert, take away, or attempt to solicit, divert, or take away any Customer for the purpose of providing or selling products, services, or technology solutions that compete with the products, services, or technology solutions offered by the Company;

(b) encourage, induce, or attempt to encourage or induce any Customer to reduce, terminate, cancel, or otherwise diminish its business relationship, contract, subscription, or engagement with the Company; or

(c) knowingly interfere with, disrupt, or attempt to interfere with or disrupt the Company's existing or prospective business relationships, contracts, or engagements with any Customer.

4.2 Scope Limitation. The restriction set forth in Section 4.1 is limited to Customers with whom the Employee had material contact during the twenty-four (24) months immediately preceding the Employee's last day of employment with the Company, as defined in Section 1.6 of this Agreement. The Parties acknowledge that this limitation is consistent with the MNAA's requirement that non-solicitation restrictions be narrowly tailored to protect the Company's legitimate business interests and that the Employee's material contact with Customers during the relevant period creates a reasonable basis for restricting the Employee's post-employment solicitation activities with respect to such Customers. Nothing in this Section 4 shall be construed to prohibit the Employee from (a) passively receiving an unsolicited inquiry from a Customer, provided that the Employee does not use Confidential Information in connection with any response and does not provide products or services that compete with the Company's offerings, or (b) engaging in general marketing or advertising activities that are not specifically targeted at any Customer.

SECTION 5: CONFIDENTIALITY AND NON-DISCLOSURE

5.1 Perpetual Confidentiality Obligation. The Employee acknowledges that the Company's Confidential Information constitutes a valuable, special, and unique asset of the Company's business, the protection of which is essential to the Company's competitive position and ongoing success. The Employee shall not, at any time during or after the Employee's employment with the Company (regardless of the reason for or circumstances of the termination of employment), directly or indirectly, use, disclose, publish, disseminate, transmit, copy, reproduce, or otherwise make available to any person, entity, or the public any Confidential Information, 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, and only on a need-to-know basis to other authorized employees, officers, directors, or agents of the Company;

(b) with the prior written consent of the Company, as authorized by the Board or the Company's General Counsel; or

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

The Employee further agrees that the Employee shall exercise reasonable care and diligence to protect the confidentiality and security of Confidential Information during the Employee's employment, including complying with all Company policies and procedures relating to information security, data protection, and acceptable use of Company technology systems.

5.2 Legally Compelled Disclosure. If the Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand, regulatory inquiry, governmental investigation, or similar judicial, administrative, or governmental process) to disclose any Confidential Information, the Employee shall provide the Company with prompt written notice thereof (to the extent legally permissible) so that the Company may, at its own expense, seek a protective order, motion to quash, or other appropriate remedy or relief to prevent or limit such disclosure. The Employee shall cooperate with the Company in connection with any such protective efforts. If, after the Company has been afforded a reasonable opportunity to seek such protective order or remedy, no such protective order or remedy is obtained (or the Company waives its right to seek such relief), the Employee may disclose only that portion of the Confidential Information that is legally required to be disclosed, and the Employee shall use reasonable efforts to ensure that confidential treatment is accorded to the Confidential Information so disclosed.

5.3 Return of Materials. 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 documents, records, files, memoranda, correspondence, reports, presentations, analyses, studies, notebooks, notes, plans, specifications, manuals, data, databases, media, equipment, devices (including, without limitation, laptops, tablets, mobile phones, and external storage devices), access cards, keys, and all other property of the Company or containing or relating to Confidential Information, in whatever form or medium (whether physical or electronic), that are in the Employee's possession, custody, or control. In addition, the Employee shall permanently delete, erase, and destroy all electronic copies of Confidential Information stored on any personal computer, personal device, personal cloud storage account, personal email account, or any other storage medium or system not owned or controlled by the Company, and shall certify such deletion and destruction in writing to the Company upon the Company's request. The Employee acknowledges that the Employee has no expectation of privacy in any files, documents, communications, or data stored on Company-owned devices or systems.

5.4 Defend Trade Secrets Act Notice. Pursuant to 18 U.S.C. § 1833(b), the Employee is hereby notified that the Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, 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 individual's attorney 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), limit the Employee's right to receive an award for providing information to any government agency, or otherwise limit the Employee's right to communicate with any government agency or participate in any investigation or proceeding that may be conducted by any government agency.

SECTION 6: GARDEN-LEAVE PAYMENT

6.1 Garden-Leave Consideration. In accordance with the MNAA, during the Non-Compete Restricted Period following the termination of the Employee's employment with the Company (regardless of the reason for such termination, except as otherwise provided in Section 8.3), the Company shall pay the Employee garden-leave compensation equal to fifty percent (50%) of the Employee's highest annualized base salary paid by the Company during the two (2)-year period immediately preceding the date of the Employee's termination of employment (the "Garden-Leave Payment"). The Garden-Leave Payment shall be payable in regular installments in accordance with the Company's normal payroll schedule and practices, commencing on the first regularly scheduled payroll date following the Employee's termination of employment and continuing for twelve (12) months thereafter (or, if the Non-Compete Restricted Period terminates earlier pursuant to any applicable provision of this Agreement, through the date of such earlier termination). Based on the Employee's initial base salary of Five Hundred Seventy-Five Thousand Dollars ($575,000) per annum, the Garden-Leave Payment would be Two Hundred Eighty-Seven Thousand Five Hundred Dollars ($287,500) in the aggregate (i.e., $575,000 × 50%), payable in approximately equal installments over the twelve (12)-month Non-Compete Restricted Period; provided, however, that the actual amount of the Garden-Leave Payment shall be subject to adjustment if the Employee's base salary is increased or otherwise changed during the term of the Employee's employment. All Garden-Leave Payments shall be subject to applicable withholding for federal, state, and local income taxes, FICA, and other applicable payroll deductions.

6.2 Offset. The Garden-Leave Payment shall be reduced, on a dollar-for-dollar basis, by the amount of any severance payments, salary continuation payments, or other separation-related compensation that the Employee receives (or is entitled to receive) under the Employment Agreement during the Non-Compete Restricted Period, to the extent such payments are expressly designated in the Employment Agreement (or in any separation agreement between the Parties) as garden-leave consideration or as consideration for the non-competition covenant set forth in Section 2 of this Agreement. The Parties intend that the Employee shall not receive duplicative payments for the same consideration, and the provisions of this Section 6.2 shall be interpreted and applied in a manner consistent with that intent. For the avoidance of doubt, if the aggregate severance payments designated as garden-leave consideration under the Employment Agreement equal or exceed the Garden-Leave Payment calculated under Section 6.1, the Company shall have no further payment obligation under Section 6.1.

6.3 Conditions. The Company's obligation to make Garden-Leave Payments under Section 6.1 is expressly conditioned on the Employee's continued compliance with all of the restrictive covenants set forth in this Agreement, including, without limitation, the non-competition covenant (Section 2), the non-solicitation of employees covenant (Section 3), the non-solicitation of customers covenant (Section 4), and the confidentiality and non-disclosure obligations (Section 5). If the Employee materially breaches any provision of this Agreement, the Company may, upon written notice to the Employee specifying in reasonable detail the nature of the alleged breach and providing the Employee with a period of ten (10) business days to cure such breach (if the breach is reasonably susceptible to cure), cease making Garden-Leave Payments. For the avoidance of doubt, the cessation of Garden-Leave Payments in accordance with this Section 6.3 shall not affect the enforceability of the underlying restrictive covenants, and the Company shall retain all rights and remedies available under Section 10 of this Agreement and at law or in equity.

6.4 Alternative Consideration. The Company and the Employee may, at any time prior to or following the termination of the Employee's employment, agree in writing to substitute mutually agreed alternative consideration for the Garden-Leave Payment described in Section 6.1, provided that such alternative consideration is mutually agreed upon and satisfies the requirements of the MNAA, including, without limitation, the requirement that the consideration be "fair and reasonable." Any such written agreement shall be signed by both Parties and shall specify the nature, amount, and timing of the alternative consideration with reasonable specificity.

SECTION 7: INVENTION ASSIGNMENT

7.1 Assignment of Inventions. The Employee hereby irrevocably assigns, transfers, and conveys to the Company, and agrees to assign, transfer, and convey to the Company, all right, title, and interest (including all intellectual property rights) in and to all inventions, improvements, discoveries, concepts, ideas, works of authorship, software (including source code and object code), databases, designs, drawings, specifications, trade secrets, know-how, processes, methods, techniques, formulas, compositions, and other intellectual property, whether or not patentable, copyrightable, or otherwise protectable (collectively, "Inventions"), that the Employee, solely or jointly with others, conceives, develops, reduces to practice, creates, or contributes to during the term of the Employee's employment with the Company, to the extent that such Inventions:

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

(b) result from or arise out of any work performed by the Employee for the Company, or any task assigned to or undertaken by the Employee in the course of the Employee's employment; or

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

The Employee acknowledges and agrees that all Inventions that are works of authorship shall be deemed "works made for hire" as defined in the United States Copyright Act, 17 U.S.C. § 101, to the maximum extent permitted by applicable law. To the extent that any such Invention does not qualify as a "work made for hire," the Employee hereby assigns to the Company all right, title, and interest in and to such Invention, including all copyrights therein.

