Exhibit 10.1

EXECUTIVE EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of November 5, 2021 by and between DERMAdoctor, LLC, a Missouri limited liability company (“Company”) and Audrey Kunin (“Executive”). This Agreement is conditioned upon and will become effective on the closing (the “Closing”) of the acquisition transaction (the “Acquisition”) contemplated by the Membership Unit Purchase Agreement, dated September 27, 2021 (“Purchase Agreement”), by and among NovaBay Pharmaceuticals, Inc. (“NovaBay”), the Company, and holders of 100% of the membership units of the Company. Executive is a founder of the Company, served as an executive officer of the Company and was formerly a majority owner of the Company, holding 82.238% of its equity through ownership of Papillon Partners, Inc., prior to the Closing. As of the Closing, the Company shall become the wholly-owned subsidiary of NovaBay and NovaBay shall become the sole manager of the Company (“Manager”), acting through its Chief Executive Officer or other senior members of the executive management team (“Authorized Representative”).

Upon Closing, and in consideration of the mutual promises and covenants set forth herein, and other good and valuable consideration, the Company and Executive agree as follows:

A.    Position and Responsibilities. The Company shall employ the Executive as its Chief Product Officer and have the primary responsibilities to do and perform those duties, activities, services and responsibilities as are necessary or advisable to fulfill such duties and obligations of said position, including those that are delegated to Executive by Manager’s Chief Executive Officer or Authorized Representative. Executive shall report directly to Manager’s Chief Executive Officer or his Authorized Representative. Executive’s duties and responsibilities are not limited to the above and may change to accommodate the Company’s growing business needs. The principal place of Executive’s employment shall initially be DERMAdoctor’s executive office currently located at 4346 NW Belgium Blvd., Kansas City, MO 64150 or such other location as mutually determined by Executive and Manager; provided that, the Executive may be required to travel a reasonable amount on Company business from time to time during the Employment Term.

B.    Term. Executive’s employment hereunder shall be effective as of the date of closing of the Acquisition (the “Effective Date”) and shall be governed by the terms of this Agreement. The provisions of this Agreement shall continue in effect until the second anniversary of the Effective Date (the “Term”), unless terminated earlier pursuant to Section IV of this Agreement or otherwise extended through a written amendment to this Agreement agreed to by the parties. For the avoidance of doubt, NovaBay may renew or extend employment for the Executive beyond the Term upon the mutual agreement of the Executive though neither party has any obligation to do so. However, as described in this Agreement, Executive may be entitled to severance benefits depending upon the circumstances of Executive’s termination of employment during the Term.

C.    Devotion. Except as heretofore or hereafter excepted by the Company in writing, during the term of this Agreement, Executive (i) shall devote full time and attention to her responsibilities as Chief Product Officer, (ii) shall not engage in any other business or other activity which may materially interfere with Executive’s performance of said responsibilities, and (iii) except as to any investment made in a publicly traded entity not amounting to more than 5% of its outstanding equity, shall not, directly or indirectly, as an employee, consultant, partner, principal, director or in any other capacity, engage or participate in any business that is in competition with the Company or NovaBay; provided, however, that Executive may serve in any capacity with any civic, educational or charitable organization, provided such services do not reasonably interfere with Executive’s obligations to the Company and NovaBay.

D.    Services’ Uniqueness. It is agreed that Executive’s services to be performed under this Agreement are special, unique and extraordinary and give rise to peculiar value, the loss of which may not be reasonably or adequately compensated by a damages award, in any legal action. Accordingly, in addition to any other rights or remedies available to the Company and NovaBay, the Company and NovaBay shall be entitled to injunctive and other equitable relief to prevent or remedy a breach of the terms of this Agreement by Executive.

A.    Confidentiality Agreement. As a condition of her employment, Executive agrees to execute the At-Will Employment, Confidential Information, and Invention Assignment Agreement (the “Confidentiality Agreement”) with the Company attached hereto as Exhibit A, and incorporated by reference.

B.    Return of Company Property. All documents, records, reports, data, apparatus, equipment and other physical property which are furnished to the Executive by the Company or NovaBay, as the case may be, made available to Executive during her employment with the Company or are otherwise developed, conceptualized or produced by the Executive (subject to Section XI) in connection with the Executive’s employment with the Company, will be and remain the sole property of the Company or NovaBay, as the case may be. Upon request of the Company or NovaBay at any time or on termination of this Agreement and the Executive’s employment for any reason, with or without Cause, at any time, the Executive agrees to return to the Company all property belonging to the Company or NovaBay, which the Executive then possesses or has under the Executive’s control, including but not limited to all home office equipment and supplies; all keys, parking passes, identification cards, and security cards; all Company or NovaBay credit cards, debit cards, checkbooks and any other financial materials; all files, notes, memoranda, records, data, and/or other documents (and all copies thereof) in any form whatsoever, including information contained in hard copy and electronically in any computer, computer disks, storage drives, network system, personal device of any kind, or any other electronic device. Notwithstanding the foregoing, the Executive shall have the right to retain her Company email address (akunin@dermadoctor.com) following the termination of her employment but such email address shall not be used for conducting Company business.

Executive’s compensation, bonus rights and benefits are as follows:

A.    Salary. Executive shall be entitled to an annual salary of $200,000.00 (the “Base Salary”), subject to such deductions, withholding and other charges as required by law and shall be payable to Executive in accordance with the Company’s standard payroll schedule then in effect. Executive’s salary shall be subject to at least an annual review by the Company and may be adjusted by action of the Manager’s Board of Directors (the “Board”) based on Executive’s performance. Such adjustment shall not reduce Executive’s then current annual base salary except in the case of a general reduction in Base Salary that affects all similarly situated executives of the Company and NovaBay in substantially the same proportions.

B.    Bonus. Executive shall be eligible for any bonus plan that is deemed appropriate by the Board.

1.    Annual Bonus. Executive shall be entitled to an annual bonus of up to 100% of Base Salary (“Annual Bonus”). 60% of the total amount of the Annual Bonus (the “Performance Bonus”), if any, will be considered and approved by the Board in its sole discretion annually (for each year of service or portion thereof for the year in which employment commences) during the term of this Agreement, which Performance Bonus shall be determined by all factors deemed relevant for that purpose by the Manager and shall include (i) the fulfillment, during the relevant year, of specific milestones and tasks delegated, for such year, to Executive as set by Executive and the Manager and/or its Authorized Representative, before the end of the first calendar quarter, (ii) the evaluation of Executive by the Manager and/or its Authorized Representative, (iii) the Company’s financial, product and expected progress and (iv) other pertinent matters relating to the Company’s business and valuation. If the Contribution Margin exceeds the FY2022 Target Contribution Margin or the FY2023 Target Contribution Margin for each of the Year 1 Earn Out Period or the Year 2 Earn Out Period, respectively (as each of the preceding terms are defined in the Purchase Agreement), Executive shall be entitled to the remaining portion of her Annual Bonus, of up to 40% of her Base Salary (the “Earn Out Bonus”) as considered and approved by the Board in its sole discretion. The amount of the Performance Bonus or Earn Out Bonus determined with respect to performance during a calendar year or the Company’s fiscal year, as the case may be, will be paid in full on or before the date that is seventy-four (74) days following the end of the year for which the bonus was earned. Upon the mutual agreement of Executive and the Board, any or all of the Annual Bonus may be paid in the form of equity compensation. Any such equity compensation shall be issued from NovaBay’s Omnibus Incentive Plan, and shall be fully vested upon payment.

C.    Stock Options and Performance Restricted Stock Units. Subject to approval by the Board, Executive will be granted 300,000 performance restricted stock units (“PSUs”) and a stock option award of 150,000 shares (“Options”) under the NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan (the “Plan”). The Options shall have an exercise price equivalent to the Fair Market Value (as hereinafter defined) of NovaBay’s common stock. The “Fair Market Value” shall be equal to the volume weighted average trading price per share of NovaBay common stock (as reported on the NYSE American) during the immediately preceding twenty (20) trading days ending on the second trading day prior to the Closing. The Options are valid for ten (10) years from the Closing (the “Grant Date”). The terms of the PSUs and the Options shall be as set forth in the award agreements (the “Award Agreements”) mutually agreeable to Executive and NovaBay, which each such agreement shall provide for and govern the terms of the grant of each of the PSUs and Options, as applicable. With respect to the PSUs, the terms of the Award Agreement shall include, among other terms, that the PSUs granted to Executive shall be subject to 100% vesting only upon the completion of the applicable Performance Goals identified in Exhibit A to the applicable Award Agreement during the Performance Period. With respect to the Options, the terms of the applicable Award Agreement shall include, among other terms, that the Options granted to Executive shall vest over a two (2) year period with 50% of the total Options to vest on the one year anniversary of Executive’s employment and the remaining 50% of the Options to vest on the two (2) year anniversary of the Executive employment immediately prior to the expiration of the Term. The terms of the Award Agreements, as applicable, shall control in the event of a conflict with this Agreement.

