In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.

Exhibit 10.18

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED.

STRATEGIC ALLIANCE AGREEMENT

This Strategic Alliance Agreement (this Agreement), effective as of December 10, 2015 (the Effective Date), is by and between Allscripts Healthcare, LLC, a North Carolina limited liability company (Allscripts) on behalf of itself and its Affiliates and Phreesia, Inc., a Delaware corporation (the Company or Phreesia). Allscripts and the Company are sometimes referred to herein as a Party and collectively as the Parties.

RECITALS

WHEREAS, Allscripts is a leading provider of clinical and revenue cycle software, connectivity and information solutions for physicians, including its practice management solutions;

WHEREAS, the Company provides Merchant Processing Services, Eligibility and Benefit Services, and Patient Intake Management Offerings within the healthcare industry;

WHEREAS, the Company has developed, licenses, and makes available (as applicable) certain software and services described herein; and

WHEREAS, Allscripts desires to obtain the right to market, sublicense, and make available such software and services and cause the Company to provide such software and services, either to Allscripts or to third parties, on the terms and conditions set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants and conditions herein contained, the Parties agree as follows:

1. Definitions. For purposes of this Agreement, the following terms have the meanings ascribed thereto in this Section 1:

Affiliate means, with respect to a Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, the term control (including the terms controlled by and under common control with) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Allscripts' Affiliates may exercise Allscripts' rights and fulfill its related obligations under this Agreement, provided that Allscripts shall be responsible for any breach of such obligations by its Affiliates to the same extent as if Allscripts was the breaching party.

Allscripts Customer means a customer that has contracted for or receiving any of Allscripts' products or services.

Allscripts Practice Management means the practice management system currently marketed and sold by Allscripts as Allscripts Practice Management (as the same may be renamed, enhanced or expanded from time to time)

Bank Rules means the Bank Card Merchant Rules and Regulations provided to Sublicensed Customer in writing, as amended from time to time, which are incorporated into this Agreement by reference. 1





Change of Control means any of the following: (a) any merger, reorganization, share exchange, consolidation, or other business combination involving the Company and its subsidiaries, other than (i) any acquisition or other similar transaction in which the Company acquires the assets or the securities of another Person and the Company does not issue capital stock of the Company representing more than fifty percent (50%) of the issued and outstanding shares of any class of capital stock of the Company, or (ii) any merger or similar transaction effected solely to change the domicile of the Company or any of its subsidiaries; (b) any acquisition by any Person as a result of which such Person (or any group of which such Person is a member) becomes a beneficial owner of more than fifty percent (50%) of the issued and outstanding shares of any class of capital stock of the Company in any single transaction or a series of related transactions; (c) any sale, lease, exchange, mortgage, pledge, transfer, or other disposition of all or substantially all of the assets of the Company and its subsidiaries in any single transaction or a series of related transactions; or (d) any exclusive license of all or substantially all of the intellectual property of the Company and its subsidiaries, in any single transaction or a series of related transactions. For purposes of this definition, the term beneficial owner has the meaning ascribed to such term in Rules 13d-3 and 13d-5 under the U.S. Securities Exchange Act of 1934, as amended, and the term group means two (2) or more Persons acting as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of the applicable securities referred to herein.

Claim means any claim, action, suit, proceeding, damages, costs, expenses and other liabilities, including reasonable attorneys' fees and court costs.

Clinician means each healthcare professional contracted under a customer's license or service agreement and any healthcare professional not contracted under a customer's license or service agreement for which such customer subsequently pays a clinician fee. Healthcare professionals are only Clinicians (1) during the periods in which they are contracted under a license or service agreement or (2) for healthcare professionals not contracted under a customer's license or service agreement, solely during the periods for which a Customer pays a clinician fee for such healthcare professional. For avoidance of doubt, authorized end users of the Subscription Software Services are both Clinicians and their administrative and other front and back office personnel. For the further avoidance of doubt, there will be no further license fees applicable to the administrative or other front and back office personnel.

Company Acquiror means any Person that acquires the Company in connection with a Change of Control (including, without limitation, a Competing Provider) and includes each Affiliate of such Person that is not controlled by the Company. For purposes of this definition, the term controlled by means the Company has the direct or indirect power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract, or otherwise.

Competing Provider means any electronic health record, revenue cycle management, or health information exchange information technology vendor whose products or services are directly competitive with a material portion of Allscripts business.

Confidential Information means non-public information of a Disclosing Party, [***].

Controlled Technology means any software, documentation, technology, or other technical data, or any products that include or use any of the foregoing, of which the export, re-export, or release to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval under any Law, including the U.S. Export Administration Act and its associated regulations.

Customer Agreement means a written agreement between Allscripts (or an Allscripts Reseller or Partnering Organization as permitted herein) and an Allscripts Customer pursuant to which Allscripts resells any Installed Software or any Subscription Software Services or orders Merchant Processing Services from Company on behalf of an Allscripts Customer in accordance with this Agreement. 2





Data means all data, information, and other content (regardless of whether de-identified) of any type and in any format, medium, or form, whether audio, visual, digital, screen, GUI, or other, that is input, submitted, uploaded to, placed into or collected, stored, processed, generated, or output by any device, system, or network by or on behalf of Allscripts (or any of its licensors or Affiliates) or any Sublicensed Customer through the Subscription Software Services, including any and all data, analyses, and other information and materials resulting from any use of the Subscription Software Services by or on behalf of Allscripts (or any of its licensors or Affiliates) or a Sublicensed Customer under this Agreement.

Developer Agreement means the Allscripts Developer Program Agreement previously entered into between Company and Allscripts with an effective date of July 1, 2014.

Documentation means all user manuals, operating manuals, technical manuals, and any other instructions, specifications, documents, or materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, technical specifications, or components, features, or requirements of any of the Installed Software or any of the Subscription Software Services or Merchant Processing Services, together with all revisions to such documentation delivered by or on behalf of the Company and as updated from time to time by the Company.

E&B Transaction means an Electronic Data Interchange (EDI) Health Care Eligibility/Benefit Inquiry (270 transaction) and the retrieval of an EDI Health Care Eligibility/Benefit Response (271 transaction), with a single E&B Transaction consisting of both the 270 transaction and the 271 transaction. [***].

Eligibility and Benefit Services means the Company's subscription-based software services that submits Electronic Data Interchange (EDI) Health Care Eligibility/Benefit Inquiries (270 transactions) and the retrieval of the EDI Health Care Eligibility/Benefit Response (271 transactions) to inquire about the health care eligibility and benefits associated for patients through POS Dashboard or the Eligibility UI and the Eligibility Interface. The Eligibility and Benefit Services, the Eligibility UI and the Eligibility Interface are further described on Exhibit A attached hereto.

Error means [***].

Harmful Code means (a) any virus, Trojan horse, worm, backdoor, or other software or hardware devices, the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) any time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise prevent, restrict, or impede Allscripts' or any Sublicensed Customer's use of such software or device.

HITECH means the Health Information Technology for Economic and Clinical Health Act of 2009, as amended.

Implementation Services means services related to the initial delivery, configuration, and pre-acceptance usage of the Subscription Software Services or Merchant Processing Services described in Exhibit C. 3





Installed Software means the Company's Integration Client configured to interoperate only with Allscripts products that is installed on a Sublicensed Customer's computer systems, and including all enhancements and other Updates thereto and all copies of the foregoing permitted hereunder.

Intellectual Property means [***].

Law means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement or rule of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

Legacy Customers means those Company customers listed on Exhibit H.

Loss means all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, the costs of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.

Marks means, with respect to a Party, such Party's trade names, trade dress, trademarks, service marks, logos, brand names and other identifiers, corporate names, meta-tags, and universal resource locators, and any applications, registrations, and renewals thereof.

Member Bank shall mean a member of VISA, MasterCard and/or any other networks, as applicable, that provides sponsorship services in connection with this Agreement. As of the Effective Date, the Member Bank shall be Fifth Third Bank, an Ohio banking corporation.

Merchant Agreement means the Merchant Services Agreement the form of which is attached hereto as Exhibit J to be entered into between Company and each Sublicensed Customer that purchases any Merchant Processing Services (except in connection with a sale of PIMS directly or indirectly by Company). Company may update the Merchant Agreement from time-to-time to incorporate such future revisions as required or requested by the Member Bank provided that Company also makes those revisions to agreements with Company's other merchant processing services customers; and further provided that the Merchant Agreement's terms and conditions shall not be less favorable than those that the Company typically offers to customers similar to the proposed Sublicensed Customers.

Merchant Application means the merchant application the form of which is attached hereto as Exhibit K, that must be completed by a proposed Sublicensed Customer that intends to purchase any Merchant Processing Services and which is accepted by Company prior to Sublicensed Customer product activation. Company may update the Merchant Application from time-to-time to incorporate such future revisions as required or requested by the Member Bank , provided that Company also makes those revisions to merchant applications with Company's other merchant processing services customers; and further provided that the Merchant Application's terms and conditions shall not be less favorable than those that the Company typically offers to customers similar to the proposed Sublicensed Customers.

Merchant Processing Services means the Company's services that authorize and settle payment transactions directly or indirectly through Member Banks for customers through (1) the POS Dashboard; (2) the default Phreesia Gateway card processing platform for any of Allscripts other embedded payment products; (3) a Third Party Gateway for transactions received from or posted to an Allscripts service or product for customers who want to use a separate financial institution for back-end processing; and (4) Phreesia Patient Intake Management Offering. The Merchant Processing Services are subject to the terms and conditions of the Merchant Agreement, the Operating Regulations and applicable Law. The Merchant Processing Services are further described on Exhibit A attached hereto. Merchant Processing Services may be provided by Company in conjunction with the Subscription Software Services but are not, for purposes of this Agreement, deemed Subscription Software Services. 4





Merchant Processing Services Customer means an Allscripts Customer excluding Legacy Customers that contracts with the Company for and receives the Company's Merchant Processing Services. For the sake of clarity, a Merchant Processing Services Customer (i) may also be a Sublicensed Customer or (ii) may purchase Merchant Processing Services in connection with its purchase of PIMS from the Company.

Open Source License means an open source license applicable to Open Source Software.

Open Source Software means any open source software program, or portion thereof, that is licensed under an Open Source License that requires as a condition of use, modification, and/or distribution of the software subject to the license, that such software or other software combined and/or distributed with such software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge (including the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL), and the Apache License).

Operating Regulations means the by-laws, operating regulations and/or all other rules (including, without limitation, Bank Rules), guidelines, policies and procedures of VISA, MasterCard, Discover, and/or Other Networks, and all other applicable rules, regulations and requirements of Member Bank, banks, and financial institutions which govern or affect any Merchant Processing Services provided under a Merchant Processing Agreement, and all state and federal laws, rules and regulations which govern or otherwise affect the activities of providers of Merchant Processing Services, including, but not limited to, those of the National Automated Clearing House Association (NACHA) and the Federal Trade Commission (FTC), as any or all of the foregoing may be amended and in effect from time to time.

Partnering Organization means a hospital, health plan, provider group, provider-hospital organization, independent practice association (IPA), accountable care organization (ACO), health information organization (HIO), Comprehensive Primary Care Initiative group (CPC), billing service provider, or integrated healthcare delivery system that provides management services and administrative systems.

Payerpath means Allscript's patient payment and claims solution currently marketed and sold by Allscripts as Payerpath (as the same may be renamed, enhanced or expanded from time to time).

Person means any natural person, corporation, limited liability company, general partnership, limited partnership, trust, proprietorship, joint venture, business organization, or government, political subdivision, agency, or instrumentality.

Phreesia Patient Intake Management Offering or PIMS means Phreesia's offering with and only with those features and functions as are generally available to Allscripts Customers on the Effective Date. PIMS features are summarized on Exhibit A, but that summary is qualified in its entirety by reference to PIMS' actual features that are generally available to Allscripts Customers on the Effective Date. [***].

POS Dashboard means the Company's web portal Point of Service (POS) Dashboard that may be used to process credit and debit card payment transactions (as the same may be renamed, enhanced or expanded from time to time). The POS Dashboard is further described on Exhibit A attached hereto. 5





Purchase Order means a purchase order or other ordering document signed and issued by Allscripts to order Subscriptions to be resold and distributed or made available to a Sublicensed Customer, which specifies, at a minimum, (a) the date the applicable Customer Agreement was executed; (b) the name and address of the Sublicensed Customer; and (c) the Installed Software and Subscription Software Services licenses, Merchant Processing Services and Services being ordered, and further establishes that the Installed Software and Subscription Software Services (and associated Documentation) are governed by the Customer Agreement.

Representatives means a Party's Affiliates, and each of their respective employees, officers, directors, partners, shareholders, agents, attorneys, and third-party advisors.

Services means, collectively, the Implementation Services as described in Exhibit C and the Support Services as described in Section 12.1(b).

Sublicensed Customer means an Allscripts Customer that has purchased a Subscription from Allscripts or its Affiliates or that has entered into a Merchant Agreement with Company (except in connection with a sale of PIMS directly or indirectly by Company).

Subscription or subscription shall mean the right of a Sublicensed Customer to access and use the Subscription Software Services as more fully set forth in this Agreement.

Subscription Software Services means the Company's subscription-based software services consisting of the Eligibility and Benefit Services and/or POS Dashboard (as each may be renamed, enhanced or expanded from time to time), including any Updates thereto. Subscription Software Services contains functions and features that enable Sublicensed Customers to authorize and settle payment transactions directly or indirectly through Member Banks, but in order for such functions and features to be operational, Sublicensed Customers must obtain Merchant Processing Services from Phreesia or similar services from a third party through Phreesia's Third Party Gateway. Notwithstanding anything to the contrary herein, Subscription Software Services do not include other Company products or services including, without limitation, the Phreesia Patient Intake Management Offering.

Territory means [***].

Update means any revision, modification, upgrade, or new feature, functionality, module, or release of the Installed Software, Subscription Software Services or Merchant Processing Services, and any patch, bug fix, workaround, or Error correction to the Installed Software or Subscription Software Services (whether created specifically for Allscripts or released by the Company), that Company is required to provide under this Agreement or that Company generally makes available at no additional charge to the Company's other eligibility and benefit services and point of service dashboard customers and licensees. Updates may be customer facing (i.e. updates that are directly displayed to the customer such as new features, etc.) or non- customer facing (such as bug fixes or workarounds that are not directly displayed to the customer).

2. Appointment as Reseller.

2.1 Appointment. The Company hereby [***]. Allscripts may also disclose Company's pricing information relating to its Merchant Processing Services and facilitate procurement of Merchant Processing Services on behalf of Sublicensed Customers, including, without limitation by references to such pricing information and Merchant Processing Services in Customer Agreements. 6





2.2 Customer Agreements.

(a) Subscriptions. Allscripts and its Affiliates may sell Subscriptions for terms no less than one year and no greater than four (4) years on a subscription basis to Persons who subsequently execute a Customer Agreement, provided that Allscripts may enter into Customer Agreements with terms longer than four (4) years with large organizations, provided that Phreesia consents in each instance in writing in advance, which consent will not be unreasonably withheld.

(b) Customer Agreements. Each Customer Agreement will contain terms, in all material respects, no less protective of the Company and its licensors than the applicable terms and conditions related to Allscripts' applicable products and services. Each Customer Agreement shall, at a minimum, restrict Customers from redistributing, reverse engineering, reverse compiling, or disassembling the Installed Software and the Subscription Software Services. Allscripts will use commercially reasonable efforts to enforce the terms of its Customer Agreement that protect Company's Intellectual Property at Allscripts sole cost and expense.

2.3 Merchant Agreements; Pre-approval. All proposed Sublicensed Customers who wish to purchase Merchant Processing Services must complete a Merchant Application, execute a Merchant Agreement and be Pre-approved by the Company. Pre-approved shall mean that the Company has determined based on a proposed Customer's Merchant Application that the proposed Customer meets OFAC and Member Bank criteria and the Company's credit standards (collectively, the Criteria). Rejection shall mean the Company has not Pre-approved the proposed Merchant Processing Services Customer. [***]. Allscripts shall not represent to any prospective Sublicensed Customer that a Merchant Application will be approved. Company may terminate any Merchant Agreement pursuant to the terms of such Merchant Agreement. All Merchant Processing Services shall be marketed under Company's Marks. For avoidance of doubt, Allscripts may market the Subscription Software Services, including without limitation, the electronic cashiering features and functionality of the Subscription Software Services under the Allscripts name.

2.4 Third Parties. Allscripts will not authorize or allow any value added reseller, distributor, integrator, OEM partner, or other third party to market, demonstrate, resell, sublicense, or otherwise distribute or make available the Installed Software, Documentation or Subscription Software Services, or Merchant Processing Services except that Allscripts is permitted to (a) sign Customer Agreements with Sublicensed Customers who are Partnering Organizations who, in turn, distribute or make available the Installed Software, Documentation or Subscription Software Services to (or facilitate the procurement of Merchant Processing Services for) their respective medical staffs, provider participants, or members as permitted under applicable Law, so long as each such medical staffs, provider participants, and members are bound by the terms and conditions of the applicable Customer Agreement; and (b) exercise its rights under this Section 2 through Company approved value added resellers appointed by Allscripts from time to time (Allscripts Resellers); provided, however, that each Allscripts Reseller must enter into an agreement with Allscripts that is at least as protective of the Company and the Installed Software, Documentation, and Subscription Software Services as this Agreement. Allscripts will use commercially reasonable efforts to enforce the terms of Allscripts Resellers' agreements that protect Company's Intellectual Property. For avoidance of doubt, Allscripts may not delegate to Allscripts Resellers any rights that it does not have under this Agreement.

2.5 Affiliates. To the extent that Allscripts' Affiliates, Partnering Organizations, and Allscripts Resellers utilize the rights granted hereunder, Allscripts will require such parties to comply with the restrictions on such rights set forth in this Agreement, and any non-compliance with such restrictions by such parties shall be deemed a breach of such restrictions by Allscripts, provided that third party Partnering Organizations and Allscripts Resellers shall not be required to comply with the restrictions set forth in Section 5 [***]. 7





2.6 No Other Rights. Except as specifically set forth in this Agreement, no other rights or entitlements are granted by the Company to Allscripts with respect to the Installed Software, Documentation, Subscription Software Services, Merchant Processing Services or Services. All rights not expressly granted hereunder are reserved by the Company and/or its third party licensors.

2.7 Acknowledgments.

(a) The Parties acknowledge and agree that this Agreement is non-exclusive (except as set forth in Section 5) and imposes no limitations upon either Party's relationships with other parties or on either Party's research, development, production, marketing, licensing, reselling, or sales of other products or services, whether or not similar to any of the Installed Software or the Subscription Software Services or Merchant Processing Services or any Allscripts products or services, so long as such relationships or activities do not violate any express term of this Agreement or utilize any Confidential Information of the other Party in violation of this Agreement.

(b) [***]. In no event will anything in this Agreement be construed as an obligation on Allscripts' part to (i) incorporate the Installed Software or Documentation into Allscripts products or services or (ii) market, promote, distribute or make available the Installed Software or Subscription Software Services or Merchant Processing Services, [***].

(c) Notwithstanding [***] Allscripts or its Affiliates may, in its sole discretion, develop, market, provide, offer, sell or resell, directly, or indirectly through its resellers, Other Services (as defined in Section 5) to interface with Allscripts Payerpath or Allscripts Practice Management [***]. In no event shall Allscripts directly or indirectly utilize any of the Company's Installed Software, Subscription Software Services or Confidential Information in connection with any development activities described above in this Section 2.7(c).

2.8 Marketing Materials. The Company agrees to work with Allscripts to develop the initial set of marketing communications materials related to the Subscription Software Services or Merchant Processing Services (Company Marketing Materials). At the time such Company Marketing Materials are first distributed, each party must consent to their content, [***]. Allscripts must replicate all Company copyright notices on all copies of the Company Marketing Materials (and all customized versions thereof).

2.9 Forecast. Allscripts will provide Company with a non-binding [***] sales forecast for Allscripts' sales of eligibility and payment processing solutions during [***] within [***] of the Effective Date.

3. Services. Exhibit G sets forth the Amended and Restated Developer Program Agreement (the Restated Developer Agreement) in place between Allscripts and Company, which replaces in its entirety the Developer Agreement. The Restated Developer Agreement is hereby incorporated into this Agreement as if fully set forth herein and made part hereof.

3.1 Development and Integration.

(a) Within [***] of the Effective Date, Allscripts and the Company will reasonably cooperate to create a mutually satisfactory, sufficiently detailed, written specification (the Integration Specification) that describes the desired level of functional integration between Allscripts Payerpath and Allscripts Practice Management and the Subscription Software Services, along with the technical details and delivery dates (preliminarily defined in Exhibit B) related to achieving the functional integration as set forth in Exhibit G. 8





(b) The Company and Allscripts will each commit appropriate resources needed to complete their respective responsibilities with respect to the functional integration indicated by the Integration Specification as further described in Exhibits A and B hereto. The Company and Allscripts will each have the development and integration responsibilities assigned to it and described in the Integration Specification and will each be responsible for their respective costs associated with such responsibilities and in performing all other tasks assigned to it under the Integration Specifications. The Company and Allscripts will each use commercially reasonable efforts to complete their respective responsibilities in the Integration Specification within the time frames set forth in Exhibit B.

(c) Beta Testing. The parties anticipate that there will be up to [***] beta test sites testing the Subscription Software Services. Regardless of when the testing began or begins, Allscripts will be the primary deployment resource for each of the beta test sites as well as the first [***] implementations of the Subscription Software Services, as applicable, for Allscripts' Sublicensed Customers.

3.2 Implementation Services. Allscripts will be responsible for providing Implementation Services for the Installed Software and the Subscription Software Services (but not implementation for the Phreesia Patient Intake Management Offering, which shall be Phreesia's responsibility) distributed or made available hereunder. At Allscripts' request and direction, on a per-Sublicensed Customer basis, the Company will provide such Implementation Services directly to such Sublicensed Customer or through Allscripts in exchange for fees set forth in Exhibit C.

3.3 Provision and Quality of Services. To the extent the Company is required to provide Services under this Agreement, the Company will provide those Services [***].

3.4 Personnel. [***]. The Parties agree to use their reasonable efforts to promptly resolve any good faith complaints regarding any of the Company's personnel, or otherwise concerning the value or efficacy of any Services performed by or on behalf of the Company.

3.5 Books and Records. As applicable under the Omnibus Reconciliation Act of 1980, until the expiration of four (4) years after the furnishing of Services pursuant to this Agreement, the Company will, upon receipt of written request, and if then requested to make such information available under the then-existing Law, make available to the Secretary of the U.S. Department of Health and Human Services, the Comptroller General of the U.S. Department of Secretary of Health and Human Services, or any of their fully-authorized representatives, the books, documents, and/or records of the Company that are necessary to verify the nature and extent of costs associated therewith. The record keeping and disclosure provisions of this Section 3.4 will apply to all Services provided by the Company, but will be applicable only if the Company receives remuneration in the amount of $10,000 or more, with regard to the Services performed in relation to a single Sublicensed Customer.

4. Order and Acceptance.

4.1 Order Process. In order to activate Merchant Processing Services for a Merchant Processing Services Customer, the proposed Merchant Processing Services Customer must submit (directly or indirectly through Allscripts) a completed Merchant Application and executed Merchant Agreement to the Company within [***] from the execution by such Merchant Processing Services Customer of a Customer Agreement. Within [***] of the modification or termination (other than sublicenses that expire at the end of a term previously specified in a Purchase Order) of any Customer Agreement, Allscripts will provide the Company with written notice of such modification or termination. This Section 4.1 shall not be applicable to situations where the Allscripts Customer is purchasing Merchant Processing Services in connection with its purchase of PIMS. 9





4.2 Distribution; Commencement of Subscription Software Services. [***]. Subject to the terms of this Agreement, the terms and conditions relating to the provision of Merchant Processing Services to Sublicensed Customers, including but not limited to commencement thereof, shall be set forth in the Merchant Application and Merchant Agreement. [***].

