ALIM Alimera Sciences Inc

Delaware

001-34703

20-0028718

(State or other jurisdiction
‎of incorporation)

(Commission File Number)

(IRS Employer
‎Identification No.)

¨

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

¨

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

¨

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

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

Title of each class

Trading Symbol(s)

Name of each exchange on which
‎registered

Common stock, par value $0.01 per share

ALIM

The NASDAQ Stock Market LLC (Nasdaq Global Market)

Exhibit No.

Description

10.1

Amended and Restated Employment Agreement, dated as of December 11, 2023, by and between Alimera Sciences, Inc. and Richard S. Eiswirth, Jr.

10.2

Employment Agreement, dated as of December 11, 2023, by and between Alimera Sciences, Inc. and Todd Wood

10.3

Inducement Stock Option Agreement, dated as of December 11, 2023, by and between Alimera Sciences, Inc. and Todd Wood (Non-Plan Inducement Award)

99.1

Press Release, dated as of December 12, 2023

104

Cover Page Interactive Data File (embedded within the Inline XBRL document)

ALIMERA SCIENCES, INC.

Date: December 12, 2023

By:

Name: 

Russell L. Skibsted

Title: 

Chief Financial Officer and Senior Vice President

SECTION 1 EFFECTIVE DATE; TERMINATION OF PRIOR AGREEMENT

SECTION 2 DEFINITIONS

SECTION 3 TITLE, POWERS AND RESPONSIBILITIES

(a) Title. Executive shall be President and Chief Executive Officer.

(b) Powers and Responsibilities.

(1) Executive in fulfilling Executive’s responsibilities shall have such powers as are normally and customarily associated with a President and Chief Executive Officer in a company of similar size and operating in a similar industry, including the power to hire and fire employees and executives of the Company reporting to Executive and such other powers as are authorized by the Board.

(2) Executive, as a condition to Executive’s employment under this Agreement; represents and warrants that Executive can assume and fulfill the responsibilities described in Section 3(b)(1) without any risk of violating any non-compete or other restrictive covenant or other agreement to which Executive is a party.

(c) Reporting Relationship. Executive shall report to the Board.

(d) Full Time Basis. Executive (1) shall undertake to perform all Executive’s responsibilities and exercise all Executive’s powers in good faith and on a full-time basis, (2) shall not engage in any other employment, consulting or other business activity that would create a conflict of interest with the Company, (3) shall not assist any person or entity in competing with the Company or in preparing to compete with the Company and (4) shall materially comply with the Company’s policies and rules, as they may be in effect from time to time.

(e) No Conflicting Obligations.  Executive represents and warrants to the Company that Executive is under no obligations or commitments, whether contractual or otherwise, that are inconsistent with his obligations under this Agreement provided that the Company acknowledges that Executive may serve on the board of directors or as an advisor for up to two for-profit companies, in addition to the Company’s Board. Executive agrees to attend in person no more than four meetings per year per company and any remaining meetings, if attended, will not require travel.    Executive represents and warrants that Executive will not use or disclose, in connection with Executive’s employment with the Company, any trade secrets or other proprietary information or intellectual property in which Executive or any other person has any right, title or interest and that Executive’s employment with the Company will not infringe or violate the rights of any other person..

SECTION 4 COMPENSATION, BENEFITS, ETC.

(a) Annual Base Salary. Executive’s base salary shall be $603,200 per year, which amount may be reviewed and adjusted from time to time at the discretion of the Board or the Compensation Committee. Executive’s base salary shall be payable in accordance with the Company’s standard payroll practices and policies for executives and shall be subject to such withholdings as are required by law or as are otherwise permissible under such practices or policies.

(b) Annual Bonus. The Company shall pay an annual bonus for a fiscal year to Executive no later than 2½ months after the close of such fiscal year, in the amount, and subject to the terms and conditions of the Company’s Management Cash Incentive Program (or any predecessor or successor cash incentive plan thereto), which may be reviewed at the discretion of the Board or the Compensation Committee.  For the fiscal year 2023, Executive’s target bonus shall be $369,460.  The determinations of the Board or the Compensation Committee with respect to such bonus shall be final and binding; provided, however, that following fiscal 2023, Executive’s target annual bonus amount shall not be reduced to an amount below 65% of Executive’s then-current base salary.

(c) Employee Benefit Plans. Executive shall be eligible to participate, on terms no less favorable to Executive than the terms for participation of any other executive of the Company at the same level within the Company as Executive, in the employee benefit plans, programs and policies maintained by the Company subject to the terms and conditions to participate in such plans, programs and policies as in effect from time to time.  During the term of this Agreement, the Company shall maintain disability insurance for the benefit of Executive with substantially the same benefits and conditions as provided to Executive prior to the Effective Date; provided,  however, in no event, shall the Company be obligated to pay an annual aggregate premium under such policies in excess of 3X the annual aggregate premium paid by the Company for such policies as of immediately prior to the Effective Date.

(d) Equity Awards. Executive shall receive Equity awards at the discretion of the Board, subject to the terms and conditions set forth in the applicable ISP and any corresponding notice, agreement or certificate under the ISP.

(e) Acceleration of Vesting of Equity. The following terms shall apply to all of Executive’s Equity outstanding as of the Effective Date, and to all future grants of Equity, subject to Executive’s execution and non-revocation of the Release provided for in Section 5(a):

(1) The vested percentage of Executive’s Equity awards subject to time-based vesting shall be determined by adding 12 months to the actual period of service that Executive has completed with the Company if Executive’s employment with the Company is terminated by the Company without Cause or Executive terminates Executive’s employment for Good Reason (i.e., Executive’s vesting shall be accelerated by an additional 12 months).

(2) Executive shall vest in 100% of Executive’s remaining unvested Equity awards subject to time-based vesting if (i) the Company is subject to a Change in Control and (i) within 3 months prior to a Change in Control, on a Change in Control or in 18 months after the Change in Control, Executive’s employment with the Company is terminated by the Company (or its successor) without Cause or Executive terminates Executive’s employment for Good Reason.

(3) If the Company is subject to a Change in Control prior to Executive’s termination of employment with the Company, then Executive shall vest in 100% of Executive’s unvested Equity awards subject to performance-based vesting.

(4) If the Company is a party to a merger or consolidation, all Executive’s outstanding Equity shall vest in full unless the agreement evidencing the merger or consolidation provides for one or more of the following:

(A) The continuation of such outstanding Equity by the Company (if the Company is the surviving corporation).

(B) The assumption of such outstanding Equity by the surviving corporation or its parent.

(C) The substitution by the surviving corporation or its parent of new Equity for such outstanding Equity.

(D) Full exercisability of outstanding Equity and full vesting of the Stock subject to such Equity, followed by the cancellation of such Equity. The full exercisability of such Equity and full vesting of such Stock, as applicable, may be contingent on the closing of such merger or consolidation.

(E) The cancellation of outstanding Equity and a payment to Executive equal to the excess of (i) the fair market value of the Stock subject to such Equity (whether or not such Equity is then exercisable or vested, as applicable) as of the closing date of such merger or consolidation over (ii) the exercise price. Such payment shall be made in the form of cash, cash equivalents or securities of the surviving corporation or its parent with a fair market value equal to the required amount. Such payment may be made in installments and may be deferred until the date or dates when such Equity would have become exercisable or such Stock would have vested. Such payment may be subject to vesting based on Executive’s continuing service, provided that the vesting schedule shall not be less favorable to Executive than the schedule under which such Equity would have become exercisable or such Stock would have vested. This provision is mandatory in the event that the Company is acquired by a private company for cash.

(5) Executive shall vest in 100% of the remaining unvested Equity awards in the event of Disability where a Separation occurs or death.

(6) In the event that Executive’s employment is terminated, other than by the Company (or its successor) with Cause or by Executive other than for Good Reason, each outstanding option or other outstanding rights to purchase Stock will remain exercisable for the lesser of (a) 3 years following the termination of the Executive’s employment and (b) the then remaining term of the option or other right.  

(f) Rights to Time Off Work. Executive shall be eligible for paid time off in accordance with the Company paid time off policies, as in effect from time to time.  

(g) Expense Reimbursements. Executive shall have the right to expense reimbursements in accordance with the Company’s standard policy on expense reimbursements, as in effect from time to time. Any reimbursement shall (1) be paid promptly but not later than the last day of the calendar year following the year in which the expense was incurred, (2) not be affected by any other expenses that are eligible for reimbursement in any calendar year and (3) not be subject to liquidation or exchange for another benefit.

(h) Indemnification. The Company shall, to the maximum extent permitted by applicable law and the Company’s governing documents, indemnify Executive and hold Executive harmless from and against any claim, loss or cause of action arising from or out of Executive’s performance as an officer, director, manager or employee of the Company or in any other capacity in which Executive serves at the request of the Board. If any claim is asserted hereunder against Executive, the Company shall pay Executive’s legal expenses (or cause such expenses to be paid) on a quarterly basis, provided that Executive shall reimburse the Company, in a timely manner, for such amounts if Executive shall be found by a final, non-appealable order of a court of competent jurisdiction not to be entitled to indemnification. The indemnification obligations of the Company in this paragraph shall survive any termination of this Agreement and shall be supplemental to any other rights to indemnification from the Company to which Executive is entitled.

(i) Directors and Officers Liability Insurance. The Company shall maintain directors’ and officers’ liability insurance coverage covering Executive in amounts customary for similarly situated companies in the pharmaceutical industry and with insurers reasonably acceptable to Executive. All policies for such coverage shall provide for insurance on an “occurrence” basis, or if on a “claims-made” basis, with sufficient coverage for claims made after the date on which Executive’s employment with the Company terminates.

(j) At-Will Employment. Executive’s employment with the Company shall be “at will,” meaning that either Executive or the Company shall be entitled to terminate Executive’s employment at any time and for any or no reason, with or without Cause or Good Reason. Any contrary representations that may have been made to Executive shall be superseded by this Agreement. This Agreement shall constitute the full and complete agreement between Executive and the Company on the “at will” nature of Executive’s employment, which may only be changed in an express written agreement signed by Executive and a duly authorized officer of the Company (other than Executive).

SECTION 5 TERMINATION OF EMPLOYMENT

(a) General. If the Board terminates Executive’s employment without Cause or Executive resigns for Good Reason and a Separation occurs, then Executive will be entitled to the benefits described in Section 4(e) and this Section 5. However, Executive will not be entitled to any of the benefits described in Section 4(e) or this Section 5 unless Executive has (i) returned all Company property in Executive’s possession, (ii) resigned as a member of the Board (if requested by a majority of the members of the Board then in office) and of the boards of directors of all of the Company’s subsidiaries, to the extent applicable, and (iii) executed a general release of all claims that Executive may have against the Company or persons affiliated with the Company in a form prescribed by the Company (the “Release”), with applicable carve outs for rights to

indemnification, enforcement of this Release and to vested Equity. Executive must execute and return the Release on or before the date specified by the Company in the Release (the “Release Deadline”). The Release Deadline will in no event be later than fifty (50) days after Executive’s Separation. If Executive fails to return the executed Release on or before the Release Deadline, or if Executive revokes the Release within seven (7) days after return of the executed Release, then Executive will not be entitled to the benefits described in this Section 5.