D.    Other Benefits. Executive shall be entitled to five (5) weeks of paid time off (“PTO”) for each calendar year to be taken pursuant to the Company’s PTO benefits policy. Executive will also be eligible for other benefits as are generally available to the Company’s other similar executives, consisting of such medical, retirement and similar benefits as are so available. The Company may modify benefits from time to time as it deems necessary.

E.    Expenses. Subject to the Company’s policies, during the term, the Company shall pay on behalf of the Executive (or reimburse the Executive for) expenses incurred by the Executive at the request of, or on behalf of, the Company in the performance of the Executive’s duties pursuant to this Agreement. The Executive must file expense reports with respect to such expenses in accordance with the Company’s policies.

A.    At-Will Employment. It is understood and agreed by the Company and Executive that this Agreement does not contain any promise or representation concerning the duration of Executive's employment with the Company. Executive specifically acknowledges that her employment with the Company is at-will and may be altered or terminated by either Executive or the Company at any time, with or without cause and with or without notice. In addition, that the rate of salary, any bonuses, paid time off, other compensation, or vesting schedules are stated in units of years or months or weeks does not alter the at-will nature of the employment, and does not mean and should not be interpreted to mean that Executive is guaranteed employment to the end of any period of time or for any period of time. In the event of conflict between this disclaimer and any other statement, oral or written, present or future, concerning terms and conditions of employment, the at-will relationship confirmed by this disclaimer shall control. This at-will status cannot be altered except in a writing signed by Executive and approved by the Manager. Notwithstanding the at-will nature of employment, Executive agrees to provide 60 days’ advance written notice of her resignation in order to ensure an orderly transition.

B.    Termination of Employment. Upon termination of the Executive’s employment during the Term, the Executive shall be entitled to the compensation and benefits described in this Section IV and shall have no further rights to any compensation or any other benefits from the Company, NovaBay or any of their respective affiliates. For the avoidance of doubt, the Executive shall not be entitled to the compensation and benefits described in this Section IV upon solely the natural expiration of this Agreement at the end of the Term.

1.    For Cause. In the event that Executive is Terminated For Cause (as hereinafter defined), or upon the expiration of this Agreement, Executive shall be entitled to Executive’s earned wages through the date her employment with the Company is terminated, her accrued but unused vacation, reimbursements of her outstanding expenses incurred and submitted in compliance with Company policies and any other portion of her compensation earned through the termination date.

2.    Without Cause.

(a)    In the event that Executive is Terminated Without Cause, as hereinafter defined, during the Term, and provided such termination constitutes a “separation from service” as such term is defined in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulatory and other guidance promulgated thereunder (“Section 409A”), and further subject to the Executive's compliance with her obligations under the agreement referenced in Sections II and V herein, and her execution of a release of claims in favor of the Company and NovaBay in a form acceptable to the Company in the Company’s sole discretion (the “Release”), Executive shall be entitled to an amount equal to the Executive’s annualized Base Salary in effect on the date of termination or separation from service plus the full target annual bonus percentage for the then current fiscal year (with it deemed that all performance goals have been met at one hundred percent (100%) of budget or plan) (the “Severance Amount”). Subject to Section VII, the Severance Amount will be paid in twelve (12) equal consecutive monthly installments, with such installments commencing within sixty (60) days following Executive’s separation from service, provided that (i) the Release is executed, delivered to the Company and not revoked by Executive during the applicable revocation period, and (ii) if such sixty (60) day period begins in one calendar year and ends in the next calendar year, Executive shall not designate, nor have the right to designate, the calendar year in which such installment payments commence. The amounts payable under this Section IV.B.2 shall be in addition to Executive’s earned wages through the date her employment is terminated from the Company, her accrued but unused vacation, reimbursements of her outstanding expenses incurred and submitted in compliance with Company policies and any other portion of her compensation earned through the termination date, if any.

(b)    On Death or Disability. Executive’s employment hereunder shall terminate automatically upon the Executive’s death during the term of this Agreement, and the Company may terminate the Executive’s employment on account of the Executive’s Disability. If the Executive’s employment is terminated on account of the Executive’s death or Disability, the Executive (or the Executive’s estate and/or beneficiaries, as the case may be) shall be entitled to receive Executive’s earned wages through the date her employment is terminated from the Company, her accrued but unused vacation, reimbursements of her outstanding expenses incurred and submitted in compliance with Company policies and any other portion of her compensation earned through the termination date, if any.

(c)    In the event a Termination Without Cause, and subject to Executive’s signing and not revoking a Release as described above, all outstanding equity awards held by Executive will be subject to full accelerated vesting as of the date of termination and included in the Severance Amount. The exercise period shall also be extended to three (3) years from the date of termination.

C.    Related Provisions. The following terms, conditions and definitions shall apply to the termination of Executive:

1.    “Termination Without Cause.” For purposes of Section IV.B above, a Termination Without Cause shall be deemed to constitute any termination of Executive’s employment hereunder by the Company during the Term of the Agreement other than a Termination For Cause as defined below.

2.    “Termination For Cause” Subject to the notice requirement provided in paragraph F below, for purposes of Section IV.B above, a Termination For Cause shall be a termination of Executive’s employment hereunder made:

(a)    by the Company, if Executive:

(i)    materially breaches any material terms of the Purchase Agreement or this Agreement which has caused demonstrable injury to NovaBay or the Company;

(ii)    materially violates Company’s written policies and procedures, including but not limited to its policies prohibiting discrimination or harassment;

(iii)    commits willful gross acts of dishonesty, fraud, misrepresentation, or other acts of moral turpitude taken by Executive in connection with Executive’s responsibilities as an employee provided that no act or failure to act shall be considered “willful” under this definition unless Executive acted, or failed to act, with an absence of good faith and without a reasonable belief that her action, or failure to act, was in the best interest of the Company or NovaBay;

(iv)    is convicted of any felony or any crime under federal or state law involving moral turpitude resulting in either case in significant and demonstrable harm to the Company or NovaBay; or

(v)    fails or refuses to perform her duties under this Agreement, or fails to achieve tasks as reasonably requested in writing by the Manager or Authorized Representative (other than any such failure resulting from a Disability), including but not limited to failure to perform, or continuing to neglect the performance of duties assigned to Executive, which failure or neglect will significantly and adversely affect the Company’s or NovaBay’s business or business prospects and which failure is due to circumstances within Executive’s reasonable control.

(b)    by Executive. In no event shall Executive be entitled to severance in any amount as a result of a resignation by Executive for any reason, included but not limited to a resignation based on a claim of constructive termination.

3.        “Disability”: For purposes of Section IV.B above, Disability shall mean the Executive’s inability, due to physical or mental incapacity, to perform the essential functions of her job, with or without reasonable accommodation, for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty (120) consecutive days. Any question as to the existence of the Executive’s Disability as to which the Executive and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Executive and the Company. If the Executive and the Company cannot agree as to a qualified independent physician, each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of Disability made in writing to the Company and the Executive shall be final and conclusive for all purposes of this Agreement.

D.    Company Actions. All relevant determinations to be made by the Company under paragraph C.2 above shall be made in the reasonable discretion of the Manager or Authorized Representative, acting in good faith, and, except as otherwise specified herein, shall be conclusive and binding, but shall be subject to arbitration in accordance with Section VI below.

E.    No Duty to Mitigate. Executive is under no contractual or legal obligation to mitigate Executive’s damages in order to receive the severance benefits provided in this Agreement.

F.    Notice and Remedy. In the event of a termination by the Company under paragraph C.2(a) above, which the Company acting in good faith determines may be cured by Executive, then the Company shall first give a written notice to the Executive (by mail, or by email, or by fax, to the last known address of the recipient; said notice being deemed given, if by mail, as of the earlier of four days after mailing or as of the date when actually received, or, if by email or fax, when sent), specifying the reason for termination and providing a period of 30 days to cure the fault or reason specified. Lacking such cure within said 30 days, or if the Executive earlier refuses to effect the cure, the termination shall then be deemed effective. If such cure is so made, the termination shall not then be deemed effective, but any later conduct of a similar nature constituting a reason for termination shall allow the Company the right to cause the termination effectiveness without need for any further period of time to cure. All communications shall be sent to the address as set forth on the signature page hereof, or to such other address as Executive may designate by ten days’ advance written notice to the Company.

