Form of Restrictive Covenant and Invention Assignment Agreement

Exhibit 10.23

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RESTRICTIVE COVENANT AND INVENTION ASSIGNMENT AGREEMENT

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[NEURONETICS, INC. / GREENBROOK TMS INC.], on its own behalf and on behalf of its subsidiaries and affiliates (collectively, the “Company”) and the undersigned employee (“Employee”) mutually agree to the terms set forth in this Restrictive Covenant and Invention Assignment Agreement (this “Agreement”), in exchange for and in consideration of Employee’s eligibility for and participation in the Company’s annual bonus, equity, commission, and other incentive programs, as applicable, in the calendar year in which the Effective Date occurs and in all future calendar years, Employee’s employment or continued employment by the Company, and the other mutual promises and good and valuable consideration set forth herein.  All capitalized terms shall have the meanings provided in this Agreement.  This Agreement shall become effective as of the later of the dates signed by the parties on the signature page to this Agreement, except that, where a later date is required by state law under an applicable State Covenant Addendum (APPENDIX C), the effective date shall be the first post-signature date that satisfies the notice period required by such state law (in either such case, the “Effective Date”).

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4.1General. Subject to Sections 5 and 6, absent the prior written consent of the Company, Employee shall not directly or indirectly use Confidential Information or Trade Secrets for the benefit of any person or entity other than the Company and shall not directly or indirectly disclose Confidential Information or Trade Secrets to any person who is not actively employed by the Company or who is not covered by a non-disclosure agreement with the Company protecting such information. Without limiting the foregoing, Employee agrees not to (a) remove, copy, or otherwise reproduce any document or tangible item embodying or containing any Confidential Information or Trade Secrets, except as required to perform Employee’s responsibilities for the Company; (b) load, install, copy, store, or otherwise retain

any Confidential Information on any non-Company computer or other device; or (c) while employed or thereafter, publish, release, disclose, or otherwise make available to any third party any Confidential Information or Trade Secrets by any means or medium.  In addition, Employee specifically agrees not to perform duties or responsibilities for or on behalf of a Competing Business if the performance of such duties would unavoidably require Employee to use Employee’s knowledge of the Company’s Confidential Information or Trade Secrets. These obligations of non-disclosure and non-use shall last so long as the information remains confidential, provided that Trade Secrets are protected by statute and are not subject to any time limits on their protection.

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4.2State-Specific Limits. Employee understands that if Employee’s primary work location or primary place of residence is an address located in any state requiring a temporal limit on non-disclosure clauses, Confidential Information that is not a Trade Secret shall be protected until a date no less than two (2) years following the Employee’s last day of employment with the Company.

8.Covenants Protecting the Company’s Business.

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8.1Unfair Competition.

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(a)Employee promises and agrees that, during Employee’s employment with the Company and for a period of twelve (12) months immediately following Employee’s last day of employment, Employee will not directly or indirectly perform Competitive Services for a Competing Business within the Geographic Area. Notwithstanding the foregoing, Employee may accept employment with a Competing Business whose business is diversified, provided that: (a) Employee will not be engaged in providing Competitive Services or otherwise use or disclose Confidential Information or Trade Secrets; and (b) the Company receives prior written assurances from the Competitor and Employee that are satisfactory to assure the Company that Employee will not provide Competitive Services or use or disclose Confidential Information or Trade Secrets.  

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(b)Nothing in this Agreement is intended to prevent Employee from investing Employee’s funds in securities of a person engaged in a business that is directly competitive with the Company if the securities of such a person are listed for trading on a registered securities exchange or actively traded in an over-the-counter market, and Employee’s holdings represent less than one percent (1%) of the total number of outstanding shares or principal amount of the securities of such a person.

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8.2Non-Solicitation of Covered Customers. Employee promises and agrees that, during employment with the Company and for a period of twenty-four (24) months immediately following Employee’s last day of employment, Employee will not, directly or indirectly, alone or with any other(s), use any information (including Confidential Information), contact, or relationship acquired through employment with the Company to solicit, induce, encourage, or arrange for any Covered Customer, any healthcare provider (whether an individual or an entity) that bills insurance providers or other payors in connection with the treatment of patients using the Company’s products or services, or any healthcare provider (whether an individual or an entity) with or through which the Company so bills, to (a) purchase or use Competing Products or Services from any source other than the Company, (b) reduce or discontinue its purchase or use of the Company’s products or services, or (c) reduce or discontinue its billing relationship with the Company.