(b) Termination by Board without Cause or by Executive for Good Reason Not in Connection with Change in Control. If the Board terminates Executive’s employment without Cause or Executive resigns for Good Reason and a Separation occurs either more than three months prior to a Change in Control or more than 18 months after a Change in Control, the Company shall pay Executive his earned but unpaid base salary plus 100% of the sum of (i) Executive’s current total annual base salary plus (ii) Executive’s target annual bonus for the then current year (subject to such withholdings as required by law) payable in twelve equal monthly installments (the “Non-Change in Control Severance Payments”). In addition, Executive shall be paid, no later than 2½ months following the close of the fiscal year of termination, Executive’s Earned Bonus for the fiscal year in which the Separation occurs. The Non-Change in Control Severance Payments shall commence within 60 days after Executive’s Separation and, once they commence, shall include any unpaid amounts accrued from the date of Separation. However, if such 60-day period spans two calendar years, then the payments will in any event begin in the second calendar year. In addition, the Company shall make any continuation coverage premium payments (for Executive and Executive’s dependents) for continued health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) for the one-year period following the Separation or, if earlier, until Executive is eligible to be covered under another substantially equivalent medical insurance plan by a subsequent employer. Notwithstanding the foregoing, if the Company, in its sole discretion, determines that it cannot provide the foregoing subsidy of COBRA coverage without potentially violating or causing the Company to incur additional expense as a result of noncompliance with applicable law (including Section 2716 of the Public Health Service Act), the Company instead shall provide to Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue the group health coverage in effect on the date of the Separation (which amount shall be based on the premium for the first month of COBRA coverage), which payments (i) shall be made regardless of whether Executive elects COBRA continuation coverage, (ii) shall commence on the later of (A) the first day of the month following the month in which Executive experiences a Separation and (B) the effective date of the Company’s determination of violation of applicable law, and (iii) shall end on the earliest of (x) the effective date on which Executive becomes covered by a medical, dental or vision insurance plan of a subsequent employer, and (y) the last day of the period one year after Separation. Executive shall have no right to an additional gross-up payment to account for the fact that such COBRA premium amounts are paid on an after-tax basis.

(c) Termination by Board without Cause or by Executive for Good Reason in Connection with Change in Control. If the Board terminates Executive’s employment without Cause or Executive resigns for Good Reason and a Separation occurs either within three months prior to a Change in Control or within 18 months after a Change in Control, the Company shall pay Executive his earned but unpaid base salary plus 150% of the sum of (i) Executive’s current total annual base salary plus (ii) Executive’s target annual bonus for the then current year (subject

to such withholdings as required by law) payable in eighteen equal monthly installments (the “Change in Control Severance Payments”). In addition, Executive shall be paid, no later than 2½ months following the close of the fiscal year of termination, Executive’s Earned Bonus for the fiscal year in which the Separation occurs. The Change in Control Severance Payments shall commence within 60 days after Executive’s Separation. However, if such 60-day period spans two calendar years, then the payments will in any event begin in the second calendar year. In addition, the Company shall make any continuation coverage premium payments (for Executive and Executive’s dependents) for continued health insurance coverage under the COBRA for the 18-month period following the Separation or, if earlier, until Executive is eligible to be covered under another substantially equivalent medical insurance plan by a subsequent employer. Notwithstanding the foregoing, if the Company, in its sole discretion, determines that it cannot provide the foregoing subsidy of COBRA coverage without potentially violating or causing the Company to incur additional expense as a result of noncompliance with applicable law (including Section 2716 of the Public Health Service Act), the Company instead shall provide to Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue the group health coverage in effect on the date of the Separation (which amount shall be based on the premium for the first month of COBRA coverage), which payments (i) shall be made regardless of whether Executive elects COBRA continuation coverage, (ii) shall commence on the later of (A) the first day of the month following the month in which Executive experiences a Separation and (B) the effective date of the Company’s determination of violation of applicable law, and (iii) shall end on the earliest of (x) the effective date on which Executive becomes covered by a medical, dental or vision insurance plan of a subsequent employer, and (y) the last day of the period 18 months after Separation. Executive shall have no right to an additional gross-up payment to account for the fact that such COBRA premium amounts are paid on an after-tax basis.

(d) Termination by the Board for Cause or by Executive without Good Reason. If the Board terminates Executive’s employment for Cause or Executive resigns without Good Reason, the Company’s only obligation to Executive under this Agreement shall be to pay Executive his earned but unpaid base salary, if any, up to the date Executive’s employment terminates, and Executive shall have no right to any Earned Bonus or any unpaid bonus payment whatsoever. The Company shall only be obligated to reimburse any unreimbursed business expenses and to make such payments and provide such benefits under any employee benefit plan, program or policy in which Executive was a participant as are explicitly required to be paid to Executive by the terms of any such benefit plan, program or policy following the date on which Executive’s employment terminates.

(e) Termination for Disability. The Board shall have the right to terminate Executive’s employment on or after the date Executive has a Disability, and such a termination shall not be treated as a termination without Cause under this Agreement. If Executive’s employment is terminated on account of a Disability and a Separation occurs, the Company shall:

(1) pay Executive Executive’s base salary through the end of the month in which a Separation occurs as soon as practicable after the Separation,

(2) pay Executive Executive’s Earned Bonus for the fiscal year in which such Separation occurs; provided that the Earned Bonus shall in no event be paid later than 2½ months after the close of such fiscal year,

(3) pay or cause the payment of benefits to which Executive is entitled under the terms of the disability plan(s) of the Company covering Executive at the time of such Disability,

(4) make such payments and provide such benefits as otherwise called for under the terms of the ISP and each other employee benefit plan, program and policy in which Executive was a participant; provided that no payments made under Section 5(e)(l),  Section 5(e)(2) or Section 5(e)(3) shall be taken into account in computing any payments or benefits described in this Section 5(e)(4), and

(5) make any COBRA continuation coverage premium payments (for Executive and for Executive’s dependents), for the 18-month period following the termination of Executive’s employment or, if earlier, until Executive is eligible to be covered under another substantially equivalent medical insurance plan by a subsequent employer. Notwithstanding the foregoing, if the Company, in its sole discretion, determines that it cannot provide the foregoing subsidy of COBRA coverage without potentially violating or causing the Company to incur additional expense as a result of noncompliance with applicable law (including Section 2716 of the Public Health Service Act), the Company instead shall provide to Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue the group health coverage in effect on the date of the Separation (which amount shall be based on the premium for the first month of COBRA coverage), which payments shall be made regardless of whether Executive elects COBRA continuation coverage, shall commence on the later of (i) the first day of the month following the month in which Executive experiences a Separation and (ii) the effective date of the Company’s determination of violation of applicable law, and shall end on the earliest of (x) the effective date on which Executive becomes covered by a medical, dental or vision insurance plan of a subsequent employer, and (y) the last day of the period 18 months after Separation. Executive shall have no right to an additional gross-up payment to account for the fact that such COBRA premium amounts are paid on an after-tax basis.

(f) Death. If Executive’s employment terminates because of his death, the Company shall:

(1) pay to Executive’s estate Executive’s base salary through the end of the month of his death as soon as practicable after his death,

(2) pay to Executive’s estate Executive’s Earned Bonus, when actually determined, for the year in which Executive’s death occurs,

(3) make such payments and provide such benefits as otherwise called for under the terms of the ISP and each other employee benefit plan, program and policy in which Executive was a participant; provided that no payments made under Section 5(f)(1) or

Section 5(f)(2) shall be taken into account in computing any payments or benefits described in this Section 5(f)(3), and

(4) make any COBRA continuation coverage premium payments for Executive’s dependents for the one-year period following Executive’s death or, if earlier, until such dependents are eligible to be covered under another substantially equivalent medical insurance plan. Notwithstanding the foregoing, if the Company, in its sole discretion, determines that it cannot provide the foregoing subsidy of COBRA coverage without potentially violating or causing the Company to incur additional expense as a result of noncompliance with applicable law (including Section 2716 of the Public Health Service Act), the Company instead shall provide a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive’s dependents would be required to pay to continue the group health coverage in effect on the date of Executive’s death (which amount shall be based on the premium for the first month of COBRA coverage), which payments shall be made regardless of whether Executive’s dependents elect COBRA continuation coverage, shall commence on the later of (i) the first day of the month following the month in which Executive dies and (ii) the effective date of the Company’s determination of violation of applicable law, and shall end on the earliest of (x) the effective date on which Executive’s dependents become covered under another substantially equivalent medical insurance plan, and (y) the last day of the period one year after Executive’s death. Executive’s dependents shall have no right to an additional gross-up payment to account for the fact that such COBRA premium amounts are paid on an after-tax basis.

SECTION 6 COVENANTS BY EXECUTIVE

(a) Company Property. Upon the termination of Executive’s employment for any reason, or upon any earlier Company request, Executive shall promptly return all Company Property that had been entrusted or made available to Executive by the Company, where the term “Property” means all Company-related records, files, memoranda, reports, price lists, customer lists, drawings, plans, sketches, keys, codes, computer hardware and software and other property of any kind or description prepared, used or possessed by Executive during Executive’s employment by the Company (and any duplicates of any such Property), together with any and all information, ideas, concepts, discoveries, and inventions and the like conceived, made, developed or acquired at any time by Executive individually or with others during Executive’s employment that relate to the Company or its products or services.

(b) Trade Secrets. Executive agrees that Executive shall hold in a fiduciary capacity in perpetuity for the sole benefit of the Company and its affiliates and shall not directly or indirectly use or disclose any Trade Secret that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive is authorized to have access to such information) during the term of Executive’s employment by the Company or any of its predecessors for so long as such information remains a Trade Secret, where the term “Trade Secret” means information, including technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing or a process that (1) derives economic value, actual or potential, from not being generally known to, and not being generally readily ascertainable by proper means by, other persons who can obtain economic value from its

disclosure or use and (2) is the subject of reasonable efforts by the Company and any of its affiliates to maintain its secrecy. This Section 6(b) is intended to provide rights to the Company and its affiliates which are in addition to, not in lieu of, those rights the Company and its affiliates have under the common law or applicable statutes for the protection of trade secrets.