A.    Restrictive Covenants. Executive acknowledges that Executive will serve a critical business role and that she already has (as a result of being a former founder and majority equity owner of the Company) and will continue to acquire Confidential Information about the business, operations, manufacturers, products, sales and distribution channels, vendors, suppliers, customers, partners, contractors, licensees/licensors and trade connections of the Company, including those of its parent company, NovaBay, and currently possesses and will continue to develop critical relationships with the Company’s and NovaBay’s or their respective affiliates’ customers and the other key aspects of their respective businesses. Executive also acknowledges that the Company’s, NovaBay’s or any of their respective affiliates businesses compete in North America and globally for clients and customers. In exchange for the Company’s agreement to provide its Confidential Information to Executive, and in order to enforce the promise to protect Confidential Information and for the Company to protect its interests and that of NovaBay and their respective affiliates, Executive agrees that for a period of two (2) years following her termination of employment for any reason (“Post-Termination Period”) Executive shall not directly or indirectly and whether alone or in conjunction with or on behalf of any other person and whether as a principal, shareholder (or other direct or indirect equity holder), director, manager, employee, agent, consultant, contractor, partner or otherwise:

1.    take any steps preparatory to or be engaged or concerned or interested in or provide technical, commercial or professional advice to any business which carries out any Restricted Business or to any customer and/or client of the Company, NovaBay or any of their respective affiliates; provided, however, that the foregoing shall not prohibit Executive from acquiring, solely as an investment and through market purchases, securities of any entity which are registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and which are publicly traded, so long as Executive is not part of any control group of such entity and such securities, if converted, do not constitute beneficial ownership (including all members of the immediate family of Executive) of more than five percent (5%) of the outstanding voting power of that entity;

2.    solicit or accept business from any customer, licensee/licensor, partner and/or client of the Company, NovaBay or any of their respective affiliates (including any person, firm, company or organization who or which was in negotiation with the Company, NovaBay or any of their respective affiliates during Executive’s employment with the Company, including such Executive’s employment prior to the date of this Agreement), in which during the preceding twelve (12) months of Executive’s employment with the Company Executive was either involved (directly or indirectly) or about which Executive received Confidential Information, if such business competes with the business conducted or proposed to be conducted by the Company, NovaBay or any of their respective affiliates;

3.    solicit, recruit or hire any employee, contractor or consultant of the Company or NovaBay to work for a third party other than the Company, NovaBay or any of their respective affiliates or engage in any activity that would cause any employee, contractor or consultant of the Company, NovaBay or any of their respective affiliates to violate any agreement with the Company, NovaBay or any of their respective affiliates; and

4.    deliberately cause or attempt to cause (i) any client, customer, vendor, distributor, reseller, partner or supplier of the Company, NovaBay or any of their respective affiliates with which during the preceding twelve (12) months of Executive’s employment with the Company Executive was either involved (directly or indirectly) or about which Executive received Confidential Information, to terminate or materially reduce its business with the Company, NovaBay or any of their respective affiliates; or (ii) any consultant or contractor of the Company, NovaBay or any of their respective affiliates to resign or sever a relationship with the Company, NovaBay or any of their respective affiliates.

For the purposes of this Section V, "Restricted Business" means any business activities, wherever located throughout the world that are competitive with NovaBay’s medical device business that include the development, manufacture, marketing, licensing, sales and distribution of its products, and those of its affiliates that include the Company’s business of developing, manufacturing, marketing, branding, distributing and selling skincare solutions and cosmetic products for consumers to address dermatological conditions.

Executive acknowledges that Executive is qualified for other comparable employment, including for entities that do not compete with the Company, NovaBay or any of their respective affiliates. Accordingly, Executive represents and warrants that Executive’s experience and capabilities are such that Executive will be able to earn an adequate livelihood for herself and her dependents while she is complying with this covenant or if this covenant should be specifically enforced against her.

B.    Remedies for Breach. Executive stipulates that the covenants contained herein are essential for the protection of the trade secrets, confidential business and technological information, relationships, and competitive position of the Company, NovaBay and their respective affiliates; that a breach of any covenant contained herein would cause the Company, NovaBay or their respective affiliates irreparable damage for which damages at law would not be an adequate remedy; and that, in addition to damages and other remedies to which the Company or NovaBay would otherwise be entitled, it will be entitled to whatever injunctive relief is appropriate for any such breach. In addition to such other rights and remedies as the Company or Novabay may have at equity or in law with respect to any breach of this Agreement, if Executive commits a material breach of any of the provisions of this Section V, the Company and NovaBay shall have the right and remedy to have such provisions specifically enforced by any court having equity jurisdiction. The term(s) of any covenant(s) in this Section V will not run during any time in which Executive is in violation of said covenant(s). Notwithstanding the foregoing, if a restriction or any portion thereof contained in this Section V is deemed to be unreasonable by a court of competent jurisdiction, Executive and the Company agree that such restriction, or portion thereof, shall be modified in order to make it reasonable and shall be enforceable accordingly. The covenants in this Section V will survive the termination of this Agreement and Executive’s employment.

Any dispute, controversy, or claim arising out of or related to this Agreement or any breach of this Agreement shall be submitted to and decided by binding arbitration conducted before a single arbitrator in Kansas City, Missouri. Arbitration shall be administered exclusively by JAMS pursuant to its Employment Arbitration Rules & Procedures, which can be found at http://www.jamsadr.com/rules-employment-arbitration/ and shall be conducted consistent with the rules, regulations, and requirements thereof as well as any requirements imposed by state law. Any arbitral award determination shall be final and binding upon the parties.

This Agreement is intended to comply with the requirements of Section 409A or an applicable exception to Section 409A. If, at the time of Executive’s termination, any stock of NovaBay is publicly-traded and NovaBay and the Company determine that Executive is a “specified employee” within the meaning of Section 409A at such time, then (i) the Severance Amount (to the extent that it is nonqualified deferred compensation subject to Section 409A to which an exception is inapplicable) will commence, or be paid as applicable, on the earlier of (A) the first business day following expiration of the six-month period measured from the date of Executive’s Section 409A separation from service or (B) the date of Executive’s death and (ii) the installments that otherwise would have been paid prior to such six-month date will be paid in a lump sum on the date when the Severance Amount installment payments commence. Any installment payments provided for in this Agreement shall be, and shall be treated as, a series of separate payments for purposes of Section 409A. Executive understands and agrees that the Company makes no assurances with respect to the tax consequences arising as a result of this Agreement and the payment of any tax liabilities or related penalties arising out of this Agreement is solely and exclusively the responsibility of Executive, without any expectation or understanding that the Company will pay or reimburse Executive for such taxes or other items.

To the extent that any benefits or reimbursements provided or payable to Executive are subject to Section 409A, any reimbursement payment due to Executive shall be paid to Executive on or before the last day of the Company’s taxable year following the taxable year in which the related expense was incurred; and the benefits and reimbursements pursuant to this Agreement are not subject to liquidation or exchange for another benefit and the amount of such benefits and reimbursements that Executive receives in one taxable year shall not affect the amount of such benefits or reimbursements that Executive receives in any other taxable year.

The parties have cooperated in the drafting and preparation of this Agreement, have consulted or had an opportunity to consult with counsel if desired, and together have fully negotiated the terms and conditions herein. Hence, in any construction or interpretation of this Agreement, the same shall not be construed against any party on the basis that such party was the drafter. Executive acknowledges that no individual representing the Company or NovaBay has given legal advice with respect to this Agreement.

The parties agree that certain matters in which the Executive will be involved during her employment may necessitate the Executive’s cooperation in the future. Accordingly, following the termination of the Executive’s employment for any reason, to the extent reasonably requested by the Authorized Representative, the Executive shall cooperate with the Company and Manager in connection with matters arising out of the Executive’s service to the Company; provided that, the Company shall make reasonable efforts to minimize disruption of the Executive’s other activities. The Company shall reimburse the Executive for reasonable expenses incurred in connection with such cooperation and, to the extent that the Executive is required to spend substantial time on such matters, the Company shall compensate the Executive at an hourly rate based on the Executive’s Base Salary as of the date of termination.

The Executive agrees and covenants that she will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Company, NovaBay and/or their respective businesses, or any of its employees, directors, officers, customers, suppliers, investors or other associated third parties.

This Section X does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. The Executive shall promptly provide written notice of any such order to the Manager or Authorized Representative.

During the term of the Executive’s employment hereunder, subject to Section 7.13 of the Purchase Agreement, Executive hereby irrevocably consents to any and all uses and displays, by the Company or NovaBay and their respective agents, representatives and licensees, of the Executive’s name, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and media throughout the world, at any time during the period of her employment by the Company, for all legitimate commercial and business purposes of the Company or NovaBay (“Permitted Uses”) without further consent from or royalty, payment, or other compensation to the Executive. Subject to Section 7.13 of the Purchase Agreement, the Executive hereby waives and releases the Company, NovaBay and their respective directors, managers, officers, employees, representatives and agents from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising under any legal or equitable theory whatsoever at any time during the period of her employment by the Company, arising directly or indirectly from the Company’s, NovaBay’s and their respective directors’, managers’, officers’, employees’, representatives’ and agents’ exercise of their rights in connection with any Permitted Uses.