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8.3.Non-Solicitation of Employees. Employee promises and agrees that, during employment with the Company and for a period of twenty-four (24) months immediately following Employee’s last day of employment, Employee will not, directly or indirectly, alone or with any other(s), do any of the following things for the purpose of inducing, assisting, encouraging, or causing a Covered Employee to terminate their employment with the Company or find or accept employment or work with a Competing Business or another business:

(a) provide or pass along to any person or entity the name or contact information of any Covered Employee or provide a reference or recommendation for them;

(b) provide or pass along to a Covered Employee any information regarding job openings, job postings, or the names or contact information of individuals or companies hiring people or accepting job applications;

(c)solicit, recruit or encourage (or attempt to solicit, recruit or encourage), or assist others in soliciting, recruiting or encouraging a Covered Employee; and/or

(d) make or communicate an offer of employment to a Covered Employee.

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9.Assignment of Inventions and Original Works; Intellectual Property.

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9.1Prior Inventions and Prior Creative Works. Employee understands Employee’s obligation to identify in writing to the Company, on or before the Effective Date, any of Employee’s Prior Inventions (defined below) or Prior Creative Works (defined below). If Employee’s Prior Inventions or Prior Creative Works are not listed on Appendix A attached hereto or otherwise disclosed in writing sufficiently and promptly (as determined by the Company), then Employee represents and warrants that no such Prior Inventions or Creative Works exist, and that no claim can be made related to them against the Company or contrary to the Company’s interests. Employee agrees not to incorporate, or permit to be incorporated, any Prior Invention or Creative Works owned by Employee, or in which Employee has an interest, into a Company product, process, program, or machine, including any software code created or developed on the Company’s behalf or in which the Company has an ownership interest pursuant to the terms of this Agreement, without the Company’s prior written consent. Nevertheless, if, in the course of Employee’s employment with the Company, Employee incorporates any Prior Invention or Creative Work owned by Employee, or in which Employee has an interest, into a Company product, process, program, service or machine, including any software code created or developed on the Company’s behalf or in which the Company has an ownership interest pursuant to the terms of this Agreement, Employee hereby irrevocably grants to the Company a non-exclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention or Creative Work as part of or in connection with such product, process, service, program or machine, and to practice any method related thereto.

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9.2Assignment and Ownership of Inventions. Employee hereby irrevocably assigns to the Company (or its designees), and agrees to hold in trust for the sole right and benefit of the Company, without any additional consideration, and to promptly make full written disclosure to the Company of, all of Employee’s right, title, and interest in and to any and all Inventions that Employee Invents (defined below) during Employee’s employment with the Company. Employee hereby acknowledges and agrees that Inventions made, conceived, developed, invented or otherwise reduced to practice by Employee, alone or jointly with others, during the course of Employee’s employment with the Company, provided that such Inventions are related in any manner to the Company’s current or reasonably anticipated business or are conceived or made on the Company’s time or with the use of the Company’s facilities or materials or in connection with Employee’s association with the Company, are the sole and exclusive property of the Company and subject to this assignment. Employee understands and agrees that the decision whether or not to commercialize or market any Inventions is within the Company’s sole discretion and for the

Company’s sole benefit, and that no royalty will be due to Employee as a result of the Company’s efforts to commercialize or market any such Inventions. Employee further assigns and agrees to assign to the United States government all right, title, and interest in and to any and all Inventions whenever such full title is required to be assigned in the United States by a contract between the Company and the United States or any of its agencies.

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9.3Copyright and Work Made for Hire. Employee acknowledges that all Creative Works that are made by Employee (alone or jointly with others) within the scope of and during the period of Employee’s employment with the Company, and which are protectable by copyright, constitute a “work made for hire,” as that term is defined in the United States Copyright Act (17 U.S.C. § 101) and, if applicable or necessary, are deemed specially ordered or commissioned for use by the Company under U.S. Copyright laws. In the event that any Creative Work is determined not to be a “work made for hire,” this Agreement shall operate as an irrevocable assignment by Employee to the Company of, and Employee does hereby irrevocably assign to the Company, all applicable State, Federal, and international copyrights, trademarks, service marks, or other similar rights in the Creative Work, including all right, title, and interest. If any such work of authorship or Creative Work cannot be assigned, Employee hereby grants to the Company an exclusive, assignable, irrevocable, perpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, make, modify, sell, offer for sale, reproduce, distribute, create derivative works of, publicly display, and digitally perform and display such work in any media now known or hereafter known. Outside the scope of employment, whether during or after employment with the Company, Employee agrees not to (a) modify, adapt, translate, or create derivative works from any such work of authorship, or (b) merge any such work of authorship with other works, Creative Works, or inventions.