(c) Confidential Information. Executive while employed by the Company or its affiliates and for the three-year period thereafter shall hold in a fiduciary capacity for the sole benefit of the Company and its affiliates, and shall not directly or indirectly use or disclose, any Confidential Information that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive is authorized to have access to such information) during the term of and in the course of or as a result of Executive’s employment by the Company or its predecessors without the prior written consent of the Board unless and except to the extent that such disclosure is (i) made in the ordinary course of Executive’s performance of his duties under this Agreement or (ii) required by any subpoena or other legal process (in which event Executive will give the Company prompt notice of such subpoena or other legal process in order to permit the Company to seek appropriate protective orders). For the purposes of this Agreement, the term “Confidential Information” means any secret, confidential, or proprietary information possessed by the Company or any of its affiliates, including trade secrets, customer or supplier lists, details of client or consultant contracts, current and anticipated customer requirements, pricing policies, price lists, market studies, business plans, operational methods, marketing plans or strategies, product flaws or development techniques, computer software programs (including object code and source code), data and documentation data, base technologies, systems, structures and architectures, inventions and ideas, past current and planned research and development, compilations, devices, methods, techniques, processes, financial information and data, business acquisition plans, and new personnel acquisition plans (not otherwise included as a Trade Secret under this Agreement) that has not become generally available to the public, and the term “Confidential Information” may include future business plans, licensing strategies, advertising campaigns, information regarding customers or suppliers, executives and independent contractors and the terms and conditions of this Agreement. Notwithstanding the provisions of this Section 6(c) to the contrary, Executive shall be permitted to furnish this Agreement to a subsequent employer or prospective employer.

(d) Non-solicitation of Customers or Employees.

(1) Executive (i) while employed by the Company or any of its affiliates shall not, on Executive’s own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (other than the Company or one of its affiliates), solicit business for a Competing Business from customers or suppliers of the Company or any of its affiliates and (ii) during the Restricted Period shall not, on Executive’s own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise, solicit business for a Competing Business from customers or suppliers of the Company or any of its affiliates with whom Executive, in the case of both clauses (i) and (ii) above, had or made material business contact with in the course of Executive’s employment by the Company within the 24-month period immediately preceding the beginning of the Restricted Period.

(2) Executive (i) while employed by the Company or any of its affiliates shall not, either directly or indirectly, call on, solicit or attempt to induce any other officer, employee or independent contractor of the Company or any of its affiliates to terminate his or her employment with such business and shall not assist any other person or entity in such a solicitation (regardless of whether any such officer, employee or independent contractor would commit a breach of contract by terminating his or her employment), and (ii) during the Restricted Period, shall not, either directly or indirectly, call on, solicit or attempt to induce any other officer, employee or independent contractor of such business with whom Executive had contact, knowledge of, or association in the course of Executive’s employment with the Company or any of its predecessors or affiliates, as the case may be, during the 12-month period immediately preceding the beginning of the Restricted Period, to terminate his or her employment with the Company or any of its affiliates and shall not assist any other person or entity in such a solicitation (regardless of whether any such officer, employee or independent contractor would commit a breach of contract by terminating his or her employment). Notwithstanding the foregoing, nothing shall prohibit any person from contacting Executive about employment or other engagement during the Restricted Period, provided that Executive does not solicit the contact.

(e) Non-competition Obligation. Without the prior written consent of the Company, Executive, while employed by the Company or any of its affiliates and thereafter until the end of the Restricted Period, will not engage in any of the activities described in Section 3(b)(l) hereof within the geographical area in which the Company or any of its affiliates is actively engaged in developing, marketing and selling ophthalmic pharmaceuticals, for himself or on behalf of any other person, partnership, corporation or other business entity that is a Competing Business for the purpose of competing with the Company. Notwithstanding the preceding sentence, Executive will not be prohibited from owning less than 5% percent of any publicly traded corporation, whether or not such corporation is in a Competing Business.

(f) Reasonable and Continuing Obligations. Executive agrees that Executive’s obligations under this Section 6 are obligations which will continue beyond the date Executive’s employment terminates and that such obligations are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the Company’s legitimate business interests, and are a material inducement to the Company to enter into this Agreement.

(g) Remedy for Breach. Executive agrees that the remedies at law of the Company for any actual or threatened breach by Executive of the covenants in this Section 6 would be inadequate and that the Company shall be entitled to specific performance of the covenants in this Section 6, including entry of a temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in addition to any damages and legal expenses which the Company may be legally entitled to recover. The Company agrees, however, to give Executive and, if known, Executive’s attorney reasonable advance notice of any legal proceeding, including any application for a temporary restraining order, relating to an attempt to enforce the covenants in this Section 6 against Executive. Executive acknowledges and agrees that the covenants in this Section 6 shall be construed as agreements independent of any other provision of this Agreement or any other agreement between the Company and Executive, and that the existence of any claim

or cause of action by Executive against the Company, whether predicated upon this Agreement or any other agreement, shall not constitute a defense to the enforcement by the Company of such covenants.

(h) Termination of Restrictive Covenants. In addition to any other right or remedy available to Executive, Executive shall no longer be bound by any of the restrictions set forth in this Section 6 if the Company fails to pay or to provide Executive when due the amounts and benefits due hereunder or under any agreement ancillary hereto, and Executive’s pursuit of such remedy shall not relieve the Company from its obligations to pay and to provide such amounts and benefits to Executive.

(i) Ownership of Inventions, Discoveries, Improvements, Etc.

(1) Executive shall promptly disclose and describe to the Company all inventions, improvements, discoveries and technical developments, whether or not patentable, made or conceived by Executive, either alone or with others, during such time as Executive is employed with the Company, and within one year after the date upon such employment terminates, that (i) are based in whole or in part upon Confidential Information or (ii) during such time as Executive is employed with the Company are along the lines of, useful in or related to the business of the Company or (iii) result from or are suggested by any work done by Executive for or on behalf of the Company (“Inventions”). Executive hereby assigns and agrees to assign to the Company Executive’s entire right, title and interest in and to such Inventions (the “Assigned Inventions”), and agrees to cooperate with the Company both during and after such time as Executive is employed with the Company in the procurement and maintenance, at the Company’s expense and at its direction, of patents and copyright registrations and/or other protection of the Company’s rights in such Inventions. Executive shall keep and maintain adequate and current written records of all such Inventions, which shall be and remain the property of the Company.

(2) If a patent application, trademark registration or copyright registration is filed by Executive or on Executive’s behalf, or a copyright notice indicating Executive’s authorship is used by Executive or on Executive’s behalf, within one year after the date on which Executive’s employment with the Company terminates, that describes or identifies any Invention within the scope of Executive’s work for the Company or that otherwise related to a portion of the Company’s business (or any division thereof) of which Executive had knowledge such time as Executive was employed with the Company, it is to be conclusively presumed that the Invention was conceived by Executive during the such time as Executive was employed with the Company. Executive agrees to notify the Company promptly of any such application or registration and to assign to the Company Executive’s entire right, title and interest in such Invention and in such application or registration.

(3) If (i) Executive uses or discloses any of Executive’s own or any third party’s confidential information or intellectual property (collectively, “Restricted Materials”) when acting within the scope of Executive’s employment (or otherwise on behalf of the Company) or (ii) any Assigned Invention cannot be fully made, used, reproduced or otherwise exploited without using or violating any Restricted Materials, Executive hereby grants and agrees to grant to the Company a perpetual, irrevocable, worldwide, royalty-

free, non-exclusive, sublicensable right and license to exploit and exercise all such Restricted Materials and intellectual property rights therein. Executive will not use or disclose any Restricted Materials for which Executive is not fully authorized to grant the foregoing license.

(4) To the extent allowed by applicable law, the terms of this Section 6(i) include all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral or the like (collectively, “Moral Rights”). To the extent Executive retains any such Moral Rights under applicable law, Executive hereby ratifies and consents to any action that may be taken by or authorized by the Company with respect to such Moral Rights and agrees not to assert any Moral Rights with respect thereto. Executive will confirm any such ratification, consent or agreement from time to time as requested by the Company.

SECTION 7 MISCELLANEOUS

(a) Notices. Notices and all other communications shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by United States registered or certified mail. Notices to the Company shall be sent to:

(b) No Waiver. Except for the notice described in Section 7(a), no failure by either the Company or Executive at any time to give notice of any breach by the other of, or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver of any provisions or conditions of this Agreement.

(c) Tax Matters.

(1) All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be withheld by law.  The Company intends that all payments and benefits provided under this Agreement or otherwise are exempt from, or comply with, with the requirements of Section 409A of the Code (“Section 409A”) so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted in accordance with such intent.    Specifically, to the extent necessary to avoid the imposition of tax on Executive under Section 409A, payments payable upon a termination or separation shall be suspended until the first business day following (i) six (6) months from effective date of termination or separation or (ii) the date of Executive’s death, if, immediately prior to Executive’s termination or separation, Executive is a “specified employee” (within the meaning of Code Section 409A(a)(2)(B)(i)) and Section 409A would require the delay of such payment to avoid any penalties thereunder and any installments that otherwise would have

been paid or provided prior to such date will be paid or provided in a lump sum when the severance payments or benefits commence. Each payment hereunder shall be deemed a separate payment for purposes of Section 409A. The parties intend that no payment pursuant to this Agreement shall give rise to any adverse tax consequences to either party pursuant to Section 409A; provided, however, that Executive acknowledges that the Company does not guarantee any particular tax treatment and that Executive is solely responsible for any taxes Executive incurs pursuant to Section 409A, if any, as a result of this Agreement.    The Company shall not have a duty to design its compensation policies in a manner that minimizes Executive’s tax liabilities, and Executive agrees not to make any claim against the Company or the Board related to tax liabilities arising from Executive’s compensation.

(2) If any payment or benefit that Executive would receive in connection with an acquisition of ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of section 280G of the Code and the regulations thereunder) (the “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of the greatest economic benefit notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, any reduction shall be applied first, on a pro rata basis, to amounts that constitute deferred compensation within the meaning of Section 409A of the Code, and, in the event that the reductions pursuant to this Section 7(c)(2) exceed payments that are subject to Section 409A of the Code, the remaining reductions shall be applied, on a pro rata basis, to any other remaining payments,  first with respect to amounts payable in cash before being made in respect to any payments to be provided in the form of benefits or Equity award acceleration, and in the form of benefits before being made with respect to Equity award acceleration. The Company’s determinations hereunder shall be final, binding and conclusive on all interested parties.

(3) Georgia Law. This Agreement shall be governed by the laws of the state of Georgia without regard to its provisions regarding choice of law or conflicts of law. Any litigation that may be brought by either the Company or Executive involving the enforcement of this Agreement or any rights, duties, or obligations under this Agreement, shall be brought exclusively in a Georgia state court or United States District Court in Georgia.

(4) Assignment. This Agreement shall be binding upon and inure to the benefit of the Company and any successor in interest to the Company. The Company may assign

this Agreement to any affiliate or successor that acquires all or substantially all of the assets and business of the Company or a majority of the voting interests of the Company, and no such assignment shall be treated as a termination of Executive’s employment under this Agreement. Executive’s rights and obligations under this Agreement are personal and shall not be assigned or transferred.