Except as otherwise specifically provided herein, this Agreement:

A.    and any benefits or obligations herein may not be assigned or delegated by Executive (but may be so assigned or delegated by the Company);

B.    together with Confidentiality Agreement, the Plan and the Award Agreements, and the Purchase Agreement, constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the subject matter hereof. No future agreements between the Company and Executive may supersede this Agreement, unless they are in writing and specifically mention this Section XII.B.;

C.    may be amended or modified only by a written amendment or modification signed by the Company and Executive;

D.    is made in, and shall be construed under the laws of, the State of Missouri (with the exception of its conflict of laws provisions). Subject to Section VI of this Agreement, any action or proceeding by either of the parties to enforce this Agreement shall be brought only in a state or federal court located in the State of Missouri, County of Platte. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue;

E.    inures to the benefit of, and is binding upon, the permitted successors, assigns, distributees, personal representatives, heirs and other successors-in-interest to and of the parties hereto;

F.    shall not be interpreted by reference to any of the captions or headings of the paragraphs herein, which captions or headings have been inserted for convenience purposes only;

G.    shall be fully effectuated in accordance with its tenor, effect and purposes by each of the parties hereto by executing such further documents or taking such other actions as may be reasonably requested by the other party hereto;

H.    shall be interpreted, as to its remaining provisions, to be fully lawful and operative, to the extent reasonably required to fulfill its principal tenor, effect and purposes, in the event that any provision either is found by any court of competent jurisdiction to be unlawful or inoperative or violates any statutory or legal requirement, and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; and

I.    may be executed in more than one counterpart, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

IN WITNESS WHEREOF, the Company and Executive have executed this Agreement as of the day and year first above written.

[Employment Agreement (Audrey Kunin) Signature Page]

Exhibit 10.2

EXECUTIVE EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into as of November 5, 2021 by and between DERMAdoctor, LLC, a Missouri limited liability company (“Company”) and Jeffrey Kunin (“Executive”). This Agreement is conditioned upon and will become effective on the closing (the “Closing”) of the acquisition transaction (the “Acquisition”) contemplated by the Membership Unit Purchase Agreement, dated September 27, 2021 (“Purchase Agreement”), by and among NovaBay Pharmaceuticals, Inc. (“NovaBay”), the Company, and holders of 100% of the membership units of the Company. Executive is a founder of the Company, served as an executive officer of the Company and was formerly a majority owner of the Company, holding 82.238% of its equity through ownership of Papillon Partners, Inc., prior to the Closing. As of the Closing, the Company shall become the wholly-owned subsidiary of NovaBay and NovaBay shall become the sole manager of the Company (“Manager”), acting through its Chief Executive Officer or other senior members of the executive management team (“Authorized Representative”).

Upon Closing, and in consideration of the mutual promises and covenants set forth herein, and other good and valuable consideration, the Company and Executive agree as follows:

A.    Position and Responsibilities. The Company shall employ the Executive as its President and have the primary responsibilities to do and perform those duties, activities, services and responsibilities as are necessary or advisable to fulfill such duties and obligations of said position, including those that are delegated to Executive by Manager’s Chief Executive Officer or Authorized Representative. Executive shall report directly to Manager’s Chief Executive Officer or his Authorized Representative. Executive’s duties and responsibilities are not limited to the above and may change to accommodate the Company’s growing business needs. The principal place of Executive’s employment shall initially be DERMAdoctor’s executive office currently located at 4346 NW Belgium Blvd., Kansas City, MO 64150 or such other location as mutually determined by Executive and Manager; provided that, the Executive may be required to travel a reasonable amount on Company business from time to time during the Employment Term.

B.    Term. Executive’s employment hereunder shall be effective as of the date of closing of the Acquisition (the “Effective Date”) and shall be governed by the terms of this Agreement. The provisions of this Agreement shall continue in effect until the second anniversary of the Effective Date (the “Term”), unless terminated earlier pursuant to Section IV of this Agreement or otherwise extended through a written amendment to this Agreement agreed to by the parties. For the avoidance of doubt, NovaBay may renew or extend employment for the Executive beyond the Term upon the mutual agreement of the Executive though neither party has any obligation to do so. However, as described in this Agreement, Executive may be entitled to severance benefits depending upon the circumstances of Executive’s termination of employment during the Term.

C.    Devotion. Except as heretofore or hereafter excepted by the Company in writing, during the term of this Agreement, Executive (i) shall devote full time and attention to his responsibilities as President, (ii) shall not engage in any other business or other activity which may materially interfere with Executive’s performance of said responsibilities, and (iii) except as to any investment made in a publicly traded entity not amounting to more than 5% of its outstanding equity, shall not, directly or indirectly, as an employee, consultant, partner, principal, director or in any other capacity, engage or participate in any business that is in competition with the Company or NovaBay; provided, however, that Executive may serve in any capacity with any civic, educational or charitable organization, provided such services do not reasonably interfere with Executive’s obligations to the Company and NovaBay. The Company and NovaBay agree and acknowledge that Executive’s performance of professional medical services as a doctor in the geographic locales where Executive is licensed to perform such services shall not be considered a violation of this Section I(C.) or this Agreement so long as such activities do not reasonably interfere with Executive’s obligations to the Company and NovaBay, and Executive does not violate the covenants in Section V.

D.    Services’ Uniqueness. It is agreed that Executive’s services to be performed under this Agreement are special, unique and extraordinary and give rise to peculiar value, the loss of which may not be reasonably or adequately compensated by a damages award, in any legal action. Accordingly, in addition to any other rights or remedies available to the Company and NovaBay, the Company and NovaBay shall be entitled to injunctive and other equitable relief to prevent or remedy a breach of the terms of this Agreement by Executive.

A.    Confidentiality Agreement. As a condition of his employment, Executive agrees to execute the At-Will Employment, Confidential Information, and Invention Assignment Agreement (the “Confidentiality Agreement”) with the Company attached hereto as Exhibit A, and incorporated by reference.

B.    Return of Company Property. All documents, records, reports, data, apparatus, equipment and other physical property which are furnished to the Executive by the Company or NovaBay, as the case may be, made available to Executive during his employment with the Company or are otherwise developed, conceptualized or produced by the Executive (subject to Section XI) in connection with the Executive’s employment with the Company, will be and remain the sole property of the Company or NovaBay, as the case may be. Upon request of the Company or NovaBay at any time or on termination of this Agreement and the Executive’s employment for any reason, with or without Cause, at any time, the Executive agrees to return to the Company all property belonging to the Company or NovaBay, which the Executive then possesses or has under the Executive’s control, including but not limited to all home office equipment and supplies; all keys, parking passes, identification cards, and security cards; all Company or NovaBay credit cards, debit cards, checkbooks and any other financial materials; all files, notes, memoranda, records, data, and/or other documents (and all copies thereof) in any form whatsoever, including information contained in hard copy and electronically in any computer, computer disks, storage drives, network system, personal device of any kind, or any other electronic device. Notwithstanding the foregoing, the Executive shall have the right to retain his Company email address (jkunin@dermadoctor.com) following the termination of his employment but such email address shall not be used for conducting Company business.

Executive’s compensation, bonus rights and benefits are as follows:

A.    Salary. Executive shall be entitled to an annual salary of $150,000.00 (the “Base Salary”), subject to such deductions, withholding and other charges as required by law and shall be payable to Executive in accordance with the Company’s standard payroll schedule then in effect. Executive’s salary shall be subject to at least an annual review by the Company and may be adjusted by action of the Manager’s Board of Directors (the “Board”) based on Executive’s performance. Such adjustment shall not reduce Executive’s then current annual base salary except in the case of a general reduction in Base Salary that affects all similarly situated executives of the Company and NovaBay in substantially the same proportions.

B.    Bonus. Executive shall be eligible for any bonus plan that is deemed appropriate by the Board.

1.    Annual Bonus. Executive shall be entitled to an annual bonus of up to 35% of Base Salary (“Annual Bonus”) if the Contribution Margin exceeds the FY2022 Target Contribution Margin or the FY2023 Target Contribution Margin for each of the Year 1 Earn Out Period or the Year 2 Earn Out Period, respectively (as each of the preceding terms are defined in the Purchase Agreement), by any amount. Such amount of the Annual Bonus, if any, will be considered and approved by the Board in its sole discretion annually during the term of this Agreement. The amount of the Annual Bonus determined with respect to performance during the Company’s fiscal year will be paid in full on or before the date that is seventy-four (74) days following the end of the year for which the bonus was earned. Upon the mutual agreement of Executive and the Board, any or all of the Annual Bonus may be paid in the form of equity compensation. Any such equity compensation shall be issued from NovaBay’s Omnibus Incentive Plan, and shall be fully vested upon payment.

C.    Other Benefits. Executive shall be entitled to five (5) weeks of paid time off (“PTO”) for each calendar year to be taken pursuant to the Company’s PTO benefits policy. Executive will also be eligible for other benefits as are generally available to the Company’s other similar executives, consisting of such medical, retirement and similar benefits as are so available. The Company may modify benefits from time to time as it deems necessary.

D.    Expenses. Subject to the Company’s policies, during the term, the Company shall pay on behalf of the Executive (or reimburse the Executive for) expenses incurred by the Executive at the request of, or on behalf of, the Company in the performance of the Executive’s duties pursuant to this Agreement. The Executive must file expense reports with respect to such expenses in accordance with the Company’s policies.