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9.4Cooperation in Enforcement of Intellectual Property Rights. Employee agrees to assist the Company (or its designees), at the Company’s expense, but without additional compensation to Employee, to secure the Company’s rights, as well as the rights of any government entities or third parties to which the Company directs any assignment, in any Inventions, copyrights, or other intellectual property rights in any and all countries. The obligation to assist the Company in this regard will continue after the last day of Employee’s employment, the Company will compensate Employee at a reasonable rate for the time actually spent by Employee at the Company’s request on such assistance.  If the Company is unable for any reason whatsoever, including the Company’s inability after expending reasonable efforts to locate Employee or Employee’s mental or physical incapacity, to secure Employee’s signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations or other intellectual property rights (or on any document transferring ownership thereof) covering Inventions, Prior Inventions, or Creative Works assigned to the Company under this Agreement, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Employee’s agent and attorney in fact to act for and on Employee’s behalf and in Employee’s stead to execute and file any such applications and documents and to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations or transfers thereof with the same legal force and effect as if executed by Employee. This appointment is coupled with an interest in and to the Inventions and Creative Works and shall survive Employee’s death or disability.

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9.5Duty to Disclose Information and Maintain Records; Presumption of Ownership of Holdover Inventions. Employee agrees, while employed and for two (2) years following Employee’s last day of employment with the Company, to promptly disclose in writing to the Company all Inventions and Creative Works authored or conceived by Employee, alone or jointly with others, along with all attempts to register, patent, or otherwise claim ownership over or alienate such Inventions and Creative Works. If any such Inventions or Creative Works would have been the Company’s Inventions or Creative Works during Employee’s employment (“Holdover Invention”), then Employee agrees as follows: If these

Holdover Inventions (a) relate to the Business or its actual or demonstrably anticipated research or development, (b) result from any work Employee performed for the Company, and/or (c) were created with any Company equipment, supplies, facilities, Confidential Information, Inventions, or Trade Secrets, then such Holdover Inventions, unless otherwise proven, will be the exclusive property of the Company and subject to the assignment obligations of this Agreement.

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9.6Moral Rights. To the maximum extent allowed by law, the assignment of rights in Sections 9.1 through 9.7 includes 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 that Employee retains any such Moral Rights under applicable law, Employee hereby ratifies and consents to any action that may be taken with respect to such Moral Rights by the Company, and Employee agrees not to assert any Moral Rights with respect thereto. Employee will confirm any such ratifications, consents, and agreements from time to time upon request by the Company.

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9.7Reverse Engineering. Employee agrees that Employee will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, any software, Trade Secrets, Confidential Information, or Inventions of Company.

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9.8Exception to Assignments. Employee understands that the obligations under Sections 9.1 through 9.7 do not apply to any Invention for which no equipment, supplies, facility, or Confidential Information or Trade Secrets of the Company were used and which was developed entirely on Employee’s own time, unless (a) the Invention relates (i) to the Business, or (ii) to the Company’s actual or demonstrably anticipated research or development, or (b) the Invention results from any work performed by Employee for the Company.  If Employee lives in any other jurisdiction with a non-assignable invention statute and/or that requires notice of such, Employee acknowledges and agrees that the required notice is provided as set forth on Appendix B.  Employee has identified or will identify on APPENDIX A any Inventions that Employee believes meet the criteria in this subjection, including any applicable statute listed on Appendix B, and are not otherwise previously disclosed to permit a determination of ownership by the Company. Any such disclosure will be received in confidence. Employee agrees not to use or incorporate any Excluded Invention in any product, service, program, process, development, or work in progress of the Company without the Company’s written consent. As to any Excluded Invention in which Employee has an interest at any time, if Employee uses or incorporates such an Excluded Invention in any product, service, program, process, development, or work in progress of the Company, or if Employee permits the Company so to use or incorporate such an Excluded Invention, Employee irrevocably and unconditionally grants (to the extent Employee has authority to do so) to the Company a perpetual, royalty-free, fully paid up, worldwide license to exercise any and all rights with respect to such Excluded Invention, including, without limitation, the right to protect, make, have made, import, use, and sell that Excluded Invention without restriction and the right to sublicense those rights to others (with the right to grant further sublicenses). This license will be exclusive, subject only to any pre-existing non-exclusive licenses or other pre-existing rights not subject to Employee’s control.