4.3 Configuration and Acceptance.

(a) As part of the Implementation Services, the Company agrees to assist Allscripts in conducting configuration and acceptance testing of the Subscription Software Services, if and as requested or required by a Sublicensed Customer, in order to ensure that the Subscription Software Services are fully operable, meet all applicable specifications, and will function in accordance with the Documentation when properly installed and used for its intended purpose.

(b) In the event of final rejection by Allscripts or a Sublicensed Customer as a result of the Company's breach of this Agreement, including, without limitation, a breach of the Company's representations and warranties in Sections 21.1 and 21.3, if any payments hereunder have already been made by Allscripts to the Company regarding such Sublicensed Customer, and if Allscripts provides a refund to such Sublicensed Customer based on such Customer's rejection of the Subscription Software Services, then the Company will provide Allscripts with a refund of the applicable payment within [***].

5. [***].

6. FollowMyHealth. When Allscripts refers its FollowMyHealth customers to merchant processing service providers, it may include Phreesia among the providers referred. [***].

7. Contacts.

7.1 Relationship Contacts. Concurrently with the execution of this Agreement, each Party has designated an individual to serve as that Party's initial point of contact to facilitate communications between the Parties on all matters (e.g., marketing, maintenance and support, technical, customer satisfaction, sales pipeline) that may arise under this Agreement. The initial Allscripts relationship contact is [***] and the initial Company relationship contact is [***]. Each Party may change its respective relationship contact at any time upon written notice to the other Party.

7.2 Issues. In the event of any issues that may arise pursuant to this Agreement, the Parties' relationship contacts may confer to resolve such issues, it being understood that this will not preclude any Party from initiating dispute resolution proceedings pursuant to Section 28.9.

8. Licenses and Intellectual Property.

8.1 License Grant. Subject to the terms and conditions of this Agreement, the Company hereby grants to Allscripts and its Affiliates a non- exclusive, royalty-free, irrevocable [***] non-transferable (except in accordance with Section 28.4), sublicensable (through multiple levels of sublicensees), fully paid-up right and license under all of the Company's Intellectual Property to, throughout the Territory, access, use, reproduce, perform, display, modify, create derivative works of, transmit, demonstrate, test, operate, port, configure, distribute, and make available the Installed Software and Subscription Software Services solely for the purposes of:

(a) Allscripts' and its Affiliates' internal use of the Installed Software and Subscription Software Services as permitted hereunder, including with respect to its marketing, selling, development, service, and support activities under this Agreement, and including the training of Allscripts employees, contractors, and other authorized Representatives on the marketing, selling, planning, supporting, and use of the Installed Software, Subscription Software Services or any integrated product with any Allscripts products and services; 10





(b) the marketing, promoting, distributing, reselling, or provision of the Installed Software or the Subscription Software Services, directly or through Allscripts Resellers or Partnering Organizations, in accordance with the terms and conditions of this Agreement;

(c) enabling Allscripts products and services to interface or otherwise integrate, interact, or interoperate with the Installed Software and the Subscription Software Services , including performing any integration or interface development efforts with respect to the Installed Software, Subscription Software Services or any integrated product with any Allscripts products and services, or internally testing, evaluating, and performing validation and verification with respect to the Installed Software, Subscription Software Services or any integrated product with any Allscripts products and services (it being understood that the foregoing activities will not affect the Company's representations and warranties in Section 21);

(d) reselling Subscriptions (through multiple levels of sublicensees) to (i) Sublicensed Customers pursuant to Customer Agreements in accordance with this Agreement and (ii) Allscripts' Affiliates or to Allscripts Resellers or Partnering Organizations (subject to Sections 2.4 and 2.5) to carry out any of the purposes set forth in this Agreement;

(e) creating backups and other copies of the Installed Software solely to the extent necessary to perform its obligations hereunder in the ordinary course of business;

(f) managing, operating, and hosting (i) any Installed Software, (ii) the Allscripts products that will interface with the Installed Software or Subscription Software Services on behalf of Sublicensed Customers and (iii) authorizing its Sublicensed Customers, Allscripts Resellers or Partnering Organizations to do the same;

(g) generating, printing, copying, downloading, and storing all Data and other displays and output, as may result from any execution or other use of the Subscription Software Services and authorizing its Sublicensed Customers, Allscripts Resellers or Partnering Organizations to do the same; and

(h) all other purposes reasonably necessary to carry out any of the foregoing.

For the sake of clarity, the Subscription Software Services shall be hosted, managed and operated by Company.

8.2 Documentation and Marketing Materials. Subject to the terms and conditions of this Agreement, the Company hereby grants to Allscripts a non-exclusive, royalty-free, irrevocable , non-transferable (except in accordance with Section 28.4), sublicensable (through multiple levels of sublicensees), fully paid-up right and license under all of the Company's Intellectual Property to access, use, reproduce, perform, display, transmit, demonstrate, test, operate, port, configure, distribute, and make derivative works of the Documentation, Company Marketing Materials and Allscripts Marketing Materials, in whole or in part, throughout the Territory, for any purpose consistent with Section 8.1, [***].

8.3 Trademarks.

(a) Company Marks. 11





(i) Subject to the terms and conditions of this Agreement, the Company hereby grants to Allscripts and its Affiliates a non-exclusive, royalty- free, irrevocable [***] non-transferable (except in accordance with Section 28.4), sublicensable (through multiple levels of sublicensees), fully paid- up right and license under all of the Company's Intellectual Property to use the Company's brands, trademarks, product and service names, logos and slogans (the Company Marks), throughout the Territory, solely in connection with the marketing, selling, or provision of the Installed Software and the Subscription Software Services and Merchant Processing Services permitted hereunder or to otherwise fulfill the terms of this Agreement. [***].

(ii) Except as set forth in Section 11.3, Allscripts' use of the Company Marks will be in accordance with the Company's trademark use guidelines and instructions as set forth in Exhibit I. The Company will give Allscripts written notice of any changes to such specifications or guidelines, and will give Allscripts a reasonable time to modify its use of the Company Marks to comply therewith.

(iii) Allscripts is not required to display any Company- Marks on its products or marketing collateral, provided that the Subscription Software Services shall be characterized as Powered by Phreesia and shall contain a Phreesia logo. All goodwill in and to the Company Marks will inure solely to the benefit of Company.

(b) Allscripts Marks.

(i) Subject to the terms and conditions of this Agreement, Allscripts hereby grants to the Company a non-exclusive, royalty-free, irrevocable [***] non-transferable (except in accordance with Section 28.4), fully paid-up right and license under all of Allscripts' Intellectual Property to use the Allscripts Marks, throughout the Territory, solely in connection with providing the Installed Software and Subscription Software Services to Sublicensed Customers who have signed a Customer Agreement and to otherwise fulfill the terms of this Agreement.

(ii) The Company's use of the Allscripts Marks will be in accordance with Allscripts' trademark use guidelines and instructions, if any, furnished to the Company in writing from time to time. Allscripts will give the Company written notice of any changes to such specifications or guidelines, and will give the Company a reasonable time to modify its use of the Allscripts Marks to comply therewith.

(iii) The Company is not required to display any Allscripts Marks on any of its products or marketing collateral. All goodwill in and to the Allscripts Marks will inure solely to the benefit of Allscripts. The Company will not register, seek to register, or contest the validity of any of the Allscripts Marks in any jurisdiction.

8.4 Restrictions on Use. Except as and to the extent expressly permitted by this Agreement and/or the Integration Specification, Allscripts will not, and will not permit others to:

(a) reverse engineer, disassemble, decompile, decode, or adapt the Installed Software or Subscription Software Services, or otherwise attempt to derive or gain access to the source code or algorithms of the Installed Software or Subscription Software Services, in whole or in part, except [***];

(b) rent, lease, assign, or sell the Subscription Software Services or Installed Software to any third party (other than the physical media (if any) containing any Installed Software distributed by Allscripts); 12





(c) use any of the Installed Software or Subscription Software Services to provide time sharing or service bureau services to third parties, other than Sublicensed Customers;

(d) remove, obscure, or alter from the Installed Software, Subscription Software Services, Documentation or the Marketing Materials any applicable titles, trademarks, or copyright, patent, or other proprietary or restrictive legends or notices, or any end user warning or advisory, affixed to or contained therein or thereon;

(e) export or re-export all or any part of the Installed Software or Subscription Software Services in violation of any export control Laws of the United States or any other relevant jurisdiction;

(f) modify, correct, adapt, translate, enhance, or otherwise prepare or create any derivative works or improvements of the Installed Software or Subscription Software Services; provided, [***]

(g) (1) provide any materials to Company (including without limitation, the SDK (as defined in the Restated Developer Agreement) or Associated Allscripts Software (as defined in the Restated Developer Agreement)) that contains any Harmful Code or any Open Source Software or (2) upload any materials into the Installed Software or Subscription Software Services that contains any Harmful Code or any Open Source Software.

8.5 Intellectual Property Ownership.

(a) Subject to the express rights and licenses granted by the Company in this Agreement and the provisions of this Section 8.5, the Company and its licensors reserve and retain their entire right, title, and interest (including Intellectual Property rights) in and to the Installed Software, the Subscription Software Services, the Merchant Processing Services, the Documentation, the Company Marketing Materials, and the Company Marks, and all modifications, improvements, enhancements and derivatives of the foregoing (including, subject to Section 8.4(f), any modifications, improvements, enhancements and derivatives thereto developed or performed by or on behalf of Allscripts). At no time will Allscripts, Allscripts Resellers, Partnering Organizations, or Sublicensed Customers acquire or retain any title to or ownership to such assets, except as expressly granted under this Agreement.

(b) Subject to the express rights and licenses granted by Allscripts in this Agreement, Allscripts and its licensors reserve and retain their entire right, title, and interest (including Intellectual Property rights) in and to any modifications, improvements, or derivative works it creates or develops based on the Documentation or the Company Marketing Materials as authorized under this Agreement (e.g., any Documentation or Marketing Materials integrated with Allscripts documentation), as well as to all Allscripts products and services. At no time will the Company acquire or retain any title to or ownership to such assets, except as expressly granted under this Agreement.

(c) Ownership of all Intellectual Property in Open Source Software will remain with respective owners thereof, subject to Allscripts' rights under the applicable Open Source Licenses.

(d) Neither Party will take any action inconsistent with a Party's nor its licensors' ownership and interests set forth in this Section 8.5, or assist any Person in doing the same.

8.6 Data. As between Allscripts, its licensors and Affiliates, and Sublicensed Customers, on the one hand, and the Company and its licensors and Affiliates, on the other hand, Allscripts, its licensors and Affiliates, and Sublicensed Customers have, reserve, and retain sole and exclusive ownership to all right, title, and interest in and to all Data, including all Intellectual Property arising therefrom or relating thereto. [***] have any right or license to, and shall not, use any Data except solely as and to the extent necessary to [***]. 13





8.7 Open Source Software. The Company has not, and will not, use, modify, or distribute any Open Source Software in a manner that could (a) require the disclosure, licensing, or distribution of any source code or algorithms underlying any of the Installed Software or any software into which it is integrated; (b) require the licensing or disclosure of the Installed Software or any software into which it is integrated free of charge; or (c) otherwise impose any limitation, restriction, waiver of rights, or condition on the right or ability of the Company to use or distribute the Installed Software or any software into which it is integrated.

8.8 Effect of Company Bankruptcy.

(a) All rights and licenses granted by the Company under this Agreement are and shall be deemed to be rights and licenses to intellectual property, and the subject matter of this Agreement, including all Installed Software, Subscription Software Services Documentation, Company Marketing Materials, and Company Marks, is and will be deemed to be embodiment[s] of intellectual property, for purposes of and as such terms are used in and interpreted under Section 365(n) of the United States Bankruptcy Code (the Bankruptcy Code). Allscripts will have the right to exercise all rights and elections under the Bankruptcy Code and all other applicable bankruptcy, insolvency, and similar Laws with respect to this Agreement, and the subject matter hereof and thereof.

(b) Without limiting the generality of the foregoing, the Company acknowledges and agrees that, if the Company or its estate becomes subject to any bankruptcy or similar proceeding:

(i) subject to Allscripts' rights of election, all rights and licenses granted to Allscripts under this Agreement will continue subject to the respective terms and conditions hereof and thereof, and will not be affected, even by the Company's rejection of this Agreement; and

(ii) Allscripts will be entitled to a complete duplicate of (or complete access to, as appropriate) [***].

9. [intentionally left blank].

10. Training.

10.1 Training. The Company will provide, [***] periodic training for Allscripts personnel in connection with this Agreement, with the first such training [***] (such training, the First Training). The Company agrees to dedicate sufficient resources in connection with such training. Such training may be for the benefit of Allscripts personnel either as to Allscripts' permitted activities under this Agreement or to assist the Sublicensed Customers. Such training will be provided at such reasonable times and locations (including via remote means) as the Parties may reasonably agree. Such training will include, but is not limited to, sales and ongoing support training to Allscripts staff. The goal of this training will be to enable Allscripts' sales personnel to articulate the benefits of the Services and provide basic functional demonstrations to prospective Sublicensed Customers.

10.2 Support Training. In furtherance of Section 10.1, the Parties agree to cooperate in developing any training programs as may be reasonably necessary or useful to the provision of Support Services to Sublicensed Customers, which will be provided in a train the trainer format. Such programs will, at a minimum, provide Allscripts personnel with the ability to answer or appropriately refer questions about the Installed Software, Subscription Software Services or Merchant Processing Services and the Services. Such support training will include up to [***] each year of support training for Allscripts' staff adequate to enable Allscripts to provide first line support services to Sublicensed Customers as further defined in the Implementation and Support Plan. 14





11. Marketing.

11.1 Sales and Marketing Support. [***] the Company will provide [***] marketing support for the permitted activities hereunder, which will include, the following:

(a) assisting Allscripts in developing marketing strategies, plans, and marketing and training materials describing the Installed Software, Subscription Software Services or Merchant Processing Services or the Services as a complementary solution to any Allscripts product or service;

(b) providing Allscripts with a reasonable quantity of standard Company brochures, presentations, and materials related to the Installed Software, Subscription Software Services or Merchant Processing Services, the Services and/or the Company in hard copy and electronic form; and

(c) participating in sales meetings with Allscripts sales and/or actual or potential Sublicensed Customer personnel.

11.2 Demonstration Systems. [***], the Company will provide fully-functional demonstration systems or accounts for the Subscription Software Services, equivalent to those systems made available to the Company's sales personnel, for use by Allscripts' sales personnel. Each Party will provide all commercially reasonable assistance, cooperation, and support requested by the other Party to maintain demonstration systems sufficient to demonstrate the Installed Software and the Subscription Software Services as integrated with any Allscripts products or services. Each Party will be responsible for its own costs and expenses in designing, developing, testing, and maintaining such demonstration systems.

11.3 Branding. Branding of the Installed Software and the Subscription Software Services, but not the Merchant Processing Services with respect to the activities hereunder will be determined [***] Allscripts elects to private label or rebrand the Software Subscription Services, the relabeled or rebranded [***].

11.4 Request for Proposals. Allscripts may, in its sole discretion, recommend the Subscription Software Services or Merchant Processing Services and the Services as part of Allscripts' response to requests for proposals issued by third parties. [***].

11.5 Demonstrations. The Company at its own discretion will provide demonstrations of the Subscription Software Services and Merchant Processing Services at Allscripts-identified marketing events and activities, including user group meetings or conferences. In addition, either Party may, from time to time, request that the other Party attend and participate at vendor fairs and industry trade shows, seminars, user group events, and other similar events. The decision of whether or not to attend such functions will be in the sole discretion of the non-requesting Party.

12. Support and Maintenance.

12.1 Support Services.

(a) The Company is solely responsible for the development, update, performance, and maintenance of the Subscription Software Service. The Company covenants to use its best efforts to ensure that the Subscription Software Services are made available to Allscripts and each Sublicensed Customer and that support for Merchant Processing Services are made available to each Sublicensed Customer in accordance with the warranties, terms, and conditions of this Agreement and in accordance with any performance standards specified in this Agreement or in the Documentation. [***]. 15





(b) In furtherance of Section 12.1(a), the Company agrees to provide, at no additional charge to Allscripts or Sublicensed Customers [***] technical support, assistance, training, and Updates related to the Installed Software or Subscription Software Services or Merchant Processing Services (collectively, Support Services), in the manner and timeframes set forth on Exhibit D, to Allscripts and its consultants and contractors and, if requested by Allscripts, directly to Sublicensed Customers. [***]. The parties agree to reasonably cooperate to troubleshoot and resolve technical support issues that may reasonably involve the products, software, or technology of the other Party or of both Parties. This Section 12.1(b) shall not be applicable to Merchant Processing Services that an Allscripts Customer receives in connection with its purchase of PIMS.

12.2 Support Levels. Allscripts will provide the first level of support to Sublicensed Customers related to the Installed Software and Subscription Software Services and their integration with applicable Allscripts products. The first level of support is defined in Exhibit C. [***]. Allscripts, at its sole expense, will provide the second and all escalating levels of support for all technical issues and upgrades relating to Allscripts products. [***].

12.3 Integration Support. At the Company's expense and no additional charge to Allscripts, from time to time the Company will provide Allscripts with reasonable remote integration and implementation assistance, including, without limitation, upon addition of a new or updated Installed Software or Subscription Software Services under this Agreement.

12.4 Documentation. The Company has delivered or made available to Allscripts complete and accurate Documentation for the Installed Software, Subscription Software Services and that required to offer the Merchant Processing Services, and will promptly deliver or make available to Allscripts supplements to such Documentation and manuals, as and when released, to reflect all modifications, releases, supplements, corrections, Updates, amendments, and other changes to the Installed Software or Subscription Software Services or that required to offer the Merchant Processing Services. The Company will provide all Documentation in electronic form, in such formats and media as Allscripts may reasonable request. The Company agrees that all Documentation will include all technical and functional specifications and other such information as may be reasonably necessary for the effective installation, testing, use, support, and maintenance of the Installed Software and Subscription Software Services other than the Merchant Processing Services, including the effective configuration, integration, and systems administration of the Installed Software, Subscription Software Services other than the Merchant Processing Services and the operation and the performance of all its functions.

13. Updates.

13.1 Updates. [***] (either directly or through Allscripts, at Allscripts' direction) with Updates , either in response to specific requests from Allscripts to remedy Errors (consistent with the Error correction timing in Exhibit C), or as such Updates are released or generally made available [***]. For the avoidance of doubt, Updates will constitute Installed Software or Subscription Software Services (as applicable) and be subject to the terms and conditions of this Agreement. With respect to the Merchant Processing, [***]. 16





13.2 Restrictions on Updates.

(a) With respect to any material customer facing Update that does not relate to Merchant Processing Services, the Company will provide Allscripts [***] notice before releasing any such Update (except for Error corrections or fixes which may be released earlier). At least [***] before releasing any such customer facing Update (except for Error corrections or fixes which may be released earlier), the Company will provide Allscripts with (i) technical documentation of such Update; (ii) commercially reasonable technical assistance and training for such Update; and (iii) a functional, updated demonstration version of the Subscription Software Services (and for any Update made available via remote access, a testing environment), which will be sufficient to enable Allscripts to test the applicable Subscription Software Services and Allscripts products and services with respect to such Update. [***].

(b) The Company agrees to use its best efforts to resolve all support issues (pursuant to Exhibit D) relating to an Update that the Parties classify as Critical or High (as on Exhibit D) before releasing such Update.

13.3 Compatibility. With respect to any upgrades, updates, or modifications [***].

13.4 Changes to Merchant Processing Services. The Company may make revisions to the Merchant Processing Services, [***].

14. Other Covenants.

14.1 Insurance.

(a) At the Company's expense, the Company will maintain policies of insurance with insurance companies having a financial strength rating no lower than A and a size category not lower than XII as rated by the A.M. Best Company, and in amounts which are reasonable and prudent in light of the Company's business, potential liabilities to Allscripts hereunder, and other relevant factors, including the following: (i) Commercial General Liability insurance [***] (ii) Errors and Omissions insurance [***] and (iii) Workers' Compensation insurance with applicable statutory limits.

(b) Allscripts will be named as an additional insured under the foregoing policies, each of which will be primary and non-contributory. [***] The Company will give Allscripts [***] notice prior to any alteration, cancellation, or non-renewal of the policies required pursuant to this Agreement; provided, however, that the Company will not be obligated to provide such notice if, concurrently with such alternation, cancellation, or non-renewal, the Company obtains similar or better coverage from the same or another qualified insurer, without a lapse in coverage.

14.2 No Subcontractors. Except for the performance of the Merchant Processing Services, the Company will not subcontract any of its obligations under this Agreement to a third party, including the provision of any Services, without Allscripts' prior written consent. Allscripts hereby consents to the use by the Company of offshore developers with respect to the development of the Installed Software and the Subscription Software Services. The Company will remain responsible to Allscripts for any performance of its obligations hereunder notwithstanding the permitted engagement of any such third party. Allscripts acknowledges that the provision of the Merchant Processing Services is dependent on the services of the Member Banks. Company shall use good faith efforts to maintain its ability to provide Merchant Processing Services, including by adhering to the rules and regulations promulgated by Visa, Master Card and the Member Bank and using good faith efforts to maintain a current contract with the Member Bank or a reasonably comparable substitute to enable it to fulfill its obligations hereunder. Notwithstanding anything to the contrary [***]. 17





14.3 Further Assurances. Each Party will, upon the reasonable request of the other Party and at the requesting Party's sole cost and expense, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.

14.4 Non-Solicitation. During the term of this Agreement and for a period of [***] thereafter, neither Party nor its controlled Affiliates will, without the prior written consent of the other Party, directly or indirectly solicit for employment any then-current employee of the other Party or its controlled Affiliates; [***].

14.5 Compliance with Laws. Each Party will comply with all applicable Laws and the Operating Regulations, governmental requirements, and industry standards, including those with respect to privacy, data protection, portability, or accountability, applicable to such Party or its personnel with respect to the Software, the Services, and the performance of its obligations under this Agreement; provided that Allscripts will have no obligation to comply with any Operating Regulations unless such Operating Regulations are disclosed to it. Neither Party will, nor permit any third parties to, export, re-export, or release, directly or indirectly, any Controlled Technology to any country or jurisdiction to which the export, re-export, or release of any Controlled Technology (a) is prohibited by applicable Law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).

14.6 [***].

15. Force Majeure.

15.1 Force Majeure. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by (a) acts of God; (b) flood, fire, or explosion; (c) war, terrorism, invasion, riot, or other civil unrest; (d) embargoes or blockades in effect on or after the Effective Date or (e) any other cause or event beyond its reasonable control (each of the foregoing, a Force Majeure Event). The Disaster Recovery Plan, attached hereto as Exhibit L, sets forth Phreesia's obligations for disaster recovery preparedness and response, including among other things, preparing for and responding to Force Majeure Events.

15.2 [***].

16. Regulatory Matters.

16.1 Privacy and Security Matters. Concurrently with the execution of this Agreement, the Parties are executing a HIPAA Business Associate Agreement (the BAA) in the form attached hereto as Exhibit E.