A.    At-Will Employment. It is understood and agreed by the Company and Executive that this Agreement does not contain any promise or representation concerning the duration of Executive's employment with the Company. Executive specifically acknowledges that his employment with the Company is at-will and may be altered or terminated by either Executive or the Company at any time, with or without cause and with or without notice. In addition, that the rate of salary, any bonuses, paid time off, other compensation, or vesting schedules are stated in units of years or months or weeks does not alter the at-will nature of the employment, and does not mean and should not be interpreted to mean that Executive is guaranteed employment to the end of any period of time or for any period of time. In the event of conflict between this disclaimer and any other statement, oral or written, present or future, concerning terms and conditions of employment, the at-will relationship confirmed by this disclaimer shall control. This at-will status cannot be altered except in a writing signed by Executive and approved by the Manager. Notwithstanding the at-will nature of employment, Executive agrees to provide 60 days’ advance written notice of his resignation in order to ensure an orderly transition.

B.    Termination of Employment. Upon termination of the Executive’s employment during the Term, the Executive shall be entitled to the compensation and benefits described in this Section IV and shall have no further rights to any compensation or any other benefits from the Company, NovaBay or any of their respective affiliates. For the avoidance of doubt, the Executive shall not be entitled to the compensation and benefits described in this Section IV upon solely the natural expiration of this Agreement at the end of the Term.

1.    For Cause. In the event that Executive is Terminated For Cause (as hereinafter defined), or upon the expiration of this Agreement, Executive shall be entitled to Executive’s earned wages through the date his employment with the Company is terminated, his accrued but unused vacation, reimbursements of his outstanding expenses incurred and submitted in compliance with Company policies and any other portion of his compensation earned through the termination date.

2.    Without Cause.

(a)    In the event that Executive is Terminated Without Cause, as hereinafter defined, during the Term, and provided such termination constitutes a “separation from service” as such term is defined in Section 409A of the Internal Revenue Code of 1986, as amended, and the regulatory and other guidance promulgated thereunder (“Section 409A”), and further subject to the Executive's compliance with his obligations under the agreement referenced in Sections II and V herein, and his execution of a release of claims in favor of the Company and NovaBay in a form acceptable to the Company in the Company’s sole discretion (the “Release”), Executive shall be entitled to an amount equal to the Executive’s annualized Base Salary in effect on the date of termination or separation from service plus the full target annual bonus percentage for the then current fiscal year (with it deemed that all performance goals have been met at one hundred percent (100%) of budget or plan) (the “Severance Amount”). Subject to Section VII, the Severance Amount will be paid in twelve (12) equal consecutive monthly installments, with such installments commencing within sixty (60) days following Executive’s separation from service, provided that (i) the Release is executed, delivered to the Company and not revoked by Executive during the applicable revocation period, and (ii) if such sixty (60) day period begins in one calendar year and ends in the next calendar year, Executive shall not designate, nor have the right to designate, the calendar year in which such installment payments commence. The amounts payable under this Section IV.B.2 shall be in addition to Executive’s earned wages through the date his employment is terminated from the Company, his accrued but unused vacation, reimbursements of his outstanding expenses incurred and submitted in compliance with Company policies and any other portion of his compensation earned through the termination date, if any.

(b)    On Death or Disability. Executive’s employment hereunder shall terminate automatically upon the Executive’s death during the term of this Agreement, and the Company may terminate the Executive’s employment on account of the Executive’s Disability. If the Executive’s employment is terminated on account of the Executive’s death or Disability, the Executive (or the Executive’s estate and/or beneficiaries, as the case may be) shall be entitled to receive Executive’s earned wages through the date his employment is terminated from the Company, his accrued but unused vacation, reimbursements of his outstanding expenses incurred and submitted in compliance with Company policies and any other portion of his compensation earned through the termination date, if any.

(c)    In the event a Termination Without Cause, and subject to Executive’s signing and not revoking a Release as described above, all outstanding equity awards held by Executive will be subject to full accelerated vesting as of the date of termination and included in the Severance Amount. The exercise period shall also be extended to three (3) years from the date of termination.

C.    Related Provisions. The following terms, conditions and definitions shall apply to the termination of Executive:

1.    “Termination Without Cause.” For purposes of Section IV.B above, a Termination Without Cause shall be deemed to constitute any termination of Executive’s employment hereunder by the Company during the Term of the Agreement other than a Termination For Cause as defined below.

2.    “Termination For Cause” Subject to the notice requirement provided in paragraph F below, for purposes of Section IV.B above, a Termination For Cause shall be a termination of Executive’s employment hereunder made:

(a)    by the Company, if Executive:

(i)    materially breaches any material terms of this Agreement or the Purchase Agreement which has caused demonstrable injury to NovaBay or the Company;

(ii)    materially violates Company’s written policies and procedures, including but not limited to its policies prohibiting discrimination or harassment;

(iii)    commits willful gross acts of dishonesty, fraud, misrepresentation, or other acts of moral turpitude taken by Executive in connection with Executive’s responsibilities as an employee provided that no act or failure to act shall be considered “willful” under this definition unless Executive acted, or failed to act, with an absence of good faith and without a reasonable belief that his action, or failure to act, was in the best interest of the Company or NovaBay;

(iv)    is convicted of any felony or any crime under federal or state law involving moral turpitude resulting in either case in significant and demonstrable harm to the Company or NovaBay; or

(v)    fails or refuses to perform his duties under this Agreement, or fails to achieve tasks as reasonably requested in writing by the Manager or Authorized Representative (other than any such failure resulting from a Disability), including but not limited to failure to perform, or continuing to neglect the performance of duties assigned to Executive, which failure or neglect will significantly and adversely affect the Company’s or NovaBay’s business or business prospects and which failure is due to circumstances within Executive’s reasonable control.

(b)    by Executive. In no event shall Executive be entitled to severance in any amount as a result of a resignation by Executive for any reason, included but not limited to a resignation based on a claim of constructive termination.

3.     “Disability”: For purposes of Section IV.B above, Disability shall mean the Executive’s inability, due to physical or mental incapacity, to perform the essential functions of his job, with or without reasonable accommodation, for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty (120) consecutive days. Any question as to the existence of the Executive’s Disability as to which the Executive and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Executive and the Company. If the Executive and the Company cannot agree as to a qualified independent physician, each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of Disability made in writing to the Company and the Executive shall be final and conclusive for all purposes of this Agreement.

D.    Company Actions. All relevant determinations to be made by the Company under paragraph C.2 above shall be made in the reasonable discretion of the Manager or Authorized Representative, acting in good faith, and, except as otherwise specified herein, shall be conclusive and binding, but shall be subject to arbitration in accordance with Section VI below.

E.    No Duty to Mitigate. Executive is under no contractual or legal obligation to mitigate Executive’s damages in order to receive the severance benefits provided in this Agreement.

F.    Notice and Remedy. In the event of a termination by the Company under paragraph C.2(a) above, which the Company acting in good faith determines may be cured by Executive, then the Company shall first give a written notice to Executive (by mail, or by email, or by fax, to the last known address of the recipient; said notice being deemed given, if by mail, as of the earlier of four days after mailing or as of the date when actually received, or, if by email or fax, when sent), specifying the reason for termination and providing a period of 30 days to cure the fault or reason specified. Lacking such cure within said 30 days, or if Executive earlier refuses to effect the cure, the termination shall then be deemed effective. If such cure is so made, the termination shall not then be deemed effective, but any later conduct of a similar nature constituting a reason for termination shall allow the Company the right to cause the termination effectiveness without need for any further period of time to cure. All communications shall be sent to the address as set forth on the signature page hereof, or to such other address as Executive may designate by ten days’ advance written notice to the Company.

A.    Restrictive Covenants. Executive acknowledges that Executive will serve a critical business role and that he already has (as a result of being a former founder and majority equity owner of the Company) and will continue to acquire Confidential Information about the business, operations, manufacturers, products, sales and distribution channels, vendors, suppliers, customers, partners, contractors, licensees/licensors and trade connections of the Company, including those of its parent company, NovaBay, and currently possesses and will continue to develop critical relationships with the Company’s and NovaBay’s or their respective affiliates’ customers and the other key aspects of their respective businesses. Executive also acknowledges that the Company’s, NovaBay’s or any of their respective affiliates businesses compete in North America and globally for clients and customers. In exchange for the Company’s agreement to provide its Confidential Information to Executive, and in order to enforce the promise to protect Confidential Information and for the Company to protect its interests and that of NovaBay and their respective affiliates, Executive agrees that for a period of two (2) years following his termination of employment for any reason (“Post-Termination Period”) Executive shall not directly or indirectly and whether alone or in conjunction with or on behalf of any other person and whether as a principal, shareholder (or other direct or indirect equity holder), director, manager, employee, agent, consultant, contractor, partner or otherwise:

1.    take any steps preparatory to or be engaged or concerned or interested in or provide technical, commercial or professional advice to any business which carries out any Restricted Business or to any customer and/or client of the Company, NovaBay or any of their respective affiliates; provided, however, that the foregoing shall not prohibit Executive from acquiring, solely as an investment and through market purchases, securities of any entity which are registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and which are publicly traded, so long as Executive is not part of any control group of such entity and such securities, if converted, do not constitute beneficial ownership (including all members of the immediate family of Executive) of more than five percent (5%) of the outstanding voting power of that entity;