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10.Disclosures to Other/Prospective Employers. Before Employee accepts employment with another business or organization, Employee will disclose (and agrees that the Company may disclose) to the same a copy of this Agreement. Also, for the duration of Employee’s employment, Employee must disclose to the Company, upon request, the name and location of any employer or business from which Employee has accepted an offer of employment, including Employee’s anticipated job title and responsibilities in such employment.

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11.Breach. If Employee commits a breach of any term of this Agreement, Employee shall pay the Company, upon demand, and in addition to any other amount attributable to such breach, a penalty of equal to 25% of the employee’s first year annualized salary (calculated as 2080 hours x hourly rate of pay) for a breach of Section 4, 7, 8.2, or 8.3, and a penalty of $500.00 for each day of employment in violation of Section 8.1, provided, however, that the payment of said penalty shall not limit any other legal or injunctive relief that the Company may seek to remedy harm caused by the breach.

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12.Definitions. As used herein, the following capitalized terms have the following meanings:

“Competitive Services” refers to forming, establishing, or owning a Competing Business, serving as an officer or director of a Competing Business, or the type of services that Employee performed or was expected to perform for the Company during the most recent 12 months of Employee’s employment with the Company.  

“Competing Business” refers to any business or organization that supplies, produces, or provides any product or service that is the same as or similar to any product or service supplied, produced, or provided by the Company to one or more customers during the most recent 12 months of Employee’s employment with the Company.

“Competing Products or Services” refers to any product or service that is the same as or similar to any product or service supplied, produced, or provided by the Company to one or more customers during the most recent 12 months of Employee’s employment with the Company.

“Confidential Information” means information that is created and used by the Company as part of its business and which is not generally known by the public, including but not limited to: Trade Secrets, treatment or diagnostic methods and techniques; proprietary technologies or materials; product designs and specifications; financial results and objectives; rate and pricing information, labor costs, overhead costs, profit margins; terms of bids or proposals; business plans or strategies; confidential records pertaining to existing or potential customers, including key customer contact information, contract terms and related information; confidential business opportunities or plans; merger or acquisition activity; confidential information regarding suppliers or vendors, including contact information and terms of contracts; proprietary or customized software and databases; techniques, processes, and methods for serving and supporting customers and patients; business processes and strategies; personnel specialization; non-public details of executive or manager compensation; and any other business information that the Company maintains as confidential. The term “Confidential Information” also includes all confidential information of a third party that may be communicated to, acquired by, learned, or developed by Employee in the course of Employee’s employment with the Company. Confidential Information does not include information that is or may become known to Employee or to the public from sources outside the Company or through means other than a breach of this Agreement or disclosed by Employee after written approval from the Company.

“Covered Customer” refers to any person(s) or entity(ies) to whom or which, within the most recent twenty-four (24) months of Employee’s employment, Employee, directly or indirectly, (a) marketed, provided, supplied, serviced, or supported the Company’s products or services; or (b) provided a written proposal about the Company’s products or services.

“Covered Employee” refers to a Company employee with whom Employee acquired a supervisory, managerial, or professional relationship in the course of Employee’s employment with the Company, or whose skills, abilities, and/or compensation became known to Employee in the course of Employee’s performance of job responsibilities for the Company.

“Creative Works” means any and all works of authorship including, for example, written documents, spreadsheets, graphics, designs, trademarks, service marks, algorithms, computer programs and code,

software, methodologies, protocols, formulas, mask works, brochures, presentations, photographs, music or compositions, manuals, reports, and compilations of various elements.  

“Geographic Area” means, depending on Employee’s position and responsibilities for the Company, the territory (i.e., states, counties, and/or cities) where, during the most recent twelve (12) months of Employee’s employment, Employee directly or indirectly had material responsibility or influence, performed services on behalf of the Company, solicited business for the Company, or sold, supported, or marketed products or services on behalf of the Company.