16.2 Technical Standards. The Company will provide Allscripts with Updates so that the Subscription Software Services can be implemented and configured to comply in all material respects with applicable privacy and security standards (e.g., HITECH, HIPAA, and Omnibus rule) within a reasonably practicable timeframe (based on the scope of required enhancements and other factors) after their final, formal adoption and publication by the Secretary of the U.S. Department of Health and Human Services.

16.3 Data. The Company will ensure that all protected health information (PHI), personally identifiable information (PII) or payment card information (PCI) is (1) encrypted at rest and (2) encrypted while moving in or out of the Company's data center. 18





16.4 Interfaces. In connection with the Subscription Software Services, PIMS and the Services, the Company will use and support Unity API interfaces that are generally available to Allscripts, and make appropriate adjustments to the Subscription Software Services to support Allscripts' standard implementation of such interfaces. Upon the Parties' mutual agreement, and without additional licensing fees, the Company may also use Allscripts API services (e.g., Unity), and Allscripts may use the Company's APIs (as applicable).

16.5 Required Updates. The Company will provide Allscripts with Updates, if and when required, so that the Subscription Software Services include such functionalities as are necessary to allow Allscripts and Sublicensed Customers to comply with those legal and regulatory requirements that are binding upon Allscripts or Sublicensed Customers in their respective use of the Installed Software and Subscription Software Services or Merchant Processing Services and that are binding standards or other requirements regarding the processing of electronic transactions that the Installed Software and Subscription Software Services or Merchant Processing Services are designed to process, including any and all binding modifications or replacements to such regulations. [***].

16.6 Regulatory Approvals. The Company will be solely responsible for obtaining and maintaining all licenses, permits, and approvals required by any governmental authority with respect to the Software or the marketing, use, or distribution thereof. The Company will use reasonable diligence in connection with the design and development of the Subscription Software Services or Merchant Processing Services to identify any such licenses, permits, and approvals and any applicable Laws to which the Subscription Software Services or Merchant Processing Services or its use is subject. [***].

16.7 [Intentionally Omitted.]

16.8 Protected Health Information. Except as otherwise expressly provided hereunder, in connection with any transfer of protected health information (PHI) between the Parties pursuant to this Agreement:

(a) each Party will transfer PHI between the Parties only through use of a dedicated connection to which the Parties are the only authorized parties or such other method of communication, such as encrypted communication, between them;

(b) each Party will not permit any third party to use any such connection to the extent that such use is in its control, unless such third party is providing services to such Party as permitted under this Agreement;

(c) each Party will take reasonable steps to ensure that the output display of that connection at each facility it has is limited to authorized personnel or independent contractors of the Party; and

(d) the Company's use of Sublicensed Customer de-identified and aggregated PHI will be limited to the rights set forth in a Business Associate Agreement, if any, executed between the Company and the respective Sublicensed Customer. The Company has no rights to de-identify any Sublicensed Customer PHI under this Agreement.

17. Invoicing, Reporting and Payment Terms.

17.1 Reports and Invoicing.

(a) Invoicing from Company to Allscripts. 19





(i) Invoicing for Eligibility and Benefits (E&B) Services. The Company will provide Allscripts with (1) an invoice for the fees set forth on Exhibit F for all E&B Transactions [***] and (2) a report with reasonably detailed supporting data for all such E&B Transactions by each Sublicensed Customer, excluding Legacy Customers, [***].

(ii) Invoicing for POS Dashboard. Allscripts shall deliver a report with reasonably detailed supporting data to Company no later than [***] for current Sublicensed Customers of the POS Dashboard. Company shall deliver an invoice to Allscripts for POS Dashboard fees in accordance with Exhibit F no later than [***].

(iii) Invoicing for Professional Services and Travel and Expense (T&E) Reimbursement. If services are performed by Company pursuant to a request by Allscripts for implementation, set up, training or support beyond those services that Company is required to perform under this Agreement, including, without limitation, as set forth in Sections 10 and 11, Company will deliver an invoice for such fees at the hourly rate described in Exhibit C and any related reimbursable expenses that Allscripts has pre-approved no later than [***] together with reasonable supporting detail.

(iv) Allscripts Internal Use. Notwithstanding anything to the contrary, Allscripts will not be required to make any payments to the Company in respect of its internal use of the Installed Software or Subscription Software Services, including with respect to its use in connection with its performing of support obligations hereunder.

(b) Invoicing from Allscripts to Company.

(i) Invoicing for Revenue Share on Merchant Processing Services. Company shall deliver a report with reasonably detailed merchant-level payment transaction data, [***] to Allscripts [***] for Merchant Processing Services provided to Allscripts Customers, excluding Legacy Customers. Allscripts will provide the Company with an invoice for merchant processing revenue share in accordance with Exhibit F [***].

(ii) Invoicing for Patient Intake Management Offering. Company shall deliver a report with reasonably detailed data, [***] to Allscripts [***] for its Patient Intake Management Offering provided to Allscripts Customers, excluding Legacy Customers. Allscripts will provide the Company with an invoice for merchant Patient Intake Management revenue share in accordance with Exhibit F, [***].

(iii) Legacy Customer's Fee. Allscripts shall invoice the Company for Legacy Customers (as defined on Exhibit H) quarterly fees in accordance with Exhibit F [***].

17.2 Reporting for the Purpose of Invoicing Sublicensed Customers. [***].

17.3 Payment Terms.

(a) Each party will submit each invoice in electronic format, via such delivery means and to such address as are specified by Allscripts and the Company in writing from time to time.

(b) Subject to the terms and conditions of this Section 17.3, each party will pay all properly invoiced fees within [***] after its receipt of a proper invoice therefor. All payments hereunder will be invoiced in U.S. Dollars. All payments hereunder will be made by wire transfer to the account specified by each Party; provided that a Party shall provide at least [***] advance notice of any changes to its account. [***]. 20





(c) Subject to Section 17.3(d), Company will not withhold the Subscription Software Services or Merchant Processing Services or any Services or fail to perform any obligation hereunder by reason of a good faith withholding of any payment or amount in accordance with this Section 17.3(c) or any dispute arising therefrom. [***].

(d) [***].

17.4 Audit Rights.

(a) During the term of this Agreement, for the longer of [***], each Party will maintain complete and accurate (in all material respects) books and records, in accordance with generally accepted accounting practices, regarding its sales and services activities with respect to the subject matter of this Agreement.

(b) During the term of this Agreement, [***], each Party will have the right to engage, at its own expense, an independent auditor reasonably acceptable to the other Party to review the other Party's books and records solely for the purpose of confirming the other Party's compliance with its pricing and payment obligations hereunder. Prior to performing any audit, the independent auditor must sign a confidentiality agreement in a form reasonably acceptable to the audited Party. Any such audit will be limited in scope to the [***] period immediately preceding the commencement date of such audit. The auditing Party will furnish the audited Party with written notice at least [***] prior to the date that it desires to commence such audit. The Parties will mutually agree, reasonably and in good faith, on the timeframe for such audit to be conducted. Any such audit will be conducted during the audited Party's regular business hours and in a manner that minimizes interference with the audited Party's normal business activities. All information that is disclosed in connection with such audit will be deemed to be the Confidential Information of the audited Party, and subject to this Agreement. Any audit will be conducted in a manner that does not breach or violate any applicable Laws regarding patient confidentiality. The rights set forth in this Section 17.4(b) may not be exercised by an auditing Party more frequently than one (1) time in any twelve (12)-month period.

(c) If any audit reveals an underpayment or over-charge by a Party, then such Party will promptly remit the full amount of such underpayment or over-charge to the other Party.

(d) Each Party will bear all costs and expenses it incurs in connection with preparing for, conducting, or complying with any such audit including, in the case of the auditing Party, the costs and expenses of conducting the audit.

(e) Additionally, Allscripts shall have the right to examine the development and any work-in-progress at any time upon reasonable notice to the Company. Furthermore, [***], the Company shall provide sufficient access to its books and records as requested by Allscripts for the purpose of verifying the Company's compliance with its obligations relating to matters other than payment and pricing. In addition, [***], Allscripts shall provide sufficient access to its books and records as requested by the Company for the purpose of verifying Allscripts compliance with its fee reporting and payment obligations hereunder.

(f) Annually, the Company shall have performed, [***], a PCI assessment and a third party privacy and security assessment covering [***] Company will make available to Allscripts via WebEx or similar web-conferencing technology a copy of the reports from the PCI assessment and the privacy and security assessment for Allscripts review [***] of [***]. Additionally [***], upon Allscripts' reasonable 21





request, Company shall cause the firms performing the Security Assessments to make available the personnel responsible for such audits to discuss any adverse findings with Allscripts. Company shall perform third party external vulnerability scans [***]. All Critical or High vulnerabilities identified during the scans shall be remediated and validated as closed by the third party scanning vendor. Company shall also perform third party penetration tests following a major security architectural change. Company shall provide to Allscripts an executive summary of each vulnerability scan and penetration test [***] of completion of each such scan or test. Vulnerability scans and penetration testing requirements shall commence [***]. The PCI audit, third party Privacy and Security assessment, vulnerability scan, and penetration test shall collectively be referred to as the Security Assessments.

(g) Annually, Allscripts shall have performed, at its costs and expense, a third party privacy and security assessment [***]. Upon request, Allscripts will coordinate with Company to make available to Company via WebEx or similar web-conferencing technology a copy of the report from the privacy and security assessment for Company review, provided that such web-conference will not be earlier than [***].

Failure to comply with this Section shall be deemed a material breach of this Agreement.

18. Expenses; Taxes.

18.1 Expenses. Unless otherwise expressly set forth in this Agreement, each Party will bear all of its own costs and expenses incurred in connection with this Agreement or its performance hereunder, including any development costs, sales and marketing costs, and support costs.

18.2 Taxes. All fees set forth herein are inclusive of any taxes, tariffs, duties, assessments, or governmental charges. Each Party will be responsible for any sales tax, use tax, excise tax, import duty, export duty, or other tax, tariff, duty, assessment, or charges of any kind imposed by any governmental entity on it as a result of any transaction contemplated by this Agreement.

19. Confidentiality.

19.1 Obligations. From time to time in connection with this Agreement, either Party (as the Disclosing Party) may disclose or make available to the other Party (as the Receiving Party) Confidential Information. [***].

19.2 Exceptions. Confidential Information shall not include [***].

19.3 Legally Required Disclosure. Notwithstanding anything in this Section 19 to the contrary, if a Receiving Party or any of its Representatives is required or receives a request, pursuant to applicable Law or the rules or regulations of a stock exchange or similar self-regulatory authority, to disclose any of the Disclosing Party's Confidential Information, then the Receiving Party agrees, to the extent legally permissible and as soon as reasonably practicable, to provide the Disclosing Party with written notice of the event so that the Disclosing Party may, at the Disclosing Party's expense, seek a protective order or other remedy. The Receiving Party or its Representative (as applicable) will use its commercially reasonable efforts to consult and cooperate with the Disclosing Party with respect to any effort by the Disclosing Party to resist or narrow the scope of such requirement or request, or to seek such protective order or other remedy. If such protective order or other remedy is not obtained, then the Receiving Party or its Representative (as applicable): (a) may, without liability, disclose that portion of the Disclosing Party's Confidential Information that it is required or requested to disclose; and (b) will use its commercially reasonable efforts to have confidential treatment accorded to the Confidential Information so disclosed. Furthermore, Section 19 will not apply to the disclosure of Confidential Information if such disclosure is necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. Any information disclosed pursuant to this Section 19.3 will retain its confidential status for all other purposes. 22





19.4 Effect of Expiration or Termination. Subject to Section 25.7, upon expiration or termination of this Agreement, at the Disclosing Party's request, the Receiving Party will, and will cause its Representatives (and, if applicable, its Affiliates, Allscripts Resellers, and Partnering Organizations) to, promptly return or destroy all Confidential Information received from the Disclosing Party in tangible form, together with all copies thereof, in such Person's possession; provided, however, that the Receiving Party may keep one (1) copy of the Disclosing Party's Confidential Information (a) to the extent necessary to exercise its surviving rights and perform its surviving obligations hereunder and (b) in accordance with its corporate security and/or disaster recovery procedures, to the extent such Confidential Information is in electronic form. The Receiving Party will, upon request, promptly certify in writing that it has complied with the obligations of this Section 19.4.

19.5 Protected Health Information. For the avoidance of doubt, the protection of PHI or other personally identifiable information received by a Party or its Representatives hereunder will be governed by the BAA, and will not be deemed to be Confidential Information for purposes of this Agreement.

19.6 No Additional Requirements. Each Party acknowledges that the other Party or its Representatives may, currently or in the future, be developing internally, or receiving information from other Persons, that is similar to the Confidential Information of the other Party disclosed to it or its Representatives under this Agreement. Except as otherwise set forth in Section 5, nothing in this Agreement will prohibit any Party or its Representatives from developing, manufacturing, marketing, selling, servicing, or supporting, or having developed, manufactured, marketed, sold, serviced, or supported for it, products, concepts, systems, or techniques that are similar to or compete with the products, concepts, systems, or techniques contemplated by or embodied in the other Party's Confidential Information; provided, that neither Party nor its Representatives may use the other Party's Confidential Information in connection with such activities. Furthermore, neither Party nor its Representatives will have any obligation to limit or restrict the assignment of its respective employees or consultants as a result of their having had access to the other Party's Confidential Information.

20. Public Announcements.

20.1 Publicity. Except as may be required by applicable Law or listing standard, neither Party will issue or release any public announcement, statement, press release, or other publicity relating to this Agreement without the prior written consent of the other Party.

20.2 Use of Marks. Unless expressly permitted by this Agreement, neither Party will use the other Party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, origin, association, or sponsorship, without the prior written consent of the other Party.

21. Representations and Warranties.

21.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:

(a) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the Laws of its jurisdiction of incorporation, organization, or charter; 23





(b) it has, and throughout the term of this Agreement and any Customer Agreement will retain, the full right, power, and authority to enter into this Agreement, to grant the rights and licenses it grants hereunder, and to perform its obligations under this Agreement;

(c) its execution of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party;

(d) when executed and delivered by it, this Agreement will constitute its legal, valid, and binding obligation, enforceable against it in accordance with its terms;

(e) there is no outstanding claim, litigation, proceeding, arbitration, or investigation to which it is a party that would reasonably be expected to have a material adverse effect on its ability to enter into this Agreement or to perform its obligations hereunder; and

(f) its execution, delivery, and performance of its obligations under this Agreement does not and will not violate any judgment, order, decree, or applicable Law, nor does it or will it violate any agreement to which it is a party.

21.2 Company Representations and Warranties. The Company represents and warrants to Allscripts that:

(a) Company or its licensors, or their permitted successors or assigns are, and throughout the term of this Agreement and any Customer Agreement will remain, the legal and beneficial owners of the entire right, title, and interest in and to the Installed Software, Subscription Software Services, the Documentation, and the Company Marketing Materials, including all Intellectual Property relating thereto (or, with respect to any third party software used to provide the Installed Software, Subscription Software Services it has, and will continue to have throughout the term of this Agreement, sufficient and valid license rights to grant the licenses and perform its obligations hereunder), including the unconditional and irrevocable right, power, and authority to grant the licenses and perform its obligations hereunder;

(b) as provided by the Company, no Installed Software or Subscription Software Services (including any Updates) does or will, at any time during the term of this Agreement or any Customer Agreement, contain any Harmful Code and no Installed Software will contain any Open Source Software;

(c) when used by Allscripts or any Sublicensed Customer, no Installed Software, Subscription Software Services, Documentation or Company Marketing Materials does or will: (i) infringe, misappropriate, or otherwise violate any Intellectual Property or other proprietary right of any third party (provided that Company's sole obligation and Allscripts sole remedy for any breach of the foregoing shall be for Company to indemnify Allscripts pursuant to Section 22), or (ii) fail to comply with any applicable Law;

(d) there is no settled, pending, or, to the Company's knowledge, threatened litigation, claim, or proceeding (including in the form of any offer to provide a license): (i) alleging that any use of the Installed Software, Subscription Software Service, Documentation or Company Marketing Materials does or would infringe, misappropriate, or otherwise violate any copyright, patent, trade secret, or other Intellectual Property of any third party; (ii) challenging the Company's ownership of, or right to use or license, any Installed Software, Subscription Software Services or Merchant Processing Services, Documentation or Company Marketing Materials, or alleging any adverse right, title, or interest with respect thereto; or (iii) alleging the invalidity, misuse, unregistrability, unenforceability, or non-infringement of any copyrights, trade secret rights, or patent rights in the Installed Software, Subscription Software Services or Merchant Processing Services, Documentation, or Company Marketing Materials; 24





(e) all Documentation is and will be complete and accurate in all material respects when provided to Allscripts, such that at no time during the term of this Agreement or any Customer Agreement will the Subscription Software Services or Merchant Processing Services have any material undocumented feature; and

(f) all Services provided hereunder are and will be in compliance with all applicable Laws.

21.3 Performance Warranty. The Company represents, warrants, and covenants to Allscripts that, during the term of this Agreement and any Customer Agreement:

(a) when used in accordance with the Documentation, all Subscription Software Services or Merchant Processing Services and the Installed Software as provided by the Company will meet, in all material respects, all applicable specifications set forth in this Agreement and the Documentation, and function in all material respects, in conformity with this Agreement and the Documentation;

(b) any media on which the Installed Software or Documentation is delivered will be free of any damage or defect in design, material or workmanship; and

(c) no Update will have a material adverse effect on the material functionality or operability of the Installed Software or Subscription Software Services or Merchant Processing Services, as the case may be.

21.4 Breach of Performance Warranty. If the Company breaches any of the warranties set forth in Section 21.3, then the Company will, upon notice from Allscripts and at the Company's sole cost and expense, remedy such breach on a timely basis and in accordance with Section 12. [***].

21.5 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

22. Indemnification.

22.1 Indemnification by the Company. Subject to the provisions of this Section 22, the Company agrees to defend Allscripts and its Representatives, and all of such Persons' successors and assigns (collectively, the Allscripts Indemnified Persons), from and against any and all third party Claims, and indemnify and hold the Allscripts Indemnified Persons harmless from and against any and all Losses incurred or sustained by the Allscripts Indemnified Persons, or any of them, directly or indirectly, in connection with or to the extent such third party Claim and related Loss is a result of any of the following:

(a) the Company's breach of any representation, warranty, covenant, or obligation of the Company under this Agreement or the Restated Developer Agreement;

(b) any violation of applicable Law by the Company;

(c) any gross negligence or willful misconduct in connection with its performance of any covenant or agreement applicable to the Company contained in this Agreement (including the performance of the Services), including any personal injury, death, or damage to tangible personal or real property; 25





(d) taxes assessed or claimed against any of the Allscripts Indemnified Persons that are obligations of the Company in connection with this Agreement or which result from the breach of this Agreement by the Company;

(e) any damage caused to any third party's IT environment by Company or any Developer App (as defined in the Restated Development Agreement) or

(f) any Claims that any Developer App, the Installed Software, Subscription Software Services or Merchant Processing Services, Documentation, Marketing Materials, the Company Marks, or Services, or any use, promotion, marketing, distribution, sale, service, or delivery thereof, infringe, misappropriate, or violate any Intellectual Property or other rights of a third party, including any damages suffered by Sublicensed Customers as a result thereof for which Allscripts is liable, including any refunds of fees paid by Sublicensed Customers for use of such infringing materials.

22.2 Infringement Remedy.

(a) In the event of a Claim that the Installed Software, Subscription Software Services or Merchant Processing Services, Documentation, Company Marketing Materials, or Services, or any use, promotion, marketing, distribution, sale, service, or delivery thereof, infringe, misappropriate, or violate any Intellectual Property of a third party, or if any use of any of the Installed Software, Subscription Software Services or Merchant Processing Services, the Documentation, Company Marketing Materials, or the Services (or any respective component thereof) is enjoined, threatened to be enjoined, or is otherwise the subject of such a Claim, [***].

(b) [***].

(c) [***].

22.3 Indemnification by Allscripts. Subject to the provisions of this Section 22, Allscripts agrees to defend the Company and its Representatives, and all of such Persons' successors and assigns (collectively, the Company Indemnified Persons), from and against any and all third party Claims, and indemnify and hold the Company Indemnified Persons harmless from and against any and all Losses incurred or sustained by the Company Indemnified Persons, or any of them, directly or indirectly, in connection with or to the extent such Claim and related Loss is a result of any of the following:

(a) Allscripts' breach of any representation, warranty, covenant, or obligation of Allscripts under this Agreement or the Restated Developer Agreement;

(b) any violation of applicable Law by Allscripts, or by Allscripts' Affiliates, Allscripts Resellers, and Partnering Organizations solely in connection with this Agreement;

(c) any gross negligence or willful misconduct in connection with its performance of any covenant or agreement applicable to Allscripts or to Allscripts' Affiliates, Allscripts Resellers, and Partnering Organizations contained in this Agreement, including any personal injury, death, or damage to tangible personal or real property; or

(d) any claim that the SDK (as defined in the Restated Developer Agreement), the Associated Allscripts Software (as defined in the Restated Developer Agreement) Allscripts Marks or any Allscripts products or services infringe, misappropriate, or violate any Intellectual Property of a third party; or 26





(e) taxes assessed or claimed against any of the Company Indemnified Persons that are obligations of Allscripts, Allscripts' Affiliates, Allscripts Resellers, or Partnering Organizations in connection with this Agreement, or which result from the breach of this Agreement by Allscripts, Allscripts' Affiliates, Allscripts Resellers, or Partnering Organizations.

22.4 Indemnification Procedure.

(a) A Person seeking defense and indemnification under this Section 22.4 (the Indemnified Person) will promptly notify the Party from whom defense and indemnification is being sought (the Indemnifying Party) in writing, describing the circumstances, in reasonable detail, for which it seek defense and indemnification.

(b) Upon notice of a Claim, the Indemnifying Party will [***] assume the investigation and defense of such Claim, and, in connection therewith, will employ counsel of national reputation of its own choosing [***]. At the Indemnifying Party's request and expense, the Indemnified Person will provide reasonable cooperation in connection with the investigation and defense of such Claim; [***]. The Indemnified Person may also participate in and observe (but not control) the investigation and defense of such Claim, [***] and with counsel of its choosing.

(c) If the Indemnifying Party fails to defend a Claim hereunder within a reasonable amount of time after receiving notice thereof, the Indemnified Person will have the right, but not the obligation, and without waiving and of its other rights hereunder, to undertake the defense of and to compromise or settle such Claim, on behalf of [***] of the Indemnifying Party.

(d) [***].

(e) An Indemnified Person's failure to perform any obligations under this Section 22.4 will not diminish an Indemnifying Party's obligations hereunder, except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.

(f) [***].

[***].

22.5 Limitations. The Company's obligations to provide defense and indemnity pursuant to this Section 22 will be reduced to the extent that the Claim or Loss was caused by (a) the Indemnified Person's creation of modifications to the Installed Software, Subscription Software Services, Developer App, Merchant Processing Services, Documentation, Company Marketing Materials, or Services, unless such modifications (i) were authorized in writing by the Company or were otherwise directed in writing or caused by the Indemnifying Party or (ii) were contemplated and permitted as a feature of any of the Installed Software or Subscription Software Services or Merchant Processing Services, and in each case solely to the extent such Claim would not have occurred but for such modifications; (b) the Indemnified Person's failure to use updates or corrections made available by the Indemnifying Party, but solely to the extent such Claim would not have occurred if such updates or corrections had been used; or (c) the operation of Allscripts' products or services or the combination or use of the Installed Software, Developer App, Subscription Software Services or Merchant Processing Services or Services in conjunction with Allscripts' products or services (unless directed in writing or caused by the Company), if such Claim would not have arisen but for such combination or use, and except to the extent arising from any combination performed by or on behalf of the Company in connection with the Services. 27





23. Limitation of Liability.

23.1 Limitation of Liability.

(a) EXCEPT AS OTHERWISE SET FORTH IN SECTION 23.2, IN NO EVENT WILL ANY PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY LOST PROFITS OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POTENTIAL FOR SUCH DAMAGES, OR WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, TORT, OR OTHERWISE. [***].