(5) Other Agreements. This Agreement replaces and merges any and all previous agreements and understandings regarding all the terms and conditions of Executive’s employment relationship with the Company, including the Prior Agreement, and this Agreement constitutes the entire agreement between the Company and Executive with respect to such terms and conditions.

(6) Amendment. No amendment to this Agreement shall be effective unless it is in writing and signed by an authorized officer of the Company (other than Executive) and Executive.

(7) Invalidity. If any part of this Agreement becomes or is deemed invalid or otherwise unenforceable by a court of competent jurisdiction, the remaining part shall be unaffected and shall continue in full force and effect, and the invalid or otherwise unenforceable part shall be deemed not to be part of this Agreement.

(8) Litigation. If either party to this Agreement institutes litigation against the other party to enforce his or its respective rights under this Agreement, each party shall pay its own costs and expenses incurred in connection with such litigation.

(9) Interpretation. The recitals to this Agreement shall be taken into account in the construction or interpretation of this Agreement. The words “include,” “includes” and “including” are deemed to be followed by the phrase “without limitation.” The captions or headings of the Sections and other subdivisions of this Agreement are inserted only as a matter of convenience or reference and have no effect on the meaning of the provisions of those Sections or subdivisions. If the provisions of this Agreement require judicial interpretation, the parties agree that the judicial body interpreting or construing the Agreement may not apply the assumption that the terms must be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party that itself or through its agents prepared the instrument.

(10) Survival. The respective indemnities, representations, warranties, agreements and covenants of the Company and Executive contained in this Agreement shall survive the termination of this Agreement and shall remain in full force and effect.

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





By:

/s/ Adam Morgan

By:

/s/ Richard S. Eiswirth, Jr.



Adam Morgan,
Chairman of the Board

Richard S. Eiswirth, Jr.



Date:

December 11, 2023

Date:

December 11, 2023



SECTION 1 EFFECTIVE DATE

SECTION 2 DEFINITIONS

·

for purposes of Section 4(e),  that Executive resigns due to one of the following conditions:  (i) a material diminution of Executive’s authority, duties or responsibilities with the Company; (ii) a geographic relocation of Executive’s primary business location to a location that is more than 35 miles from the present location of Executive’s primary business location; or (iii) any breach by the Company of this Agreement that is material and, in the case of each clause above, that is not cured within 30 days after written notice thereof to the Company from Executive.

·

for purposes of Section 5, that Executive resigns after one of the following conditions has come into existence without his consent: (i) a reduction in Executive’s base salary from the amount set forth in Section 4(a) or target bonus opportunity set forth in Section 4(b); (ii) a material adverse change in Executive’s authority, responsibilities or duties with the Company; (iii) a requirement by the Company that Executive relocate Executive’s primary business location to a location that is more than 35 miles from the present location of Executive’s primary business location; (iv) any breach by the Company of this Agreement that is material and that is not cured, or is not capable of being cured, within 30 days after written notice thereof to the Company and the Board from Executive. A condition shall not be considered “Good Reason” unless Executive gives the Company written notice of such condition within 90 days after such condition first comes into existence, the Company fails to remedy such condition within 30 days after receiving Executive’s written notice (the “Cure Period”), and Executive terminates Executive’s employment within sixty (60) days after the end of the Cure Period.  For the avoidance of doubt, if the Company cures the Good Reason condition during the Cure Period, Good Reason shall be deemed not to have occurred.

SECTION 3 TITLE, POWERS AND RESPONSIBILITIES

(a) Title. Executive shall serve as President, U.S. Operations of the Company.

(b) Powers and Responsibilities.

(1) Executive, in fulfilling Executive’s responsibilities, shall have such powers as are normally and customarily associated with a President of U.S. Operations in a company of similar size and operating in a similar industry, including the power to hire and fire employees and executives of the Company reporting to Executive and such other powers as are authorized by the Board.

(2) Executive, as a condition to Executive’s employment under this Agreement, represents and warrants that Executive will assume and fulfill the responsibilities described in Section 3(b)(1) without any risk of violating any non-compete or other restrictive covenant or other agreement to which Executive is a party.

(c) Reporting Relationship. Executive shall report to the Company’s Chief Executive Officer.

(d) Full-Time Basis. Executive (1) shall undertake to perform all Executive’s responsibilities and exercise all Executive’s powers in good faith and on a full-time basis, (2) shall not engage in any other employment, consulting or other business activity that would create a conflict of interest with the Company, (3) shall not assist any person or entity in competing with the Company or in preparing to compete with the Company, and (4) shall comply in all  material respects with the Company’s policies and rules, as they may be in effect from time to time.

(e) No Conflicting Obligations. Executive represents and warrants to the Company that Executive is under no obligations or commitments, whether contractual or otherwise, that are inconsistent with his obligations under this Agreement. Executive represents and warrants that Executive will not use or disclose, in connection with Executive’s employment with the Company, any trade secrets or other proprietary information or intellectual property in which Executive or any other person has any right, title or interest and that Executive’s employment with the Company will not infringe or violate the rights of any other person.

SECTION 4 COMPENSATION, BENEFITS, ETC.

(a) Annual Base Salary. Executive’s base salary shall be $415,000 per year, which amount may be reviewed and adjusted from time to time at the discretion of the Board or the

Compensation Committee. Executive’s annual base salary shall be payable in accordance with the Company’s standard payroll practices and policies for executives and shall be subject to such withholdings as are required by law or as are otherwise permissible under such practices or policies.

(b) Annual Bonus.  Beginning on January 1, 2024, for each fiscal year, the Company shall pay an annual bonus to Executive no later than 2½ months after the close of such fiscal year, subject to the terms and conditions of the Company’s Management Cash Incentive Program (or any predecessor or successor cash incentive plan thereto), which may be reviewed from time to time at the discretion of the Board or the Compensation Committee.  To earn an annual bonus for any particular fiscal year of employment, Executive must remain employed by the Company through the date the bonus is paid except as specifically set forth in Section 5.  Executive’s initial target annual bonus amount shall be up to 45% of Executive’s annual base salary, as determined by the Board or the Compensation Committee.  The determinations of the Board or the Compensation Committee with respect to such bonus shall be final and binding; provided, however, that Executive’s target annual bonus amount shall not be reduced to an amount below 45% of Executive’s then-current base salary.

(c) Employee Benefit Plans. Executive shall be eligible to participate in the employee benefit plans, programs and policies maintained by the Company on terms no less favorable to Executive than the participation terms applicable to similarly situated executives of the Company,   subject to the terms and conditions of such plans, programs and policies as in effect from time to time.

(d) Equity Awards.  Subject to the approval of the Compensation Committee, the Company will grant to Executive the following stock option, time-based restricted stock units, and performance-based restricted stock units, each as an inducement material to Executive’s entering into this Agreement, within the meaning of NASDAQ Marketplace Rule 5635(c)(4) and the related guidance under NASDAQ IM 5635-1, and not pursuant to the Plan:

(1) Stock Option. Executive shall receive an option to purchase 125,000 shares of Stock (the “Option”). The exercise price of the Option shall be equal to the fair market value per share of Stock as of the date of grant of the Option.  The Option will be subject to the terms and conditions set forth in the corresponding inducement stock option agreement (the “Stock Option Agreement”). As more fully described in the Stock Option Agreement, Executive will vest in 25% of the Option shares after twelve (12) months of continuous service with the Company, and the balance will vest in equal monthly installments over the next thirty-six (36) months of continuous service with the Company. 

(2) Restricted Stock Units. Executive shall receive an award of 125,000 restricted stock units representing a notional account equal to a corresponding number of shares of Stock (the “RSUs”). Such RSUs will be subject to the terms and conditions set forth the corresponding inducement restricted stock unit agreement (the “RSU Agreement”). As more fully described in the RSU Agreement, the RSUs will vest with respect to 25% of the RSUs after twelve (12) months of continuous service with the Company, and the balance will vest in equal annual installments over the next thirty-six (36) months of continuous service with the Company. 

(3) Performance Stock Units. Executive shall receive an award of 125,000 performance stock units representing a notional account equal to a corresponding number of shares of Stock (the “PSUs”). Such PSUs will be subject to the terms and conditions set forth in the corresponding inducement performance stock unit agreement (the “PSU Agreement”). As will be more fully described in the PSU Agreement, the vesting of the PSUs will be conditioned on the satisfaction of either of the following performance metrics, in each case subject to Executive’s continuous service with the Company:  

(A) Revenue Target.  The PSUs will vest in three tranches, subject to the achievement of the following milestones, as determined by the Compensation Committee following the completion of the Company’s audited financial statements for the applicable measurement year. Each tranche will vest if the (i) Company’s audited revenue for the applicable measurement year equals or exceed that annual revenue target set forth below for the applicable year and (ii) the corporate Adjusted EBITDA (as defined in the PSU Agreement) exceeds 20% of revenue in such year (the “Revenue Target”):

Measurement Year (Number of Shares Subject to PSUs)

Annual Revenue Target 

2024 (41,666)

$115,000,000

2025 (41,667)

$135,000,000

2026 (41,667)

$155,000,000

(B) Stock Price Target.  Notwithstanding the Revenue Target, the PSUs will vest in three tranches of shares, subject to the achievement of the following milestones.  For any measurement year, the applicable shares subject to the PSUs will vest if the per share closing price of the Stock equals or exceeds the price in the table below for any 20 trading days within any 30-trading day period during the applicable measurement year (adjustments to be made for stock splits, stock dividends, reorganizations, and recapitalizations) (the “Stock Price Target”): 

Measurement Year (Number of Shares Subject to PSUs)

Closing Price of Share of Stock

2024 (41,666)

$5.10

2025 (41,667)

$6.80

2026 (41,667)

$8.50

(4) Other Awards.  Executive may receive additional Equity awards at the discretion of the Board, subject to the terms and conditions set forth in the applicable ISP and any corresponding notice, agreement or certificate under the ISP. 

(e) Acceleration of Vesting of Equity. The following terms shall apply to all of Executive’s Equity awards in Section 4(d), subject to Executive’s execution and non-revocation of the Release provided for in Section 5(a):

(1) The vested percentage of Executive’s Equity awards subject to time-based vesting (“Time-Based Awards”) shall be determined by adding 12 months to the actual period of service that Executive has completed with the Company if Executive’s employment with the Company is terminated by the Company without Cause or Executive resigns for Good Reason. (i.e., Executive’s vesting shall be accelerated by an additional 12 months). 

(2) Executive shall vest in 100% of Executive’s remaining unvested Time-Based Awards if (i)  a  Change in Control occurs and (ii) within 3 months prior to a Change in Control, on a Change in Control, or within 12 months after the Change in Control, Executive’s employment with the Company is terminated by the Company (or its successor) without Cause or Executive resigns for Good Reason.