“Invention(s)” means inventions, developments, concepts, improvements, designs, discoveries, devices, apparatus, processes, practices, compositions, formulas, machines, articles of manufacture, methods (including business methods), inventive ideas, algorithms, computer software code and programs, protocols, formulas, mask works, compositions, trademarks, service marks, or trade secrets, whether or not reduced to practice, patentable, or registrable under patent, copyright, trademark, or similar laws, (a) which Employee Invents, either alone or jointly with others, during normal working hours or when Employee is expected to be working, or (b) that relate to the Business or to the Company’s actual or demonstrably anticipated research or development, or (c) that are substantially aided by Employee’s use of the Company’s equipment, supplies, facilities, or Confidential Information or Trade Secrets, or contains any of the Company’s Confidential Information or Trade Secrets, or (d) that are the direct or substantial result of any work performed by Employee for the Company.

“Invent,” “Invents,” and “Invented” means to conceive of, develop, reduce to practice, or otherwise invent (as that term is commonly understood) and is not limited to its general usage under U.S. or foreign patent law.

“Prior Creative Works” means Creative Works that were made by Employee prior to Employee’s employment with the Company, that belong to Employee, and are not presently assigned by Employee under this Agreement.  

“Prior Inventions” means all Inventions (defined below) that were made by Employee prior to Employee’s employment with the Company, that belong to Employee and are not presently assigned by Employee under this Agreement.

“Trade Secret” means information defined as a trade secret under applicable state law or the Defend Trade Secrets Act of 2016.

13.Severability and Reformation. The covenants in each section of this Agreement are independent of any other provisions of this Agreement. Each term in this Agreement constitutes a separate covenant between the parties, and each term is fully severable from any other term. Employee and the Company agree if any particular term or provision of this Agreement is determined by an appropriate court of competent jurisdiction to be overbroad or unenforceable as written, such term or provision shall be modified as necessary to comport with the reasonable intent and expectations of the parties and in favor of providing reasonable protection to all of the Company’s legitimate business interests, without affecting the remaining provisions of the Agreement. The Company and Employee further agree that if a term or provision of this Agreement determined by a court to be overbroad or unenforceable cannot be modified in a manner to render such term or provision valid and enforceable, or if a court will not make such modification, then the offending term or provision shall be severed from this Agreement, and the remaining terms and provisions shall remain enforced as written to give effect most nearly to the reasonable intent and expectations of the parties.

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14.At-Will.  Employee acknowledges and agrees that nothing in this Agreement is a guarantee or assurance of employment for any specific period of time. Employee understands that Employee is an at-will employee, and that either Employee or the Company may terminate this at-will employment

relationship with or without notice, with or without cause, and at any time for any reason not prohibited by law.

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15.Miscellaneous. This Agreement, in combination with any State Covenant Addendum that Employee executes as part of this Agreement, expresses the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any prior agreements, written or oral, between the parties regarding the same. To the maximum extent permitted by law, and subject to the terms of an applicable State Covenant Addendum, the interpretation and contractual enforceability of this Agreement shall be governed by the law of the Commonwealth of Pennsylvania, without giving effect to any choice-of-law rule that would require the law of another jurisdiction to apply. In any dispute involving rights or obligations set forth in this Agreement, each party agrees not to contest federal court jurisdiction as provided for by the DTSA. It is understood that Sections 4, 7, 8.1-8.3, 9.1-9.8, and 10 are intended to survive the termination of Employee’s employment and remain in full force and effect thereafter.

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16.Electronic Signature. Employee agrees that the Company may enforce this Agreement with a copy for which Employee has provided an electronic signature, and that such electronic signature may be satisfied by procedures established by the Company or a third party designated by the Company for an electronic signature system, and Employee’s electronic signature shall have the same force and effect as Employee’s written signature. By electronically accepting this Agreement, Employee agrees to the following: “This electronic contract contains Employee’s electronic signature, which I have executed with the intent to sign this Agreement.”

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17.State Covenant Addendum.  To ensure compliance with the laws in the various states in which the Company does business, the terms of this Agreement are modified and superseded by the State Covenant Addendum executed by Employee as part of this Agreement and attached hereto as APPENDIX C.

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18.Future Applicability. This Agreement is freely assignable by the Company in its sole discretion but may not be assigned by Employee to any other person or entity. Employee’s obligations under this Agreement shall apply with equal force to the Company’s successors and assigns, including any entity formed by merger, acquisition, or other business combination. As such, Employee’s duties hereunder shall apply with respect to confidential information, trade secrets, covered customers, covered employees, goodwill, business interests, and relationships of each entity involved in any such merger, acquisition, or other business combination from and after the effective date thereof, even if the information, trade secret, customer relationship, business interest, or goodwill came into existence prior to such effective date.

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(Remainder of this page intentionally left blank. Signature page follows.)