(b) EXCEPT AS OTHERWISE SET FORTH IN SECTION 23.2, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID BY ALLSCRIPTS TO COMPANY HEREUNDER DURING THE [***] PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE PROVISIONS OF THIS AGREEMENT ALLOCATE RISKS BETWEEN THE PARTIES. THE PRICING SET FORTH HEREIN REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

23.2 Exceptions. The limitations in Section 23.1(a) will not apply to (a) losses arising out of or relating to a Party's breach of its obligations in Section 8 (excluding Section 8.4(g)) or Sections 1.1, 1.2, 1.4, 1.6 or 6.1 of the Restated Developer Agreement, (b) losses arising out of a Party's breach of Section 19 or the Business Associate Agreement (c) losses arising from a Party's gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts; (d) losses for death, bodily injury, or damage to real or tangible personal property arising out of or relating to a Party's negligent or more culpable acts or omissions or (e) a Party's obligation to pay attorneys' fees and other costs pursuant to Section 28.9(e). The limitations in Section 23.1(b) will not apply to (a) losses arising out of or relating to a Party's breach of its obligations in Section 8 (excluding Section 8.4(g)) or Sections 1.1, 1.2, 1.4, 1.6 or 6.1 of the Restated Developer Agreement, (b) losses arising out of a Party's breach of Section 19 or the Business Associate Agreement; (c) a Party's indemnification obligations under Sections 22.1(b) through 22.1(e) or Sections 22.3(b) through 22.3(e); (d) losses arising from a Party's gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts; (e) losses for death, bodily injury, or damage to real or tangible personal property arising out of or relating to a Party's negligent or more culpable acts or omissions; or (f) a Party's obligation to pay attorneys' fees and other costs pursuant to Section 28.9(e). In addition, the limitations in Section 23.1(b) will not apply (1) to Company's indemnification obligations under Section 22.1(a) or (2) Allscripts indemnification obligations under Section 22.3(a), unless the Company's or Allscripts' indemnification obligation under Section 22.1(a) or 22.3(a), as the case may be, relates to the losses and obligations described in subclauses (a) through (f) of the preceding sentence. [***].

23.3 Essential Basis. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND, ABSENT ANY OF SUCH DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS OF LIABILITY, THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. 28





24. Term.

24.1 Term. The initial term of this Agreement commences on the Effective Date and will continue in effect until five (5) year(s) from such date (the Initial Term) unless terminated earlier pursuant to Section 25.

24.2 Renewal. Unless this Agreement is terminated pursuant to Section 25, this Agreement will automatically renew for additional successive [***] terms (each a Renewal Term and together with the Initial Term, the Term) unless and until either Party provides written notice of non-renewal to the other Party at least [***] prior to the end of the then-current Term. 25. Termination.

25.1 Termination for Convenience. [***].

25.2 Termination for Cause. Either Party may terminate this Agreement, immediately upon written notice to the other Party, if the other Party materially breaches this Agreement and such breach (a) is incapable of cure or (b) being capable of cure, remains uncured [***] after the breaching Party receives written notice from the non-breaching Party thereof.

25.3 Termination for Insolvency. Either Party may terminate this Agreement, immediately upon written notice to the other Party, if the other Party (a) becomes insolvent or admits inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, which is not fully stayed within [***] or is not dismissed or vacated within [***] after filing; (c) is dissolved or liquidated or takes any action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any portion of its property or business (and such appointment is not discontinued within [***] thereafter).

25.4 Termination for Force Majeure. Subject to Section 15.2, either Party may terminate this Agreement, immediately upon written notice to the other Party, if a Force Majeure Event affecting the other Party's performance of its obligations hereunder continues substantially uninterrupted for a period of [***] or more.

25.5 Termination for Exclusion/Termination of Merchant Processing Services. [***].

25.6 Termination for Change of Control. [***].

25.7 Effect of Expiration or Termination.

(a) The expiration or termination of this Agreement will not have the effect of terminating any Customer Agreement, Merchant Agreement (or the licenses to the Installed Software or Subscription Software Services distributed thereunder) or agreement directly between [***].

(b) Upon expiration or termination of this Agreement, except in connection with the rights and obligations set forth in this Section 25.7, Allscripts will immediately (i) cease all use of the Company Marks and all marketing and sales-related efforts with respect to the Installed Software, Subscription Software Services or Merchant Processing Services and the Services; (ii) discontinue all representations or statements from which it might be inferred that any relationship exists between the Parties; (iii) cease to solicit or procure orders for the Subscription Software Services or Merchant Processing Services, Installed Software, Merchant Processing Services or the Services; and (iv) return all copies of the Documentation, and related materials and copies thereof, to the Company; provided, however, that Allscripts may retain a reasonable number of copies of the Documentation and related materials in order to fulfill its obligations under this Agreement and the Customer Agreements. 29





(c) Upon expiration or termination of this Agreement, the Company will (i) provide reasonable cooperation and assistance to Allscripts, at Allscripts' written request and to the extent necessary to fulfill any continuing obligations under this Agreement, in transitioning the terminated Support Services to an alternative service provider; and [***].

(d) Subject to the foregoing paragraphs of this Section 25.7, upon expiration or termination of this Agreement, [***]. 26. Change of Control.

26.1 Competing Providers. This Section 26 will only apply in the event of a Change of Control to a Competing Provider or its Affiliate.

26.2 Removal of Data. [***].

26.3 De-identified Data. As of the consummation of a Competitive Change of Control, [***].

26.4 No Obligation. As of the consummation of a Competitive Change of Control, Allscripts will be under no obligation to provide the Company (or, for the avoidance of doubt, any Company Acquiror or Competing Provider) with any Data, except Data necessary for Company to fulfill its obligations under its Merchant Agreements with such customers and to fulfill any of its obligations hereunder for the duration of the applicable Customer Agreements.

26.5 Support. Notwithstanding anything in this Agreement to the contrary, as of the consummation of a Competitive Change of Control, Allscripts will have the right, in its sole discretion, to assume the provision of Level 1 Support Services to Sublicensed Customers and to become the first direct point of contract for each Sublicensed Customer for support and maintenance matters hereunder. A Competitive Change of Control will not release the Company from any of its obligations under this Agreement, including its obligations to provide Support Services. 27. Survival.

27.1 Survival. The provisions of Sections 1, 2.5-2.7, 8.4-8.6, 8.8, 16.8, 18-25, 27, and 28 and Exhibit E (Business Associate Agreement), Exhibit F (Buy Rates and Revenue Share) and Exhibit H (List of Legacy Customers) will survive and continue after the expiration or termination of this Agreement indefinitely. The provisions of the Restated Developer Agreement set forth in its Survival provision will survive the expiration or termination of the Restated Developer Agreement or this Agreement indefinitely. The provisions of Sections 2.1(c)-(d), 2.3, 4.2, 4.3, 8.1-8.3, 8.7, 10, 11.3, and 12-17 (excluding Sections 14.4 and 17.4, each of which will survive for the duration set forth therein; and Sections 14.6, 16.1 and 16.8), Exhibit C (Services) and Exhibit D (Service Level Agreement) will survive and continue after the expiration or termination of this Agreement for the full duration of any Customer Agreement. In addition, the rights and obligations of any Party which, by their nature, extend beyond the expiration or termination of this Agreement will continue in full force and effect notwithstanding the termination of this Agreement. 30





28. Miscellaneous.

28.1 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party will have authority to contract for or bind the other Party in any manner whatsoever, except as expressly set forth in this Agreement.

28.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder will be in writing and addressed to a Party at the address set forth under such Party's name on the signature page hereto (or as otherwise specified by a Party in a notice given in accordance with this Section 28.2). Notices sent in accordance with this Section 28.2 will be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); or (b) when received, if sent by a nationally recognized overnight courier (receipt requested).

28.3 Interpretation. For purposes of this Agreement, (a) the words include, includes, and including will be deemed to be followed by the words without limitation; (b) the word or is not exclusive; and (c) the words herein, hereof, hereby, hereto, and hereunder refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to Sections and Exhibits refer to the sections of, and exhibits attached to, this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing an instrument to be drafted. The Exhibits referred to herein will be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement.

28.4 Assignment. Neither Party may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily or involuntarily, without the other Party's prior written consent, which will not be unreasonably withheld, conditioned, or delayed. Any assignment, delegation, or other transfer without such prior written consent will be null and void. Notwithstanding the foregoing (and subject to Section 25 and 26) either Party may assign this Agreement without the consent of the other Party as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets or business to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

28.5 No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties, their respective permitted successors and assigns, and the Persons indemnified in Section 22, and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

28.6 Amendment and Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. 31





28.7 Severability. If any provision of this Agreement or the application thereof to any Party or circumstances is declared void, illegal, or unenforceable, then the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable Law. In such event, the Parties will use their reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable Law, achieves the purposes intended under the invalid or unenforceable provision.

28.8 Governing Law. This Agreement will be governed by and construed in accordance with the Laws of the State of Illinois applicable to agreements made and to be performed wholly within that State without regard to its conflicts of laws provisions.

28.9 Dispute Resolution.

(a) Except as expressly permitted in Section 28.9(f), neither Party will initiate an arbitration of any dispute hereunder unless (i) such Party has provided the other Party with written notice of that dispute with reasonable specificity and attempted in good faith to resolve that dispute through negotiations; (ii) despite such efforts, the dispute remains unresolved [***] after receipt of that notice; and (iii) such initiation is in accordance with this Section 28.9.

(b) Subject to the foregoing, any dispute arising out of, relating to, or in connection with this Agreement which cannot be settled amicably will be finally resolved by arbitration in accordance with the International Institute for Conflict Prevention and Resolution (CPR) Rules for Non-Administered Arbitration by a panel of three arbitrators, of which each Party will designate one arbitrator in accordance with the screened appointment procedure provided in Rule 5.4 thereof. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. sec. 1 et seq. Arbitration awards will be final and binding upon the Parties, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The place of the arbitration will be Chicago, Illinois. All aspects of the arbitration and any award will be confidential (subject to the exceptions set forth in Section 19.3).

(c) The arbitrators will have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding instituted to resolve a dispute; provided, however, that the arbitrators will have no power or authority to award damages that would be inconsistent with Section 23 of this Agreement.

(d) In any arbitration under this Section 28.9, the arbitrators will set a limited time period and establish procedures designed to reduce the cost and time for discovery while allowing each Party to such dispute an opportunity, adequate in the sole judgment of the arbitrators, to discover relevant information from the other Party about the subject matter of the dispute. The arbitrators will rule upon motions to compel or limit discovery and will have the authority to impose sanctions for discovery abuses, including attorneys' fees and costs, to the same extent as a competent court of law or equity, should the arbitrators determine that discovery was sought without substantial justification or that discovery was refused or objected to without substantial justification.

(e) Each Party will pay its own costs and expenses (including counsel fees) of any arbitration; provided, however, that the Parties will equally share the fees and expenses of the arbitrators; provided, further, that in the event any action, suit, arbitration, or other proceeding is instituted or commenced by either Party against the other Party arising hereunder, the prevailing Party will be entitled to recover its reasonable attorneys' fees, court costs, and costs of arbitration from the non-prevailing Party (it being agreed that the arbitrators and/or judge may eliminate or reduce such recovery on the grounds that it is unreasonable or disproportionate to the harm suffered). 32





(f) Notwithstanding anything else in this Section 28.9 to the contrary, either Party may apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. For such purpose, each Party irrevocably consents to the exclusive jurisdiction and venue of any Federal court within Cook County, Illinois, and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction and venue.

28.10 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL- ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.

28.11 Equitable Relief. Each Party acknowledges that a breach by a Party of this Agreement may cause the non-breaching Party immediate and irreparable harm, for which an award of damages may not be adequate compensation and agrees that notwithstanding Section 28.9(b), in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including in the form of orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction or the arbitration panel, provided that following the formation of the arbitration panel pursuant to Section 28.9(b), such relief will only be sought from the arbitration panel. The Parties hereby waive any requirement for the securing or posting of any bond in connection with such relief. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available under this Agreement, at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

28.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered by facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. Federal ESIGN Act of 2000) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

28.13 Entire Agreement. This Agreement, together with all Exhibits, and the BAA, constitutes the sole and entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter, including, without limitation, the Developer Agreement. [***].

[Signature Page Follows] 33





IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. Allscripts Healthcare, LLC Phreesia, lnc.

By: /s/ Richard Elmore By: /s/ Thomas Altier Name: Richard Elmore Name: Thomas Altier Title: SVP Title: CFO

Address for Notices: Address for Notices:

[***] [***]

Attention: SVP, Corporate Development and Strategy Attn: Chief Executive Officer

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

[***] [***]

Attention: General Counsel Attn: Chief Financial Officer

Signature Page to Strategic Alliance Agreement





EXHIBIT A

Description of Eligibility Benefits Services, POS Dashboard, Phreesia Patient Intake Management Offering and Merchant Processing Services

[***]





EXHIBIT B

Product Development Plan

[***]





EXHIBIT C

Services

[***]





EXHIBIT D

Service Level Agreement

[***]





EXHIBIT E

Form of HIPAA Business Associate Agreement

[***]





EXHIBIT F

Buy Rates and Revenue Share

[***]





EXHIBIT G

Amended and restated Allscripts Developer Program Agreement

[***]





EXHIBIT H

List of Legacy Customers

[***]





EXHIBIT I

Company's Trademark Use Guidelines and Instructions

[***]





EXHIBIT J

Merchant Agreement

[***]





EXHIBIT K

Merchant Application

[***]





EXHIBIT L

Disaster Recovery Plan

[***] 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
Allscripts will be named as an additional insured under the foregoing policies, each of which will be primary and non-contributory.

Exhibit 10.2 PORTIONS OF THIS EXHIBIT MARKED BY [**] HAVE BEEN OMITTED PURSUANT TO RULE 601(B)(10) OF REGULATION S-K. THE OMITTED INFORMATION IS (I) NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. EXECUTION VERSION STRATEGIC ALLIANCE AGREEMENT STRATEGIC ALLIANCE AGREEMENT, dated as of December 20, 2019 (as amended, supplemented or otherwise modified from time to time, this Agreement), by and among Farids & Co. LLC, a Delaware limited liability company (Farids), Edible Arrangements, LLC, a Delaware limited liability company (EA), and Rocky Mountain Chocolate Factory, Inc., a Delaware corporation (the Company). W I T N E S S E T H: WHEREAS, the Company is an international franchisor, confectionery manufacturer and retail operator; WHEREAS, Farids is a holding company and, together with TF (as defined below), indirectly controls EA; WHEREAS, EA is a US-based franchisor that specializes in fresh fruit arrangements and specialty fruit gift items; WHEREAS, the Company desires to issue and sell, and Farids desires to purchase, 126,839 shares (the Purchased Shares) of the Company's common stock, $0.001 par value per share (the Common Stock), on the terms set forth herein; WHEREAS, substantially concurrently with the execution and delivery of this Agreement, the Company and EA shall execute and deliver the Warrant (as defined below); WHEREAS, substantially concurrently with the execution and delivery of this Agreement, the Company and EA shall execute and deliver the Exclusive Supplier Operating Agreement (as defined below); and WHEREAS, in connection with the foregoing, the Company, Farids and EA agree and acknowledge that the cooperation between the Company and EA is an important component to achieve their respective strategic objectives, and they desire to continue and further enhance the strategic cooperation alliance between them as contemplated under this Agreement. NOW THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows: ARTICLE I DEFINITIONS Section 1.1 Defined Terms. (a) 144 Sale means (i) a Transfer of Shares (including in any broker assisted cashless exercise) pursuant to Rule 144 under the Securities Act and (ii) for purposes of Article VII only, any Transfer of Shares pursuant to a Resale Shelf Registration Statement.





(b) Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. (c) Amendment means the Amendment, dated the date hereof, to the Rights Agreement by and between the Company and Computershare Trust Company, N.A., as Rights Agent, attached as Exhibit E hereto. (d) Board of Directors means the Board of Directors of the Company. (e) Bylaws means the Second Amended and Restated Bylaws of the Company, as in effect as of the date hereof. (f) Certificate of Incorporation means the Company's Amended and Restated Certificate of Incorporation, as amended, as in effect as of the date hereof. (g) Change in Control means the occurrence of any of the following: (i) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Company to any Person other than a Permitted Holder; or (ii) at any time, the Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), other than the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of 50% or more of the total voting power of the Voting Stock of the Company. (h) Eligible Registration Statement means any registration statement (other than (i) a registration statement on Form S-4 or Form S-8 or any similar or successor form or (ii) with respect to any corporate reorganization or transaction under Rule 145 of the Securities Act or other business combination or acquisition transaction, any registration statement related to the issuance or resale of securities issued in such a transaction) filed by the Company under the Securities Act in connection with any primary or secondary offering of Common Stock for the account of the Company and/or any shareholder of the Company, whether or not through the exercise of any registration rights. (i) Exchange Act means the Securities Exchange Act of 1934, as amended. 2





(j) Exclusive Supplier Operating Agreement means the Exclusive Supplier Operating Agreement, dated as of the date hereof, by and between EA and the Company, attached as Exhibit B hereto. (k) Family Member means, with respect to any natural person, (i) any child, stepchild, grandchild or more remote issue, parent, stepparent, grandparent, spouse, domestic partner, sibling, child of sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, cousin and adoptive relationships (each, a family member) or estate of such family member or (ii) any foundation, trust, family limited partnership, family limited liability company or other entity created and used for estate planning purposes, so long as any such foundation, trust, family limited partnership, family limited liability company or other entity is controlled by, for the benefit of, or owned by such natural person or one or more persons described in clause (i) (such entities referred to in this clause (ii), the Permitted Estate Vehicles). (l) Farids Group means Farids, EA and each and every Farids Transferee. Unless the Company is otherwise notified in writing by Farids or EA, TF shall at all times serve as the designated representative to act on behalf of the Farids Group for purposes of this Agreement and shall have the sole power and authority to bind the Farids Group with respect to all provisions of this Agreement; provided, however, that if TF ceases to serve as the designated representative of the Farids Group, then TF (or his designated legal representative in the case of his death or permanent disability) shall have the power to designate a new designated representative of the Farids Group, which designee (and any successor thereafter designated and appointed) shall have the sole power and authority to bind the Farids Group with respect to all provisions of this Agreement. The Company shall be entitled to rely on all actions taken by TF or such designee on behalf of the Farids Group. (m) Farids Transferee means each and every direct and indirect transferee of Farids (including transferees of Shares from any member of the Farids Group so long as such Shares were originally held by the Farids Group) pursuant to Transfer set forth in clause (i) or (ii) of the definition of Permitted Transfer. (n) FINRA means the Financial Industry Regulatory Authority, Inc. (o) GAAP means U.S. generally accepted accounting principles. (p) Holder means any Person owning of record Common Stock or any security convertible into or exercisable or exchangeable for, with or without consideration, any Common Stock. (q) Indemnification Agreement means the Indemnification Agreement, dated as of the date hereof, by and between the Company and TF, attached as Exhibit D hereto. (r) Investors means (i) Farids, (ii) EA and (iii) TF and his Family Members. (s) Law means any domestic or foreign, U.S. Federal, state, municipality or local law, statute, ordinance, code, rule, or regulation or common law. 3





(t) Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, including any agreement to give any of the foregoing. (u) Lock-Up Securities means (i) any Common Stock or Preferred Stock of the Company, (ii) any security convertible into or exercisable or exchangeable for, with or without consideration, any Common Stock or Preferred Stock of the Company (including any option to purchase such a security), (iii) any security carrying any option, warrant or right to subscribe to or purchase any Common Stock or Preferred Stock of the Company or other security referred to in clause (ii), or (iv) any such option, warrant or right. (v) Nasdaq means The Nasdaq Stock Market LLC. (w) Order means any decree, order, judgment, writ, award, injunction, rule or consent of or by a Governmental Entity. (x) Permitted Holders means each of (i) the Investors and their respective Affiliates and members of management of the Company and (ii) any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that in the case of such group, without giving effect to such group, Persons specified in clause (i) must collectively beneficially own a majority of the total voting power of the Voting Stock of the Company beneficially owned by such group. (y) Permitted Transfer means (i) any Transfer to one or more entities that are, directly or indirectly, wholly owned by Farids or any Family Member of TF, (ii) any Transfer to one or more entities that are members of the Farids Group and (iii) Transfer made following a Change in Control of Farids or EA or made pursuant to a Change in Control that constitutes a sale of the Company as a whole; provided, with respect to each of clause (i)-(iii), so long as the transferee (other than a transferee that already is party to this Agreement) agrees to be subject to the terms of this Agreement (subject to any limitation on the assignment of rights by such Person to the transferee in connection with such Transfer) by executing and delivering a joinder agreement, substantially in the form of Exhibit A hereto. (z) Person means an individual, partnership, corporation, limited liability company, unincorporated organization, trust, joint venture, government agency, or other entity. (aa) Prospectus means the prospectus included in the Eligible Registration Statement, including any form of prospectus or any preliminary prospectus, as amended or supplemented by any prospectus supplement and by all other amendments or supplements to such prospectus, including all post-effective amendments and all material, if any, incorporated by reference or deemed to be incorporated by reference into such prospectus. (bb) Registrable Securities means all Purchased Shares and Warrant Shares and any securities into which Common Stock may be converted or exchanged pursuant to any merger, consolidation, sale of all or any part of the Company's assets, corporate conversion or other extraordinary transaction of the Company held by the Farids Group, other than any Common Stock or securities into which Common Stock may be converted or exchanged that (i) have been sold by the Farids Group to the public either pursuant to a registration statement or Rule 144 or another exemption from the registration requirements of the Securities Act, (ii) except in connection with a Demand Request by the Farids Group for a registration pursuant to a Resale Shelf Registration Statement, in the hands of the Farids Group is eligible to be resold pursuant to Rule 144 without any volume limitation or (iii) shall have ceased to be outstanding; provided, that when determining the amount of Registrable Securities, only the Purchased Shares, any Vested Warrant Shares and the remaining Warrant Shares eligible for vesting into Vested Warrant Shares shall be included in such calculation. 4