(3) Executive shall vest in 100% of Executive’s unvested PSUs for the measurement year in which a Change in Control occurs (i) if the pro-rated annual revenue and Adjusted EBITDA as of the date of the Change in Control, annualized, would exceed the Revenue Target for the year in which the Change in Control occurs (i.e., the trajectory of the revenue for the year is on pace to exceed the Revenue Target in the year of the Change in Control as of the date of the Change in Control), as determined by the Compensation Committee and (ii) if (A)  a  Change in Control occurs and (B) within 3 months prior to a Change in Control, on a Change in Control, or within 12 months after the Change in Control, Executive’s employment with the Company is terminated by the

Company (or its successor) without Cause or Executive resigns for Good Reason. For the avoidance of doubt, (x)  PSUs that did not vest in a prior year because the applicable Revenue Target milestone was not satisfied or the Stock Price Target milestone was not satisfied shall not be subject to any acceleration of vesting and (y) PSUs that have not vested because the applicable measurement year has not yet occurred as of the Change in Control shall not be subject to any acceleration of vesting under the Revenue Target milestone; provided, however, that, if the per-share closing price of the Stock equals or exceeds the Stock Price Target, disregarding the trading day requirement, for a future year upon the Change in Control, then the number of vested PSUs shall be accelerated to include the number of PSUs that would have vested in such future year.

(4) Executive shall vest in 100% of the remaining unvested Equity awards in the event of Disability where a Separation occurs or in the event of death.

(f) Rights to Time Off Work. Executive shall be eligible for paid time off in accordance with the Company paid time-off policies, as in effect from time to time.  

(g) Expense Reimbursements. Executive shall have the right to expense reimbursements in accordance with the Company’s standard policy on expense reimbursements, as in effect from time to time. Any reimbursement shall (a) be for expenses reasonably and necessarily incurred in the performance of Executive’s duties, (b) be paid promptly but not later than the last day of the calendar year following the year in which the expense was incurred, (c) not be affected by any other expenses that are eligible for reimbursement in any calendar year, and (d) not be subject to liquidation or exchange for another benefit.

(h) Indemnification. The Company shall, to the maximum extent permitted by applicable law and the Company’s governing documents, indemnify Executive and hold Executive harmless from and against any claim, loss or cause of action arising from or out of Executive’s performance as an officer, director, manager or employee of the Company or in any other capacity in which Executive serves at the request of the Board. If any claim is asserted hereunder against Executive, the Company shall pay Executive’s legal expenses (or cause such expenses to be paid) on a quarterly basis, provided that Executive shall reimburse the Company, in a timely manner, for such amounts if Executive shall be found by a final, non-appealable order of a court of competent jurisdiction not to be entitled to indemnification. The indemnification obligations of the Company in this paragraph shall survive any termination of this Agreement and shall be supplemental to any other rights to indemnification from the Company to which Executive may be entitled.

(i) Directors and Officers Liability Insurance. The Company shall maintain directors’ and officers’ liability insurance coverage covering Executive in amounts customary for similarly situated companies in the pharmaceutical industry and with insurers reasonably acceptable to Executive. All policies for such coverage shall provide for insurance on an “occurrence” basis, or if on a “claims-made” basis, with sufficient coverage for claims made after the date on which Executive’s employment with the Company terminates.

(j) At-Will Employment. Executive’s employment with the Company shall be “at will,” meaning that either Executive or the Company shall be entitled to terminate Executive’s

employment at any time and for any or no reason, with or without Cause or Good Reason. Any contrary representations that may have been made to Executive shall be superseded by this Agreement. This Agreement shall constitute the full and complete agreement between Executive and the Company on the “at will” nature of Executive’s employment, which may only be changed in an express written agreement signed by Executive and a duly authorized officer of the Company (other than Executive).

SECTION 5 TERMINATION OF EMPLOYMENT

(a) General.  If the Board terminates Executive’s employment without Cause or Executive resigns for Good Reason, then Executive will be entitled to the benefits described in Section 4(e) and this Section 5. However, Executive will not be entitled to any of the benefits described in Section 4(e) or this Section 5 (with the exception of salary amounts that are earned but unpaid as of the date of termination) unless Executive (or, with respect to Section 5(f), the executor of Executive’s estate) has (i) returned all Company property in Executive’s possession and (ii) executed a separation agreement and general release of all claims that Executive may have against the Company or persons affiliated with the Company in a form prescribed by the Company (the “Release”), with applicable carve-outs for rights to indemnification, enforcement of the Release and to vested Equity awards. Executive must execute and return the Release on or before the date specified by the Company in the Release (the “Release Deadline”). The Release Deadline will in no event be later than fifty (50) days after Executive’s Separation. If Executive fails to return the executed Release on or before the Release Deadline, or if Executive revokes the Release within seven (7) days after return of the executed Release, then Executive will not be entitled to the benefits described in Section 4(e) or this Section 5.

(b) Termination by Board without Cause or Resignation for Good Reason Not in Connection with Change in Control. If the Board terminates Executive’s employment without Cause or Executive resigns for Good Reason either more than three months prior to a Change in Control or more than 12 months after a Change in Control, the Company shall make the following payments to Executive (subject in each case to applicable deductions and such withholdings for taxes as required by law):

(i) If Executive’s Separation occurs prior to Executive’s completion of six month of continuous employment with the Company,  Executive will receive his earned but unpaid base salary, if any, up to the date Executive’s employment terminates, and no further payments;  

(ii) If Executive’s Separation occurs after the first continuous six months of Executive’s employment with the Company but prior to completion of twelve months of continuous employment with the Company,  Executive will receive his earned but unpaid base salary if any, up to the date Executive’s employment terminates, plus 50% of Executive’s then-current annual base salary, which latter amount shall be payable in six equal monthly installments;

(iii) If Executive’s Separation occurs after the first continuous twelve months of Executive’s employment with the Company but prior to completion of twenty-four months of employment with the Company,  Executive will receive his earned but unpaid base

salary, if any, up to the date Executive’s employment terminates, plus 75% of Executive’s then-current annual base salary, which latter amount shall be payable in nine equal monthly installments in accordance with the Company’s regular payroll practices; and

(iv) If Executive’s Separation occurs at any time after completion of twenty-four months of continuous employment with the Company,  Executive will receive his earned but unpaid base salary, if any, up to the date Executive’s employment terminates, plus 100% of  Executive’s then-current annual base salary, which latter amount shall be payable in twelve equal monthly installments in accordance with the Company’s regular payroll practices. 

(c) Termination by Board without Cause or Resignation for Good Reason in Connection with Change in Control. If the Board terminates Executive’s employment without Cause or Executive resigns for Good Reason and a Separation occurs either within the period that begins three months prior to a Change in Control and ends within 12 months after a Change in Control, the Company shall pay Executive his earned but unpaid base salary plus the sum of (i) 100% of Executive’s then-current annual base salary plus (ii) 100% of Executive’s target annual bonus for the then-current year (subject to such withholdings as required by law), payable in twelve equal monthly installments in accordance with the Company’s regular payroll practices (the “Severance Payments”). In addition, Executive shall be paid, no later than 2½ months following the close of the fiscal year of termination, Executive’s Bonus for the fiscal year in which the Separation occurs. The Severance Payments shall commence within 60 days after Executive’s Separation. However, if such 60-day period spans two calendar years, then the payments will in any event begin in the second calendar year. In addition, subject to Section 5(g) below, the Company shall make any continuation coverage premium payments (for Executive and Executive’s dependents) for continued health insurance coverage under the COBRA for the 18-month period following the Separation or, if earlier, until Executive is eligible to be covered under another substantially equivalent medical insurance plan by a subsequent employer.

(d) Termination by the Board for Cause or by Executive without Good Reason. If the Board terminates Executive’s employment for Cause or Executive resigns without Good Reason, the Company’s only obligation to Executive under this Agreement shall be to pay Executive his

earned but unpaid base salary, if any, up to the date Executive’s employment terminates, and Executive shall have no right to any Bonus or any unpaid bonus payment whatsoever. The Company shall only be obligated to reimburse any unreimbursed business expenses and to make such payments and provide such benefits under any employee benefit plan, program or policy in which Executive was a participant as are explicitly required to be paid to Executive by the terms of any such benefit plan, program or policy following the date on which Executive’s employment terminates.

(e) Termination for Disability. The Board shall have the right to terminate Executive’s employment on or after the date Executive has a Disability, and such a termination shall not be treated as a termination without Cause under this Agreement. If Executive’s employment is terminated on account of a Disability and a Separation occurs, the Company shall:

(1) pay Executive Executive’s base salary through the end of the month in which a Separation occurs as soon as practicable after the Separation,

(2) pay Executive Executive’s Bonus for the fiscal year in which such Separation occurs; provided that the Bonus shall in no event be paid later than 2½ months after the close of such fiscal year,

(3) pay or cause the payment of benefits to which Executive is entitled under the terms of the disability plan(s) of the Company covering Executive at the time of such Disability,

(4) make such payments and provide such benefits as otherwise called for under the terms of the ISP and each other employee benefit plan, program and policy in which Executive was a participant; provided that no payments made under Section 5(e)(l),  Section 5(e)(2) or Section 5(e)(3) shall be taken into account in computing any payments or benefits described in this Section 5(e)(4), and

(5) make any COBRA continuation coverage premium payments (for Executive and for Executive’s dependents), for the 12-month period following the termination of Executive’s employment or, if earlier, until Executive is eligible to be covered under another substantially equivalent medical insurance plan by a subsequent employer, subject to Section 5(g) below.

(f) Death. If Executive’s employment terminates because of his death, the Company shall:

(1) pay to Executive’s estate Executive’s base salary through the end of the month of his death as soon as practicable after his death,

(2) pay to Executive’s estate Executive’s Bonus, when actually determined, for the year in which Executive’s death occurs,

(3) make such payments and provide such benefits as otherwise called for under the terms of the ISP and each other employee benefit plan, program and policy in which Executive was a participant; provided that no payments made under Section 5(f)(1) or

Section 5(f)(2) shall be taken into account in computing any payments or benefits described in this Section 5(f)(3), and

(4) make any COBRA continuation coverage premium payments for Executive’s dependents for the one-year period following Executive’s death or, if earlier, until such dependents are eligible to be covered under another substantially equivalent medical insurance plan, subject to Section 5(g) below.

(g) Additional COBRA Considerations. Notwithstanding anything else to the contrary, if the Company, in its sole discretion, determines that it cannot provide the subsidy of COBRA coverage set forth in subsections (b), (c), (e), and (f) of this Section 5 without potentially violating or causing the Company to incur additional expense as a result of noncompliance with applicable law (including, but not limited to, Section 2716 of the Public Health Service Act), the Company instead shall provide to Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue the group health coverage in effect on the date of the Separation (which amount shall be based on the premium for the first month of COBRA coverage). Such taxable monthly payments (i) shall be made regardless of whether Executive elects COBRA continuation coverage, (ii) shall commence on the later of (A) the first day of the month following the month in which Executive experiences a Separation (or dies) and (B) the effective date of the Company’s determination of a potential violation of applicable law, and (iii) shall end on the earliest of (x) the effective date on which Executive becomes (or, in the case of Executive’s death, Executive’s dependents become) covered by a medical, dental or vision insurance plan of a subsequent employer, and (y) the last day of the 12-month period that immediately follows Executive’s Separation or death, as applicable.  Executive shall have no right to an additional gross-up payment to account for the fact that such COBRA premium amounts are paid on an after-tax basis.