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Intending to be legally bound hereby, the parties affix their signatures to express and signify their mutual assent to the terms of this Agreement:

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APPENDIX A - INVENTION DISCLOSURES

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Employee Name: __________________________________ Date Completed: ________________

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Prior Inventions (Sec. 9.1):  Yes___  No___Excluded Inventions (Sec. 9.8):  Yes ___  No ___

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PRIOR INVENTIONS: Pursuant to Section 9.1 of the Agreement, Employee hereby discloses the following Prior Inventions:

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Use additional Sheets as necessary for disclosure of additional Inventions.

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Excluded Inventions: Pursuant to Section 9.8 of the Agreement, Employee hereby discloses the following Excluded Inventions:

Use additional Sheets as necessary for disclosure of additional Inventions.

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I represent that I have personal knowledge of the disclosures contained in these disclosures and that such disclosures are true and correct.

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Signature: __________________________________________________ Date: ______________

APPENDIX B - INVENTION ASSIGNMENT NOTICES

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To the extent that Employee lives or works in California, Delaware, Illinois, Kansas, Minnesota, Nevada, New Jersey, New York, North Carolina, Utah or Washington, the provisions of this Agreement requiring assignment of Intellectual Property to the Company do not, and will not, apply to any Invention that qualifies for exclusion under the laws of each applicable state, as follows:

Employees in California: “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 the employer.”  (California Labor Code § 2870.)

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Employees in Delaware: “Any provision in an employment agreement which provides that the employee shall assign or offer to assign any of the employee's rights in an invention to the employee's employer shall not apply to an invention that the employee developed entirely on the employee's own time without using the employer's equipment, supplies, facility or trade secret information, except for those inventions that: (1) Relate to the employer's business or actual or demonstrably anticipated research or development; or (2) Result from any work performed by the employee for the employer.” (Del. Code Ann. tit.19, § 805.)

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Employees in Illinois: “The Agreement does not apply to an invention for which no equipment, supplies, facility, or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) to the business of the employer, or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer.” (765 ILCS 1060/1.)

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Employees in Kansas: “Any provision in an employment agreement which provides that an employee shall assign or offer to assign any of the employee's rights in an invention to the employer shall not apply to an invention for which no equipment, supplies, facilities or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless: (1) the invention relates to the business of the employer or to the employer's actual or demonstrably anticipated research or development; or (2) the invention results from any work performed by the employee for the employer.” (Kansas Statutes Annotated, Stat. Ann. § 44-130.)

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Employees in Minnesota: “Any provision in an employment agreement which provides that an employee shall assign or offer to assign any of the employee's rights in an invention to the employer shall not apply to an invention for which no equipment, supplies, facility or trade secret information of the employer was used and which was developed entirely on the employee's own time, and (1) which does not relate (a) directly to the business of the employer or (b) to the employer's actual or demonstrably anticipated research or development, or (2) which does not result from any work performed by the employee for the employer. Any provision which purports to apply to such an invention is to that extent against the public policy of this state and is to that extent void and unenforceable.” (Minn. Stat. Ann. § 181.78.)

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Employees in Nevada: “Except as otherwise provided by express written agreement, an employer is the sole owner of any patentable invention or trade secret developed by his or her employee during the course and scope of the employment that relates directly to work performed during the course and scope of the employment.” (Nev. Rev. Stat. Ann. § 600.500.)

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Employees New Jersey: “(1) Any provision in an employment contract between an employee and employer, which provides that the employee shall assign or offer to assign any of the employee's rights to an invention to that employer, shall not apply to an invention that the employee develops entirely on the employee's own time, and without using the employer's equipment, supplies, facilities or information, including any trade secret information, except for those inventions that: (a) relate to the employer's business or actual or demonstrably anticipated research or development; or (b) result from any work performed by the employee on behalf of the employer. (2) To the extent any provision in an employment contract applies, or intends to apply, to an employee invention subject to this subsection, the provision shall be deemed against the public policy of this State and shall be unenforceable.” (N.J. Stat. § 34:1B-265.)

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Employees in New York: “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 the employer.”  (New York Labor Law § 203-F.)

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Employees in North Carolina: “Any provision in an employment agreement which provides that the employee shall assign or offer to assign any of his rights in an invention to his employer shall not apply to an invention that the employee developed entirely on his own time without using the employer's equipment, supplies, facility or trade secret information except for those inventions that (i) relate to the employer's business or actual or demonstrably anticipated research or development, or (ii) result from any work performed by the employee for the employer. To the extent a provision in an employment agreement purports to apply to the type of invention described, it is against the public policy of this State and is unenforceable. The employee shall bear the burden of proof in establishing that his invention qualifies under this section. (N.C. Gen Stat. § 66-57.1.)

