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

SECTION 1 EFFECTIVE DATE

SECTION 2 DEFINITIONS

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

(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”):

(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”): 

(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

(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

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

(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

(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

(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

(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,

(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,

(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.

(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.