(cc) Registration Expenses means all expenses incurred by the Company in complying with Article VI hereof, including, without limitation, (i) all SEC and other registration and filing fees (including, without limitation, fees and expenses with respect to (A) filings required to be made with FINRA and (B) securities or blue sky laws, including, without limitation, any fees and disbursements of counsel for the underwriters in connection with any filing and application made to or with (and clearance by) FINRA and any blue sky qualifications of the Registrable Securities pursuant to Section 6.6(d)), (ii) preparation, printing, messenger and delivery expenses, (iii) fees and disbursements of counsel for the Company, (iv) fees and disbursements of independent certified public accountants and any other persons, including special experts retained by the Company, (v) expenses related to any special audits incident to or required by any such registration, in each case, whether or not any Eligible Registration Statement is filed or becomes effective, (vi) all fees and expenses related to the listing of the Registrable Securities on any securities exchange, (vii) all internal expenses of the Company, including the compensation of officers and employees of the Company and the fees and expenses in connection with any annual audit and (viii) the fees and expenses of one counsel for the Farids Group in connection with the review of any registration statement, not to exceed $10,000 for each registration. For the avoidance of doubt, any stamp, transfer or similar taxes or duties payable by the Farids Group in connection with any registration, sale or distribution of Registrable Securities shall be borne by the Farids Group and not by the Company. (dd) Resale Shelf Registration Statement means a shelf registration statement on Form S-3 pursuant to Rule 415 under the Securities Act; provided that any sales of securities thereunder will not (i) require a prospectus supplement, (ii) require any additional cooperation from the Company (except as set forth in Section 6.4(b)) or (iii) be made pursuant to an underwritten offering. (ee) Rights Agreement means the Rights Agreement dated March 1, 2015 between the Company and Computershare Trust Company, N.A., as Rights Agent. (ff) SEC or Commission means the Securities and Exchange Commission. (gg) Securities Act means the Securities Act of 1933, as amended. (hh) Shares means, collectively, the Purchased Shares or shares of Common Stock issued or issuable upon exercise of the Warrants. (ii) Significant Block means five percent (5%) or more of the Company's issued and outstanding Common Stock. 5





(jj) Subsidiary means, any Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions is directly or indirectly owned or controlled by the Company or by one or more of its Subsidiaries. (kk) TF means Tariq Farid, an individual. (ll) Threshold Block means one percent (1%) or more of the Company's issued and outstanding Common Stock. (mm) Transaction Documents means, collectively, this Agreement, the Exclusive Supplier Operating Agreement, the Warrant, the Indemnification Agreement and the Amendment. (nn) Transfer means any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by request, devise or descent, entry into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership (whether to be settled by delivery of the Purchased Shares, in cash or otherwise) or other transfer or disposition of any kind, including, but not limited to, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings or general assignees for the benefit of creditors whether voluntary or by operation of law, directly or indirectly, of any Purchased Shares. (oo) Vested Warrant Shares means the shares of Common Stock into which the Warrant shall vest and for which the Warrant shall become exercisable. (pp) Voting Stock of the Company as of any date means the shares of capital stock of the Company that is at the time entitled to vote in the election of the Board of Directors of the Company. (qq) Warrant means the common stock purchase warrant, dated the date hereof, issued to the EA, providing for the purchase at a purchase price per share of $8.76 of up to 960,677 Warrant Shares, attached as Exhibit C hereto. (rr) Warrant Shares means the shares of Common Stock issuable upon exercise of the Warrant. ARTICLE II ISSUANCE OF THE PURCHASED SHARES Section 2.1 Share Purchase. Upon the terms and subject to the conditions set forth in this Agreement, Farids hereby agrees to purchase, and the Company hereby agrees to issue and sell to Farids, at the Closing (as defined below), the Purchased Shares (the Share Purchase), in consideration of the payment by Farids to the Company of $999,998.68 (the Purchase Price) and Farids assistance in developing the strategic alliance contemplated hereby. The Purchase Price shall be paid by Farids by the Company by wire transfer of immediately available funds, to one or more bank accounts designated in writing by the Company, on the Closing Date (as defined below). 6





Section 2.2 Closing. The closing of the Share Purchase (the Closing) shall take place at the offices of Perkins Coie LLP, 1900 Sixteenth Street Suite 1400, Denver, Colorado 80202, at 11:00 a.m. Mountain Time or before 90 days after the date hereof (such , the Closing Date). Section 2.3 Transactions to be Effected At or Prior to the Closing. At or prior to the Closing, the transactions below shall take place (except (i) to the extent such day is not a business day, (ii) the transactions set forth in clauses (a) through (e) below shall take place on or prior to the date hereof and (iii) the transactions set forth in clauses (f) through (h) shall take place as promptly as practicable on or after the date hereof, but in no event later than the Closing Date): (a) The Board of Directors shall have taken all necessary action related to the nomination of TF for election to the Board of Directors at the Company's annual meeting of stockholders to be held on January 9, 2020 (the Annual Meeting), provided that the mailing and filing of proxy materials reflecting the nomination of TF to the Board of Directors shall be completed no later than two (2) business days following the date hereof. (b) The Company and Farids shall execute and deliver this Agreement. (c) The Company and EA shall execute and deliver the Exclusive Supplier Operating Agreement and, in consideration of EA entering into the Exclusive Supplier Operating Agreement and the performance of EA's obligations therein, the Company shall issue the Warrant to EA. Each of the Exclusive Supplier Operating Agreement and the Warrant is effective as of the date hereof in accordance with the terms of such document. (d) The Company and TF shall execute and deliver the Indemnification Agreement. (e) The Company and Computershare Trust Company, N.A. shall execute and deliver the Amendment. (f) The Company shall receive the approval of Nasdaq with respect to the supplemental listing of the Purchased Shares and the reservation for issuance on the Nasdaq Global Market of the Warrant Shares. (g) The Company shall issue to Farids the Purchased Shares in electronic book-entry form. (h) The Company shall deliver to Farids the irrevocable letter of instructions addressed to the Company's transfer agent, relating to the issuance of the Purchased Shares. ARTICLE III REPRESENTATIONS AND WARRANTIES Section 3.1 Representations and Warranties of the Company. The Company represents and warrants to each of Farids and EA as of the date hereof and as of the Closing Date that: 7





(a) Existence and Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has all power and authority, corporate and otherwise, and all governmental licenses, franchises, permits, authorizations, consents and approvals required to own and operate its properties and assets and to carry on the business as presently conducted and as proposed to be conducted, except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, results of operations or financial condition of the Company and its Subsidiaries, taken as a whole (a Company Material Adverse Effect). (b) Capitalization. The authorized capital stock of the Company consists of (i) 46,000,000 shares of Common Stock and (ii) 250,000,000 shares of preferred stock, $0.001 par value per share (the Preferred Stock), of which 50,000 shares are designated as Series A Junior Participating Preferred Stock. As of December 19, 2019, there were 6,004,229 shares of Common Stock issued and outstanding and no shares of Preferred Stock outstanding. As of December 19, 2019, no shares of Common Stock or Preferred Stock were reserved for issuance, except for an aggregate of 258,888 shares of Common Stock reserved for issuance upon the exercise of outstanding stock options and the settlement of restricted stock units issued under the Company's equity incentive plans and stock incentive plans. All of the issued and outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. (c) Authority; Approvals. The Company has full corporate power and authority to execute and deliver each of the Transaction Documents to which it is a party and to consummate the transactions contemplated thereby. The execution and delivery of each of the Transaction Documents to which it is a party and the consummation by the Company of the transactions contemplated thereby, including, without limitation, the issuance of the Purchased Shares, the Warrant and the underlying Warrant Shares, have been duly and validly approved by all necessary corporate action of the Company, and no other corporate and no shareholder proceedings on the part of the Company are necessary to approve such Transaction Documents or to consummate the transactions contemplated thereby. The Board of Directors has taken all actions so that the restrictions contained in Section 203 of the Delaware General Corporation Law, as amended (the DGCL), applicable to a business combination (as defined in Section 203 of the DGCL) do not and will not apply to the execution, delivery or performance of any Transaction Document and the transactions contemplated hereby and thereby. Each of the Transaction Documents to which it is a party has been duly and validly executed and delivered by the Company and (assuming due execution and delivery by Farids and EA, as applicable) constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency and similar laws affecting creditors' rights and remedies generally (collectively, the Enforceability Exceptions). (d) Non-Contravention. The execution, delivery and performance of the Transaction Documents to which it is a party, and the consummation by the Company of the transactions contemplated hereby and thereby, does not and will not (i) contravene or conflict with the Certificate of Incorporation or the Bylaws, (ii) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon the Company, (iii) constitute a default under or breach of (with or without the giving of notice or the passage of time or both) or violate or give rise to any right of termination, cancellation or acceleration of any material contract or other instrument or obligations binding upon the Company or by which any shares of the Common Stock or the Preferred Stock or any of the Company's assets is or may be bound or (iv) result in the creation or imposition of any Lien on any of the shares of Common Stock or Preferred Stock or any of the Company's assets. 8





(e) Consents and Approvals. Assuming the accuracy of the representations and warranties of each of Farids and EA as set forth in this Agreement and EA as set forth in the Exclusive Supplier Operating Agreement, as of the Closing Date, no consents or approvals of, or filings or registrations with, any federal, state or local court, governmental, legislative, judicial, administrative or regulatory authority, agency, commission, body or other governmental entity or self-regulatory organization (each, a Governmental Entity) or of or with any other third party by or on behalf of the Company or any of its Subsidiaries are necessary for the execution and delivery by the Company of any Transaction Document to which it is a party and the consummation by the Company of the transactions contemplated thereby, except for (A) those already obtained or made, (B) the filing of any Eligible Registration Statement with the Commission pursuant to Article VI, (C) the supplemental listing application to Nasdaq with respect to the supplemental listing of the Purchased Shares and the reservation for issuance on the Nasdaq Global Market of the Warrant Shares and (D) any securities or blue sky filings of any state. The transactions contemplated by the Transaction Documents do not require the consent or approval by the holders of a majority of the outstanding shares of Common Stock pursuant to Nasdaq Listing Rule 5635. (f) Valid Issuance of Purchased Shares. As of the Purchase Date, the Purchased Shares shall be, and the Warrant Shares, when issued and delivered to EA in accordance with the terms of the Warrant will be, validly issued, fully paid, non-assessable and free of preemptive rights and will be delivered free and clear of all Liens. Except for the transactions contemplated in the Transaction Documents, the issuance and delivery of the Purchased Shares and the Warrant does and will not cause the vesting of any securities of the Company to accelerate, or trigger or create in any Person the right to acquire, purchase, exercise, exchange or convert any securities of the Company into Common Stock. (g) SEC Filings; Financial Statements. All forms, reports, schedules, statements and documents required to be filed with the SEC by the Company (including all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein, the SEC Reports) during the twelve (12) months prior to the date hereof were prepared in accordance and complied as of their respective filing dates, in all material respects, with the requirements of the Securities Act and Exchange Act and the rules promulgated thereunder and did not at the time they were filed (or if amended or superseded by a later filing prior to the date hereof, then on the date of such later filing) contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Except as otherwise disclosed in an SEC Report, each of the audited and unaudited consolidated financial statements (including, in each case, any related notes and schedules thereto) contained in the SEC Reports (or if amended or superseded by a later filing prior to the date hereof, then on the date of such later filing) (i) complied in all material respects with applicable accounting requirements and the published regulations of the SEC with respect thereto, (ii) were prepared in accordance with GAAP (except, in the case of unaudited financial statements, to the extent otherwise permitted by the rules and regulations of the SEC) applied on a consistent basis throughout the periods involved (except as may be indicated therein or as described in the notes thereto) and (iii) fairly present in all material respects the financial position of the Company as of the respective dates thereof and the consolidated results of operations and cash flows for the periods indicated (subject in the case of unaudited financial statements to normal year-end adjustments and to any other adjustments described therein, including the notes thereto). Other that certain non-recurring expenses, no material adverse changes have occurred in the financial condition or business of the Company since the date of the most recent financial statement included in the SEC reports. 9





(h) Application to Takeover Protections. The Company and its Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, fair price, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation, the Bylaws or the laws of its jurisdiction of incorporation that is or could become applicable to the Farids Group or any Person in the Farids Group as a result of Farids, EA and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company's issuance of the Purchased Shares, the Warrants and the underlying Warrant Shares and the ownership of such securities by the Farids Group or any Person in the Farids Group. Section 3.2 Representations and Warranties of Farids and EA. Each of Farids and EA, severally with respect to itself and not jointly, hereby represents and warrants to the Company, as of the date hereof and as of the Closing Date that: (a) Existence and Power. Farids is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. Farids has all power and authority, limited liability company and otherwise, and all governmental licenses, franchises, permits, authorizations, consents and approvals required to own and operate its properties and assets and to carry on the business as presently conducted and as proposed to be conducted, except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, results of operations or financial condition of Farids and its subsidiaries, taken as a whole. EA is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. EA has all power and authority, limited liability company and otherwise, and all governmental licenses, franchises, permits, authorizations, consents and approvals required to own and operate its properties and assets and to carry on the business as presently conducted and as proposed to be conducted, except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, results of operations or financial condition of EA and its subsidiaries, taken as a whole. (b) Authorization; Approvals. Each of Farids and EA has full power and authority to execute and deliver each of the Transaction Documents to which it is party, as applicable, and to consummate the transactions contemplated thereby and the consummation by Farids and EA of the transactions contemplated thereby have been duly and validly approved by all necessary limited liability company action of each of Farids and EA, and no other limited liability company and no member proceedings on the part of either Farids or EA are necessary to approve such Transaction Documents or to consummate the transactions contemplated thereby. Each of the Transaction Documents that has been executed and delivered by Farids or EA (assuming due authorization, execution and delivery by the Company), as applicable, constitutes a valid and binding obligation of Farids or EA, as applicable, enforceable against Farids or EA, as applicable, in accordance with its terms, subject to Enforceability Exceptions. 10





(c) Non-Contravention. The execution, delivery and performance of the Transaction Documents and the consummation by Farids and EA of the transactions contemplated hereby and thereby, does not and will not (i) contravene or conflict with (A) Farids' certificate of formation or operating agreement or (B) EA's certificate of formation or operating agreement, (ii) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon EA or Farids, (iii) constitute a default under or breach of (with or without the giving of notice or the passage of time or both) or violate or give rise to any right of termination, cancellation or acceleration of any material contract or other instrument or obligations binding upon Farids or by which any shares of the capital stock of Farids or EA or EA or any of Farids' or EA's assets is or may be bound or (iv) result in the creation or imposition of any Lien on any of the shares of capital stock of Farids or EA any of Farids' or EA's assets. (d) Consents and Approvals. Assuming the accuracy of the representations and warranties of the Company as set forth in this Agreement and the Exclusive Supplier Operating Agreement, as of the Closing Date, no consents or approvals of, or filings or registrations with, any Governmental Entity or of or with any other third party by or on behalf of Farids or EA is necessary for the execution and delivery by Farids and EA, as applicable, of the Transaction Documents and the consummation by Farids and EA, as applicable, of the transactions contemplated thereby. (e) Ownership of the Company; Control of EA. Except for the transactions contemplated in the Transaction Documents, none of Farids or any of its Affiliates holds or has any rights to acquire, whether directly or indirectly, any Common Stock or any other voting or equity securities of the Company, or any securities convertible into, exchangeable for or exercisable for Common Stock or any other voting or equity securities of the Company. EA is controlled by Farids. (f) Accredited Investor; Experience. Farids is an accredited investor (as defined in Rule 501 under the Securities Act) and is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. (g) Acquisition for Own Account. Farids is acquiring the Purchased Shares for its own account for investment purposes, and not with a view to, or for the sale in connection with, any distribution thereof in violation of the Securities Act, and the rules and regulations of the SEC promulgated thereunder, or that would require the issuance of the Purchased Shares pursuant to this Agreement to be registered under the Securities Act. (h) No Reliance. Farids has relied upon the representations and warranties set forth herein and its own investigations and diligence, including a review of the Company's annual, quarterly and current reports and other documents filed with or furnished to the SEC, and not upon any other information provided by or on behalf of the Company in making the decision to purchase the Purchased Shares. Farids understands and acknowledges that neither the Company nor any of the Company's representatives, agents or attorneys is making or has made at any time any warranties or representations of any kind or character, express or implied, with respect to any matter or the Common Stock, except as expressly set forth herein. 11





ARTICLE IV BOARD NOMINATION RIGHTS Section 4.1 Springing Nomination Right. Subject to, and only upon the satisfaction of the conditions set forth in, this Section 4.1 and Section 4.5, (i) the Farids Group shall have the right to designate TF or, in the event of the death or permanent disability of TF, another individual that is reasonably acceptable to the Company to be a director of the Company (TF or its designee in such capacity, the Director Designee), and (ii) the Company shall cause the Director Designee to be nominated as a director of the Company unless and until such Director Designee is unwilling or unable to serve as a director. The rights and obligations of the Farids Group and the Company (including, without limitation, the right of the Farids Group to appoint the Director Designee and the obligation of the Company to cause the Director Designee to be nominated for election to the Board of Directors (other than with respect to the Annual Meeting)) set forth in this Article IV shall only be effective immediately after, and only upon, the date the Farids Group owns 5.0% or more of the issued and outstanding Common Stock. Subject to, and only upon the satisfaction of the conditions set forth in, this Section 4.1 and Section 4.5, it is understood and agreed that in the event that a vacancy is created at any time as a result of (i) the death or permanent disability of any Director Designee or (ii) the retirement, resignation or removal (with or without cause) of any Director Designee other than TF, then the Farids Group shall have the right to designate a replacement director (who shall be reasonably acceptable to the Company and shall satisfy the eligibility requirements in Section 4.3) to fill such vacancy. Section 4.2 Obligations of the Company. (a) Nomination; Insurance. On or prior to the date of this Agreement or TF's election to the Board of Directors at the Annual Meeting, as applicable, the Company shall have (x) nominated TF for election to the Board of Directors at the Annual Meeting, (y) entered into an Indemnification Agreement with TF as the Director Designee and (z) taken all necessary action for TF to be covered by the Company's existing directors' liability insurance policy. (b) Nomination. Subject to, and only upon the satisfaction of the conditions set forth in, this Section 4.1 and Section 4.5, the Company shall cause the Director Designee to be (x) nominated for election to the Board of Directors and included in the Board of Director's slate of nominees recommended to the shareholders of the Company for each election of directors, and recommend to the shareholders of the Company that the Director Designee be elected to the Board of Directors and (y) included in the proxy statement (if any) prepared by management of the Company in connection with soliciting proxies for every meeting of the shareholders of the Company called with respect to the election of members of the Board of Directors, and at every adjournment or postponement thereof, and on every action or approval by written consent of the shareholders of the Company or the Board of Directors with respect to the election of members of the Board of Directors. When applicable pursuant to Section 4.1 and Section 4.5, the Company shall use its commercially reasonable efforts to cause the election of the Director Designee and otherwise support the Director Designee for election in a manner no less rigorous and favorable than the manner in which the Company supports, and has historically supported, its other nominees in the aggregate. Except as otherwise required by applicable Law, the Company shall not take any action to cause the removal without cause of the Director Designee, unless it is directed to do so by the Farids Group. 12





Section 4.3 Eligibility of Director Designee. Notwithstanding the other provisions of this Article IV, the Company shall not be obligated to cause to be nominated for election to the Board of Directors (or to be included in the Board of Directors' slate of nominees to the Company's stockholders or any proxy statement prepared by management of the Company in connection with soliciting proxies for meetings of the stockholders of the Company called with respect to the election of members of the Board of Directors) or recommend to the Company's stockholders the election of the Director Designee in the event that (i) the Director Designee fails to satisfy all applicable requirements (other than those relating to independence) regarding qualifying as a director of the Company under (A) Nasdaq rules (or the rules of the principal market on which shares of Common Stock are then listed) regarding service as a director and (B) applicable Law; (ii) the Director Designee has been involved in any of the events enumerated in Item 2(d) or (e) of Schedule 13D under the Exchange Act, (iii) the Director Designee is currently the target of an investigation by any governmental authority or agency relating to felonious criminal activity or is subject to any order, decree, or judgment of any court or agency prohibiting service as a director of any public company or providing investment or financial advisory services or (iv) the Director Designee has declared or otherwise indicated (whether publicly or to the Company or the Board of Directors) that she or he is unwilling or unable to serve as a director or otherwise takes actions inconsistent with her or his election. If any event described in clause (i) through (iv) of the preceding sentence occurs, (x) if the Director Designee is TF, then the Farids Group shall forfeit its rights under this Agreement to designate the Director Designee as a member of the Board of Director and shall not have any right to a replacement designee and (y) if the Director Designee is an individual other than TF, then the TF Group shall designate a replacement designee who shall be reasonably acceptable to the Company and shall satisfy the eligibility requirements set forth in this Section 4.3 and such replacement designee shall thereafter constitute a Director Designee under this Agreement. The Company shall promptly notify the Farids Group in writing of any objection to the Director Designee in advance of the date on which proxy materials are mailed by the Company in connection with such election of directors. Section 4.4 Resignation. If Farids' Nomination Right set forth in this Article IV is currently applicable and is terminated pursuant to Section 4.5, at the request of the Company, the Director Designee shall offer to resign as a director effective immediately. Section 4.5 Termination. Subject to Section 4.1, the rights and obligations of the Farids Group and the Company (including, without limitation, the right of the Farids Group to appoint the Director Designee and the obligation of the Company to cause the Director Designee to be nominated for election to the Board of Directors) set forth in this Article IV (if applicable, the Nomination Right) shall terminate immediately after the date the Farids Group owns less than 5.0% of the issued and outstanding Common Stock of the Company, and the Director Designee shall no longer be deemed to be a Director Designee; provided further, that, even if the Farids Group owns 5.0% or more of the issued and outstanding Common Stock, such rights and obligations shall terminate on the earliest to occur of: (A) for purposes of determining the Nomination Right for the third Contract Year (as defined in the Exclusive Supplier Operating Agreement), the EA Revenue (as defined in the Warrant) for the second Contract Year is less than $[**], (B) for purposes of determining the Nomination Right for the fourth Contract Year, the EA Revenue for the third Contract Year is less than $[**]; (C) for purposes of determining the Nomination Right for the fifth Contract Year, the EA Revenue for the fourth Contract Year is less than $[**]; or (D) for purposes of determining the Nomination Right for the 12-month period following the fifth Contract Year, the EA Revenue for the fifth Contract Year is less than $[**]. 13





ARTICLE V RESTRICTIONS ON TRANSFER Section 5.1 Restrictions on Transfer. (a) Until the second anniversary of the Closing Date, the Farids Group agrees not to make any Transfer of all or any portion of the Purchased Shares, except that the Farids Group shall be permitted to make Permitted Transfers. (b) Notwithstanding anything to the contrary in this Agreement, the Farids Group agrees that it will not effect any Transfer of Purchased Shares unless such Transfer is made pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and, in either case, in compliance with all applicable state securities laws and all applicable securities laws of any other jurisdiction. The Company agrees, and the Farids Group understands and consents, that the Company will not take any action to cause or permit the Transfer of any Purchased Shares to be made on its books (or on any register of securities maintained on its behalf) unless the Transfer is permitted by and has been made in accordance with the terms of this Agreement and all applicable securities laws. The Farids Group agrees that in connection with any Transfer of Purchased Shares that is not made pursuant to a registration statement, the Company may, in its sole discretion, request an opinion, certifications and other information in form and substance reasonably satisfactory to the Company and from counsel reasonably satisfactory to the Company stating that such transaction is exempt from registration under the Securities Act. (c) The Purchased Shares shall be stamped or otherwise imprinted with legends substantially similar to the following (in addition to any legend required under applicable state securities laws) or if held in electronic form, shall be held in an account by the Company's stock transfer agent subject to restrictions on Transfer substantially consistent with the following legend, which shall be furnished in accordance with applicable Law: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT COVERING ANY SUCH TRANSACTION OR (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER, SUBJECT TO THE COMPANY'S RIGHT TO RECEIVE AN OPINION OF COUNSEL, CERTIFICATIONS AND OTHER INFORMATION IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY AND FROM COUNSEL REASONABLY SATISFACTORY TO THE COMPANY STATING THAT SUCH TRANSACTION IS EXEMPT FROM SUCH REGISTRATION REQUIREMENTS. 14





THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN STRATEGIC ALLIANCE AGREEMENT DATED AS OF DECEMBER 20, 2019, AMONG FARIDS & CO. LLC, EDIBLE ARRANGEMENTS, LLC AND THE COMPANY (AS THE SAME MAY BE AMENDED AND IN EFFECT FROM TIME TO TIME). NO SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STRATEGIC ALLIANCE AGREEMENT. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY. (d) The Farids Group acknowledges and agrees that any Transfer of the limited liability company interests, partnership interests, shares or other similar equity interests in any member of the Farids Group or a parent entity of such member will be deemed to constitute a Transfer of Purchased Shares, and any proposed Transfer of all or any portion of any such interests in any member of the Farids Group or a parent entity of such member shall be subject to compliance with the terms of this Agreement as such terms apply to the Farids Group. (e) The Company acknowledges and agrees that the Farids Group may from time to time pledge, and/or grant a security interest in, some or all of the legended Purchased Shares in connection with applicable securities laws, pursuant to a bona fide margin agreement in compliance with a bona fide margin loan. Such a pledge would not be subject to approval or consent of the Company and no legal opinion of legal counsel to the pledgee, secured party or pledgor shall be required in connection with the pledge, but such legal opinion shall be required in connection with a subsequent transfer or foreclosure following default by the Farids Group transferee of the pledge. No notice shall be required of such pledge, but the Farids Group's transferee shall promptly notify the Company of any such subsequent transfer or foreclosure. The Farids Group acknowledges that the Company shall not be responsible for any pledges relating to, or the grant of any security interest in, any of the Purchased Shares or for any agreement, understanding or arrangement between the Farids Group and its pledgee or secured party. At the Farids Group's expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Purchased Shares may reasonably request in connection with a pledge or transfer of the Purchased Shares, including the preparation and filing of any required prospectus supplement under Rule 424(b)(3) of the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of selling stockholders thereunder. (f) The legend set forth in Section 5.1(c) above shall be removed and the Company shall issue one or more certificates without such legend or any other legend to the holder of the Purchased Shares upon which it is stamped or issue to such holder by electronic delivery, if (i) such Purchased Shares are registered for resale under the Securities Act, (ii) such Purchased Shares are sold or transferred pursuant to Rule 144, or (iii) such Purchased Shares are eligible for resale under the Securities Act without regard to current public information, manner of sale or volume limitations. Any fees (with respect to the Company's transfer agent, Company counsel or otherwise) associated with the removal of such legend shall be borne by the Company. 15





Section 5.2 Remedy for Prohibited Transfer. In the event that any member of the Farids Group Transfers any Purchased Shares in contravention of Section 5.1, such Transfer shall be null and void, and the Company agrees it will not take any action to effect such a Transfer nor will it treat any alleged transferee as the holder of such Purchased Shares. ARTICLE VI REGISTRATION RIGHTS Section 6.1 Demand Registration. (a) If the Company shall receive a written request (a Demand Request) from the Farids Group that the Company file a registration statement under the Securities Act covering the registration of all or a portion of the Registrable Securities owned by the Farids Group, then the Company shall, subject to the limitations of this Section 6.1, effect, as expeditiously as reasonably possible, the registration under the Securities Act of all Registrable Securities in accordance with the intended method of distribution thereof that the Farids Group requests to be registered, subject to the provisions of Section 6.1(c); provided, however, that any Eligible Resale Registration Statement shall be filed within 90 days following receipt of such Demand Request and any Resale Shelf Registration Statement shall be filed within 30 days following receipt of such Demand Request, as applicable. The Farids Group shall have the right to make two (2) Demand Requests on or after the date that is the second anniversary of the date of this Agreement; provided, that the Farids Group shall not make more than one (1) Demand Request within any six-month period. (b) If the Farids Group intends to distribute the Registrable Securities covered by its request by means of an underwritten public offering, it shall so advise the Company as a part of their request made pursuant to this Section 6.1. The Farids Group shall have the right to select the investment bank or banks and managers to administer any offering made in connection with a Demand Request, including the lead managing underwriter; provided that such investment banks or managers shall be reasonably acceptable to the Company; provided, further, that if the Farids Group declines to exercise such right, the Company shall select the investment bank or banks and managers to administer the offering, but the Farids Group shall continue to have such right pursuant to this Section 6.1(b) in any subsequent underwritten public offering. (c) Notwithstanding anything herein to the contrary, the Company shall not be obligated to (i) effect a registration pursuant to Section 6.1 unless the Registrable Securities requested to be registered by the Farids Group, together with all other shares of Common Stock requested to be registered by any other holder of piggyback registration rights (each, an Other Piggyback Holder) pursuant to any agreement containing similar registration rights as those contained in this Article VI (such other shares, the Other Registrable Securities), are reasonably expected to result in aggregate gross cash proceeds in excess of (x) in the case of a Resale Shelf Registration Statement, three (3) million dollars ($3,000,000) and (y) in the case of any other form of registration statement, one (1) million dollars ($1,000,000) or (ii) prepare, file, effect or maintain a shelf registration statement on Form S-3 (or any successor to Form S-3) or any similar shelf registration statement (other than a Resale Shelf Registration Statement) under the Securities Act for the purposes of compliance with any Demand Right pursuant to this Section 6.1. 16





Section 6.2 Piggyback Registrations. (a) From and after the second anniversary of the date of this Agreement, the Company shall notify the Farids Group (unless the Farids Group has demanded such registration pursuant to Section 6.1) in writing at least five (5) business days prior to the initial public filing of any Eligible Registration Statement. Such notice from the Company shall state the intended method of distribution of the Registrable Securities included in such Eligible Registration Statement. The Company shall afford the Farids Group the opportunity to include Registrable Securities in such Eligible Registration Statement so long as it agrees to sell its Registrable Securities pursuant to the same method of distribution. If the Farids Group desires to include Registrable Securities held by it in any such Eligible Registration Statement, it shall, within four (4) business days after the above-described notice from the Company, so notify the Company in writing. Any such notice from the Farids Group shall (i) specify the amount of Registrable Securities that the Farids Group would like to include in such Eligible Registration Statement and (ii) include the agreement of the Farids Group to participate in any related underwritten offering on the same terms as the other participating Holders. Upon such written notice from the Farids Group, the Company will use its best efforts to effect the registration under the Securities Act of all Registrable Securities which the Farids Group has requested to be registered. If the Farids Group decides not to or is unable to include all of its Registrable Securities in any Eligible Registration Statement filed by the Company, the Farids Group shall nevertheless continue to have the right to include Registrable Securities in any subsequent Eligible Registration Statement as may be filed by the Company, all upon the terms and conditions set forth herein. Prior to the effectiveness of the applicable Eligible Registration Statement, the Farids Group may withdraw from such Eligible Registration Statement any of the Registrable Securities at any time upon written notice to the Company. (b) Underwriting. If the Eligible Registration Statement under which the Company gives notice under this Section 6.2 is for an underwritten offering, the Company shall so advise the Farids Group. In such event, the right of the Farids Group to be included in an Eligible Registration Statement pursuant to this Section 6.2 shall be conditioned upon the Farids Group's participation in such underwriting by executing and delivering a custody agreement and power of attorney in form and substance reasonably satisfactory to the Company with respect to such Registrable Securities (the Custody Agreement and Power of Attorney), which Custody Agreement and Power of Attorney shall permit the Farids Group to, prior to the effectiveness of such Eligible Registration Statement, withdraw any of the Registrable Securities at any time from such Eligible Registration Statement upon written notice to the Company and the custodian. The Custody Agreement and Power of Attorney will provide, among other things, that (i) the Farids Group will, to the extent applicable, deliver to and deposit in custody with the custodian and attorney-in-fact named therein one or more certificates representing such Registrable Securities, accompanied by duly executed stock powers in blank, and irrevocably appoint said custodian and attorney-in-fact with full power and authority to act under the Custody Agreement and Power of Attorney on the Farids Group's behalf with respect to the matters specified therein, including, but not limited to, the entry into an underwriting agreement (the Underwriting Agreement) in customary form with the underwriter(s) and such other documents and agreements reasonably required in connection with such registration or offering and (ii) the Farids Group will perform its obligations under such Underwriting Agreement and any other agreement entered into in connection with such registration and/or offering. The Farids Group also agrees to execute such other documents and agreements as the Company may reasonably request to effect the provisions of this Section 6.2 and any transactions contemplated hereby. 17





Section 6.3 Priority on Registrations. Notwithstanding any other provision of this Article VI, if the lead managing underwriter or underwriters advise, in the case of a requested registration pursuant to Section 6.1, the Farids Group or, in all other cases, the Company that marketing factors (including, but not limited to, an adverse effect on the per share offering price) require a limitation of the number of shares to be included in an underwritten offering (including Registrable Securities), then the Farids Group or the Company, as the case may be, shall so advise all holders of Registrable Securities and all Other Piggyback Holders who have requested to participate in such offering, that (i) if the requested registration is pursuant to Section 6.1, the number of shares that may be included in the underwriting shall be allocated first to the Farids Group for its own account, and second to the Company (to the extent it is selling shares of Common Stock in such offering) and the Other Piggyback Holders who have duly requested shares to be included therein on a pro rata basis based on the number of shares proposed to be sold by the Company and the number of Other Registrable Securities requested to be included by such Other Piggyback Holders, and (ii) if the requested registration is not pursuant to Section 6.1, the number of shares that may be included in the underwriting shall be allocated first to the Company for its own account (to the extent such registration was initiated by the Company) or to such Holder of Other Registrable Securities who demanded such registration pursuant to demand rights similar to those set forth in this Agreement, and second to the Company (to the extent such registration was not initiated by the Company), the Farids Group and the Other Piggyback Holders who have duly requested shares to be included therein on a pro rata basis based on the number of shares proposed to be sold by the Company (to the extent such registration was not initiated by the Company), the number of Registrable Securities requested to be included by the Farids Group and the number of Other Registrable Securities requested to be included by all such Other Piggyback Holders. For any Other Piggyback Holder which is a partnership, limited liability company or corporation, the partners, members or shareholders, as applicable, of such Other Piggyback Holder and the estates and Family Members of any such partners, members and shareholders and any trusts for the benefit of any of the foregoing Person(s) shall be deemed to be a single Other Piggyback Holder, and any pro rata reduction with respect to such Other Piggyback Holder pursuant to this Section 6.3 shall be based upon the aggregate amount of shares carrying registration rights owned by all Persons deemed to constitute such Other Piggyback Holder (as defined in this sentence). Section 6.4 Termination, Effectiveness, Postponement and Suspension of Registration. (a) Right to Terminate Registration. If the Farids Group determines for any reason not to proceed with any proposed registration requested pursuant to Section 6.1, the Farids Group shall promptly notify the Company in writing. Upon receipt of such notice, the Company shall withdraw or terminate such registration whether or not any Other Piggyback Holder has elected to include any Other Registrable Securities in such registration. In addition, the Company shall have the right to withdraw or terminate any proposed registration initiated by it and a Holder of Other Registrable Securities shall have the right to withdraw or terminate any proposed registration initiated by it, whether or not the Farids Group or any Other Piggyback Holder has elected to include Registrable Securities or Other Registrable Securities, as the case may be, in such registration. The Company shall promptly give notice of the withdrawal or termination of any registration to the Farids Group, to the extent the Farids Group has elected to participate in such registration. The Registration Expenses of any such withdrawn or terminated registration shall be borne by the Company in accordance with Section 6.5. 18





(b) Effectiveness of the Registration Statement. The Company shall maintain the effectiveness of the Eligible Registration Statement until the earlier of (i) the date on which all Registrable Securities included in such Eligible Registration Statement have actually been sold and (ii) the date that is (x) 180 days (in respect of a Resale Shelf Registration Statement) or (y) 90 days (in respect of any Eligible Registration Statement other than a Resale Shelf Registration Statement) from the effective date of such Eligible Registration Statement. (c) Postponement or Suspension of Registration. If the filing, initial effectiveness or continued use of an Eligible Registration Statement in respect of a registration pursuant to this Agreement at any time would require the Company to make a public disclosure of material non-public information, (1) which disclosure in the good faith judgment of the Board of Directors (after consultation with external legal counsel) (x) would be required to be made in any registration statement so that such registration statement would not contain a material misstatement or omission, (y) would not be required by applicable Law to be made at such time but for the filing, effectiveness or continued use of such Eligible Registration Statement and (z) would reasonably be expected to have a Company Material Adverse Effect or a material adverse effect on the Company's ability to effect a material proposed acquisition, disposition, financing, business opportunity, reorganization, recapitalization or similar transaction or (2) during a customary blackout period of the Company, then the Company may, upon giving prompt written notice of such determination to the Farids Group, delay the filing or initial effectiveness of, or suspend the use of, such Eligible Registration Statement; provided, that the Company shall not be permitted to do so pursuant to clause (1) above (x) more than two times during any twelve (12) month period or (y) for a period exceeding thirty (30) days on any one occasion (unless a longer period is consented to by the Farids Group) (the Suspension Period). In the event the Company exercises its rights under the preceding sentence, the Farids Group agrees to suspend, promptly upon its receipt of the notice referred to above, its use of any prospectus relating to such registration in connection with any sale or offer to sell Registrable Securities. If so requested by the Company, the Farids Group shall use its reasonable best efforts to deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in the Farids Group's possession, of the prospectus relating to such Registrable Securities at the time of receipt of such notice. The Company agrees that, in the event it exercises its rights under this Section 6.4(c), it shall (i) promptly notify the Farids Group of the termination or expiration of any Suspension Period, (ii) within thirty (30) days after delivery of the notice referred to above (unless a longer period is consented to by the Farids Group), resume the process of filing or request for effectiveness, or update the suspended registration statement, as the case may be, as may be necessary to permit the Farids Group to offer and sell its Registrable Securities in accordance with applicable Law and (iii) if an Eligible Registration Statement that was already effective had been suspended as result of the exercise of such rights by the Company, promptly notify the Farids Group after the termination or expiration of any Suspension Period of the applicable time period during which the Eligible Registration Statement is to remain effective, which shall be extended by a period of time equal to the duration of the Suspension Period. 19





Section 6.5 Expenses of Registration. Except as specifically provided herein, all Registration Expenses incurred in connection with any registration under Sections 6.1 and 6.2 shall be borne by the Company. All underwriting fees and selling commissions relating to the distribution of the Registrable Securities and all taxes, if any, on the transfer and sale, respectively, of the Registrable Securities being sold that are incurred in connection with any registrations hereunder shall be borne by the Farids Group. For the avoidance of doubt, all underwriting fees, selling commissions and taxes incurred in connection with any registration hereunder relating to securities sold by the Company shall be borne by the Company. Section 6.6 Obligations of the Company. If and whenever the Company is required to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 6.1 and 6.2 (to the extent the Farids Group has requested to include Registrable Securities in an Eligible Registration Statement pursuant to clause (a) of such Section 6.1 or 6.2, as the case may be), the Company shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company shall cooperate in the sale of the securities and shall, as expeditiously as reasonably possible: (a) Prepare and file with the SEC an Eligible Registration Statement on such form as shall be available for the sale of the Registrable Securities by the Farids Group in accordance with the intended method of distribution thereof and the provisions of this Article VI, and use its reasonable best efforts to cause each such Eligible Registration Statement to become effective and remain effective as provided herein; provided, however, that before filing any Eligible Registration Statement or Prospectus or any amendments or supplements thereto (not including documents that would be incorporated or deemed to be incorporated therein by reference), the Company shall afford the Farids Group, its counsel and the managing underwriter, if any, an opportunity to review copies of all such documents proposed to be filed. The Company shall not file any Eligible Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Farids Group has a right to review prior to the filing of such document, if the Farids Group, its counsel or the managing underwriter, if any, shall reasonably object, in writing, on a timely basis. (b) Prepare and file with the SEC such amendments and post-effective amendments to each Eligible Registration Statement as may be necessary to keep such Eligible Registration Statement continuously effective for the effectiveness period; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Eligible Registration Statement as so amended or in such Prospectus as so supplemented. 20





(c) Notify the Farids Group, its counsel and the managing underwriter, if any, promptly (but in any event within 10 business days), and confirm such notice in writing, (i) when a Prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to an Eligible Registration Statement or any post-effective amendment, when the same has become effective (including in such notice a written statement that the Farids Group may, upon request, obtain, without charge, one conformed copy of such Eligible Registration Statement or post-effective amendment including financial statements and schedules, all documents incorporated or deemed to be incorporated by reference and all exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of a Eligible Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Eligible Registrable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 6.6(k) below cease to be true and correct in all material respects, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of an Eligible Registration Statement or any of the Registrable Securities for offer or sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, (v) of the happening of any event that makes any statement made in such Eligible Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Eligible Registration Statement, Prospectus or documents so that, in the case of such Eligible Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's reasonable determination that a post-effective amendment to an Eligible Registration Statement would be appropriate. (d) Use its reasonable best efforts to prevent the issuance of any order suspending the effectiveness of an Eligible Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment. (e) If requested by the managing underwriter, if any, or the Farids Group, (i) promptly incorporate in a post-effective amendment such information as the managing underwriter, if any, or the Farids Group reasonably requests to be included therein to comply with applicable Law, (ii) make all required filings of such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such post-effective amendment, and (iii) supplement or make amendments to such Eligible Registration Statement; provided, however, that the Company shall not be required to take any actions under this Section 6.6(e) that are not, in the opinion of counsel for the Company, in compliance with applicable Law. (f) Furnish to the Farids Group and each managing underwriter, if any, without charge, one conformed copy of the Eligible Registration Statement or Statements and each post-effective amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits. 21





(g) Deliver to the Farids Group, its counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by the Farids Group and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and an amendment or supplement thereto. (h) Prior to any public offering of Registrable Securities, to use its reasonable best efforts to register or qualify, and cooperate with the Farids Group, the underwriters, if any, the sales agent and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as the Farids Group or the managing underwriter, if any, reasonably request in writing; use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period during which the related Eligible Registration Statement is required to be kept effective and use its reasonable best efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Eligible Registration Statement; provided, however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified or (B) take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then so subject. (i) Upon the occurrence of any event contemplated by clause (v) or (vi) of Section 6.6(c) above, as promptly as practicable prepare a supplement or post-effective amendment to the Eligible Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (j) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing underwriter in order to expedite or facilitate the registration or the disposition of such Registrable Securities, and in such connection, (i) make such customary representations and warranties to the underwriters, with respect to the business of the Company and its subsidiaries, and the Eligible Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein; (ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions shall be reasonably satisfactory (in form, scope and substance) to the managing underwriter), addressed to the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by the underwriters; and (iii) obtain comfort letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Eligible Registration Statement), addressed to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in comfort letters in connection with underwritten offerings. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder. 22





(k) Use its reasonable best efforts to cause all Registrable Securities covered by such Eligible Registration Statement to be listed on each securities exchange on which the Common Stock is then listed. (l) Comply with all applicable rules and regulations of the SEC and make generally available to its security-holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effectiveness date of an Eligible Registration Statement, which statements shall cover said 12-month periods. Section 6.7 Delay of Registration; Furnishing Information. It shall be a condition precedent to the obligations of the Company to take any action pursuant to Section 6.1 or 6.2 that the Farids Group shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of distribution of such securities as required by Section 6.12 or as otherwise reasonably requested by the Company. Section 6.8 Indemnification. In the event any Registrable Securities are included in an Eligible Registration Statement under Section 6.1 or 6.2: (a) To the fullest extent permitted by law, the Company will indemnify and hold harmless the Farids Group, the partners, members, directors and officers of any member of the Farids Group, any underwriter (as defined in the Securities Act), the directors and officers of such underwriter, and each person, if any, who controls any member of the Farids Group or such underwriter within the meaning of the Securities Act or the Exchange Act (collectively, the Non-Company Indemnified Parties), against any losses, claims, damages, or liabilities (joint or several) to which they may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or suits, actions or proceedings in respect thereof) and reasonable documented expenses that arise out of or are based upon any of the following statements, omissions or violations by the Company: (i) any untrue statement or alleged untrue statement of a material fact contained in such Eligible Registration Statement or incorporated by reference therein, including any preliminary prospectus, final prospectus or summary prospectus contained therein or any amendments or supplements thereto or any document incorporated by reference therein, or any other such disclosure document (including reports and other documents filed under the Exchange Act and any document incorporated by reference therein) or related document or report, (ii) any omission or alleged omission to state therein a material fact required to be stated therein (in the case of an Eligible Registration Statement only), or necessary to make the statements therein not misleading, in the case of a prospectus, in the light of the circumstances when they were made, or (iii) any violation or alleged violation by the Company or any of its subsidiaries of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any federal, state, foreign or common law, rule or regulation in connection with the offering covered by such Eligible Registration Statement (collectively, a Violation); and the Company will reimburse each such Non-Company Indemnified Party for any reasonable legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability, suit, action or proceeding; provided, however, that the indemnity agreement contained in this Section 6.8(a) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, suit, action or proceeding if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned, nor shall the Company be liable in any such case for any such loss, claim, damage, liability, suit, action or proceeding to the extent that it arises out of or is based upon a Violation which occurs in reliance upon and in conformity with written information furnished expressly for use in connection with such Eligible Registration Statement by such Non-Company Indemnified Party. 23





(b) To the fullest extent permitted by law, the Farids Group will, jointly and severally, indemnify and hold harmless the Company, each of its directors, officers, employees, agents, representatives, and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, any underwriter (as defined in the Securities Act), the directors and officers of such underwriter, and each person, if any, who controls such underwriter within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages or liabilities (joint or several) to which the Company or any such director, officer, employee, agent, representative, controlling person or underwriter may become subject under the Securities Act, the Exchange Act or other federal or state law, insofar as such losses, claims, damages or liabilities (or suits, actions or proceedings in respect thereof) and reasonable documented expenses that arise out of or are based upon any of the following statements, omissions or violations: (i) any untrue statement or alleged untrue statement of a material fact contained in such Eligible Registration Statement or incorporated by reference therein, including any preliminary prospectus, final prospectus or summary prospectus contained therein or any amendments or supplements thereto or any document incorporated by reference therein, or any other such disclosure document (including reports and other documents filed under the Exchange Act and any document incorporated by reference therein) or related document or report, (ii) any omission or alleged omission to state therein a material fact required to be stated therein (in the case of an Eligible Registration Statement only), or necessary to make the statements therein not misleading, in the case of a prospectus, in the light of the circumstances when they were made, or (iii) any violation or alleged violation by the Company or any of its subsidiaries of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any federal, state, foreign or common law, rule or regulation in connection with the offering covered by such Eligible Registration Statement (collectively, a Holder Violation), in each case to the extent (and only to the extent) that such Holder Violation occurs in reliance upon and in conformity with written information furnished by the Farids Group expressly for use in connection with such Eligible Registration Statement; and the Farids Group will reimburse any legal or other expenses reasonably incurred by the Company or any such director, officer, employee, agent, representative, controlling person or underwriter in connection with investigating or defending any such loss, claim, damage, liability, suit, action or proceeding if it is judicially determined that there was such a Holder Violation; provided, however, that the indemnity agreement contained in this Section 6.8(b) shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, suit, action or proceeding if such settlement is effected without the consent of the Farids Group, which consent shall not be unreasonably withheld, delayed or conditioned; provided, further, that in no event shall any indemnity under this Section 6.8(b) exceed the net proceeds from the offering received by the Farids Group upon the sale of the Registrable Securities giving rise to such indemnification obligation. 24