7.2 Prior Inventions. The Employee has identified on Schedule A to the Employment Agreement all prior inventions, original works of authorship, patents, patent applications, and other intellectual property that the Employee conceived, developed, or acquired prior to the commencement of the Employee's employment with the Company and that the Employee wishes to exclude from the scope of the assignment set forth in Section 7.1 (collectively, "Prior Inventions"). If Schedule A is blank, is marked "None," or is not attached to the Employment Agreement, 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, service, technology, or deliverable without the Company's prior written consent. If the Employee incorporates any Prior Invention into any Company product, service, technology, or deliverable with the Company's written consent, the Employee hereby grants to the Company a non-exclusive, royalty-free, irrevocable, perpetual, worldwide, fully paid-up, sublicensable, and transferable license to make, have made, use, sell, offer for sale, import, copy, modify, create derivative works of, publicly display, publicly perform, distribute, and otherwise exploit such Prior Invention as part of or in connection with such Company product, service, technology, or deliverable.

7.3 Cooperation. The Employee agrees to cooperate fully with the Company, at the Company's sole cost and expense, in the procurement, maintenance, enforcement, defense, and perfection of the Company's rights in any Inventions, both during and after the Employee's employment with the Company. Such cooperation shall include, without limitation, executing and delivering patent applications, copyright registrations, assignments, declarations, affidavits, powers of attorney, and any other documents or instruments that the Company may reasonably request in connection with the protection of its intellectual property rights in any Inventions. If the Company is unable, after reasonable effort, to secure the Employee's signature on any such document, the Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as the Employee's agent and attorney-in-fact, to act for and on the Employee's behalf to execute, verify, acknowledge, and file any such document and to take any and all lawful actions necessary to effect the purposes of this Section 7.3, with the same legal force and effect as if executed by the Employee. This power of attorney is coupled with an interest and shall survive the death or incapacity of the Employee.

7.4 Moral Rights Waiver. To the maximum extent permitted by applicable law, the Employee hereby irrevocably waives and agrees never to assert any and all moral rights, droit moral, rights of attribution, rights of integrity, rights of disclosure, rights of withdrawal, and any other similar rights (collectively, "Moral Rights") that the Employee may have in or to any Inventions assigned or to be assigned to the Company under this Agreement, whether arising under the Berne Convention, the Copyright Act, or the laws of any jurisdiction in the world.

SECTION 8: INAPPLICABILITY OF NON-COMPETITION COVENANT IN CERTAIN CIRCUMSTANCES

8.1 Termination for Cause or Voluntary Resignation Without Good Reason. If the Employee's employment is terminated by the Company for Cause (as defined in the Employment Agreement), or if the Employee voluntarily resigns from employment without Good Reason (as defined in the Employment Agreement), the non-competition covenant set forth in Section 2 shall apply in full force and effect during the Non-Compete Restricted Period, subject to the Company's obligation to make Garden-Leave Payments in accordance with Section 6. The Company's obligation to pay garden-leave compensation under Section 6 shall not be excused by reason of a termination for Cause or a voluntary resignation without Good Reason, and the non-competition covenant shall not be enforceable during any period in which the Company has failed to make required Garden-Leave Payments (subject to the offset provisions of Section 6.2).

8.2 Termination Without Cause or for Good Reason. If the Employee's employment is terminated by the Company without Cause, or if the Employee resigns for Good Reason, the non-competition covenant set forth in Section 2 shall apply in full force and effect during the Non-Compete Restricted Period, and the Garden-Leave Payment under Section 6 shall be payable in addition to (and not in lieu of) any severance payments, benefits, or other compensation due to the Employee under the Employment Agreement, subject to the offset provisions of Section 6.2 (which are intended solely to prevent duplicative payments where severance payments are expressly designated as garden-leave consideration). The Parties acknowledge and agree that the Employee's entitlement to severance benefits under the Employment Agreement is governed exclusively by the Employment Agreement and is not conditioned upon or affected by the Employee's compliance with the restrictive covenants set forth in this Agreement, except to the extent expressly provided in the Employment Agreement.

8.3 Layoff, Reduction in Force, or Similar Qualifying Event. Pursuant to the MNAA, M.G.L. c. 149, § 24L(b)(vii), the non-competition covenant set forth in Section 2 shall not be enforceable against the Employee if the Employee is terminated as a result of a layoff, reduction in force, plant closing, or other similar qualifying event, unless the Company elects to enforce the non-competition covenant by providing written notice to the Employee within ten (10) business days following the Employee's termination and by paying the full Garden-Leave Payment in accordance with Section 6.1 (without application of the offset provisions of Section 6.2, unless the parties mutually agree otherwise in writing). If the Company does not elect to enforce the non-competition covenant in accordance with this Section 8.3, the non-competition covenant shall be deemed void and of no further force or effect with respect to such termination.

8.4 Non-Solicitation and Confidentiality Unaffected. For the avoidance of doubt, the exceptions set forth in this Section 8 apply solely to the non-competition covenant in Section 2. The non-solicitation of employees covenant (Section 3), the non-solicitation of customers and business partners covenant (Section 4), and the confidentiality and non-disclosure obligations (Section 5) shall survive and remain in full force and effect, and shall be fully enforceable in accordance with their terms, regardless of the circumstances of the Employee's termination of employment, including, without limitation, in the event of a termination for Cause, a termination without Cause, a resignation for Good Reason, a resignation without Good Reason, a layoff, a reduction in force, or any other qualifying event described in this Section 8.

SECTION 9: REASONABLENESS; REFORMATION

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

(a) the restrictive covenants set forth in this Agreement, including the non-competition covenant, the non-solicitation covenants, and the confidentiality obligations, are reasonable and necessary to protect the Company's legitimate business interests, including, without limitation, its Confidential Information, trade secrets, proprietary technology, goodwill, customer relationships, employee relationships, and the substantial investment the Company has made and will continue to make in developing the Employee's knowledge of and access to such interests;

(b) the restrictions imposed by this Agreement are narrowly tailored in scope (limited to healthcare IT/SaaS companies with annual revenue exceeding $50 million), geography (limited to the United States), and duration (twelve months for non-competition, eighteen months for employee non-solicitation, twelve months for customer non-solicitation, and perpetual for confidentiality), and do not impose an undue hardship on the Employee or impose restrictions broader than necessary to protect the Company's legitimate business interests;

(c) the Employee has received fair and adequate consideration for the restrictions set forth in this Agreement, including the Company's agreement to employ the Employee as Chief Operating Officer, the base salary, equity awards, incentive compensation, benefits, and other valuable consideration set forth in the Employment Agreement, and the Garden-Leave Payment described in Section 6; and

(d) in the event the Employee breaches or threatens to breach any restrictive covenant contained in this Agreement, the Company would suffer irreparable harm and injury that could not be adequately compensated by an award of monetary damages, and that injunctive relief would be an appropriate and necessary remedy to protect the Company's legitimate business interests.

9.2 Judicial Reformation (Blue Pencil). If a court of competent jurisdiction determines that any provision, restriction, covenant, or clause of this Agreement is excessively broad, overreaching, or otherwise unenforceable as written — whether by reason of the duration, geographic scope, scope of restricted activities, or any other aspect of such provision — the Parties expressly agree and request that the court reform, modify, or "blue pencil" such provision to the minimum extent necessary to render it valid and enforceable, rather than declaring such provision void or unenforceable in its entirety. The Parties intend that this Agreement be enforced to the fullest extent permitted by applicable law. Any provision that is reformed by a court pursuant to this Section 9.2 shall be enforceable as so reformed, and all remaining provisions of this Agreement that are not subject to reformation shall continue in full force and effect, unimpaired and unmodified by such reformation.

SECTION 10: REMEDIES

10.1 Irreparable Harm. The Employee acknowledges and agrees that a breach or threatened breach by the Employee of any of the restrictive covenants set forth in this Agreement (including, without limitation, the non-competition, non-solicitation, confidentiality, and invention assignment provisions) will cause the Company irreparable harm and injury of a kind that cannot be adequately compensated by an award of monetary damages alone, and that the Company would be without an adequate remedy at law in the event of any such breach or threatened breach.

10.2 Injunctive Relief. In addition to any and all other remedies available to the Company at law or in equity (including, without limitation, compensatory damages, consequential damages, lost profits, and disgorgement of profits), the Company shall be entitled to seek and obtain temporary, preliminary, and/or permanent injunctive relief, specific performance, or any other equitable remedy from any court of competent jurisdiction to enforce any provision of this Agreement and to restrain the Employee from any actual or threatened breach hereof, without the necessity of (a) proving actual damages, (b) posting any bond or other security (to the extent permitted by applicable law), or (c) establishing that monetary damages would be inadequate. The Employee hereby consents to the issuance of any such injunctive relief and agrees not to assert as a defense in any proceeding for such relief that the Company has an adequate remedy at law.