SECTION 6 COVENANTS BY EXECUTIVE

(a) Company Property. Upon the termination of Executive’s employment for any reason, or upon any earlier Company request, Executive shall promptly return all Company Property that had been entrusted or made available to Executive by the Company, where the term “Property” means all Company-related records, files, memoranda, reports, price lists, customer lists, drawings, plans, sketches, keys, codes, computer hardware and software and other property of any kind or description prepared, used or possessed by Executive during Executive’s employment by the Company (and any duplicates of any such Property), together with any and all information, ideas, concepts, discoveries, and inventions and the like conceived, made, developed or acquired at any time by Executive individually or with others during Executive’s employment that relate to the Company or its products or services.

(b) Trade Secrets. Executive agrees that Executive shall hold in a fiduciary capacity in perpetuity for the sole benefit of the Company and its affiliates and shall not directly or indirectly use or disclose any Trade Secret that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive is authorized to have access to such information) during the term of Executive’s employment by the Company or any of its predecessors for so long as such information remains a Trade Secret, where the term “Trade Secret” means information, including technical or non-technical data, a formula, a pattern, a

compilation, a program, a device, a method, a technique, a drawing or a process that (1) derives economic value, actual or potential, from not being generally known to, and not being generally readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and (2) is the subject of reasonable efforts by the Company and any of its affiliates to maintain its secrecy. This Section 6(b) is intended to provide rights to the Company and its affiliates which are in addition to, not in lieu of, those rights the Company and its affiliates have under the common law or applicable statutes for the protection of trade secrets.

(c) Confidential Information. Executive while employed by the Company or its affiliates and for the three-year period thereafter shall hold in a fiduciary capacity for the sole benefit of the Company and its affiliates, and shall not directly or indirectly use or disclose, any Confidential Information that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive is authorized to have access to such information) during the term of and in the course of or as a result of Executive’s employment by the Company or its predecessors without the prior written consent of the Board unless and except to the extent that such disclosure is (i) made in the ordinary course of Executive’s performance of his duties under this Agreement or (ii) required by any subpoena or other legal process (in which event Executive will give the Company prompt notice of such subpoena or other legal process in order to permit the Company to seek appropriate protective orders). For the purposes of this Agreement, the term “Confidential Information” means any secret, confidential, or proprietary information possessed by the Company or any of its affiliates, including trade secrets, customer or supplier lists, details of client or consultant contracts, current and anticipated customer requirements, pricing policies, price lists, market studies, business plans, operational methods, marketing plans or strategies, product flaws or development techniques, computer software programs (including object code and source code), data and documentation data, base technologies, systems, structures and architectures, inventions and ideas, past current and planned research and development, compilations, devices, methods, techniques, processes, financial information and data, business acquisition plans, and new personnel acquisition plans (not otherwise included as a Trade Secret under this Agreement) that has not become generally available to the public, and the term “Confidential Information” may include future business plans, licensing strategies, advertising campaigns, information regarding customers or suppliers, executives and independent contractors and the terms and conditions of this Agreement. Notwithstanding the provisions of this Section 6(c) to the contrary, Executive shall be permitted to furnish this Agreement to a subsequent employer or prospective employer. Executive understands that pursuant to the federal Defend Trade Secrets Act of 2016, Executive shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Executive further understands that nothing contained in this Agreement limits Executive’s ability to: (A) communicate with any federal, state or local governmental agency or commission, including to provide documents or other information, without notice to the Company, (B) share compensation information concerning Executive or others, except that this does not permit me to disclose compensation information concerning others that Executive obtains because Executive’s job responsibilities require or allow access to such information, or (C) discuss or disclose information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Executive has reason to believe is unlawful

(d) Non-solicitation of Customers or Employees.

(1) Executive, while employed by the Company or any of its affiliates, shall not, on Executive’s own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (other than the Company or one of its affiliates), solicit business for a Competing Business from customers or suppliers of the Company or any of its affiliates.

(2) Executive, while employed by the Company or any of its affiliates, shall not, either directly or indirectly, call on, solicit or attempt to induce any other officer, employee or independent contractor of the Company or any of its affiliates to terminate his or her employment with such business and shall not assist any other person or entity in such a solicitation (regardless of whether any such officer, employee or independent contractor would commit a breach of contract by terminating his or her employment).

(e) Non-competition Obligation. Executive, while employed by the Company or any of its affiliates, will not, for himself or on behalf of any other person, partnership, corporation or other business entity,  enter into, engage in, consult, manage or otherwise participate in the operation of any business that is a Competing Business for the purpose of competing with the Company. Notwithstanding the preceding sentence, Executive will not be prohibited from owning less than 5% percent of any publicly traded corporation, whether or not such corporation is in a Competing Business.

(f) Remedy for Breach. Executive agrees that the remedies at law of the Company for any actual or threatened breach by Executive of the covenants in this Section 6 would be inadequate and that the Company shall be entitled to specific performance of the covenants in this Section 6, including entry of a temporary restraining order in state or federal court, preliminary and permanent injunctive relief against activities in violation of this Section 6, or both, or other appropriate judicial remedy, writ or order, in addition to any damages and legal expenses which the Company may be legally entitled to recover. The Company agrees, however, to give Executive and, if known, Executive’s attorney reasonable advance notice of any legal proceeding, including any application for a temporary restraining order, relating to an attempt to enforce the covenants in this Section 6 against Executive. Executive acknowledges and agrees that the covenants in this Section 6 shall be construed as agreements independent of any other provision of this Agreement or any other agreement between the Company and Executive, and that the existence of any claim or cause of action by Executive against the Company, whether predicated upon this Agreement or any other agreement, shall not constitute a defense to the enforcement by the Company of such covenants.

(g) Ownership of Inventions, Discoveries, Improvements, Etc.

(1) Executive shall promptly disclose and describe to the Company all inventions, improvements, discoveries and technical developments, whether or not patentable, made or conceived by Executive, either alone or with others, during such time as Executive is employed with the Company, and within one year after the date upon such employment terminates, that (i) are based in whole or in part upon Confidential Information or (ii) during such time as Executive is employed with the Company are along the lines of,

useful in or related to the business of the Company or (iii) result from or are suggested by any work done by Executive for or on behalf of the Company (“Inventions”). Executive hereby assigns and agrees to assign to the Company,  to and only to the fullest extent allowed by California Labor Code Section 2870 (which is attached as Appendix A), Executive’s entire right, title and interest in and to such Inventions (the “Assigned Inventions”), and agrees to cooperate with the Company both during and after such time as Executive is employed with the Company in the procurement and maintenance, at the Company’s expense and at its direction, of patents and copyright registrations and/or other protection of the Company’s rights in such Inventions. Executive shall keep and maintain adequate and current written records of all such Inventions, which shall be and remain the property of the Company.

(2) If a patent application, trademark registration, or copyright registration is filed by Executive or on Executive’s behalf, or a copyright notice indicating Executive’s authorship is used by Executive or on Executive’s behalf, within one year after the date on which Executive’s employment with the Company terminates, that describes or identifies any Invention within the scope of Executive’s work for the Company or that otherwise related to a portion of the Company’s business (or any division thereof) of which Executive had knowledge such time as Executive was employed with the Company, it is to be conclusively presumed that the Invention was conceived by Executive during the such time as Executive was employed with the Company. Executive agrees to notify the Company promptly of any such application or registration and to assign to the Company Executive’s entire right, title and interest in such Invention and in such application or registration.

(3) If (i) Executive uses or discloses any of Executive’s own or any third party’s confidential information or intellectual property (collectively, “Restricted Materials”) when acting within the scope of Executive’s employment (or otherwise on behalf of the Company) or (ii) any Assigned Invention cannot be fully made, used, reproduced or otherwise exploited without using or violating any Restricted Materials, Executive hereby grants and agrees to grant to the Company a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable right and license to exploit and exercise all such Restricted Materials and intellectual property rights therein. Executive will not use or disclose any Restricted Materials for which Executive is not fully authorized to grant the foregoing license.

(4) To the extent allowed by applicable law, the terms of this Section 6(i) include all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as moral rights, artist’s rights, droit moral or the like (collectively, “Moral Rights”). To the extent Executive retains any such Moral Rights under applicable law, Executive hereby ratifies and consents to any action that may be taken by or authorized by the Company with respect to such Moral Rights and agrees not to assert any Moral Rights with respect thereto. Executive will confirm any such ratification, consent or agreement from time to time as requested by the Company.

SECTION 7 MISCELLANEOUS

(a) Notices. Notices and all other communications shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by United States registered or certified mail. Notices to the Company shall be sent to:

(b) No Waiver. Except for the notice described in Section 7(a), no failure by either the Company or Executive at any time to give notice of any breach by the other of, or to require compliance with, any condition or provision of this Agreement shall be deemed a waiver of any provisions or conditions of this Agreement.

(c) Tax Matters.

(1) All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be withheld by law. The Company intends that all payments and benefits provided under this Agreement be exempt from, or comply with, the requirements of Section 409A of the Code (“Section 409A”) so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted in accordance with such intent. Specifically, to the extent necessary to avoid the imposition of tax on Executive under Section 409A, payments payable upon a Separation shall be suspended until the first business day following (i) six (6) months from the effective date of the separation or (ii) the date of Executive’s death, if, immediately prior to Executive’s Separation, Executive is a “specified employee” (within the meaning of Code Section 409A(a)(2)(B)(i)) and Section 409A would require the delay of such payment to avoid any penalties thereunder and any installments that otherwise would have been paid or provided prior to such date will be paid or provided in a lump sum when the severance payments or benefits commence.  All payments to be made upon Executive’s Separation or termination of employment under this Agreement that are deferred compensation may only be made upon a “separation from service” under section 409A of the Code. Each payment hereunder shall be deemed a separate payment for purposes of Section 409A. The parties intend that no payment pursuant to this Agreement shall give rise to any adverse tax consequences to either party pursuant to Section 409A; provided, however, that Executive acknowledges that the Company does not guarantee any particular tax treatment and that Executive is solely responsible for any taxes Executive incurs pursuant to Section 409A as a result of this Agreement. The Company shall not have a duty to design its compensation policies in a manner that minimizes Executive’s tax liabilities, and Executive agrees not to make any claim against the Company or the Board related to tax liabilities arising from Executive’s compensation or taxation thereof. In no event may Executive, directly or indirectly, designate the calendar year of payment.