(c) Promptly after receipt by an indemnified party under paragraph (a) or (b) of this Section 6.8 (an Indemnified Party) of written notice of the commencement of any claim, damage, suit, action or proceeding (including any governmental or regulatory investigation) being brought or asserted against it, such Indemnified Party will, if a claim in respect thereof is to be made against any indemnifying party under paragraph (a) or (b) of this Section 6.8 (an Indemnifying Party), deliver to the Indemnifying Party a written notice of the commencement thereof; provided, that the failure of the Indemnified Party to deliver written notice to the Indemnifying Party shall not relieve it from any liability it may have under paragraph (a) or (b) of this Section 6.8 except to the extent such failure has materially prejudiced the Indemnifying Party's ability to defend such action (through the forfeiture of substantive rights or defenses). The Indemnifying Party shall have the right to participate in, and, to the extent the Indemnifying Party so desires, jointly with any other Indemnifying Party who has received a similar notice, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party in such proceeding and shall pay the fees and expenses of such counsel relating to such proceeding, and after notice from the Indemnifying Party to the Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not, except as specified below, be liable to such Indemnified Party under paragraph (a) or (b) above, as the case may be, for any legal expenses of other counsel. In any such proceeding, an Indemnified Party shall have the right to retain its own counsel, with the fees and expenses to be paid by the Indemnified Party; provided the Indemnifying Party will pay the reasonable fees and expenses of such counsel if (i) the Indemnifying Party and the Indemnified Party shall have so mutually agreed; (ii) the Indemnifying Party has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Party; (iii) the Indemnified Party shall have reasonably concluded, based on the advice of counsel, that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them. It is understood and agreed that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel that is required to effectively defend against any such proceeding) for all Indemnified Parties, and that all such fees and expenses shall be paid or reimbursed promptly. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent (which shall not be unreasonably withheld, delayed or conditioned), but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify each Indemnified Party from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Party shall, without the written consent of the Indemnified Party (which shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Party is or could have been a party and indemnification could have been sought hereunder by such Indemnified Party, unless such settlement (x) includes an unconditional release of such Indemnified Party, in form and substance reasonably satisfactory to such Indemnified Party, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party. 25





(d) If the indemnification provided for in this Section 6.8 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any losses, claims, damages or liabilities referred to herein, the Indemnifying Party, in lieu of indemnifying such Indemnified Party thereunder, shall to the extent permitted by applicable Law contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other in connection with the actions that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, that in no event shall any contribution by a Holder hereunder exceed the net proceeds from the offering made under such Eligible Registration Statement received by such Holder. (e) The parties hereto agree that it would not be just and equitable if contribution pursuant to Section 6.8(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (f) The obligations of the Company and the Farids Group under this Section 6.8 shall survive completion of any offering of Registrable Securities in an Eligible Registration Statement and the termination of this Agreement. (g) The obligations of the parties under this Section 6.8 will be in addition to any liability, without duplication, which any party may otherwise have to any other party. Section 6.9 Market Stand-Off Agreement. The Farids Group hereby agrees that the Farids Group shall not Transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale or other Transfer, any Lock-Up Security held by the Farids Group (other than those included in the registration) for a period specified by the representative(s) of the underwriters of Registrable Securities or any other securities sold in any offering in respect of which the Farids Group received notice from the Company in accordance with Section 6.2, such period not to exceed one hundred and eighty (180) days following the pricing date of any underwritten offering; provided that the Farids Group shall only be required to comply with this Section 6.9 if the Farids Group beneficially own (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) at least 3.0% or more of the number of shares of Common Stock outstanding at such time. The Company may impose stop transfer instructions with respect to any Lock-Up Security subject to the foregoing restriction until the end of said one hundred and eighty (180) day or shorter period. 26





Section 6.10 Agreement to Furnish Information. The Farids Group agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the representative(s) of the underwriter(s) that are consistent with the Farids Group's obligations under Section 6.9 or that are necessary to give further effect thereto. In addition, if requested by the Company or such representative(s), the Farids Group shall provide, to the extent the Farids Group has elected to include Registrable Securities in an Eligible Registration Statement, within one (1) business day of such request, such information relating to itself, the Registrable Securities held by it and the registration and the intended method of distribution of the Registrable Securities as may be reasonably requested by the Company or such representative(s) in connection with the completion of any public offering of Common Stock pursuant to such Eligible Registration Statement. The underwriters of Registrable Securities are intended third party beneficiaries of Sections 6.8 and 6.10 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Section 6.11 Termination. The rights and obligations of the Farids Group set forth in this Article VI (other than those set forth in Sections 6.8 and 6.9) shall terminate on the date that the Farids Group owns less than 3% of the issued and outstanding Common Stock, but in no event earlier than the Expiration Date (as defined in the Warrant). ARTICLE VII RIGHT OF FIRST REFUSAL; CHANGE IN CONTROL Section 7.1 Right of First Offer for 144 Sales. (a) Subject to the restrictions set forth in Section 5.1 of this Agreement and Section 2.3 of the Warrant, in the event any member of the Farids Group proposes to Transfer (other than a Permitted Transfer) a Threshold Block, in a transaction or series of related transactions, of Shares in a 144 Sale, the Farids Group shall furnish to the Company a written notice of such proposed Transfer (a ROFO Sale Notice) at least 48 hours prior to the opening of trading on the Nasdaq Global Market (or such other primary stock exchange upon which the Common Stock is listed) on the business day that the Farids Group proposes to begin to effect such 144 Sale. (b) The ROFO Sale Notice shall include: (i) (A) the number of Shares proposed to be sold (the ROFO Shares), (B) the per share purchase price in cash at which the Farids Group is prepared to Transfer such ROFO Shares (the ROFO Sale Price) and (C) the date the Farids Group proposes to begin to effect such 144 Sale; and (ii) (ii) an offer to sell to the Company and/or a designee of the Company all or a portion of the ROFO Shares at the ROFO Sale Price. (c) If the Company wishes to purchase (and/or cause a designee to purchase) all or a portion of the ROFO Shares at the ROFO Sale Price, the Company shall deliver a notice (a ROFO Purchase Notice) to the Farids Group no later 8:00 a.m. New York time on the business day that the Farids Group proposes to effect such 144 Sale specifying the number of ROFO Shares it wishes to purchase (and/or cause a designee to purchase) from the Farids Group. The closing of the purchase of such ROFO Shares by the Company and/or any such designee shall take place no later than five (5) business days after delivery of the ROFO Purchase Notice, with payment for such ROFO Shares being made concurrently with such purchase to the Farids Group's account designated in the ROFO Sale Notice. If the Company does not timely deliver a ROFO Purchase Notice it shall be deemed to have waived all of its rights with respect to the offer contained in the ROFO Sale Notice. 27





(d) In the event that the number of ROFO Shares offered to be purchased in the ROFO Purchase Notice is less than the number of ROFO Shares set forth in the Sale Notice (or the Company does not timely deliver a ROFO Purchase Notice), the Farids Group may sell the ROFO Shares that are not subject to any such ROFO Purchase Notice during the five (5) day business day period beginning on the date in the ROFO Sale Notice on which the Farids Group proposed to begin to effect such 144 Sale (the ROFO Transfer Period); provided that no such ROFO Share may be sold for less than the ROFO Sale Price. (e) (e) If by the expiration of the ROFO Transfer Period, the Farids Group has not completed the Transfer of any ROFO Shares at the ROFO Sales Price or a higher price, in order for the Farids Group to Transfer such ROFO Shares (or any other Shares) it shall be necessary for a new ROFO Sale Notice or ROFR Sale Notice to be delivered, and the terms and provisions of this Article VII to be again complied with. The Farids Group shall not deliver more than one ROFO Sale Notice or ROFR Sale Notice in any thirty (30) day period. Section 7.2 Right of First Refusal. (a) Subject to the restrictions set forth in Section 5.1 of this Agreement and Section 2.3 of the Warrant, in the event any member of the Farids Group proposes to Transfer (other than a Permitted Transfer) (i) a Threshold Block, in a transaction or series of related transactions, that, to the Farids Group's knowledge (after due inquiry in connection with a private, non-open market transaction) is to a Person whom the Company reasonably determines is a direct or indirect material competitor of the Company or any Affiliate of such Person or (ii) a Significant Block, in a transaction or series of related transactions, that, to the Farids Group's knowledge (after due inquiry in connection with a private, non-open market transaction) is to a Person whom the Company reasonably determines is a direct or indirect material competitor of the Company or any Affiliate of such Person (in each case, regardless of whether such Transfer will constitute a 144 Sale), the Farids Group shall furnish to the Company a written notice of such proposed Transfer (a ROFR Sale Notice) at least (5) business days prior to the business day that the Farids Group proposes to effect such Transfer. (b) The ROFR Sale Notice shall include: (i) (A) the identity of the proposed transferee, (B) the purchase agreement and other documentation for the proposed Transfer (the ROFR Sale Documentation), (C) the number of Shares proposed to be sold (the ROFR Shares), (D) the per share purchase price in cash at which the Farids Group is prepared to Transfer such ROFR Shares (the ROFR Sale Price) and (E) the date the Farids Group proposes to effect such Transfer; and 28





(ii) an offer to sell to the Company and/or a designee of the Company all of the ROFR Shares at the ROFR Sale Price. (c) If the Company wishes to purchase (and/or cause a designee to purchase) all of the ROFR Shares at the ROFR Sale Price, the Company shall deliver a notice (a ROFR Purchase Notice) to the Farids Group within three (3) business day after receipt of the ROFR Sale Notice. The closing of the purchase of such ROFR Shares by the Company and/or any such designee shall take place no later than the later of (i) the purchase date set forth in the ROFR Sale Documentation and (ii) five (5) business days after delivery of the ROFR Purchase Notice, with payment for such ROFR Shares being made concurrently with such purchase to the Farids Group's account designated in the ROFR Sale Notice. If the Company does not timely deliver a ROFR Purchase Notice it shall be deemed to have waived all of its rights with respect to the offer contained in the ROFR Sale Notice. (d) In the event that Company does not timely delivery a ROFR Purchase Notice, the Farids Group may sell the ROFR Shares to the proposed transferee identified in the ROFR Sale Notice at the ROFR Sale Price and on the other terms and conditions set forth in the ROFR Sale Documentation no later than three (3) business days following the date the Farids Group proposed to effect such Transfer in the ROFR Sale Notice (the ROFR Transfer Period). (e) If by the expiration of the ROFR Transfer Period, the Farids Group has not completed the Transfer of the ROFR Shares, in order for the Farids Group to Transfer such ROFR Shares (or any other Shares) it shall be necessary for a new ROFO Sale Notice or ROFR Sale Notice to be delivered, and the terms and provisions of this Article VII to be again complied with. The Farids Group shall not deliver more than one ROFR Sale Notice or ROFO Sale Notice in any thirty (30) day period. ARTICLE VIII MISCELLANEOUS Section 8.1 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, telecopied (upon telephonic confirmation of receipt), on the first business day following the date of dispatch if delivered by a recognized next day courier service, or on the third business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice: (a) if to the Company to: Rocky Mountain Chocolate Factory, Inc. 265 Turner Drive Durango, Colorado 81303 Attention: Chief Executive Officer and Chief Financial Officer 29





with a copy (which shall not constitute notice) to: Perkins Coie LLP 1900 Sixteenth Street, Suite 1400 Denver, Colorado 80202 Attention: Sonny Allison and Ned Prusse (b) If to the Farids Group to: Farids & Co. LLC 980 Hammond Dr., Suite 1000 Atlanta, GA 30328 USA Attention: Tariq Farid (c) If to EA to: Edible Arrangement, LLC 980 Hammond Dr., Suite 1000 Atlanta, GA 30328 USA Attention: Tariq Farid with a copy (which shall not constitute notice) to: DLA Piper LLP (US) 444 West Lake Street Suite 900 Chicago, IL 60606 Attention: Neal Aizenstein Section 8.2 Further Assurances. Each party hereto shall do and perform or cause to be done and performed all further acts and shall execute and deliver all other agreements, certificates, instruments and documents as any other party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby. Section 8.3 Amendments and Waivers. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is duly executed and delivered by the Company and the Farids Group. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. The execution of a joinder agreement to this Agreement by a Family Member of TF shall not constitute an amendment to this Agreement requiring the consent of any party hereto. 30





Section 8.4 Fees and Expenses. Each party hereto shall pay all of its own fees and expenses (including attorneys' fees) incurred in connection with this Agreement and the transactions contemplated hereby. Section 8.5 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided, that, unless in connection with Permitted Transfers, neither party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement to any person without the express written consent of the other party hereto and any such assignment or other transfer shall be null and void; provided, further, that no such assignment shall relieve the assigning party of its obligations hereunder if such assignee does not perform such obligations. Prior to the receipt by the Company of adequate written notice of the Permitted Transfer of any Purchased Shares in accordance with the provisions of this Agreement and specifying the full name and address of the transferee, the Company may deem and treat the person listed as the holder of such shares in its records as the absolute owner and holder of such shares for all purposes, including the payment of dividends. Section 8.6 Governing Law. (a) This Agreement shall be governed and construed in accordance with the laws of the State of New York applicable to contracts made and wholly performed within such state, except for matters directly within the purview of the DGCL, which shall be governed by the DGCL. Each of the Farids Group and the Company hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction and venue of the United States District Court for the Southern District of New York and in the courts hearing appeals therefrom unless no basis for federal jurisdiction exists, in which event each party hereto irrevocably consents to the exclusive jurisdiction and venue of the Supreme Court of the State of New York, New York County, and the courts hearing appeals therefrom, for any action, suit or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the Farids Group and the Company hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any such action, suit or proceeding, any claim that it is not personally subject to the jurisdiction of the aforesaid courts for any reason, other than the failure to serve process in accordance with this Section 8.6, that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and to the fullest extent permitted by applicable Law, that the action, suit or proceeding in any such court is brought in an inconvenient forum, that the venue of such action, suit or proceeding is improper, or that this Agreement, or the subject matter hereof, may not be enforced in or by such courts and further irrevocably waives, to the fullest extent permitted by applicable Law, the benefit of any defense that would hinder, fetter or delay the levy, execution or collection of any amount to which the party is entitled pursuant to the final judgment of any court having jurisdiction. Each of the Farids Group and the Company irrevocably and unconditionally waives, to the fullest extent permitted by applicable Law, any and all rights to trial by jury in connection with any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. 31





(b) Each of the Farids Group and the Company expressly acknowledges that the foregoing waivers are intended to be irrevocable under the laws of the State of New York, the State of Delaware and of the United States of America; provided, that consent by the Farids Group and the Company to jurisdiction and service contained in this Section 8.6 is solely for the purpose referred to in this Section 8.6 and shall not be deemed to be a general submission to said courts or in the State of New York other than for such purpose. Section 8.7 Ownership Limitation. The Farids Group shall not (unless specifically requested in writing by the Company, acting through a resolution of a majority of the Company's directors), directly or indirectly, and agrees to cause the Affiliates of the Farid Group to not, directly or indirectly, in any manner acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a partnership, limited partnership, syndicate or other group (including any group of persons that would be treated as a single person under Section 13(d) of the Exchange Act), through swap or hedging transactions or otherwise, any securities of the Company, or any rights decoupled from the underlying securities of the Company that would result in the Farids Group (together with its Affiliates) owning, controlling or otherwise having any beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of 19.99% or more of the fully diluted number of shares of Common Stock outstanding at such time; provided, however, that nothing herein will require Common Stock to be sold to the extent that the Farids Group and its Affiliates, collectively, exceed the ownership limit under this Section 8.7 as the result of any share repurchase or other Company action that reduces the number of outstanding shares of Common Stock on or after the date hereof; provided, further, that (a) this Section 8.7 shall not preclude Farids or EA from privately requesting a waiver of the provisions of Section 8.7, and (b) the provisions of this Section 8.7 shall terminate and be of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it plans to enter into, a transaction involving all or a controlling portion of the Company's equity securities or all or substantially all of the Company's assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or otherwise). Section 8.8 Non-Disparagement. (a) Neither the Company nor any of its Affiliates shall in any manner, directly or indirectly, in any capacity or manner, make or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on or otherwise disparages, defames or slanders the Farids Group or any of its Affiliates or any of their respective successors or current or former members, partners, officers, directors or employees (it being understood and agreed that the restrictions in this Section 8.8(a) shall not apply to any member of the Board of Directors based upon discussions solely among other members of the Board of Directors and/or management of the Company); provided, that the limitations set forth in this Section 8.8(a) shall not prevent the Company or any of its Affiliates from (i) responding to any public statement or announcement made by the Farids Group or any of its Affiliates that was made in breach of Section 8.8(b) below or (ii) if solicited by a Third Party, making objective statements that reflect the Company's view with respect to factual matters concerning specific acts or determinations of the Farids Group or any of its Affiliates (or their respective current or former representatives) occurring after the date hereof. For the avoidance of doubt, a public statement or announcement shall only be deemed to be made by the Company if such public statement or announcement is made by (X) an executive officer or a member of the Board of Directors (other than a Director Designee) or (Y) an employee or representative of the Company authorized to make such statement or announcement on behalf of the Company. 32





(b) Neither the Farids Group nor any of its Affiliates shall in any manner, directly or indirectly, in any capacity or manner, make or cause to be made, or in any way encourage any other person to make or cause to be made, any public statement or public announcement, including in any document or report filed with or furnished to the SEC or through the press, media, analysts or other persons, that constitutes an ad hominem attack on or otherwise disparages, defames or slanders the Company or any of its Affiliates or any of their respective successors or current or former members, partners, officers, directors or employees; provided, that, the limitations set forth in this Section 8.8(b) shall not prevent the Farids Group or any of its Affiliates from (i) responding to any statement made by the Company or any of its Affiliates or representatives that was made in breach of Section 8.8(a) above or (ii) if solicited by a Third Party, making objective statements that reflect the Farids Group's or any of its Affiliates' view with respect to factual matters concerning specific acts or determinations of the Company, any of its Affiliates or any current or former representatives of the Company or any of its Affiliates occurring after the date hereof. For the avoidance of doubt, a public statement or announcement shall only be deemed to be made by the Farids Group or any of its Affiliates if such public statement or announcement is made by (X) a Farids manager, director or executive officer or an EA manager, director or executive officer (Y) an employee or representative of Farids or EA authorized to make such statement or announcement on behalf of Farids or EA, as applicable. Section 8.9 Non-Solicitation. (a) Each of EA, Farids and the Company shall not, and shall cause their respective controlled Affiliates to not, either directly or indirectly solicit, hire, or contract with any of the employees of the other party or its Affiliates during the Term (as defined in the Exclusive Supplier Operating Agreement) and for one (1) year following the termination or expiration thereof; provided that this Section 8.9(a) shall not apply with respect to any such employee who employment with the other party and its Affiliates has been terminated for a period in excess of nine (9) months. (b) Notwithstanding anything to the contrary in this Agreement, the restrictions regarding solicitation in this Section 8.9 shall not be deemed to apply to media advertisements of general circulation, open job fairs, the efforts of an employment search firm or other generalized means of publicizing a job opening, such as on a website or job board which, in each case, are not targeted primarily at the employees of the other party or its Affiliates; provided that this Section 8.9(b) shall not limit the restrictions or hiring set forth in Section 8.9(a). Section 8.10 Entire Agreement. This Agreement and the other Transaction Documents constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties and/or their Affiliates with respect to the subject matter of this Agreement. 33





Section 8.11 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof. Section 8.12 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable Law, such provision shall be deemed to be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforced in accordance with its terms to the maximum extent permitted by law. Section 8.13 Counterparts; Third Party Beneficiaries. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures were upon the same instrument. Facsimile and electronic (.PDF) signatures shall be sufficient to execute this Agreement. Except for Section 6.8 with respect to the underwriters of Registrable Securities, no provision of this Agreement shall confer upon any person other than the parties hereto any rights or remedies hereunder. Section 8.14 Survival. The representations, warranties, agreements and covenants contained herein shall survive the Closing. Section 8.15 Remedies. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms. It is accordingly agreed that the parties shall be entitled to seek specific performance of the terms hereof, this being in addition to any other remedies to which they are entitled at law or equity. In the event of any dispute between the parties concerning the terms and provisions of this Agreement, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys' fees. [Remainder of this page intentionally left blank] 34





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed as of the date first written above. ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. By: /s/ Bryan J. Merryman Name: Bryan J. Merryman Title: Chief Executive Officer and Chief Financial Officer FARIDS & CO. LLC By: /s/ Tariq Farid Name: Tariq Farid Title: Chief Executive Officer EDIBLE ARRANGEMENTS, LLC By: /s/ Tariq Farid Name: Tariq Farid Title: Chief Executive Officer [Signature Page to Strategic Alliance Agreement]





EXHIBIT A FORM OF JOINDER AGREEMENT This JOINDER AGREEMENT (this Joinder Agreement) is executed pursuant to the terms of the Strategic Alliance Agreement, dated as of December 20, 2019, by and among Farids & Co. LLC, a Delaware limited liability company (Farids), Edible Arrangements, LLC, a Delaware limited liability company, and Rocky Mountain Chocolate Factory, Inc., a Delaware corporation (the Company), a copy of which is attached hereto and is incorporated herein by reference (the Agreement), by the undersigned (the Farids Transferee). Capitalized terms used but not defined herein have the meanings set forth in the Agreement. By execution and delivery of this Joinder Agreement, the Farids Transferee agrees as follows: SECTION 1. Acknowledgment. The Farids Transferee acknowledges that it has acquired Purchased Shares from a member of the Farids Group pursuant to a Permitted Transfer. SECTION 2. Agreement. The Farids Transferee (a) agrees that the Purchased Shares it owns shall be bound by and subject to the terms of the Agreement to the same extent as if such Farids Transferee were a member of the Farids Group, (b) hereby adopts the Agreement with the same force and effect as if it were originally a member of the Farids Group and (c) shall constitute a member of the Farids Group under the Agreement. SECTION 3. Notice. Any notice required to be provided by the Agreement shall be given to the Farids Transferee at the address of Farids Group listed in the Agreement. SECTION 4. Governing Law. This Joinder Agreement and the rights of the parties hereto shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed therein. Executed and dated this day of . Farids Transferee: [INSERT NAME] By: [Title] Acknowledged and Agreed to by ROCKY MOUNTAIN CHOCOLATE FACTORY, INC. By: [Title] A-1





EXHIBIT B EXCLUSIVE SUPPLIER OPERATING AGREEMENT [Attached] B-1





EXHIBIT C WARRANT [Attached] C-1





EXHIBIT D INDEMNIFICATION AGREEMENT [Attached] D-1





EXHIBIT E AMENDMENT E-1 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
On or prior to the date of this Agreement or TF's election to the Board of Directors at the Annual Meeting, as applicable, the Company shall have (x) nominated TF for election to the Board of Directors at the Annual Meeting, (y) entered into an Indemnification Agreement with TF as the Director Designee and (z) taken all necessary action for TF to be covered by the Company's existing directors' liability insurance policy.

SOFTWARE DEVELOPMENT AGREEMENT THIS SOFTWARE DEVELOPMENT AGREEMENT (Agreement ) is made December 3rd, 2018 (the Effective Date) by and between DOT COM LLC, OBA Seattle Software Developers, a Delaware limited liability company (Developer ), and (Client) Pelican Delivers Inc. for the performance of software design services and software development as detailed herein (Developer and Client are individually referred to herein as a Party, and collectively as the Parties).

1. Term Unless otherwise provided herein, this Agreement will commence on the Effective Date and continue through the completion or termination of Developer's services and work product as mutually agreed upon between the Parties (the Project).