10.3 Extension of Restricted Period. If the Employee violates or breaches any of the non-competition or non-solicitation covenants set forth in Sections 2, 3, or 4 of this Agreement, the applicable Restricted Period shall be automatically tolled and suspended during the entire period of such violation or breach, and the Restricted Period shall be extended by a number of days equal to the total number of days during which the Employee was in violation or breach of such covenant, so that the Company receives the full benefit of the agreed-upon Restricted Period.

10.4 Recovery of Costs. In any judicial action, proceeding, or arbitration commenced to enforce any provision of this Agreement, the prevailing party (as determined by the court or arbitrator) shall be entitled to recover its reasonable attorneys' fees, expert witness fees, court costs, and other litigation expenses from the non-prevailing party, in addition to any other relief to which the prevailing party may be entitled. This provision shall survive the termination or expiration of this Agreement.

SECTION 11: REPRESENTATIONS AND WARRANTIES

11.1 Employee's Representations and Warranties. The Employee hereby represents and warrants to the Company as follows:

(a) The execution, delivery, and performance of this Agreement by the Employee does not and will not conflict with, result in a breach or violation of, or constitute a default under any existing agreement, contract, order, judgment, decree, or other obligation (whether written or oral) to which the Employee is a party or by which the Employee is bound, including, without limitation, any prior employment agreement, non-competition agreement, non-solicitation agreement, confidentiality agreement, or similar restrictive covenant.

(b) The Employee is not currently subject to any non-competition agreement, non-solicitation agreement, or similar restrictive covenant with any prior employer, including, without limitation, Pinnacle Care Systems, Inc. (the Employee's most recent prior employer), that would prevent, restrict, limit, or otherwise impair the Employee's ability to (i) perform the Employee's duties and responsibilities for the Company as Chief Operating Officer, (ii) comply with the terms and conditions of this Agreement, or (iii) otherwise carry out the Employee's obligations under the Employment Agreement. The Employee has provided the Company with copies of all restrictive covenant agreements to which the Employee is or may be subject.

(c) The Employee has had a full and adequate opportunity to consult with independent legal counsel of the Employee's choosing, specifically Catherine A. Fielding of Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110, before executing this Agreement. The Employee has read this Agreement in its entirety, understands its terms and conditions, and is executing this Agreement voluntarily and of the Employee's own free will, without coercion or duress.

(d) The Employee acknowledges that the Company is entering into the Employment Agreement and agreeing to provide the compensation, benefits, and equity awards described therein in reliance upon the Employee's representations, warranties, and covenants set forth in this Agreement, and that the Company would not have agreed to employ the Employee on the terms set forth in the Employment Agreement but for the Employee's agreement to be bound by the restrictive covenants contained herein.

11.2 Company's Representations and Warranties. The Company hereby represents and warrants to the Employee as follows:

(a) The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has full corporate power and authority to enter into this Agreement and to perform its obligations hereunder.

(b) The execution, delivery, and performance of this Agreement by the Company have been duly authorized by all necessary corporate action, and this Agreement constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.

(c) The execution and delivery of this Agreement by the Company does not and will not conflict with, result in a breach or violation of, or constitute a default under the Company's certificate of incorporation, bylaws, or any material agreement, contract, or obligation to which the Company is a party or by which it is bound.

SECTION 12: GENERAL PROVISIONS

12.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to any choice of law, conflict of law, or similar principles that would result in the application of the laws of any other jurisdiction. The Parties specifically acknowledge that this Agreement is subject to and intended to comply with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L, and the provisions of this Agreement shall be interpreted and applied in a manner consistent with the MNAA.

12.2 Jurisdiction and Venue. Any action, suit, or proceeding arising out of, relating to, or in connection with this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof (including any claim based on contract, tort, statute, or otherwise), shall be brought exclusively in the state courts of the Commonwealth of Massachusetts sitting in Suffolk County, Massachusetts, or in the United States District Court for the District of Massachusetts (Boston Division). Each Party hereby irrevocably and unconditionally (a) consents and submits to the exclusive personal jurisdiction of such courts for the purposes of any such action, suit, or proceeding, (b) waives any objection to the laying of venue of any such action, suit, or proceeding in any such court, and (c) waives and agrees not to plead or claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.

12.3 Entire Agreement. This Agreement, together with the Employment Agreement and the equity award agreements referenced therein (including the Stock Option Award Agreement and the Restricted Stock Unit Award Agreement under the AHT 2020 Equity Incentive Plan, as amended May 2021), constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, representations, and warranties, whether oral or written, relating to such subject matter. For the avoidance of doubt, the restrictive covenants set forth in this Agreement are in addition to (and not in lieu of) any restrictive covenant provisions contained in the Employment Agreement, to the extent such provisions in the Employment Agreement address subjects not duplicative of those addressed herein. In the event of any conflict between the restrictive covenant provisions of this Agreement and those of the Employment Agreement, the provisions that are more protective of the Company's interests shall control, except to the extent that such provisions would violate the MNAA or other applicable law.

12.4 Amendment and Waiver. This Agreement may not be amended, modified, altered, or supplemented except by a written instrument duly executed by both Parties (or their respective successors and assigns). No waiver by either Party of any provision of this Agreement, or of any breach or default thereof, shall be deemed a continuing waiver or a waiver of any other provision of this Agreement or of any subsequent breach or default of the same or any other provision. 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 such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.

12.5 Severability. If any provision of this Agreement (or any portion thereof) is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable in any respect under applicable law, such invalidity, illegality, or unenforceability shall not affect any other provision (or any other portion of such provision), and all other provisions of this Agreement shall remain in full force and effect. Without limiting the generality of the foregoing, the Parties agree that, in the event any provision of this Agreement is held to be unenforceable, the provisions of Section 9.2 (Judicial Reformation) shall apply.

12.6 Assignment. The Company may assign this Agreement, in whole or in part, without the Employee's consent, to any successor to or assignee of all or substantially all of the Company's business, stock, or assets, including, without limitation, any entity that acquires the Company (or all or substantially all of the Company's assets) by merger, consolidation, acquisition, reorganization, or otherwise, and including in connection with any Change in Control. Upon any such assignment, the rights and obligations of the Company under this Agreement shall inure to the benefit of, and be binding upon, such successor or assignee, and all references to the "Company" herein shall be deemed to refer to such successor or assignee. The Employee may not assign or delegate the Employee's obligations under this Agreement, in whole or in part, without the prior written consent of the Company, and any purported assignment or delegation by the Employee in violation of this Section 12.6 shall be void and of no force or effect.

12.7 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given when (a) delivered personally, (b) sent by registered or certified mail, return receipt requested, postage prepaid, (c) sent by nationally recognized overnight courier service (e.g., Severin Partners LLC, Halcyon Partners LLC), or (d) sent by email (with confirmation of receipt), to the Parties at the following addresses (or to such other address as a Party may designate by written notice to the other Party):

If to the Company:

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

Attention: Aaron Whitfield, General Counsel

Email: awhitfield@arborhealth.com

With a copy (which shall not constitute notice) to:

Lisa Murakami, Chief Human Resources Officer Arbor Health Technologies Inc. 400 Brattle Commerce Park, Suite 1200 Cambridge, MA 02138

Email: lmurakami@arborhealth.com

If to the Employee:

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

With a copy (which shall not constitute notice) to:

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

Email: cfielding@fieldingrowe.com

12.8 Survival. The obligations of the Employee under Sections 2 through 7 (Non-Competition, Non-Solicitation of Employees, Non-Solicitation of Customers, Confidentiality and Non-Disclosure, Garden-Leave Payment, and Invention Assignment) and Sections 10 and 11 (Remedies and Representations and Warranties) shall survive the termination or expiration of the Employee's employment with the Company and the termination or expiration of this Agreement, and shall continue in full force and effect for the applicable periods specified herein (or, in the case of the confidentiality obligations and invention assignment, in perpetuity).

12.9 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 exchange of facsimile or electronic copies bearing the facsimile or electronic signature of a Party shall constitute a valid and binding execution and delivery of this Agreement by such Party. Such facsimile or electronic copies shall constitute enforceable original documents.

12.10 Construction. This Agreement has been jointly drafted and negotiated by the Parties and their respective legal counsel, and no provision of this Agreement shall be interpreted or construed against any Party by reason of the fact that such Party (or its counsel) drafted or proposed such provision. All references to "including" or "includes" in this Agreement shall be deemed to mean "including, without limitation" or "includes, without limitation," as applicable.

12.11 Headings. The section and subsection headings contained in this Agreement are inserted for convenience of reference only and shall not affect in any way the meaning, interpretation, or construction of any provision of this Agreement.