2.    solicit or accept business from any customer, licensee/licensor, partner and/or client of the Company, NovaBay or any of their respective affiliates (including any person, firm, company or organization who or which was in negotiation with the Company, NovaBay or any of their respective affiliates during Executive’s employment with the Company, including such Executive’s employment prior to the date of this Agreement), in which during the preceding twelve (12) months of Executive’s employment with the Company Executive was either involved (directly or indirectly) or about which Executive received Confidential Information, if such business competes with the business conducted or proposed to be conducted by the Company, NovaBay or any of their respective affiliates;

3.    solicit, recruit or hire any employee, contractor or consultant of the Company or NovaBay to work for a third party other than the Company, NovaBay or any of their respective affiliates or engage in any activity that would cause any employee, contractor or consultant of the Company, NovaBay or any of their respective affiliates to violate any agreement with the Company, NovaBay or any of their respective affiliates; and

4.    deliberately cause or attempt to cause (i) any client, customer, vendor, distributor, reseller, partner or supplier of the Company, NovaBay or any of their respective affiliates with which during the preceding twelve (12) months of Executive’s employment with the Company Executive was either involved (directly or indirectly) or about which Executive received Confidential Information, to terminate or materially reduce its business with the Company, NovaBay or any of their respective affiliates; or (ii) any consultant or contractor of the Company, NovaBay or any of their respective affiliates to resign or sever a relationship with the Company, NovaBay or any of their respective affiliates.

For the purposes of this Section V, "Restricted Business" means any business activities, wherever located throughout the world that are competitive with NovaBay’s medical device business that include the development, manufacture, marketing, licensing, sales and distribution of its products, and those of its affiliates that include the Company’s business of developing, manufacturing, marketing, branding, distributing and selling skincare solutions and cosmetic products for consumers to address dermatological conditions.

Executive acknowledges that Executive is qualified for other comparable employment, including for entities that do not compete with the Company, NovaBay or any of their respective affiliates. Accordingly, Executive represents and warrants that Executive’s experience and capabilities are such that Executive will be able to earn an adequate livelihood for himself and his dependents while he is complying with this covenant or if this covenant should be specifically enforced against him.

B.    Remedies for Breach. Executive stipulates that the covenants contained herein are essential for the protection of the trade secrets, confidential business and technological information, relationships, and competitive position of the Company, NovaBay and their respective affiliates; that a breach of any covenant contained herein would cause the Company, NovaBay or their respective affiliates irreparable damage for which damages at law would not be an adequate remedy; and that, in addition to damages and other remedies to which the Company or NovaBay would otherwise be entitled, it will be entitled to whatever injunctive relief is appropriate for any such breach. In addition to such other rights and remedies as the Company or Novabay may have at equity or in law with respect to any breach of this Agreement, if Executive commits a material breach of any of the provisions of this Section V, the Company and NovaBay shall have the right and remedy to have such provisions specifically enforced by any court having equity jurisdiction. The term(s) of any covenant(s) in this Section V will not run during any time in which Executive is in violation of said covenant(s). Notwithstanding the foregoing, if a restriction or any portion thereof contained in this Section V is deemed to be unreasonable by a court of competent jurisdiction, Executive and the Company agree that such restriction, or portion thereof, shall be modified in order to make it reasonable and shall be enforceable accordingly. The covenants in this Section V will survive the termination of this Agreement and Executive’s employment.

Any dispute, controversy, or claim arising out of or related to this Agreement or any breach of this Agreement shall be submitted to and decided by binding arbitration conducted before a single arbitrator in Kansas City, Missouri. Arbitration shall be administered exclusively by JAMS pursuant to its Employment Arbitration Rules & Procedures, which can be found at http://www.jamsadr.com/rules-employment-arbitration/ and shall be conducted consistent with the rules, regulations, and requirements thereof as well as any requirements imposed by state law. Any arbitral award determination shall be final and binding upon the parties.

This Agreement is intended to comply with the requirements of Section 409A or an applicable exception to Section 409A. If, at the time of Executive’s termination, any stock of NovaBay is publicly-traded and NovaBay and the Company determine that Executive is a “specified employee” within the meaning of Section 409A at such time, then (i) the Severance Amount (to the extent that it is nonqualified deferred compensation subject to Section 409A to which an exception is inapplicable) will commence, or be paid as applicable, on the earlier of (A) the first business day following expiration of the six-month period measured from the date of Executive’s Section 409A separation from service or (B) the date of Executive’s death and (ii) the installments that otherwise would have been paid prior to such six-month date will be paid in a lump sum on the date when the Severance Amount installment payments commence. Any installment payments provided for in this Agreement shall be, and shall be treated as, a series of separate payments for purposes of Section 409A. Executive understands and agrees that the Company makes no assurances with respect to the tax consequences arising as a result of this Agreement and the payment of any tax liabilities or related penalties arising out of this Agreement is solely and exclusively the responsibility of Executive, without any expectation or understanding that the Company will pay or reimburse Executive for such taxes or other items.

To the extent that any benefits or reimbursements provided or payable to Executive are subject to Section 409A, any reimbursement payment due to Executive shall be paid to Executive on or before the last day of the Company’s taxable year following the taxable year in which the related expense was incurred; and the benefits and reimbursements pursuant to this Agreement are not subject to liquidation or exchange for another benefit and the amount of such benefits and reimbursements that Executive receives in one taxable year shall not affect the amount of such benefits or reimbursements that Executive receives in any other taxable year.

The parties have cooperated in the drafting and preparation of this Agreement, have consulted or had an opportunity to consult with counsel if desired, and together have fully negotiated the terms and conditions herein. Hence, in any construction or interpretation of this Agreement, the same shall not be construed against any party on the basis that such party was the drafter. Executive acknowledges that no individual representing the Company or NovaBay has given legal advice with respect to this Agreement.

The parties agree that certain matters in which the Executive will be involved during his employment may necessitate the Executive’s cooperation in the future. Accordingly, following the termination of the Executive’s employment for any reason, to the extent reasonably requested by the Authorized Representative, the Executive shall cooperate with the Company and Manager in connection with matters arising out of the Executive’s service to the Company; provided that, the Company shall make reasonable efforts to minimize disruption of the Executive’s other activities. The Company shall reimburse the Executive for reasonable expenses incurred in connection with such cooperation and, to the extent that the Executive is required to spend substantial time on such matters, the Company shall compensate the Executive at an hourly rate based on the Executive’s Base Salary as of the date of termination.

The Executive agrees and covenants that he will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Company, NovaBay and/or their respective businesses, or any of its employees, directors, officers, customers, suppliers, investors or other associated third parties.

This Section X does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. The Executive shall promptly provide written notice of any such order to the Manager or Authorized Representative.

During the term of the Executive’s employment hereunder, Executive hereby irrevocably consents to any and all uses and displays, by the Company or NovaBay and their respective agents, representatives and licensees, of the Executive’s name, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and media throughout the world, at any time during the period of his employment by the Company, for all legitimate commercial and business purposes of the Company or NovaBay (“Permitted Uses”) without further consent from or royalty, payment, or other compensation to the Executive. The Executive hereby waives and releases the Company, NovaBay and their respective directors, managers, officers, employees, representatives and agents from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising under any legal or equitable theory whatsoever at any time during the period of his employment by the Company, arising directly or indirectly from the Company’s, NovaBay’s and their respective directors’, managers’, officers’, employees’, representatives’ and agents’ exercise of their rights in connection with any Permitted Uses.

Except as otherwise specifically provided herein, this Agreement:

A.    and any benefits or obligations herein may not be assigned or delegated by Executive (but may be so assigned or delegated by the Company);

B.    together with Confidentiality Agreement, and the Purchase Agreement, constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the subject matter hereof. No future agreements between the Company and Executive may supersede this Agreement, unless they are in writing and specifically mention this Section XII.B.;

C.    may be amended or modified only by a written amendment or modification signed by the Company and Executive;

D.    is made in, and shall be construed under the laws of, the State of Missouri (with the exception of its conflict of laws provisions). Subject to Section VI of this Agreement, any action or proceeding by either of the parties to enforce this Agreement shall be brought only in a state or federal court located in the State of Missouri, County of Platte. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue;

E.    inures to the benefit of, and is binding upon, the permitted successors, assigns, distributees, personal representatives, heirs and other successors-in-interest to and of the parties hereto;

F.    shall not be interpreted by reference to any of the captions or headings of the paragraphs herein, which captions or headings have been inserted for convenience purposes only;

G.    shall be fully effectuated in accordance with its tenor, effect and purposes by each of the parties hereto by executing such further documents or taking such other actions as may be reasonably requested by the other party hereto;

H.    shall be interpreted, as to its remaining provisions, to be fully lawful and operative, to the extent reasonably required to fulfill its principal tenor, effect and purposes, in the event that any provision either is found by any court of competent jurisdiction to be unlawful or inoperative or violates any statutory or legal requirement, and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; and

I.    may be executed in more than one counterpart, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.

IN WITNESS WHEREOF, the Company and Executive have executed this Agreement as of the day and year first above written.