(2) If any payment or benefit that Executive would receive in connection with an acquisition of ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of section 280G of the Code and the regulations thereunder) (the “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (y) the largest portion, up to and including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt of the greatest economic benefit, notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, any reduction shall be applied first, on a pro rata basis, to amounts that constitute deferred compensation within the meaning of Section 409A, and, in the event that the reductions pursuant to this Section 7(c)(2) exceed payments that are subject to Section 409A, the remaining reductions shall be applied, on a pro rata basis, to any other remaining payments,  first with respect to amounts payable in cash before being made in respect to any payments to be provided in the form of benefits or Equity award acceleration, and in the form of benefits before being made with respect to Equity award acceleration. The Company’s determinations hereunder shall be final, binding and conclusive on all interested parties.

(3) Governing Law.  This Agreement shall be governed by the laws of the state of California without regard to its provisions regarding choice of law or conflicts of law. 

(4) Arbitration.  To aid in the rapid and economical resolution of any disputes that may arise relating to Executive’s employment relationship, Executive and the Company agree that any controversy or claim arising out of this Agreement and any and all claims relating to Executive’s employment with the Company will be settled,  to the fullest extent permitted by law, by final and binding arbitration. The arbitration will take place in the State of Georgia or another mutually agreeable location. The arbitration will be administered by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes. Claims subject to arbitration shall include without limitation contract claims, tort claims, claims relating to compensation, as well as claims based on any federal, state, or local law, statute, or regulation.  However, claims for unemployment compensation, workers’ compensation, claims under the National Labor Relations Act, representative claims brought on behalf of other employees under the California Private Attorneys General Act, and other claims excluded by law shall not be subject to arbitration (the “Excluded Claims”). Executive and the Company agree that if any dispute involves both timely filed Excluded Claims and claims subject to this Agreement, the parties shall agree to bifurcate and stay for the duration of the arbitration proceedings any such Excluded Claims.  Executive agrees that all claims must be brought in Executive’s individual capacity, and not as a plaintiff or participating class member in any purported class, collective, representative, or consolidated proceeding, and Executive expressly waives any right Executive had or may have had to have any dispute brought,

heard, or arbitrated as a class, collective, or representative action, to the extent allowed by applicable law. The arbitrator shall have no authority to adjudicate class, collective, representative or consolidated proceedings, other than to enforce the foregoing provision. Executive acknowledges and agrees that by agreeing to this arbitration procedure, Executive and the Company waive the right to resolve any such dispute, claim or demand in a court of law, and if applicable, before a jury, and instead, agree to the use of binding arbitration pursuant to the procedures referenced in this Agreement.    Executive will have the right to be represented by legal counsel at any arbitration proceeding, at Executive’s expense.  The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be available under applicable law in a court proceeding; and (b) issue a written statement signed by the arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and conclusions on which the award is based.  The arbitrator shall be authorized to determine if an issue is subject to this arbitration obligation, and to award any or all remedies that Executive or the Company would be entitled to seek in a court of law.  The Company shall pay all arbitration fees in excess of what Executive would pay if the matter were litigated in court; provided, however, that the arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.) to the extent permitted under applicable law.  Nothing herein is intended to prevent either Executive or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any arbitration, including injunctive relief pursuant to the Restrictive Covenants Agreement.  Either Executive or the Company may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award.  Nothing in this Agreement precludes a party from filing an administrative charge before an agency that has jurisdiction over an arbitrable claim, except that Executive may not be able to recover any monetary benefits in connection with any such claim.  

(5) Assignment. This Agreement shall be binding upon and inure to the benefit of the Company and any successor in interest to the Company. The Company may assign this Agreement to any affiliate or successor that acquires all or substantially all of the assets and business of the Company or a majority of the voting interests of the Company, and no such assignment shall be treated as a termination of Executive’s employment under this Agreement. Executive’s rights and obligations under this Agreement are personal and shall not be assigned or transferred.

(6) Other Agreements. This Agreement replaces and merges any and all previous agreements and understandings regarding all the terms and conditions of Executive’s employment relationship with the Company and constitutes the entire agreement between the Company and Executive with respect to such terms and conditions.

(7) Amendment. No amendment to this Agreement shall be effective unless it is in writing and signed by Executive and an authorized officer of the Company other than Executive.

(8) Invalidity. If any part of this Agreement becomes or is deemed invalid or otherwise unenforceable, the remaining part shall be unaffected and shall continue in full force and effect, and the invalid or otherwise unenforceable part shall be deemed not to be part of this Agreement.

(9) Interpretation. The recitals to this Agreement shall be taken into account in the construction or interpretation of this Agreement. The words “include,” “includes” and “including” are deemed to be followed by the phrase “without limitation.” The captions or headings of the Sections and other subdivisions of this Agreement are inserted only as a matter of convenience or reference and have no effect on the meaning of the provisions of those Sections or subdivisions. If the provisions of this Agreement require judicial interpretation, the parties agree that the judicial body interpreting or construing the Agreement may not apply the assumption that the terms must be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party that itself or through its agents prepared the instrument.

(10) Survival. The respective indemnities, representations, warranties, agreements and covenants of the Company and Executive contained in this Agreement shall survive the termination of this Agreement and shall remain in full force and effect.

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





By:

/s/ Richard S. Eiswirth

By:

/s/ Todd Wood



Richard S. Eiswirth,  President and Chief Executive Officer

Todd Wood



Date:

December 11, 2023

Date:

December 11, 2023



(1) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:

(i) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or

(ii) Result from any work performed by the employee for his employer.

I.

NOTICE OF STOCK OPTION GRANT:



Name of Executive:

Todd Wood

Total Number of Common Shares Subject to Option:

125,000

Type of Option:

Inducement stock option under Listing Rule 5635(c)(4), Nonstatutory stock option (NSO)

Exercise Price:

$3.71

Date of Grant:

December 11, 2023

Expiration Date:

December 11, 2033

Vesting Commencement Date:

Date of Grant

Vesting Schedule:

The Option shall vest and become exercisable with respect to (a) 25% of the Common Shares subject to the Option when you complete twelve (12) months of continuous Service beginning on the Vesting Commencement Date, and (b) 2.083% of the Common Shares subject to the Option for each additional month of continuous Service that you complete thereafter, such that 100% of the Option is fully vested and exercisable on the fourth anniversary of the Vesting Commencement Date, subject to your continued Service as of each such vesting date.

Accelerated Vesting:

The extent to which you may purchase Common Shares under the Option may be accelerated in the following circumstances:

·

·

·

Termination Period:

The Option will be exercisable for three (3) months after you cease to be an Employee, unless such termination is due to your death or Disability, in which case the  Option will be exercisable for twelve (12) months after the date of your death or six (6) months after your Disability, as applicable. Notwithstanding the foregoing, in no event may the Option be exercised after the Expiration Date as provided above and may be subject to earlier termination as provided in the Terms and Conditions of Inducement Stock Option Award attached as Exhibit A hereto.





By:

/s/ Richard S. Eiswirth

By:

/s/ Todd Wood



Richard S. Eiswirth

President and Chief Executive Officer

Todd Wood

Grant of Option

Subject to all of the terms and conditions set forth in the Agreement, the Company has granted you the Option to purchase up to the total number of Common Shares specified in the Notice of Stock Option Grant as Part I of this Agreement (the “Grant Notice”), at the Exercise Price indicated therein, which represents the Fair Market Value on the Date of Grant.

Tax Treatment

The Option does not qualify as an “incentive stock option” under Section 422 of the Code. The Option is intended to be an NSO.

Vesting

The Option vests and becomes exercisable in accordance with the vesting schedule set forth in the Grant Notice. In no event will the Option vest or become exercisable for additional Common Shares after your Service has terminated for any reason, unless expressly provided herein.

Term of Option

The Option expires in any event at the close of business at Company headquarters on the Expiration Date. The Option will expire earlier if your Service terminates earlier, as described in the Grant Notice,  or in connection with certain corporate transactions as described herein.

Termination of Service

If your Service terminates for any reason, the Option will terminate to the extent it is unvested as of the date on which you cease to be an Employee (the “Termination Date”). The Company determines whether and when your Service terminates for all purposes of the Option. For the avoidance of doubt, Service during only a portion of a vesting period shall not entitle you to vest in a pro-rata portion of the Option.

Unless otherwise expressly provided herein or determined by the Administrator pursuant to the terms of this Agreement, (i) your right to vest in the Option, if any, will terminate as of the Termination Date, and (ii) the period (if any) during which you may exercise the Option after your Service terminates will commence on the Termination Date.

Right to Exercise

The Option may be exercised only within the term set out in the Grant Notice, and may be exercised during such term only in accordance with the terms of this Agreement.

Notice of Exercise

To exercise the Option, you must notify the Company by filing the proper “Notice of Exercise” form at the address given on the form. Your notice must specify how many Common Shares you wish to purchase. The notice will be effective when the Company receives it. If someone else wants to exercise the Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so. You may only exercise the Option for whole shares.

Method of Payment

When you submit your Notice of Exercise, you must make arrangements for the payment of the Exercise Price for the Common Shares that you are purchasing. To the extent permitted by applicable law, payment may be made in one (or a combination of two or more) of the following forms:

·

·

·

The Administrator may permit other forms of payment in its discretion.

Withholding Taxes

Regardless of any action the Company takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to the Option and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount actually withheld by the Company. You further acknowledge that the Company (1) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with the Option, including, but not limited to, the grant, vesting or exercise of the Option, the issuance of Common Shares upon exercise of the Option, the subsequent sale of Common Shares acquired pursuant to such exercise, and the receipt of any dividends and/or any dividend equivalents; and (2) does not commit to, and is under no obligation to, structure the terms of the Option to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result.

You may not exercise the Option unless you make arrangements acceptable to the Company to pay any Tax-Related Items that the Company determines must be paid. These arrangements include payment in cash or via the same-day sale procedure described above. With the Company’s consent, these arrangements may also include (a) withholding Common Shares that otherwise would be issued to you when you exercise the Option with a value equal to your withholding obligation, (b) surrendering Common Shares that you previously acquired with a value equal to the withholding taxes, or (c) withholding cash from other compensation to the extent permitted under applicable law. The withheld or surrendered Common Shares will be valued at their Fair Market Value as of the date when taxes otherwise would have been withheld in cash, and will be applied to the Tax-Related Items.

Restrictions on Exercise / Compliance with Law

Notwithstanding any other provision in this Agreement, the Company will not permit you to exercise the Option if the exercise of the Option and the issuance of Common Shares at that time would violate any applicable law or regulation, unless there is an available exemption from registration, qualification or other legal requirement applicable to the Common Shares underlying the Option, as determined by the Administrator. You agree that the Company shall have unilateral authority to amend this Agreement without your consent to the extent necessary to comply with securities or other laws applicable to the issuance of Common Shares.