SIGNATURES

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: ________

Title: ________

Date: ________

EMPLOYEE

________________________________________

Name: Dr. Marcus J. Elliston

Date: ________

ACKNOWLEDGMENT OF RECEIPT AND COUNSEL NOTICE (MNAA COMPLIANCE)

In accordance with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L, the undersigned Employee hereby acknowledges and confirms each o

CONFIDENTIAL — SUBJECT TO FURTHER NEGOTIATION
Third Draft (Near-Final) — September 16, 2022
Prepared by: Calderwood & Harkness LLP One International Place, Suite 3400 Boston, MA 02110
Matter No. 1010-00004 Client No. 81-30294
EMPLOYEE NON-COMPETITION AGREEMENT
EMPLOYEE NON-COMPETITION AGREEMENT
This Employee Non-Competition Agreement (this "Agreement") is made and entered into as of ___, 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" or "AHT");
and
Dr. Marcus J. Elliston, an individual residing at 87 Laurel Hill Road, Wellesley, MA 02481 (the "Employee" or "Executive").
The Company and the Employee are sometimes referred to herein collectively as the "Parties" and each individually as a "Party." The anticipated Effective Date of this Agreement is November 1, 2022, coinciding with the Employee's proposed start date as set forth in the Employment Agreement (as defined below).
RECITALS
WHEREAS, the Company is engaged in the business of healthcare services and software-as-a-service ("SaaS"), including the development, marketing, licensing, and support of cloud-based clinical workflow and revenue cycle management platforms for healthcare systems, physician practice groups, ambulatory care facilities, and other healthcare providers throughout the United States, and the Company currently employs approximately 620 employees and reported annual revenue of approximately $127.4 million for fiscal year 2021;
WHEREAS, the Company desires to employ the Employee as Chief Operating Officer of the Company, reporting directly to the Chief Executive Officer, Priya Chandrasekaran, pursuant to an Executive Employment Agreement of even date herewith (the "Employment Agreement"), and the Employee desires to accept such employment on the terms and conditions set forth in the Employment Agreement and this Agreement;
WHEREAS, in connection with such employment, the Employee will have access to and become acquainted with confidential and proprietary information, trade secrets, strategic business plans, customer relationships, employee relationships, vendor relationships, and other sensitive business information of the Company and its affiliates, and the Employee's position as Chief Operating Officer will afford the Employee broad visibility into virtually all aspects of the Company's operations, technology, and commercial strategy;
WHEREAS, the Company's majority equity holder is Ridgeline Capital Partners, LP ("Ridgeline"), a private equity fund that acquired the Company in a take-private transaction in December 2019, and the Company's business involves proprietary technology, algorithms, software architectures, customer data, and long-standing customer relationships that constitute valuable assets warranting protection through reasonable restrictive covenants;
WHEREAS, as a condition of the Employee's employment and receipt of consideration including, without limitation, a base salary of $575,000 per annum, equity awards under the AHT 2020 Equity Incentive Plan (as amended May 2021), performance-based incentive compensation, and other compensation and benefits as set forth more fully in the Employment Agreement, the Employee agrees to be bound by the restrictive covenants set forth herein;
WHEREAS, this Agreement is intended to comply in all respects with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L (the "MNAA"), including all requirements relating to timing of delivery, garden-leave consideration, and the scope and enforceability of non-competition agreements under Massachusetts law; and
WHEREAS, the Employee acknowledges receipt of this Agreement at least ten (10) business days before the commencement of employment and that the Employee has been advised in writing to consult with an attorney before signing this Agreement, and the Employee confirms that the Employee has been represented in connection with the negotiation and execution of this Agreement by Catherine A. Fielding of Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Employee's employment with the Company, the compensation and benefits to be provided to the Employee pursuant to the Employment Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, 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 the Company, as constituted from time to time.
1.2 "Cause" shall have the meaning set forth in the Employment Agreement, including, without limitation, the specific grounds for termination for Cause enumerated in Section 6(c) of the Employment Agreement.
1.3 "Change in Control" shall have the meaning set forth in the Employment Agreement, and shall include, without limitation, any of the following events: (i) the acquisition by any person or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) of more than fifty percent (50%) of the combined voting power of the then-outstanding voting securities of AHT, other than any acquisition by Ridgeline Capital Partners, LP or any of its affiliates, portfolio companies, or managed funds; (ii) the consummation of a merger, consolidation, reorganization, or sale of all or substantially all of the assets of the Company where the holders of the Company's outstanding voting securities immediately prior to such transaction retain less than fifty percent (50%) of the combined voting power of the surviving or resulting entity immediately following such transaction; (iii) the complete liquidation or dissolution of the Company; or (iv) a change in the majority composition of the Board such that individuals who, as of the Effective Date, constitute the Board (together with any directors whose election or nomination was approved by a vote of at least a majority of the directors then in office who were directors as of the Effective Date or whose election or nomination was previously so approved) cease to constitute a majority of the Board.
1.4 "Competing Business" shall mean any business or enterprise (including any division, group, franchise, or operating unit thereof) that is engaged in healthcare information technology and/or software-as-a-service ("healthcare IT/SaaS"), including, without limitation, the development, licensing, marketing, sale, implementation, or support of software platforms, applications, or technology solutions designed for or primarily used by healthcare providers, healthcare systems, hospitals, physician practices, or other healthcare organizations, and that generates annual revenue in excess of Fifty Million Dollars ($50,000,000) and operates within the United States. For the avoidance of doubt, the term "Competing Business" shall expressly exclude any entity engaged solely in (a) pharmaceutical manufacturing or distribution, (b) medical device manufacturing, design, or distribution, or (c) clinical care delivery (including, without limitation, hospital operations, physician practice management, or ambulatory care services) without a healthcare IT/SaaS component as described in this Section 1.4.
1.5 "Confidential Information" shall mean all non-public, confidential, or proprietary information relating to the Company's business, operations, products, services, technology, customers, employees, vendors, or financial affairs, in any form or medium (whether written, oral, electronic, or otherwise), including, but not limited to: (a) trade secrets as defined under the Massachusetts Uniform Trade Secrets Act, M.G.L. c. 93, §§ 42–42G, and the federal Defend Trade Secrets Act of 2016, 18 U.S.C. §§ 1831–1839; (b) proprietary software source code, object code, algorithms, data models, architectures, and technical specifications; (c) customer and prospect lists, customer account information, customer utilization data, and customer-specific pricing and contract terms; (d) pricing data, rate cards, discount structures, and fee schedules; (e) financial information, including revenue projections, cost structures, profit margins, budgets, and financial models; (f) business plans, strategic plans, marketing plans, product roadmaps, and competitive analyses; (g) product development plans, research and development initiatives, and pipeline information; (h) employee compensation data, including salary structures, bonus plans, equity award data, and retention strategies; (i) vendor terms, supplier agreements, and procurement strategies; (j) merger and acquisition targets, due diligence materials, and integration plans; and (k) 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: (a) is or becomes publicly available or generally known to the public other than as a result of the Employee's breach of this Agreement or any other confidentiality obligation owed to the Company; (b) was known to the Employee prior to the Company's disclosure thereof, as demonstrated by written records in the Employee's possession predating such disclosure; (c) is received by the Employee from a third party who is not, to the Employee's knowledge, under a confidentiality obligation to the Company with respect to such information; or (d) is independently developed by the Employee without use of, reference to, or reliance upon any Confidential Information, as demonstrated by contemporaneous written records.
1.6 "Customer" shall mean any person or entity that was a customer, client, account, or business partner of the Company (including any affiliate of the Company) at any time during the twenty-four (24) months immediately preceding the Employee's last day of employment with the Company, and with whom the Employee had material contact during such twenty-four (24) month period. For purposes of this definition, "material contact" means (a) direct personal interaction between the Employee and the customer (whether in person, by telephone, by videoconference, or by email or other written correspondence) regarding the Company's products, services, or business relationship; (b) the Employee's direct supervision of or managerial responsibility for the account team or personnel responsible for the customer relationship; or (c) the Employee's participation in strategic decisions, pricing determinations, contract negotiations, or executive-level discussions regarding such customer.
1.7 "Employment Agreement" shall mean the Executive Employment Agreement between the Company and the Employee, dated as of the same date as this Agreement, as may be amended from time to time in accordance with its terms.
1.8 "Garden Leave Period" shall mean the Non-Compete Restricted Period as defined in Section 2.1 of this Agreement, during which the Company is obligated to provide garden-leave compensation to the Employee in accordance with Section 6.
1.9 "Good Reason" shall have the meaning set forth in the Employment Agreement, including, without limitation, the specific grounds for resignation for Good Reason and the notice and cure procedures enumerated in Section 6(d) of the Employment Agreement.