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Employees in Utah: “(1) An employment agreement between an employee and his employer is not enforceable against the employee to the extent that the agreement requires the employee to assign or license, or to offer to assign or license, to the employer any right or intellectual property in or to an invention that is: (a) created by the employee entirely on his own time; and (b) not an employment invention. (2) An agreement between an employee and his employer may require the employee to assign or license, or to offer to assign or license, to his employer any or all of his rights and intellectual property in or to an employment invention. (3) Subsection (1) does not apply to: (a) any right, intellectual property or invention that is required by law or by contract between the employer and the United States government or a state or local government to be assigned or licensed to the United States; or (b) an agreement between an employee and his employer which is not an employment agreement.” (Utah Code Ann. § 34-39-3(1)-(3).)

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Employees in Washington: “(1) A provision in an employment agreement which provides that an employee shall assign or offer to assign any of the employee's rights in an invention to the employer does not apply to an invention for which no equipment, supplies, facilities, or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) directly to the business of the employer, or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer. Any provision which purports to apply to such an invention is to that extent against the public policy of this state and is to that extent void and unenforceable. (2) An employer shall not require a provision made void and unenforceable by subsection (1) of this section as a condition of employment or

continuing employment. (3) If an employment agreement entered into after September 1, 1979, contains a provision requiring the employee to assign any of the employee's rights in any invention to the employer, the employer must also, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to an invention for which no equipment, supplies, facility, or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) directly to the business of the employer, or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer.” (Wash. Rev. Code Ann. § 49.44.140-49.44.150.)

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APPENDIX C - STATE COVENANT ADDENDA

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STATE COVENANT ADDENDUM FOR California Employees:

As a Covered California Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of California), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

1.The clause “and for a period of twelve (12) months immediately following Employee’s last day of employment” is stricken from Section 8.1 so that, during the time that Employee’s primary work location or residence is located in the State of California, these sections shall not have effect beyond Employee’s last day of employment.

2.The clause “and for a period of twenty-four (24) months immediately following Employee’s last day of employment” is stricken from Section 8.2 and Section 8.3 so that, during the time that Employee’s primary work location or residence is located in the State of California, these sections shall not have effect beyond Employee’s last day of employment.

3.The following sentence is added at the end of Section 15: “Notwithstanding the foregoing, Employee understands that for as long as Employee’s principal place of employment or Employee’s principal residence is located in the State of California, the interpretation and enforcement of this Agreement shall be governed solely by the laws of the State of California with respect to obligations arising from Employee’s employment in the State of California.”

By signing below, I acknowledge receipt of this State Covenant Addendum for Covered California Employees. I also acknowledge that for as long as I am a Covered California Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this State Covenant Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of California, my obligations to Neuronetics, Inc. will no longer be limited by this State Covenant Addendum.

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Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR COLORADO EMPLOYEES:

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As a Covered Colorado Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Colorado), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

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By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Colorado Employees. I also acknowledge that for as long as I am a Covered Colorado Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Colorado, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR DISTRICT OF COLUMBIA EMPLOYEES

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As a Covered District of Columbia Employee (i.e., an employee whose primary place of residence or primary work location is an address within the District of Columbia), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

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By signing below, I acknowledge receipt of this State Covenant Addendum for Covered District of Columbia Employees. I also acknowledge that for as long as I am a Covered District of Columbia Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the District of Columbia, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR GEORGIA EMPLOYEES:

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As a Covered Georgia Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Georgia), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

1.Section 8.2 is hereby amended so that its obligations are operative only with respect to Covered Customers or healthcare providers located within the Geographic Area.

2.Section 8.3 is hereby amended so that its obligations are operative only with respect to Covered Employees located within the Geographic Area.