2. Statement of Work Developer will design, develop, and deliver, satisfactory to Client, the Pelican Delivers Application Phase 1 (collectively, the Subject Program), and all elated Project services (collectively, the Services), Project work product (collectively, the Deliverables), and user manuals and other written material that describe he functionality or assist in the use of the Subject Program (collectively, the Documentation), pursuant to the Project specifications detailed in the SO (collectively, Specifications), as described in the enclosed statement of work (the SOW; as provided in APPENDIX A hereto). The Parties may execute multiple SOWs should there be multiple or separate Projects. In the event of any conflict or inconsistency between the terms of this Agreement and any SOW, the terms of this Agreement will control.

3. Delivery Schedule; Acceptance; Change Orders 3.1 DELIVERY SCHEDULE; MILESTONES Each SOW will include a delivery schedule for Services and Deliverables (the Delivery Schedule) that will identify mutual agreed upon Project time deadlines concerning the performance of Services, delivery of Deliverables, Client testing of the same (collectively, Milestones), as well as a final Subject Program delivery date (Final Delivery Date).

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Source: PELICAN DELIVERS, INC., S-1, 2/11/2020





3.2 PROJECT DELIVERY AND INSTALLATION As detailed in a SOW hereto, Developer will provide certain Services, Deliverables and Documentation to Client upon a designated Milestone in accordance with such Milestone's specific Specifications (collectively, Specific Specifications). Prior to completing a Milestone, Developer will: (a) inform Client of the availability of each portion of a Deliverable otherwise required be delivered by such Milestone date for testing by Client (he Acceptance Test Date); and (b) deliver to Client sue Deliverable (each a Milestone Deliverable) including the source code and object code form compatible with the platform(s) described in the SOW for such Milestone Deliverable. 3.3 ACCEPTANCE AND BETA TESTS Within the time periods designated in the SOW, Client shall perform any tests or evaluation of the Subject Program (collectively, the Acceptance Tests) after the Acceptance Test Date, to determine whether each Deliverable: (a) conforms to the SOW; and (b) performs repetitively on an appropriate variety of data and platforms, without failure, as more fully described in the Specifications. Upon completion of II Deliverables, the Acceptance Tests shall be performed on the Subject Program in its entirety in order to determine whether the Subject Program (i) meets the Specifications and (ii) operates with internal consistency. 3.4 ACCEPTANCE OF MILESTONE DELIVERABLE; CHANGE REQUESTS Client will notify Developer in writing of any failure of a Milestone Deliverable to comply with the Specifications, or of any other objections, corrections, changes or amendments required (a Change Request), within ten (10) days of such Milestone's Acceptance Test Date. Any Change Request shall be sufficient to identify, with clarity, any objection, correction, change or amendment to such Milestone Deliverable. In the absence of a Change Request from Client within the time periods detailed herein, the Milestone Deliverable will be deemed accepted by Client. 3.5 REJECTION OF MILESTONE DELIVERABLE If any Milestone Deliverable does not satisfy the Client's Acceptance Test and Client provides Developer a Change Request concerning the same, Developer will have twenty (20) days from the receipt of such Change Request to correct the deficiencies, errors, corrections, modifications, bug- fixes or changes to the Deliverables as identified in the Change Request. Upon Client's receipt of a Milestone Deliverable following Developer's modification pursuant to Change Request (a Modified Deliverable), Client will have five (5) days to inspect, test and reevaluate such Modified Deliverable to determine acceptance. If Client does not notify Developer of any further failures, objections, changes, defects, or bugs in such Modified Deliverable, the Modified Deliverable will be deemed accepted by Client.

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3.6 FAILURE OF DEVELOPER TO CORRECT DEFECTS Should Developer reasonably fail to meet the requirements of Section 3. or Section 3.5 of this Agreement such that a Milestone Deliverable or Modified Deliverable does not satisfy Client's reasonable acceptance criteria within the time periods set forth in the same, Client will have the option of: (a) repeating the procedures set forth in Section 3.4 or Section 3.5 Above; or (b) terminating this Agreement pursuant to Section 8 of this agreement. 3.7 FINAL DELIVERABLE AND SUBJECT PROGRAM TESTING Notwithstanding anything contained herein, upon completion of the Final Deliverable set out in the Specifications thereto, Client will perform Acceptance Test on the Subject Program within fifteen (15) calendar days from the Acceptance Test Date in order to determine whether the Subject Program satisfies the acceptance criteria and operates with internal consistency. If the completed Subject Program does not satisfy the Client's Acceptance Tests and Client provides Developer a Change Request concerning the same, Developer will have fifteen (15) calendar days from the receipt of such Change Request to correct the deficiencies errors, corrections, modifications, bug-fixes or changes. Client shall then have ten (10) additional days to inspect, test and reevaluate the completed and modified Subject Program or Final Deliverable. If the Subject Program or Final Deliverable still does not satisfy the Client's acceptance criteria and/or the Acceptance Tests, Client shall have the option of either: (a) repeating the procedure set forth above; or (b) terminating this Agreement pursuant to Section 12 of this Agreement . If the Client does not notify the Developer of any further failures, objections, changes, or other defects, or bugs of or in the Subject Program via a Change Request, Client will be deemed to have accepted the Subject Program. 3.8 CLIENT ASSISTANCE Client shall provide Developer assistance to complete the Services, and produce the Deliverables, as reasonably requested, including but not limited to providing the necessary information or documentation required from Developer for the development of the Subject Program. Client shall conduct all Acceptance Tests in good faith and shall not delay any acceptance of any Service or Deliverable without reasonable justification. The evaluation of any Service or Deliverable for any Acceptance Test will be based on material compliance with applicable Specifications and Client shall not arbitrarily withhold acceptance of any Milestone Deliverable or Subject Program. 3.9 DEVELOPER DUTIES FOR ACCEPTANCE TESTS Unless otherwise agreed by the Parties in writing, regardless of the acceptance or rejection of any Milestone Deliverable, Developer shall continue to perform all Services and deliver all Deliverables in accordance with the Delivery Schedule. Developer shall use its best efforts to make any necessary corrections, modifications, bug-fixes, or other changes promptly to complete the Services and Deliverables by the Final Delivery Date.

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4.10 CLIENT TERMINATION SERVICES If elected pursuant to the Agreement, Developer will provide Client Termination Assistance Services at an hourly rate of $[125.00 per hour].

4. Change Orders Sometimes during the term of this Agreement change order may or may not be requested by Client. However, If Client requests that Developer provide any additional Services or Deliverables or functionalities beyond those detail d in an applicable SOW, or requests a modification or change to any of the Services or Deliverables if possible, client will: (A) Submit to Developer, by means of a written order, all requests r additional services that alter, amend, enhance, add to, or delete any of the Services or Deliverables (a Change Order); (B) Developer will evaluate each Change Order, and within five (5) days of its receipt, will provide Client with (i) the change in Fee costs as a result of the Change Order, (ii) the impact, if any, of the Change Order on an aspect of the Delivery Schedule including any Milestone Date, Acceptance Test Date, or the Final Delivery Date, and (iii) the availability of Developer' resources to carry out the additional requested services detailed in the Change Order; (C) If Developer agrees to carry out the proposed Change Order, the Parties will execute an amended SOW or Change Order reflecting the Service and Deliverable changes; (D) Upon duly executing an amended SOW or executed Change Ord r, Developer will begin performance in accordance with the same. Developer has no obligation to perform any additional services before receiving the duly- executed amended SOW or executed Change Order, and Client has no obligation to pay Developer any Fees for services performed pursuant to an amended SOW or Change Order before the same; and (E) Once fully completed and executed, each amended SOW or Change Order will be deemed to be incorporated into and be part of this Agreement and will constitute a formal amendment to this Agreement.

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5. Payment 5.1 FEES AND EXPENSES Client will pay fees to Developer for Project Services and Deliverables as Described in the SOW (the Fees). Developer will pay its own expenses for the Project (collectively, the Expenses) unless stated otherwise in the SOW. 5.2 FEES AND EXPENSES All Fees shall be due pursuant to the Fee payment schedule provided in a SOW hereto (the Fee Payment Schedule). Client's failure to remit payment to Developer for Fees due and owning will constitute a material breach of this Agreement. 5.3 BONUS If Developer completes the Services, and delivers the Deliverables, as reasonably accepted by Client, upon a date prior to the Final Delivery Date as specific in a SOW hereto, Client will pay Developer a bonus Fee in the amount detailed in the applicable SOW (the Bonus). 5.4 PAYMENT Client shall pay Fees, Expenses (if any), and any Bonus to Developer via w re to Developer's bank account at: Chase Bank 1955 156th Avenue NE Bellevue, Washington 98007 425-590-4010 Routing: 325070760 Account :676313880

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6. Intellectual Property 6.1 WORK MADE FOR HIRE AND ASSIGNMENT OF RIGHTS Except as otherwise detailed in this Agreement, the Parties acknowledge and agree that the Subject Program including without limitation the Deliverables and Documentation (collectively, the Works) are work made for hire in accordance with the U.S. Copyright Act, 17 U.S.C. § 101 et seq. Accordingly, Client will be the copyright author and owner of all of the Works. To the extent permissible, Developer hereby assigns and transfers to Client all copyright and other intellectual property ownership in the Works. Developer agrees to assist Client, as well as execute any documents reasonably necessary, to perfect the assignment of such rights to Client. Developer acknowledges and agrees that the payment of Fees and a Bonus (if any), as referenced in Section 5 of this Agreement, shall be the full consideration to Developer for the assignment of rights herein. Upon payment in full of all obligations hereunder, Developer unconditionally and irrevocably grants to Client all software, improvements, code and other work produce produced by the Developer during the course of this agreement. The code shall be the sole and exclusive property of the Client. 6.2 DEVELOPER'S INTELLECTUAL PROPERTY Notwithstanding the provisions of Section 6.1 of this Agreement, the Par acknowledge and agree that: (a) Developer may use its proprietary information software (collectively, Developer Technology) in providing Services, and Deliverables, to Client; and (b) Developer shall retain full ownership over its Developer Technology. If Developer uses any of its Developer Technology in any of the Works, Client will: (i) not acquire any proprietary or ownership rights to any of Developer Technology by virtue of this Agreement; and (ii) agree not to market or use any Developer Technology as an independent stand-alone program without the prior written consent of Developer. 6.3 LICENSE TO CLIENT'S INTELLECTUAL PROPERTY To assist Developer to complete all Project-related Services and deliverable Deliverables to Client in a complete and timely manner, Client shall provide Developer access and licensed rights to the following as necessary to complete the Project: (a) text, software, graphics, photos, sounds, music, videos, designs, compilations, magnetic translations, digital conversion interactive features and the like (collectively, the Content); (b) any trademarks, service marks, trade dress and logos, whether owned or licensed by Client (collectively, the Marks); and (c) any know-how, methodologies, equipment, or processes used by Client in its operations {collectively, the Procedures); and (d) Client's Confidential Information (as defined below). As such, Client hereby grants Developer a royalty-free, worldwide, license to use its Content, Marks, Procedures and Confidential Information in order to complete the Project. Client hereby acknowledge and agrees that Client waives all moral rights to be identified as the author on any and all material or content identified under this subsection of this Agreement.

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6.4 CONFIDENTIALITY AND NON-DISCLOSURE 6.4.1 Confidential Information. Each Party acknowledges and agrees that it will receive confidential information and trade secrets from the other Party in otherwise carrying out the actions contemplated by this Agreement (collective, Confidential Information). Confidential Information does not include information at: (a) is available to the public or that becomes available to the public through no act or failure to act by the receiving Party (Receiving Party); (b) is known to the Receiving Party prior to the date of disclosure by the disclosing Party (Disclosing Party), unless the Receiving Party agreed to keep such information in confidence at the time of receipt of the information; (c) is properly obtained hereafter from a source that is not under an obligation of confidentiality with respect to such information; or (d) is developed independently by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information. 6.4.2 Non-Disclosure. Neither Party shall use or disclose Confidential Information of the other Party to any third party, without the written consent of the Disclosing Party of such Confidential Information. Receiving Party agrees to undertake reasonable measures to maintain and preserve the Confidential Information of the Disclosing Party in confidence, which measures shall be no less than the measures taken by the Receiving Party to protect its own confidential information and in no vent shall be less than reasonable care. Upon expiration or termination of this Agreement, Receiving Party will immediately destroy or erase all copies of documents or materials containing any Confidential Information provided by Disclosing Party and, upon the Disclosing Party's request, promptly confirm destruction of same by signing and returning to the Disclosing Party a certificate of destruction reasonably satisfactory to the Disclosing Party. 6.4.3 Derivatives. All Confidential Information, and any Derivatives thereof whether created by Client or Developer, remain the property of the Disclosing Party and no license or other rights to any Confidential Information or Derivatives is granted or implied hereby. For purposes of this Agreement, Derivatives shall mean: (a) for copyrightable or copyrighted material, any translation, abridgment, revision or other form in which an existing work may be recast, transformed or adapted ;(b) for patentable or patented material, any improvement thereon; and (c) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected under applicable copyright, patent, or trade secret law. 6.4.4 Notification of Suspected Disclosure. The Receiving Party further agrees to immediately notify Disclosing Party of any actual or suspected misuse misappropriation, or unauthorized disclosure of Confidential Information, which may come to Receiving Party's attention.

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6.4.5 Injunctive Relief for Breach. Because of the unique nature of the Confidential Information and other elements of the Parties business relationship, the Parties acknowledge and agree that a breach of any of the provisions of Section 6 of this Agreement by Receiving Party will irreparably harm the Disclosing Party. Accordingly, in the event of a breach or threatened breach of Section 6 of this Agreement, Disclosing Party will be entitled to seek injunctive relief to enforce the terms of Section 6 of this Agreement without the necessity of posting a bond or if a bond is required, at the minimum amount legally required.

7. Parties Relationship 7.1 INDEPENDENT CONTRACTOR Developer is undertaking the services set forth in this Agreement as an independent contractor, working at Developer's own hours and using Developer's own equipment and at Developer's own chosen place of work, with discretion concerning the revision of Services and Deliverables within Client's general direction. Nothing contained in this Agreement will be construed to constitute the Parties as partners, employees, agents or joint ventures of each other. No Party will have the authority to bind the other Party in any respect. 7.2 NON-EXCLUSIVITY Subject to the terms and conditions herein, the Parties expressly acknowledge that this Agreement does not create an exclusive business relationship between the Parties. Subject to the terms and conditions herein, Developer shall be entitled to offer and provide software design and development services to third parties solicit other clients and otherwise advertise its services.

8. Taxes Developer acknowledges and agrees that as an independent contractor, developer is responsible for the payment of such taxes and withholding on its income and activities as may be due under federal, state and local law and regulations. If appropriate, Developer will furnish Client with a Form 1099 or equivalent for the payments made to Developer.

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9. Warranties and Representations 9.1 CLIENT Client represents, warrants and covenants that: (a) Client is a duly organized, validly existing and in good standing (b) Client has the full right and legal author y to enter into and fully perform its duties and obligations under this Agreement; (c) Client owns all right, title, and interest in, or otherwise has full right and authority to permit Developer's use of Content, Marks, Procedures and Client's Confidential Information, as detailed in this Agreement; (d) is solely responsible for compliance with all federal, ate, and local laws, rules, regulations, executive orders, ordinances, standards, and best practices applicable to Client's business or industry; and (e) Client will comply with all federal, state, and local laws, rules, regulations, executive orders, ordinances, standards, and best practices applicable to Client's business or industry.

10. Indemnification 10 1 CLIENT Client shall defend, indemnify and hold harmless Developer, its member owners, officers, employees, independent contractors and agents, from and against all losses, claims, liabilities or damages and any related costs and expenses, including attorneys' fees and costs arising out of, or in any way related to any claim or action against Developer arising out of or in any way related to: (a) Client's breach of this Agreement; (b) a breach of any agreement between Client and its clients or customer; (c) Client's gross negligence or willful misconduct; (d) Client's act or omission constituting a violation of applicable federal, state, local law or regulation; or (e) any claim made against Client asserting a violation of any third party right. 10.2 DEVELOPER Developer shall defend, indemnify and hold harmless Client, its members owners, officers, employees, independent contractors and agents, from and against all losses, claims, liabilities or damages and any related costs and expenses, including attorneys' fees and costs arising out of, or in any way related to any claim or action against Client arising out of or in any way related to: (a) Developer's material breach of his Agreement; (b) Developer's gross negligence or willful misconduct; (c) De eloper's act or omission constituting a violation of applicable federal, state, local law or regulation; or (d) any claim made against Client asserting a violation of any third party intellectual property right pertaining to the Subject Program.

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10.3 NON DISPARAGEMENT CLAUSE The Client and the Designer both agree to never to disparage or speak ill of the other party to anyone and or post negative or disparaging comments Online regarding any of the Designer's products, services, affiliates, subsidiaries, officers, directors, employees or shareholders, and will take reasonable steps to prevent and will not knowingly permit any of their respective employees or agents to, disparage or speak ill of such persons. For purposes of this Section, disparage shall mean any negative statement whether written or oral, about Seattle Software Developers, Inc., Dot Com LLC. and or any of its affiliates. The Client and Designer both agree not to post on defamatory websites or review websites any negative posts concerning each other, the names of our companies, and our employees. Both the Client and the Designer both agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in the Company refusing to enter into this Agreement. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer and Client both agree to indemnify, save and hold armless each other from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer's representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client.

11. Termination 11.1 TERMINATION WITHOUT CAUSE Either Party may terminate this Agreement at any time during the term of this Agreement for any reason upon two weeks written notice to the other Party. Upon termination of this Agreement for any reason: (a) all provision of Service and Deliverables by Developer will immediately cease; (b) Client will pay Fees or all Services and Deliverables provided by Developer to Client up to and including the ate of termination; and (c) in compliance with Section 6.1 of this Agreement, Developer will transfer all Works to Client as of the date of termination. 11.2 TERMINATION FOR CAUSE This Agreement may be immediately terminated by notice of the terminating Party upon: (a) the other Party's material breach of this Agreement and fails to cure such default within ten (10) calendar days after receipt of a notice of default from the terminating Party; (b) if Client fails to pay to Developer any undisputed Fees when du and fails to cure any such breach within ten (10) calendar days after receiving notice from Developer of such failure; (c) misappropriation or unauthorized disclosure of Confidential Information by the Receiving Party; or (d) the other Party engages in any act or omission that is determined to be illegal or in violation of any applicable law or regulation.

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11.3 OBLIGATIONS UPON TERMINATION If Client terminates this Agreement or any SOW for any reason, Client will pay Developer any Fees due and payable on the effective date of such termination or expiration, and Developer will refund to Client any non-accrued pre-paid Fees. In the event of a termination or expiration of this Agreement or any SOW for any reason, developer will, as requested by and at additional cost to Client, provide up to three (3) months of Fee billable assistance (collectively, the Termination Assistance Services) in transitioning from Developer to an alternative software service provider including, without limitation, the following: (a) knowledge transfer regarding the operation, use, and support of the subject Program; return of all documentation containing Content, Marks, Procedures a d Confidential Information in a format reasonably specified by Client and assistance with data migration to an alternative solution; and (c) any related additional services as requested by Client. Developer shall provide Termination Assistance Services to Client in a manner that does not interfere with, interrupt or degrade the Subject Program. The term of this Agreement or applicable SOW shall not be deemed to have expired or terminated until the Termination Assistance Services are completed.

12. General 12.1 CHOICE OF LAW AND VENUE This Agreement will be governed by the laws of the State of Washington without regards for its conflict of laws principle. The Parties will conduct friendly negotiations to resolve any dispute arising from this Agreement, including mediation if requested by either Party. Should mediation fail, each party consents to the personal jurisdiction of the state and federal courts located in King County, Washington. If there is a dispute between the Parties relating to this Agreement, the Party substantially prevailing will be entitled to recover all costs and expenses of any subsequent proceeding (including trial, appellate, and arbitration proceedings), including reasonable attorneys' fees and costs incurred therein.

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12.2 NOTICE A notice required or permitted under this Agreement will be deemed given if in writing, and delivered by a Party in person, one (1) business day after being sent via overnight carrier, or three (3) business days after being sent by certified mail return receipt requested to the address set forth below, or such other address as may be supplied by either Party subsequently: If to Developer: SEATTLE SOFTWARE DEVELOPERS, INC 4-102ND AvenueNE, Suite 300 Bellevue, Washington 98004 IF to attorney: Copy to: Perkins Coie 1201 third avenue, Seattle, Washington 98101 Attn: LUCAS S. MICHELS, ESQ.

If to Client: Pelican Delivers Inc. Dave Comeau 5452 Pineridge Drive Bremerton, WA 983 360-731-6611

12.3 SEVERABILITY If any provision of this Agreement is held by a court of law to be illegal, invalid or unenforceable: (a) that provision shall be deemed amended to achieve s nearly as possible the same economic and/or protective effect as the original provision; and (b) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. 12.4 WAIVER No delay or omission by either Party hereto to exercise any right or pow r occurring upon any noncompliance or default by the other Party with respect to a y of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the Parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement herein contained. Unless stated otherwise, all remedies provided for in is Agreement will be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity, or otherwise. 12.5 ASSIGNMENT This Agreement will be binding on and inure to the benefit of the Parties their respective successors, assigns, heirs and personal representatives. Unless as provided herein, neither Party may assign, delegate, assign, nor subcontract their obligations and duties hereunder without the prior written consent of the non-assigning Party. Notwithstanding the foregoing, Developer may assign it rights and benefits under this Agreement, and delegate the performance of its obligations and duties hereunder, to any corporation or unincorporated business that is the successor to the business of Developer, without Client express or implied authorization.

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12.6 OTHER DEFINITIONAL TERMS, TERMS OF CONSTRUCTION The words hereof, herein and hereunder and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The words include, includes and including shall be deemed to be followed by the phrase without limitation. Unless the context in which used herein otherwise clearly requires, or has the inclusive meaning represented by the phrase and/or. All incorporations by reference of covenants, terms, definitions or other provisions from other agreements are incorporated into this Agreement as if such provisions were fully set forth herein, and include all necessary definitions and related provisions from such other agreements. All covenants, terms, definition and other provisions from other agreements incorporated into this Agreement by reference will survive termination of this Agreement. References to statutes, regulations or laws, include any amendments, modifications or replacements of such statutes, regulations, or laws. 12.7 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 t e same instrument. Counterparts may be delivered via facsimile, e-mail (including pdf) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. 12.8 ENTIRE AGREEMENT AND UNDERSTANDING This Agreement and Appendices hereto are the complete and exclusive statement of agreement of the Parties as to matters covered by it. This Agreement and its Appendices replaces and supersedes all prior written or oral agreement or statements by and among the Parties with respect to the matters covered by it. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party.

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13. Acknowledgement by Client Client agrees to the terms of this Agreement and Appendices hereto an acknowledges receipt of a copy of this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date Acceptance by Developer By: /s/ Julian Valentine Julian Valentine, VP

Acceptance by Client: By: /s/ Dave Comeau Dave Comeau, Shareholder

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Source: PELICAN DELIVERS, INC., S-1, 2/11/2020 
Question: Highlight the parts (if any) of this contract related to Post-Termination Services that should be reviewed by a lawyer. Details: Is a party subject to obligations after the termination or expiration of a contract, including any post-termination transition, payment, transfer of IP, wind-down, last-buy, or similar commitments?
If elected pursuant to the Agreement, Developer will provide Client Termination Assistance Services at an hourly rate of $[125.00 per hour].