1.10 "Manager-Level Employee" shall mean any employee of the Company or any of its affiliates holding the title of Manager or above, including, without limitation, any individual holding the title of Senior Manager, Director, Senior Director, Vice President, Senior Vice President, Executive Vice President, and any C-suite officer (e.g., Chief Executive Officer, Chief Financial Officer, Chief Technology Officer, Chief Operating Officer, Chief Revenue Officer, Chief Human Resources Officer, or any similar title).
1.11 "MNAA" shall mean the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L, as amended from time to time, together with all rules, regulations, and guidance issued thereunder.
1.12 "Restricted Period" shall mean, as applicable, (a) the Non-Compete Restricted Period as defined in Section 2.1, (b) the Employee Non-Solicitation Restricted Period as defined in Section 3.1, or (c) the Customer Non-Solicitation Restricted Period as defined in Section 4.1.
1.13 "Territory" shall mean the United States of America, including all fifty (50) states, the District of Columbia, and all territories and possessions of the United States.
SECTION 2: NON-COMPETITION COVENANT
2.1 Non-Competition Restriction. During the term of the Employee's employment with the Company and for a period of twelve (12) months immediately following the date of the termination of the Employee's employment with the Company for any reason (such twelve-month post-employment period, the "Non-Compete Restricted Period"), the Employee shall not, directly or indirectly, whether individually or as a principal, agent, employee, officer, director, consultant, advisor, independent contractor, partner, joint venturer, member, equity holder, owner (other than as a passive holder of not more than two percent (2%) of the outstanding equity securities of a company whose securities are listed on a national securities exchange or traded in the over-the-counter market), financier, or in any other capacity whatsoever:
(a) engage in, render services to, or provide assistance (whether operational, strategic, managerial, financial, technical, or otherwise) to any Competing Business within the Territory;
(b) establish, found, incorporate, acquire, manage, operate, finance, control, or participate in the ownership or management of any Competing Business within the Territory; or
(c) solicit or accept employment, engagement, or any compensated or uncompensated position with any Competing Business for the purpose of performing duties or functions substantially similar to those performed by the Employee for the Company during the twenty-four (24) months immediately preceding the Employee's termination of employment.
2.2 Scope Limitations. The non-competition restriction set forth in Section 2.1 applies only to Competing Businesses as specifically defined in Section 1.4 of this Agreement — that is, healthcare IT/SaaS companies generating annual revenue in excess of $50,000,000 and operating within the United States. The Parties acknowledge and agree that this scope was the subject of good-faith negotiation between the Parties and their respective counsel, and was reduced from an initial broader formulation proposed by the Company that would have encompassed all healthcare technology and services businesses regardless of revenue threshold. The Parties further acknowledge that the scope, geographic extent, and duration of the non-competition restriction, as narrowed through negotiation, reflect a reasonable limitation that is no broader than necessary to protect the Company's legitimate business interests, including its Confidential Information, trade secrets, goodwill, customer relationships, and substantial investment in the Employee's knowledge and training.
2.3 Carve-Outs. Notwithstanding Section 2.1, the Employee shall not be restricted from:
(a) engaging in the practice of medicine, clinical patient care, or any other medical or healthcare delivery activity, provided that such activity does not involve the Employee providing services to, or on behalf of, a Competing Business as defined in Section 1.4;
(b) serving on the board of directors, advisory board, or similar governing body of a non-profit healthcare organization, charitable institution, or industry association that does not compete with the Company in the healthcare IT/SaaS market;
(c) engaging in academic teaching, lecturing, research, scholarly writing, or publishing activities at any college, university, medical school, research institution, or similar educational institution, provided that such activities do not involve the disclosure of Confidential Information in violation of Section 5; or
(d) providing services to any division, subsidiary, or business unit of an entity that would otherwise constitute a Competing Business, provided that (i) such division, subsidiary, or business unit is not itself engaged in healthcare IT/SaaS, (ii) the Employee does not provide any services, advice, or assistance relating to the entity's healthcare IT/SaaS business, and (iii) the Employee implements reasonable safeguards (including, as appropriate, an ethical wall or similar arrangement) to ensure that the Employee does not receive or have access to information relating to the entity's healthcare IT/SaaS business during the Non-Compete Restricted Period. The Employee shall provide the Company with written notice at least fifteen (15) days prior to commencing any engagement under this subsection (d), including a description of the proposed role, the division or subsidiary involved, and the safeguards to be implemented.
2.4 MNAA Compliance — Timing and Notice. The Company represents that it has provided, or shall provide, the Employee with a copy of this Agreement at least ten (10) business days before the commencement of employment, in compliance with M.G.L. c. 149, § 24L(b). This Agreement is being entered into at the time of the Employee's hiring by the Company. The Company has advised the Employee in writing, prior to the delivery of this Agreement, to consult with an attorney of the Employee's choosing before executing this Agreement, and the Employee confirms receipt of such written advisement.
SECTION 3: NON-SOLICITATION OF EMPLOYEES
3.1 Employee Non-Solicitation Restriction. During the term of the Employee's employment with the Company and for a period of eighteen (18) months immediately following the date of the termination of the Employee's employment with the Company for any reason (such eighteen-month post-employment period, the "Employee Non-Solicitation Restricted Period"), the Employee shall not, directly or indirectly, whether individually or through or on behalf of any other person or entity:
(a) solicit, recruit, hire, or engage, or attempt to solicit, recruit, hire, or engage, any Manager-Level Employee to leave the employ of the Company or any of its subsidiaries, affiliates, or related entities, whether for employment, consulting, independent contracting, or any other engagement;
(b) assist, cooperate with, or encourage any third party (including, without limitation, any Competing Business, recruiter, headhunter, search firm, or other employer) in soliciting, recruiting, hiring, or engaging any Manager-Level Employee of the Company or any of its subsidiaries, affiliates, or related entities; or
(c) knowingly interfere with, disrupt, or attempt to interfere with or disrupt the employment or other relationship between the Company (or any of its subsidiaries, affiliates, or related entities) and any Manager-Level Employee.
3.2 Scope. The restriction set forth in Section 3.1 applies only to individuals who (a) are Manager-Level Employees of the Company or its affiliates at the time of the solicitation, recruitment, hiring, or other prohibited activity, and (b) were Manager-Level Employees of the Company or its affiliates at any point during the twelve (12) months immediately preceding the Employee's last day of employment with the Company. For the avoidance of doubt, the restriction in Section 3.1 shall not prohibit the Employee from (a) providing a personal reference or recommendation for any Manager-Level Employee in response to a request from such Manager-Level Employee or a prospective employer, provided that the Employee does not otherwise solicit, recruit, or encourage such Manager-Level Employee to leave the Company, or (b) hiring or engaging any Manager-Level Employee who independently contacts the Employee or independently responds to a general advertisement, job posting, or recruitment campaign that is not specifically targeted at or directed toward employees of the Company. For purposes of this Section 3.2, a "general advertisement" includes online job postings on publicly available job boards, social media platforms (including Westmark Health IT), or the Employee's new employer's career website, but does not include any direct message, InMail, personal outreach, or targeted communication to a specific Manager-Level Employee.
SECTION 4: NON-SOLICITATION OF CUSTOMERS AND BUSINESS PARTNERS
4.1 Customer Non-Solicitation Restriction. During the term of the Employee's employment with the Company and for a period of twelve (12) months immediately following the date of the termination of the Employee's employment with the Company for any reason (such twelve-month post-employment period, the "Customer Non-Solicitation Restricted Period"), the Employee shall not, directly or indirectly, whether individually or through or on behalf of any other person or entity:
(a) solicit, divert, take away, or attempt to solicit, divert, or take away any Customer for the purpose of providing or selling products, services, or technology solutions that compete with the products, services, or technology solutions offered by the Company;
(b) encourage, induce, or attempt to encourage or induce any Customer to reduce, terminate, cancel, or otherwise diminish its business relationship, contract, subscription, or engagement with the Company; or
(c) knowingly interfere with, disrupt, or attempt to interfere with or disrupt the Company's existing or prospective business relationships, contracts, or engagements with any Customer.
4.2 Scope Limitation. The restriction set forth in Section 4.1 is limited to Customers with whom the Employee had material contact during the twenty-four (24) months immediately preceding the Employee's last day of employment with the Company, as defined in Section 1.6 of this Agreement. The Parties acknowledge that this limitation is consistent with the MNAA's requirement that non-solicitation restrictions be narrowly tailored to protect the Company's legitimate business interests and that the Employee's material contact with Customers during the relevant period creates a reasonable basis for restricting the Employee's post-employment solicitation activities with respect to such Customers. Nothing in this Section 4 shall be construed to prohibit the Employee from (a) passively receiving an unsolicited inquiry from a Customer, provided that the Employee does not use Confidential Information in connection with any response and does not provide products or services that compete with the Company's offerings, or (b) engaging in general marketing or advertising activities that are not specifically targeted at any Customer.
SECTION 5: CONFIDENTIALITY AND NON-DISCLOSURE