Transfer of Option

Prior to your death, only you may exercise the Option. You cannot transfer or assign the Option. If you attempt to do any of the foregoing,  the Option will immediately become invalid. You may, however, dispose of the Option in your will or by means of a written beneficiary designation (as set forth in this Agreement and to the extent such beneficiary designation is valid under applicable law); provided, however, that your beneficiary or a representative of your estate (as applicable) acknowledges and agrees in writing in a form reasonably acceptable to the Company, to be bound by the provisions of this Agreement as if such beneficiary or representative of the estate were you.

Regardless of any marital property settlement agreement, the Company is not obligated to honor a notice of exercise from your former spouse, nor is the Company obligated to recognize your former spouse’s interest in the Option in any other way.

Further Acknowledgments

By accepting the Option, you acknowledge, understand and agree that: (a) the grant of the Option is exceptional, voluntary and intended as an employment inducement grant as set forth in the Grant Notice; (b)  this Agreement does not alter the at-will nature of your Service relationship; (c)  this Agreement does not interfere with the ability of the Company to terminate your status as an Employee;  and (d) no claim or entitlement to compensation or damages shall arise from forfeiture of the Option resulting from the termination of your Service.

Stockholder Rights

You, your beneficiaries, and your estate or heirs, have no rights as a stockholder of the Company until you have exercised the Option by giving the required notice to the Company, paying the aggregate Exercise Price, and satisfying any applicable withholding obligations for Tax-Related Items. No adjustments are made for dividends or other rights if the applicable record date occurs before you exercise the Option, except as may be provided herein.

Recoupment Policy

The Option, and the Common Shares acquired upon exercise of the Option, shall be subject to any Company recoupment or clawback policy in effect from time to time.

Adjustments

In the event of a stock split, a declaration of a dividend payable in Common Shares, a combination or consolidation of the outstanding Common Shares (by reclassification or otherwise) into a lesser number of Common Shares or any other increase or decrease in the number of issued Company stock effected without receipt of consideration by the Company, the number of Common Shares covered by the Option and the Exercise Price will be adjusted pursuant hereto. of a subdivision of the outstanding Common Shares, a declaration of a dividend payable in Common Shares, or a combination or consolidation of the outstanding Common Shares (by reclassification or otherwise) into a lesser number of Common Shares or any other increase or decrease in the number of issued Common Shares effected without receipt of consideration by the Company, the Administrator, will adjust the number and class of Company shares that may be delivered under this Agreement and/or the number, class, and price of Company shares covered by the Option.

Dissolution or Liquidation

To the extent not previously exercised, the Option shall terminate immediately prior to the dissolution or liquidation of the Company.

Change in Control

In the event of a Change in Control, to the extent not previously exercised, the Option shall be treated in the manner described in the definitive transaction agreement (or, in the event the Change in Control transaction does not entail a definitive agreement to which the Company is party, in the manner determined by the Administrator, with such determination having final and binding effect on all parties). The treatment specified in the transaction agreement or by the Administrator may include (without limitation) one or more of the following with respect to the outstanding Option: (a)  the continuation of the Option by the Company (if the Company is the surviving entity); (b)  the assumption of the Option by the surviving entity or its parent, provided that the assumption of the Option complies with applicable tax requirements; (c)  the substitution by the surviving entity or its parent of an equivalent award for the Option (including, but not limited to, an award to acquire the same consideration paid to the holders of Common Shares in the transaction), provided that the substitution of the Option complies with applicable tax requirements; (d) the cancellation of the Option without payment of any consideration, provided that you shall be able to exercise your outstanding Option, to the extent the Option is then vested or becomes vested as of the effective time of the transaction, during a period of not less than five (5) business days preceding the closing date of the transaction, unless (i) a shorter period is required to permit a timely closing of the transaction and (ii) such shorter period still offers you a reasonable opportunity to exercise the Option (such exercise may be contingent on the closing of the transaction); or (e)  the cancellation of the Option and a payment to you with respect to each Common Share subject to the portion of the Option that is vested or becomes vested as of the effective time of the transaction equal to the excess of (A) the value, as determined by the Administrator in its absolute discretion, of the property (including cash) received by the holder of a Common Share as a result of the transaction, over (B) the Exercise Price of a Common Share subject to the Option (such excess, if any, the “Spread”). If the Spread is zero or a negative number, then the Option may be cancelled without making a payment to the Participant.

For the avoidance of doubt, the Administrator will not be obligated to treat all awards, all awards held by you, or all awards of the same type, similarly.

Administrator Authority

The Administrator will have the power to interpret this Agreement (including, but not limited to, the determination of whether or not any Common Shares subject to the Option have vested). All actions taken and all interpretations and determinations made by the Administrator will be final and binding upon you, the Company and all other interested persons. No member of the Administrator will be personally liable for any action, determination or interpretation made in good faith with respect to this Agreement.

Beneficiary Designation

You may designate one or more beneficiaries for the purpose of exercising your exercisable Option after your death by filing the prescribed form with the Company. A beneficiary designation may be changed by filing the prescribed form with the Company at any time before your death. If no beneficiary is designated or if no designated beneficiary survives you, then to the extent vested and exercisable, the Option may be exercised by your estate.

Governing Law; Venue

This Agreement will be interpreted and enforced under the laws of the State of Delaware (without regard to its choice-of-law provisions). For purposes of any action, lawsuit or other proceedings brought to enforce this Agreement, relating to it, or arising from it, you and the Company agree to submit and consent to the sole and exclusive jurisdiction of the courts of the State of Georgia, or the federal courts for Fulton County, Georgia.

Amendments

Amendments to this Agreement can be made only in an express written contract executed by you and by a duly authorized officer of the Company. Notwithstanding anything to the contrary in this Agreement, the Company reserves the right to revise this Agreement as it deems necessary or advisable, in its sole discretion and without your consent, to comply with Section 409A or to otherwise avoid imposition of any additional tax or income recognition under Section 409A in connection to this Option. Neither the Company nor any person serving as the Administrator shall have any liability to you in the event the Option fails to achieve its intended characterization under applicable tax law, including but not limited to, Section 409A or any state law equivalent.

Severability

The provisions of this Agreement are severable and if any one or more of the provisions are determined to be illegal or unenforceable, in whole or in part, the remaining provisions will nevertheless be binding and enforceable.

Waiver

You acknowledge that a waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach by you or any other person.

Notices

Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to you at the address on file with the Company or, in either case, at such other address as you may subsequently furnish to the Company in writing.

1. “Administrator” means the Committee or the Board acting as the Committee administering this Agreement.

2. “Award” means the Option awarded under this Agreement.

3. “Board” means the Company’s Board of Directors, as constituted from time to time.

4. “Cause” means (a) your gross negligence or willful misconduct with respect to the business and affairs of the Company, including violation of any material policy or rule of the Company that is not cured within 30 days after written notice thereof is given to you by the Company; (b) your conviction of, or entering a guilty plea or plea of no contest with respect to a felony or to a crime involving moral turpitude, deceit, dishonesty or fraud; (c) your material breach of the terms of this Agreement or any agreement between you and the Company of material violation of any of the Company’s written employment policies; (d)  your failure to fulfill your duties and responsibilities under the Employment Agreement, or such other duties and responsibilities as may be assigned or delegated to you, and such breach or failure, as the case may be, if capable of being cured, is not cured within 30 days after written notice thereof is given to you by the Company; (e) your engaging in any intentional act of dishonesty, deceit, fraud, moral turpitude, misconduct, breach of trust or acting intentionally against the financial or business interests of the Company, or your use or possession of illegal drugs in the workplace; or (f)  your failure to cooperate in good faith with a governmental or internal investigation of the Company or its directors, officers or employees, if the Company has requested your cooperation.  For purposes of this definition of Cause, no act, or failure to act, will be deemed “willful” or “intentional” if done or omitted to be done by you in good faith with a reasonable belief that your act, or failure to act, was in the best interest of the Company.

5. “Change in Control” means (a) the consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if persons who were not stockholders of the Company immediately prior to such merger, consolidation or other corporate reorganization, own immediately after such merger, consolidation or other corporate reorganization 50% or more of the voting power of the outstanding securities of each of (A) the continuing or surviving entity and (B) any direct or indirect parent corporation of such continuing or surviving entity, or (b) the sale, transfer or other disposition of all or substantially all of the Company’s assets. A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur unless such transaction also qualifies as a “change in control event” as described in Treas. Reg. Section 1.409A-3(i)(5).

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

7. “Committee” means the Compensation Committee of the Board.

8. “Common Share” means one share of the Company’s common stock.

9. “Disability” means a condition which renders you unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or is expected to last for a continuous period of not less than

six (6) consecutive months with or without reasonable accommodation. You will not be considered disabled unless you furnish proof in such form or manner, and at such times, as the Company may require.

10. “Employee” means a common‑law employee of the Company.

11. “Exercise Price” means the amount for which one Common Share may be purchased upon exercise of such Option, as specified in the Grant Notice.

12. “Fair Market Value” means the closing price of a Common Share on any established stock exchange or a national market system on the applicable date or, if the applicable date is not a trading day, on the last trading day prior to the applicable date, as reported in a source that the Administrator deems reliable. If Common Shares are not traded on an established stock exchange or a national market system, the Fair Market Value shall be determined by the Administrator in good faith on such basis as it deems appropriate. The Administrator’s determination shall be conclusive and binding on all persons. Notwithstanding the foregoing, the determination of the Fair Market Value in all cases shall be in accordance with the requirements set forth under Section 409A to the extent necessary for the Option to comply with, or be exempt from, Section 409A.

13. “Good Reason”  means that you resign due to one of the following conditions: (a) a material diminution of your authority, duties or responsibilities with the Company; (b) a geographic relocation of your primary business location to a location that is more than 35 miles from the present location of your primary business location; or (c) any breach by the Company of the Employment Agreement that is material and, in the case of each clause above, that is not cured within 30 days after written notice thereof to the Company from you.

14. “Listing Rule” means the Listing Rules of The NASDAQ Stock Market LLC. Reference to any Listing Rule will include the terms and conditions of the Listing Rule and any applicable Interpretive Material and other guidance issued under the Listing Rule.

15. “NSO” means an Option that by its terms does not qualify as an incentive stock option under Section 422 of the Code.

16. “Section 409A” means Section 409A of the Code and the regulations and other guidance promulgated thereunder.

17. “Service” means your employment with the Company. For purposes of the Option, your Service will not be deemed to have been interrupted or terminated if you take any vacation, military leave, sick leave, or other bona fide leave of absence approved by the Company. Subject to the foregoing, the Administrator, in its discretion, will determine whether your Service has terminated, the Termination Date, and reason for such termination.  Your Service will be considered terminated (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are an Employee or the terms of the Employment Agreement) as of the Termination Date and will not be extended by any notice period.