By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Georgia Employees. I also acknowledge that for as long as I am a Covered Georgia Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this State Covenant Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Georgia, my obligations to Neuronetics, Inc. will no longer be limited by this State Covenant Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR ILLINOIS EMPLOYEES:

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As a Covered Illinois Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Illinois), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

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By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Illinois Employees. I also acknowledge that for as long as I am a Covered Illinois Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this State Covenant Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Illinois, my obligations to Neuronetics, Inc. will no longer be limited by this State Covenant Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR LOUISIANA EMPLOYEES

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As a Covered Louisiana Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Louisiana), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Louisiana Employees. I also acknowledge that for as long as I am a Covered Louisiana Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this State Covenant Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Louisiana, my obligations to Neuronetics, Inc. will no longer be limited by this State Covenant Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR MARYLAND EMPLOYEES:

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As a Covered Maryland Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Maryland), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

1.Section 8.1 is modified to insert the following after the last sentence: “The foregoing covenant shall apply only if Employee’s compensation exceeds 150% of the state minimum wage. Thus, as of March 1, 2024, only employees who are paid more than $22.50 an hour (approximately $46,800 per year) are subject to Section 8.1.”

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By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Maryland Employees. I also acknowledge that for as long as I am a Covered Maryland Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this State Covenant Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Maryland, my obligations to Neuronetics, Inc. will no longer be limited by this State Covenant Addendum.

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Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR MASSACHUSETTS EMPLOYEES:

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As a Covered Massachusetts Employee (i.e., an employee whose primary place of residence or primary work location is an address within the Commonwealth of Massachusetts), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Massachusetts Employees. I also acknowledge that for as long as I am a Covered Massachusetts Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement  are governed by both the Restrictive Covenant and Invention Assignment Agreement  and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the Commonwealth of Massachusetts, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR MINNESOTA EMPLOYEES:

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As a Covered Minnesota Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Minnesota), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

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By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Minnesota Employees. I also acknowledge that for as long as I am a Covered Minnesota Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Minnesota, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR NEBRASKA EMPLOYEES:

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As a Covered Nebraska Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Nebraska), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

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By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Nebraska Employees. I also acknowledge that for as long as I am a Covered Nebraska Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Nebraska, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR NORTH DAKOTA EMPLOYEES:

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As a Covered North Dakota Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of North Dakota), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

By signing below, I acknowledge receipt of this State Covenant Addendum for Covered North Dakota Employees. I also acknowledge that for as long as I am a Covered North Dakota Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement  are governed by both the Restrictive Covenant and Invention Assignment Agreement  and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of North Dakota, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR OKLAHOMA EMPLOYEES:

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As a Covered Oklahoma Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Oklahoma), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Oklahoma Employees. I also acknowledge that for as long as I am a Covered Oklahoma Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement  are governed by both the Restrictive Covenant and Invention Assignment Agreement  and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Oklahoma, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

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Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR OREGON EMPLOYEES:

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As a Covered Oregon Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Oregon), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

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By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Oregon Employees. I also acknowledge that for as long as I am a Covered Oregon Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement  are governed by both the Restrictive Covenant and Invention Assignment Agreement  and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Oregon, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR VIRGINIA EMPLOYEES:

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As a Covered Virginia Employee (i.e., an employee whose primary place of residence or primary work location is an address within the Commonwealth of Virginia), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

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By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Virginia Employees. I also acknowledge that for as long as I am a Covered Virginia Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement and this State Covenant Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the Commonwealth of Virginia, my obligations to Neuronetics, Inc. will no longer be limited by this State Covenant Addendum.

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Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR WASHINGTON EMPLOYEES:

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As a Covered Washington Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Washington), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Washington Employees. I also acknowledge that for as long as I am a Covered Washington Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement  and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Washington, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______

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STATE COVENANT ADDENDUM FOR WISCONSIN EMPLOYEES:

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As a Covered Wisconsin Employee (i.e., an employee whose primary place of residence or primary work location is an address within the State of Wisconsin), the provisions of the Restrictive Covenant and Invention Assignment Agreement between Neuronetics, Inc. and the undersigned employee (“Employee”) are amended and modified by this State Covenant Addendum as follows:

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By signing below, I acknowledge receipt of this State Covenant Addendum for Covered Wisconsin Employees. I also acknowledge that for as long as I am a Covered Wisconsin Employee, my obligations to Neuronetics, Inc. under the Restrictive Covenant and Invention Assignment Agreement are governed by both the Restrictive Covenant and Invention Assignment Agreement  and this Addendum, and that, if in the future, while employed by Neuronetics, neither my primary work location nor my primary residence remains in the State of Wisconsin, my obligations to Neuronetics, Inc. will no longer be limited by this Addendum.

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Accepted and Agreed: (Print Name:) ​ ​​ ​​ ​​ ​​ ​​ ​___________________

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By (Sign): ​ ​​ ​​ ​​ ​​ ​​ ​​ ​ ___   Date: ​ ​​ ​​ ​______