5.1 Perpetual Confidentiality Obligation. The Employee acknowledges that the Company's Confidential Information constitutes a valuable, special, and unique asset of the Company's business, the protection of which is essential to the Company's competitive position and ongoing success. The Employee shall not, at any time during or after the Employee's employment with the Company (regardless of the reason for or circumstances of the termination of employment), directly or indirectly, use, disclose, publish, disseminate, transmit, copy, reproduce, or otherwise make available to any person, entity, or the public any Confidential Information, 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, and only on a need-to-know basis to other authorized employees, officers, directors, or agents of the Company;
(b) with the prior written consent of the Company, as authorized by the Board or the Company's General Counsel; or
(c) as required by applicable law, regulation, court order, or legal process, subject to the requirements of Section 5.2 below.
The Employee further agrees that the Employee shall exercise reasonable care and diligence to protect the confidentiality and security of Confidential Information during the Employee's employment, including complying with all Company policies and procedures relating to information security, data protection, and acceptable use of Company technology systems.
5.2 Legally Compelled Disclosure. If the Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand, regulatory inquiry, governmental investigation, or similar judicial, administrative, or governmental process) to disclose any Confidential Information, the Employee shall provide the Company with prompt written notice thereof (to the extent legally permissible) so that the Company may, at its own expense, seek a protective order, motion to quash, or other appropriate remedy or relief to prevent or limit such disclosure. The Employee shall cooperate with the Company in connection with any such protective efforts. If, after the Company has been afforded a reasonable opportunity to seek such protective order or remedy, no such protective order or remedy is obtained (or the Company waives its right to seek such relief), the Employee may disclose only that portion of the Confidential Information that is legally required to be disclosed, and the Employee shall use reasonable efforts to ensure that confidential treatment is accorded to the Confidential Information so disclosed.
5.3 Return of Materials. 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 documents, records, files, memoranda, correspondence, reports, presentations, analyses, studies, notebooks, notes, plans, specifications, manuals, data, databases, media, equipment, devices (including, without limitation, laptops, tablets, mobile phones, and external storage devices), access cards, keys, and all other property of the Company or containing or relating to Confidential Information, in whatever form or medium (whether physical or electronic), that are in the Employee's possession, custody, or control. In addition, the Employee shall permanently delete, erase, and destroy all electronic copies of Confidential Information stored on any personal computer, personal device, personal cloud storage account, personal email account, or any other storage medium or system not owned or controlled by the Company, and shall certify such deletion and destruction in writing to the Company upon the Company's request. The Employee acknowledges that the Employee has no expectation of privacy in any files, documents, communications, or data stored on Company-owned devices or systems.
5.4 Defend Trade Secrets Act Notice. Pursuant to 18 U.S.C. § 1833(b), the Employee is hereby notified that the Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, 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 individual's attorney 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), limit the Employee's right to receive an award for providing information to any government agency, or otherwise limit the Employee's right to communicate with any government agency or participate in any investigation or proceeding that may be conducted by any government agency.
SECTION 6: GARDEN-LEAVE PAYMENT
6.1 Garden-Leave Consideration. In accordance with the MNAA, during the Non-Compete Restricted Period following the termination of the Employee's employment with the Company (regardless of the reason for such termination, except as otherwise provided in Section 8.3), the Company shall pay the Employee garden-leave compensation equal to fifty percent (50%) of the Employee's highest annualized base salary paid by the Company during the two (2)-year period immediately preceding the date of the Employee's termination of employment (the "Garden-Leave Payment"). The Garden-Leave Payment shall be payable in regular installments in accordance with the Company's normal payroll schedule and practices, commencing on the first regularly scheduled payroll date following the Employee's termination of employment and continuing for twelve (12) months thereafter (or, if the Non-Compete Restricted Period terminates earlier pursuant to any applicable provision of this Agreement, through the date of such earlier termination). Based on the Employee's initial base salary of Five Hundred Seventy-Five Thousand Dollars ($575,000) per annum, the Garden-Leave Payment would be Two Hundred Eighty-Seven Thousand Five Hundred Dollars ($287,500) in the aggregate (i.e., $575,000 × 50%), payable in approximately equal installments over the twelve (12)-month Non-Compete Restricted Period; provided, however, that the actual amount of the Garden-Leave Payment shall be subject to adjustment if the Employee's base salary is increased or otherwise changed during the term of the Employee's employment. All Garden-Leave Payments shall be subject to applicable withholding for federal, state, and local income taxes, FICA, and other applicable payroll deductions.
6.2 Offset. The Garden-Leave Payment shall be reduced, on a dollar-for-dollar basis, by the amount of any severance payments, salary continuation payments, or other separation-related compensation that the Employee receives (or is entitled to receive) under the Employment Agreement during the Non-Compete Restricted Period, to the extent such payments are expressly designated in the Employment Agreement (or in any separation agreement between the Parties) as garden-leave consideration or as consideration for the non-competition covenant set forth in Section 2 of this Agreement. The Parties intend that the Employee shall not receive duplicative payments for the same consideration, and the provisions of this Section 6.2 shall be interpreted and applied in a manner consistent with that intent. For the avoidance of doubt, if the aggregate severance payments designated as garden-leave consideration under the Employment Agreement equal or exceed the Garden-Leave Payment calculated under Section 6.1, the Company shall have no further payment obligation under Section 6.1.
6.3 Conditions. The Company's obligation to make Garden-Leave Payments under Section 6.1 is expressly conditioned on the Employee's continued compliance with all of the restrictive covenants set forth in this Agreement, including, without limitation, the non-competition covenant (Section 2), the non-solicitation of employees covenant (Section 3), the non-solicitation of customers covenant (Section 4), and the confidentiality and non-disclosure obligations (Section 5). If the Employee materially breaches any provision of this Agreement, the Company may, upon written notice to the Employee specifying in reasonable detail the nature of the alleged breach and providing the Employee with a period of ten (10) business days to cure such breach (if the breach is reasonably susceptible to cure), cease making Garden-Leave Payments. For the avoidance of doubt, the cessation of Garden-Leave Payments in accordance with this Section 6.3 shall not affect the enforceability of the underlying restrictive covenants, and the Company shall retain all rights and remedies available under Section 10 of this Agreement and at law or in equity.
6.4 Alternative Consideration. The Company and the Employee may, at any time prior to or following the termination of the Employee's employment, agree in writing to substitute mutually agreed alternative consideration for the Garden-Leave Payment described in Section 6.1, provided that such alternative consideration is mutually agreed upon and satisfies the requirements of the MNAA, including, without limitation, the requirement that the consideration be "fair and reasonable." Any such written agreement shall be signed by both Parties and shall specify the nature, amount, and timing of the alternative consideration with reasonable specificity.
SECTION 7: INVENTION ASSIGNMENT
7.1 Assignment of Inventions. The Employee hereby irrevocably assigns, transfers, and conveys to the Company, and agrees to assign, transfer, and convey to the Company, all right, title, and interest (including all intellectual property rights) in and to all inventions, improvements, discoveries, concepts, ideas, works of authorship, software (including source code and object code), databases, designs, drawings, specifications, trade secrets, know-how, processes, methods, techniques, formulas, compositions, and other intellectual property, whether or not patentable, copyrightable, or otherwise protectable (collectively, "Inventions"), that the Employee, solely or jointly with others, conceives, develops, reduces to practice, creates, or contributes to during the term of the Employee's employment with the Company, to the extent that such Inventions:
(a) relate to the Company's actual or demonstrably anticipated business, products, services, research, or development activities;
(b) result from or arise out of any work performed by the Employee for the Company, or any task assigned to or undertaken by the Employee in the course of the Employee's employment; or
(c) are developed, in whole or in part, using the Company's equipment, supplies, facilities, technology, resources, or Confidential Information.
The Employee acknowledges and agrees that all Inventions that are works of authorship shall be deemed "works made for hire" as defined in the United States Copyright Act, 17 U.S.C. § 101, to the maximum extent permitted by applicable law. To the extent that any such Invention does not qualify as a "work made for hire," the Employee hereby assigns to the Company all right, title, and interest in and to such Invention, including all copyrights therein.
7.2 Prior Inventions. The Employee has identified on Schedule A to the Employment Agreement all prior inventions, original works of authorship, patents, patent applications, and other intellectual property that the Employee conceived, developed, or acquired prior to the commencement of the Employee's employment with the Company and that the Employee wishes to exclude from the scope of the assignment set forth in Section 7.1 (collectively, "Prior Inventions"). If Schedule A is blank, is marked "None," or is not attached to the Employment Agreement, 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, service, technology, or deliverable without the Company's prior written consent. If the Employee incorporates any Prior Invention into any Company product, service, technology, or deliverable with the Company's written consent, the Employee hereby grants to the Company a non-exclusive, royalty-free, irrevocable, perpetual, worldwide, fully paid-up, sublicensable, and transferable license to make, have made, use, sell, offer for sale, import, copy, modify, create derivative works of, publicly display, publicly perform, distribute, and otherwise exploit such Prior Invention as part of or in connection with such Company product, service, technology, or deliverable.