[Employment Agreement (Jeffrey Kunin) Signature Page]

Exhibit 10.3

November 5, 2021

Dr. Audrey Kunin

4346 NW Belgium Blvd.,

Kansas City, MO 64150

Ladies and Gentlemen:

Reference is made to that certain Membership Unit Purchase Agreement, dated as of September 27, 2021 (the “Agreement”), by and among NovaBay Pharmaceuticals, Inc. (“NovaBay”), DERMAdoctor, LLC, Jeff Kunin and Audrey Kunin (the “Founders”), Papillon Partners, Inc. (“Papillon”) and Midwest Growth Partners, L.L.L.P. (“MGP” and together with Papillon, the “Sellers”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned to such terms in the Agreement and the rules of interpretation set forth in the Agreement shall also apply hereto.

This Side Letter is being entered into as part of the Contemplated Transactions and in connection with the Closing to provide for the appointment of Dr. Audrey Kunin (“Dr. Kunin”) to the NovaBay Board of Directors (the “Board”) as a Class I Director as soon as reasonably practicable following Closing and in no event later than NovaBay’s 2022 annual stockholder meeting, provided that such appointment shall be subject to (i) Dr. Kunin providing the documentation and information as set forth herein, (ii) the satisfaction by Dr. Kunin of the existing NovaBay director qualifications as outlined in this Side Letter and (iii) compliance with applicable Law. In connection with the appointment of Dr. Kunin to the Board, NovaBay agrees to take all necessary action to increase the size of the Board by one director to create a vacancy on the Board to which Dr. Kunin may be appointed as a Class I Director to fill the vacancy thereby created, unless, at the time of such appointment there is a director vacancy that already exists on the Board, then NovaBay in its sole discretion may decide to instead appoint Dr. Kunin as a director to fill any such existing vacancy.

The appointment of Dr. Kunin will be subject to the completion by Dr. Kunin of customary director onboarding documentation, including completion of a background check, and the further evaluation of the Nominating and Corporate Governance Committee of the Board acting in good faith. As a condition to Dr. Kunin’s appointment to the Board (i) Dr. Kunin must in all material respects provide to NovaBay (A) all information reasonably requested by NovaBay that is required to be or customarily disclosed for directors, candidates for directors, and their Affiliates and representatives in a proxy statement or other filings under applicable Law or regulation or stock exchange rules or listing standards, in each case, relating to their nomination or election as a director of NovaBay or NovaBay’s operations in the ordinary course of its business (which shall include, but not be limited to, the completion of the information requested in NovaBay’s D&O Questionnaire) and (B) information reasonably requested by NovaBay in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to their nomination or election as a director of NovaBay or NovaBay’s operations in the ordinary course of business, with respect to Dr. Kunin; (ii) Dr. Kunin must be qualified to serve as a director of NovaBay under the General Corporation Law of the State of Delaware and stock exchange rules or listing standards to the same extent as all other directors of NovaBay; (iii) Dr. Kunin must satisfy the requirements set forth in NovaBay’s Corporate Governance Guidelines, Code of Conduct & Ethics and Insider Trading Policy, in each case as currently in effect with such changes thereto (or such successor policies) as are applicable to all other directors, as are adopted in good faith by the Board, and do not by their terms adversely impact Dr. Kunin relative to all other directors; and (iv) Dr. Kunin must at the time of nomination agree to serve on the Board. For the avoidance of doubt as a continuing employee of DERMAdoctor, Dr. Kunin shall not be required to qualify as an independent director under applicable stock exchange rules and federal securities Laws.

At all times while serving as a member of the Board (and as a condition to such service), Dr. Kunin acknowledges and agrees to comply with all policies, codes and guidelines applicable to each of the Board members, including keeping confidential all non-public information provided to or obtained by Dr. Kunin by reason of her position as a director of NovaBay. Dr. Kunin acknowledges that she is aware that applicable securities Laws prohibit any Person who has received material, non-public information from purchasing or selling securities on the basis of such information or from communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person may trade securities on the basis of such information. Dr. Kunin agrees that neither she nor any of her representatives will use or communicate any material non-public information regarding DERMAdoctor or NovaBay in violation of such Laws.

Upon execution by NovaBay and Dr. Kunin of this Side Letter, it shall constitute a separate binding agreement between the parties hereto with respect to the appointment of Dr. Kunin to the Board after the Closing. This Side Letter may be executed in two counterparts each of which shall be deemed an original and all of which shall be deemed one and the same. This Side Letter shall be effective only when fully executed by both parties, and delivered to NovaBay.

This Side Letter and the rights and obligations of the parties hereunder shall be governed by, and shall be construed and enforced in accordance with, the laws of the State of Delaware. The agreements contained in this Side Letter (a) may not be modified or terminated orally and (b) may only be modified or amended in a writing signed by NovaBay and Dr. Kunin.

If you agree to the terms and provisions hereof, please evidence such agreement by executing and returning an executed version of this Side Letter to the undersigned.

[Signatures Appear on Following Pages]

[Signature Page to the Side Letter]

Agreed and accepted as of

the date first written above:

By:  /s/ Dr. Audrey Kunin                                            
       Name: Dr. Audrey Kunin

[Signature Page to the Side Letter]

Exhibit 10.4

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED. THE REDACTED TERMS HAVE BEEN MARKED WITH THREE ASTERISKS [***]

NOVABAY PHARMACEUTICALS, INC.

PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT

This PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Agreement”), dated as of November 8, 2021(the “Effective Date”), is between NovaBay Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and the participant named below (“Participant”). This equity award is granted under the NovaBay Pharmaceuticals, Inc. 2017 Omnibus Incentive Plan (the “2017 Plan”) and is subject to the terms of the 2017 Plan. A copy of the 2017 Plan will be furnished upon the request of Participant. This Agreement represents the Company’s unfunded and unsecured promise to issue common stock of the Company, $0.01 par value (“Common Stock”), at a future date, subject to the terms of this Agreement and the 2017 Plan. All capitalized terms used in this Agreement and not otherwise defined in this Agreement shall have the meanings assigned to them in the 2017 Plan, unless specifically set forth herein.

1.         Award. You have been selected to receive, subject to the terms and conditions of this Agreement and the 2017 Plan, a grant of performance Restricted Stock Units (the “PSU Award”) as specified below.

This PSU Award represents the right to receive the Shares after the end of the Performance Period only if and when, and with respect to the number of PSUs to which, the PSU Award has vested (the “Vested PSUs”) on the basis of one (1) Share multiplied by the number of Vested PSUs earned (as determined by the Committee as provided in Section 3 below).

2.         Service. Except as may otherwise be provided in Sections 4 and 7 below, the PSU Award granted hereunder is granted on the condition that Participant remains in the Service of DERMAdoctor, LLC, an Affiliate of the Company.

3.       Performance Vesting Conditions. Subject to the terms and conditions of this Agreement and the 2017 Plan, the PSU Award shall vest and the PSUs will be converted into a number of Shares that will be delivered to Participant, subject to applicable withholding taxes, only upon the Committee’s determination, after completion of the Performance Period, equal to the level of achievement of the applicable Performance Goals identified in Exhibit A to this Agreement.

4.         Termination; Forfeiture.

(a)         Except as provided in subsection (b) below, Participant’s rights under this Agreement with respect to the PSU Award shall terminate at the earlier of (i) the date on which such PSU Award is settled in Shares after the Committee’s determination, after the end of the Performance Period, of the level of achievement of the applicable Performance Goals, or (ii) the termination of Participant’s Service with DERMAdoctor, LLC. Upon termination of this Agreement in accordance with clause (ii) above, Participant’s rights to the PSU Award shall, except as otherwise provided in an employment agreement between DERMAdoctor, LLC and Participant, be immediately and irrevocably forfeited and Participant will retain no rights with respect to the forfeited PSU Award.

(b)         Notwithstanding the provisions of clause (ii) of Section 4(a) above, in the event of termination of Participant’s Service with DERMAdoctor, LLC as a result of Participant’s death or Disability (defined in the Employment Agreement) prior to the end of the Performance Period, Participant will receive a pro-rated portion of the Shares that Participant would have received had Participant’s Service with DERMAdoctor, LLC not terminated after completion of the Performance Period, of the level of achievement of the applicable Performance Goals identified in Exhibit A to this Agreement. The pro-rated portion will be determined by calculating the total number of Shares that Participant would have received if Participant’s Service with DERMAdoctor, LLC had not so terminated, and multiplying that number by a fraction, the numerator of which is the number of full and partial months of Service with DERMAdoctor, LLC that Participant completed during the Performance Period, and the denominator which is twenty-four (24).

5.         Restrictions on Transfer of PSU Award. During the lifetime of Participant, this PSU Award cannot be sold, assigned, transferred, gifted, pledged, hypothecated or in any manner encumbered or disposed of at any time prior to delivery of the Shares, other than by will or the laws of descent and distribution. If any transfer, whether voluntary or involuntary, of this PSU Award is made, any purported attachment, execution, garnishment, or lien issued against or placed upon this PSU Award shall be void and unenforceable against the Company, Participant’s right to this PSU Award shall be immediately forfeited by Participant to the Company, and this Agreement shall lapse.