7.3 Cooperation. The Employee agrees to cooperate fully with the Company, at the Company's sole cost and expense, in the procurement, maintenance, enforcement, defense, and perfection of the Company's rights in any Inventions, both during and after the Employee's employment with the Company. Such cooperation shall include, without limitation, executing and delivering patent applications, copyright registrations, assignments, declarations, affidavits, powers of attorney, and any other documents or instruments that the Company may reasonably request in connection with the protection of its intellectual property rights in any Inventions. If the Company is unable, after reasonable effort, to secure the Employee's signature on any such document, the Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as the Employee's agent and attorney-in-fact, to act for and on the Employee's behalf to execute, verify, acknowledge, and file any such document and to take any and all lawful actions necessary to effect the purposes of this Section 7.3, with the same legal force and effect as if executed by the Employee. This power of attorney is coupled with an interest and shall survive the death or incapacity of the Employee.
7.4 Moral Rights Waiver. To the maximum extent permitted by applicable law, the Employee hereby irrevocably waives and agrees never to assert any and all moral rights, droit moral, rights of attribution, rights of integrity, rights of disclosure, rights of withdrawal, and any other similar rights (collectively, "Moral Rights") that the Employee may have in or to any Inventions assigned or to be assigned to the Company under this Agreement, whether arising under the Berne Convention, the Copyright Act, or the laws of any jurisdiction in the world.
SECTION 8: INAPPLICABILITY OF NON-COMPETITION COVENANT IN CERTAIN CIRCUMSTANCES
8.1 Termination for Cause or Voluntary Resignation Without Good Reason. If the Employee's employment is terminated by the Company for Cause (as defined in the Employment Agreement), or if the Employee voluntarily resigns from employment without Good Reason (as defined in the Employment Agreement), the non-competition covenant set forth in Section 2 shall apply in full force and effect during the Non-Compete Restricted Period, subject to the Company's obligation to make Garden-Leave Payments in accordance with Section 6. The Company's obligation to pay garden-leave compensation under Section 6 shall not be excused by reason of a termination for Cause or a voluntary resignation without Good Reason, and the non-competition covenant shall not be enforceable during any period in which the Company has failed to make required Garden-Leave Payments (subject to the offset provisions of Section 6.2).
8.2 Termination Without Cause or for Good Reason. If the Employee's employment is terminated by the Company without Cause, or if the Employee resigns for Good Reason, the non-competition covenant set forth in Section 2 shall apply in full force and effect during the Non-Compete Restricted Period, and the Garden-Leave Payment under Section 6 shall be payable in addition to (and not in lieu of) any severance payments, benefits, or other compensation due to the Employee under the Employment Agreement, subject to the offset provisions of Section 6.2 (which are intended solely to prevent duplicative payments where severance payments are expressly designated as garden-leave consideration). The Parties acknowledge and agree that the Employee's entitlement to severance benefits under the Employment Agreement is governed exclusively by the Employment Agreement and is not conditioned upon or affected by the Employee's compliance with the restrictive covenants set forth in this Agreement, except to the extent expressly provided in the Employment Agreement.
8.3 Layoff, Reduction in Force, or Similar Qualifying Event. Pursuant to the MNAA, M.G.L. c. 149, § 24L(b)(vii), the non-competition covenant set forth in Section 2 shall not be enforceable against the Employee if the Employee is terminated as a result of a layoff, reduction in force, plant closing, or other similar qualifying event, unless the Company elects to enforce the non-competition covenant by providing written notice to the Employee within ten (10) business days following the Employee's termination and by paying the full Garden-Leave Payment in accordance with Section 6.1 (without application of the offset provisions of Section 6.2, unless the parties mutually agree otherwise in writing). If the Company does not elect to enforce the non-competition covenant in accordance with this Section 8.3, the non-competition covenant shall be deemed void and of no further force or effect with respect to such termination.
8.4 Non-Solicitation and Confidentiality Unaffected. For the avoidance of doubt, the exceptions set forth in this Section 8 apply solely to the non-competition covenant in Section 2. The non-solicitation of employees covenant (Section 3), the non-solicitation of customers and business partners covenant (Section 4), and the confidentiality and non-disclosure obligations (Section 5) shall survive and remain in full force and effect, and shall be fully enforceable in accordance with their terms, regardless of the circumstances of the Employee's termination of employment, including, without limitation, in the event of a termination for Cause, a termination without Cause, a resignation for Good Reason, a resignation without Good Reason, a layoff, a reduction in force, or any other qualifying event described in this Section 8.
SECTION 9: REASONABLENESS; REFORMATION
9.1 Acknowledgment of Reasonableness. The Employee acknowledges and agrees that:
(a) the restrictive covenants set forth in this Agreement, including the non-competition covenant, the non-solicitation covenants, and the confidentiality obligations, are reasonable and necessary to protect the Company's legitimate business interests, including, without limitation, its Confidential Information, trade secrets, proprietary technology, goodwill, customer relationships, employee relationships, and the substantial investment the Company has made and will continue to make in developing the Employee's knowledge of and access to such interests;
(b) the restrictions imposed by this Agreement are narrowly tailored in scope (limited to healthcare IT/SaaS companies with annual revenue exceeding $50 million), geography (limited to the United States), and duration (twelve months for non-competition, eighteen months for employee non-solicitation, twelve months for customer non-solicitation, and perpetual for confidentiality), and do not impose an undue hardship on the Employee or impose restrictions broader than necessary to protect the Company's legitimate business interests;
(c) the Employee has received fair and adequate consideration for the restrictions set forth in this Agreement, including the Company's agreement to employ the Employee as Chief Operating Officer, the base salary, equity awards, incentive compensation, benefits, and other valuable consideration set forth in the Employment Agreement, and the Garden-Leave Payment described in Section 6; and
(d) in the event the Employee breaches or threatens to breach any restrictive covenant contained in this Agreement, the Company would suffer irreparable harm and injury that could not be adequately compensated by an award of monetary damages, and that injunctive relief would be an appropriate and necessary remedy to protect the Company's legitimate business interests.
9.2 Judicial Reformation (Blue Pencil). If a court of competent jurisdiction determines that any provision, restriction, covenant, or clause of this Agreement is excessively broad, overreaching, or otherwise unenforceable as written — whether by reason of the duration, geographic scope, scope of restricted activities, or any other aspect of such provision — the Parties expressly agree and request that the court reform, modify, or "blue pencil" such provision to the minimum extent necessary to render it valid and enforceable, rather than declaring such provision void or unenforceable in its entirety. The Parties intend that this Agreement be enforced to the fullest extent permitted by applicable law. Any provision that is reformed by a court pursuant to this Section 9.2 shall be enforceable as so reformed, and all remaining provisions of this Agreement that are not subject to reformation shall continue in full force and effect, unimpaired and unmodified by such reformation.
SECTION 10: REMEDIES
10.1 Irreparable Harm. The Employee acknowledges and agrees that a breach or threatened breach by the Employee of any of the restrictive covenants set forth in this Agreement (including, without limitation, the non-competition, non-solicitation, confidentiality, and invention assignment provisions) will cause the Company irreparable harm and injury of a kind that cannot be adequately compensated by an award of monetary damages alone, and that the Company would be without an adequate remedy at law in the event of any such breach or threatened breach.
10.2 Injunctive Relief. In addition to any and all other remedies available to the Company at law or in equity (including, without limitation, compensatory damages, consequential damages, lost profits, and disgorgement of profits), the Company shall be entitled to seek and obtain temporary, preliminary, and/or permanent injunctive relief, specific performance, or any other equitable remedy from any court of competent jurisdiction to enforce any provision of this Agreement and to restrain the Employee from any actual or threatened breach hereof, without the necessity of (a) proving actual damages, (b) posting any bond or other security (to the extent permitted by applicable law), or (c) establishing that monetary damages would be inadequate. The Employee hereby consents to the issuance of any such injunctive relief and agrees not to assert as a defense in any proceeding for such relief that the Company has an adequate remedy at law.
10.3 Extension of Restricted Period. If the Employee violates or breaches any of the non-competition or non-solicitation covenants set forth in Sections 2, 3, or 4 of this Agreement, the applicable Restricted Period shall be automatically tolled and suspended during the entire period of such violation or breach, and the Restricted Period shall be extended by a number of days equal to the total number of days during which the Employee was in violation or breach of such covenant, so that the Company receives the full benefit of the agreed-upon Restricted Period.
10.4 Recovery of Costs. In any judicial action, proceeding, or arbitration commenced to enforce any provision of this Agreement, the prevailing party (as determined by the court or arbitrator) shall be entitled to recover its reasonable attorneys' fees, expert witness fees, court costs, and other litigation expenses from the non-prevailing party, in addition to any other relief to which the prevailing party may be entitled. This provision shall survive the termination or expiration of this Agreement.
SECTION 11: REPRESENTATIONS AND WARRANTIES
11.1 Employee's Representations and Warranties. The Employee hereby represents and warrants to the Company as follows:
(a) The execution, delivery, and performance of this Agreement by the Employee does not and will not conflict with, result in a breach or violation of, or constitute a default under any existing agreement, contract, order, judgment, decree, or other obligation (whether written or oral) to which the Employee is a party or by which the Employee is bound, including, without limitation, any prior employment agreement, non-competition agreement, non-solicitation agreement, confidentiality agreement, or similar restrictive covenant.
(b) The Employee is not currently subject to any non-competition agreement, non-solicitation agreement, or similar restrictive covenant with any prior employer, including, without limitation, Pinnacle Care Systems, Inc. (the Employee's most recent prior employer), that would prevent, restrict, limit, or otherwise impair the Employee's ability to (i) perform the Employee's duties and responsibilities for the Company as Chief Operating Officer, (ii) comply with the terms and conditions of this Agreement, or (iii) otherwise carry out the Employee's obligations under the Employment Agreement. The Employee has provided the Company with copies of all restrictive covenant agreements to which the Employee is or may be subject.
(c) The Employee has had a full and adequate opportunity to consult with independent legal counsel of the Employee's choosing, specifically Catherine A. Fielding of Fielding & Rowe LLP, 101 Federal Street, Suite 2600, Boston, MA 02110, before executing this Agreement. The Employee has read this Agreement in its entirety, understands its terms and conditions, and is executing this Agreement voluntarily and of the Employee's own free will, without coercion or duress.
(d) The Employee acknowledges that the Company is entering into the Employment Agreement and agreeing to provide the compensation, benefits, and equity awards described therein in reliance upon the Employee's representations, warranties, and covenants set forth in this Agreement, and that the Company would not have agreed to employ the Employee on the terms set forth in the Employment Agreement but for the Employee's agreement to be bound by the restrictive covenants contained herein.
11.2 Company's Representations and Warranties. The Company hereby represents and warrants to the Employee as follows:
(a) The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has full corporate power and authority to enter into this Agreement and to perform its obligations hereunder.
(b) The execution, delivery, and performance of this Agreement by the Company have been duly authorized by all necessary corporate action, and this Agreement constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
(c) The execution and delivery of this Agreement by the Company does not and will not conflict with, result in a breach or violation of, or constitute a default under the Company's certificate of incorporation, bylaws, or any material agreement, contract, or obligation to which the Company is a party or by which it is bound.
SECTION 12: GENERAL PROVISIONS
12.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to any choice of law, conflict of law, or similar principles that would result in the application of the laws of any other jurisdiction. The Parties specifically acknowledge that this Agreement is subject to and intended to comply with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L, and the provisions of this Agreement shall be interpreted and applied in a manner consistent with the MNAA.
12.2 Jurisdiction and Venue. Any action, suit, or proceeding arising out of, relating to, or in connection with this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof (including any claim based on contract, tort, statute, or otherwise), shall be brought exclusively in the state courts of the Commonwealth of Massachusetts sitting in Suffolk County, Massachusetts, or in the United States District Court for the District of Massachusetts (Boston Division). Each Party hereby irrevocably and unconditionally (a) consents and submits to the exclusive personal jurisdiction of such courts for the purposes of any such action, suit, or proceeding, (b) waives any objection to the laying of venue of any such action, suit, or proceeding in any such court, and (c) waives and agrees not to plead or claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.
12.3 Entire Agreement. This Agreement, together with the Employment Agreement and the equity award agreements referenced therein (including the Stock Option Award Agreement and the Restricted Stock Unit Award Agreement under the AHT 2020 Equity Incentive Plan, as amended May 2021), constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, representations, and warranties, whether oral or written, relating to such subject matter. For the avoidance of doubt, the restrictive covenants set forth in this Agreement are in addition to (and not in lieu of) any restrictive covenant provisions contained in the Employment Agreement, to the extent such provisions in the Employment Agreement address subjects not duplicative of those addressed herein. In the event of any conflict between the restrictive covenant provisions of this Agreement and those of the Employment Agreement, the provisions that are more protective of the Company's interests shall control, except to the extent that such provisions would violate the MNAA or other applicable law.
12.4 Amendment and Waiver. This Agreement may not be amended, modified, altered, or supplemented except by a written instrument duly executed by both Parties (or their respective successors and assigns). No waiver by either Party of any provision of this Agreement, or of any breach or default thereof, shall be deemed a continuing waiver or a waiver of any other provision of this Agreement or of any subsequent breach or default of the same or any other provision. 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 such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
12.5 Severability. If any provision of this Agreement (or any portion thereof) is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable in any respect under applicable law, such invalidity, illegality, or unenforceability shall not affect any other provision (or any other portion of such provision), and all other provisions of this Agreement shall remain in full force and effect. Without limiting the generality of the foregoing, the Parties agree that, in the event any provision of this Agreement is held to be unenforceable, the provisions of Section 9.2 (Judicial Reformation) shall apply.
12.6 Assignment. The Company may assign this Agreement, in whole or in part, without the Employee's consent, to any successor to or assignee of all or substantially all of the Company's business, stock, or assets, including, without limitation, any entity that acquires the Company (or all or substantially all of the Company's assets) by merger, consolidation, acquisition, reorganization, or otherwise, and including in connection with any Change in Control. Upon any such assignment, the rights and obligations of the Company under this Agreement shall inure to the benefit of, and be binding upon, such successor or assignee, and all references to the "Company" herein shall be deemed to refer to such successor or assignee. The Employee may not assign or delegate the Employee's obligations under this Agreement, in whole or in part, without the prior written consent of the Company, and any purported assignment or delegation by the Employee in violation of this Section 12.6 shall be void and of no force or effect.
12.7 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given when (a) delivered personally, (b) sent by registered or certified mail, return receipt requested, postage prepaid, (c) sent by nationally recognized overnight courier service (e.g., Severin Partners LLC, Halcyon Partners LLC), or (d) sent by email (with confirmation of receipt), to the Parties at the following addresses (or to such other address as a Party may designate by written notice to the other Party):
If to the Company:
Arbor Health Technologies Inc. 400 Brattle Commerce Park, Suite 1200 Cambridge, MA 02138
Attention: Aaron Whitfield, General Counsel
Email: awhitfield@arborhealth.com
With a copy (which shall not constitute notice) to:
Lisa Murakami, Chief Human Resources Officer Arbor Health Technologies Inc. 400 Brattle Commerce Park, Suite 1200 Cambridge, MA 02138
Email: lmurakami@arborhealth.com
If to the Employee:
Dr. Marcus J. Elliston 87 Laurel Hill Road Wellesley, MA 02481
With a copy (which shall not constitute notice) to:
Catherine A. Fielding Fielding & Rowe LLP 101 Federal Street, Suite 2600 Boston, MA 02110
Email: cfielding@fieldingrowe.com
12.8 Survival. The obligations of the Employee under Sections 2 through 7 (Non-Competition, Non-Solicitation of Employees, Non-Solicitation of Customers, Confidentiality and Non-Disclosure, Garden-Leave Payment, and Invention Assignment) and Sections 10 and 11 (Remedies and Representations and Warranties) shall survive the termination or expiration of the Employee's employment with the Company and the termination or expiration of this Agreement, and shall continue in full force and effect for the applicable periods specified herein (or, in the case of the confidentiality obligations and invention assignment, in perpetuity).
12.9 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 exchange of facsimile or electronic copies bearing the facsimile or electronic signature of a Party shall constitute a valid and binding execution and delivery of this Agreement by such Party. Such facsimile or electronic copies shall constitute enforceable original documents.
12.10 Construction. This Agreement has been jointly drafted and negotiated by the Parties and their respective legal counsel, and no provision of this Agreement shall be interpreted or construed against any Party by reason of the fact that such Party (or its counsel) drafted or proposed such provision. All references to "including" or "includes" in this Agreement shall be deemed to mean "including, without limitation" or "includes, without limitation," as applicable.
12.11 Headings. The section and subsection headings contained in this Agreement are inserted for convenience of reference only and shall not affect in any way the meaning, interpretation, or construction of any provision of this Agreement.
SIGNATURES
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: ________
Title: ________
Date: ________
EMPLOYEE
________________________________________
Name: Dr. Marcus J. Elliston
Date: ________
ACKNOWLEDGMENT OF RECEIPT AND COUNSEL NOTICE (MNAA COMPLIANCE)
In accordance with the Massachusetts Noncompetition Agreement Act, M.G.L. c. 149, § 24L, the undersigned Employee hereby acknowledges and confirms each o

CONFIDENTIAL — SUBJECT TO FURTHER NEGOTIATION

EMPLOYEE NON-COMPETITION AGREEMENT

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 PAYMENT

SECTION 7: INVENTION ASSIGNMENT

SECTION 8: INAPPLICABILITY OF NON-COMPETITION COVENANT IN CERTAIN CIRCUMSTANCES

SECTION 10: REMEDIES

SECTION 11: REPRESENTATIONS AND WARRANTIES

SECTION 12: GENERAL PROVISIONS

SIGNATURES

ARBOR HEALTH TECHNOLOGIES INC.

EMPLOYEE

ACKNOWLEDGMENT OF RECEIPT AND COUNSEL NOTICE (MNAA COMPLIANCE)

Record

Parties

Dates

Amounts