6.         Beneficiary Designation. Participant may, from time to time, name any beneficiary or beneficiaries to whom any benefit under this Agreement is to be paid in case of Participant’s death before Participant receives any settlement of the PSU Award as a result of the level of achievement of the applicable Performance Goals identified in Exhibit A determined by the Committee after the end of the Performance Period. Each such designation shall revoke all prior designations by Participant, shall be in a form prescribed by the Company, and will be effective only when filed by Participant in writing with the Company during Participant’s lifetime. In the absence of any such designation, benefits remaining unpaid at Participant’s death shall be paid to Participant’s estate.

7.         Change in Control.

(a)     If there is a Change in Control (as defined below) of the Company, the PSU Award shall vest immediately prior to such Change in Control occurring, even if the Performance Goals identified in Exhibit A have not been met. To the extent that the holders of Common Stock receive cash consideration for their Common Stock in consummation of the Change in Control, the successor corporation (or its parent) may with the Participant’s consent, in connection with the assumption of this PSU Award, substitute one (1) or more shares of its own common stock with a fair market value equivalent to the cash consideration paid per share of Common Stock in such Change in Control.

(b)     This Agreement shall not in any way affect the right of the Company to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.

(c)     For purposes of this Agreement, “Change in Control” shall mean a change in ownership or control of the Company effected through any of the following transactions: (i) a merger, consolidation or other reorganization unless securities representing more than fifty percent (50%) of the total combined voting power of the voting securities of the successor corporation are immediately thereafter beneficially owned, directly or indirectly and in substantially the same proportion, by the persons who beneficially owned the Company’s outstanding voting securities immediately prior to such transaction; (ii) the sale, transfer or other disposition of all or substantially all of the Company’s assets; or (iii) the acquisition, directly or indirectly by any person or related group of persons (other than the Company or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company), of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities pursuant to a tender or exchange offer made directly to the Company’s stockholder.

8.          Capital Adjustments and Reorganization. Should any change be made to the Common Stock by reason of any stock split, reverse stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without the Company’s receipt of consideration, appropriate adjustments shall be made to the PSUs subject to this PSU Award in order to reflect such change and thereby preclude a dilution or enlargement of benefits hereunder.

9.         Conversion of PSU Award to Shares; Responsibility for Taxes.

(a)    Provided Participant has satisfied the requirements of Section 9(b) below, after the vesting of the PSU Award with respect to Vested PSUs, the Shares delivered in payment of such Vested PSUs will be distributed to Participant or, in the event of Participant’s death, to Participant’s legal representative or beneficiary(ies), within two and one half (2½) months following the date of vesting of the PSU Award. The distribution to Participant, or in the case of Participant’s death, to Participant’s legal representative or beneficiary(ies), of such Shares shall be evidenced by a Common Stock certificate, appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company, or other appropriate means as determined by the Company. No fractional share of Common Stock shall be issued.

(b)      (i)      In order to comply with all applicable federal or state income tax laws or regulations, the Company may take such action as it deems appropriate to ensure that all applicable federal or state payroll, withholding, income or other taxes, which are the sole and absolute responsibility of Participant (or, in the event of Participant’s death, Participant’s legal representative or beneficiary(ies)), are withheld or collected from Participant (or, as applicable, such legal representative or beneficiary(ies)).

(ii)      In accordance with the terms of the 2017 Plan, and such rules as may be adopted by the Committee under the 2017 Plan, Participant may elect to satisfy Participant’s federal and state income tax withholding obligations arising from the receipt of, or the lapse of restrictions relating to, the Shares, by (i) delivering cash (including bank check, personal check or money order payable to the Company), (ii) having the Company withhold a portion of the Shares otherwise to be delivered having a Fair Market Value equal to the amount of such taxes, or (iii) delivering to the Company shares of Common Stock already owned by Participant having a Fair Market Value equal to the amount of such taxes. The Company will not deliver any fractional Shares but will pay, in lieu thereof, the Fair Market Value of such fractional Shares. Participant’s election must be made on or before the date that the amount of tax to be withheld is determined.

10.         Miscellaneous.

(a)     Entire Agreement; 2017 Plan Provisions Control. This Agreement (and any addendum or amendment hereto) and the 2017 Plan constitute the entire agreement between the parties hereto with regard to the subject matter hereof. In the event that any provision of this Agreement conflicts with or is inconsistent in any respect with the terms of the 2017 Plan, the terms of the 2017 Plan shall control. All decisions of the Committee with respect to any question or issue arising under the 2017 Plan or this Agreement shall be binding on all persons having an interest in this PSU Award.

(b)     2017 Plan Termination, Amendment or Modification. The Committee may terminate, amend, or modify the 2017 Plan; provided, however, that no such termination, amendment, or modification of the 2017 Plan may in any material way adversely impair Participant’s rights under this Agreement, without the written consent of Participant.

(c)     No Rights of Stockholders. Until such time as the PSU Award is paid out in Shares, and until receipt by Participant, Participant’s legal representative or Participant’s beneficiary(ies), of Shares related to Vested PSUs as provided in this Agreement, neither Participant, Participant’s legal representative, nor Participant’s beneficiary(ies) of the PSU Award, shall have voting or other rights with respect to Shares. No dividend shall be paid on any PSU Award.

(d)     No Right to Service. The grant of this PSU Award shall not be construed as giving Participant the right to be retained in the Service of DERMAdoctor, LLC, the Company or an Affiliate, nor will it affect in any way the right of the Company or an Affiliate to terminate such Participant’s Service at any time, with or without cause.

(e)     Governing Law. The validity, construction and effect of the 2017 Plan and this Agreement, and any rules and regulations relating to the 2017 Plan and this Agreement, shall be determined in accordance with the internal laws, and not the law of conflicts, of the State of Delaware.

(f)      Severability. If any provision of this Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any court of competent jurisdiction, the remaining provisions of this Agreement shall not be affected by such holding, and the remainder of this Agreement shall remain in full force and effect.

(g)     Notices. Any notice required to be given or delivered to the Company under the terms of this Agreement shall be addressed to the Company at its principal corporate offices. Any notice required to be given or delivered to Participant shall be addressed to Participant at the address indicated below Participant’s signature line at the end of this Agreement or at such other address as Participant may designate by ten (10) days’ advance written notice to the Company. Any notice required to be given under this Agreement shall be in writing and shall be deemed to have been delivered upon receipt when delivered personally or by overnight courier, or three (3) business days after being deposited in the U.S. mail, registered or certified, postage prepaid and properly addressed to the party entitled to such notice, or when actually received, if sent by email or other electronic transmission device.

(h)      Conditions Precedent to Issuance of Shares. Shares shall not be issued pursuant to this PSU Award unless such issuance and delivery of the applicable Shares pursuant hereto complies with all relevant provisions of law, including, without limitation, applicable federal securities laws and the rules and regulations promulgated thereunder, blue sky or state securities laws, the requirements of any stock exchange or market upon which the Company’s shares are then listed and/or traded, and the Delaware General Corporation Law. As a condition to the issuance of the Shares relating to Vested PSUs, the Company may require that Participant receiving such Shares represent and warrant that the Shares are being acquired only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation and warranty is required by law.

(i)      Consultation with Professional Tax and Investment Advisors. Participant acknowledges that the grant and vesting with respect to this PSU Award, and the sale or other taxable disposition of the Shares, may have tax consequences pursuant to the Internal Revenue Code of 1986, as amended, or under local, state or international tax laws. Participant further acknowledges that Participant is relying solely and exclusively on Participant’s own professional tax and investment advisors with respect to any and all such matters (and is not relying, in any manner, on the Company or any of its employees or representatives). Participant understands and agrees that any and all tax consequences resulting from the PSU Award and its grant and vesting, and the sale or other taxable disposition of Shares, is solely and exclusively the responsibility of Participant without any expectation or understanding that the Company or any of its employees or representatives will pay or reimburse Participant for such taxes or other items.

(j)     Participant Compliance with Laws. Participant agrees to take all steps necessary to comply with all applicable provisions of federal and state securities laws in exercising his or her rights under this Agreement.

(k)     Agreement Subject to Laws/Approvals. This Agreement shall be subject to all applicable laws, rules, and regulations, and to such approvals by any governmental agencies or national securities exchanges as may be required.

(l)    Successors. All obligations of the Company under the 2017 Plan and this Agreement with respect to the PSU Award shall be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Company and Participant have executed this Agreement on the date set forth in the first paragraph.

EXHIBIT A

TO

PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT

Company’s Revenue During Performance Period

(33 1/3% Weighting)¹

Company’s Market Cap During Performance Period

(33 1/3% Weighting)³

1 Revenue Goal: Determined by Committee after end of Performance Period 

2 Cash Flow Goal: Determined by Committee after end of Performance Period

3 Market Cap Goal: Determined by Committee after end of Performance Period