NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:
1. Separation Payment. Executive acknowledges and agrees that, in connection with, and in contingent on, Executive’s resignation, Executive will receive a lump sum cash payment in the amount of $2,500,000 (the “Separation Payment”), payable on or prior to January 10, 2020, less all applicable tax withholdings. Payment by the Company of the Separation Payment is contingent upon Executive’s execution of this Separation Agreement and Executive’s compliance with all other terms and conditions of this Separation Agreement and the Employment Agreement. Executive acknowledges and agrees that the Separation Payment is in lieu of, and in settlement and full satisfaction of, any other payments and benefits (including without limitation any severance payments and benefits) under the Employment Agreement, under any other agreement between Executive and the Company or otherwise. Notwithstanding the foregoing, in the event that the Company becomes subject to a proceeding under the Bankruptcy Code (a “Bankruptcy Proceeding”) and either: (a) such Bankruptcy Proceeding is initiated before the Separation Payment is paid to Executive, or (b) a Bankruptcy Proceeding is initiated after the Separation Payment is paid to Executive, and some or all of the Separation Payment is challenged, whether as a preference under section 547 of the Bankruptcy Code, as a fraudulent transfer under section 548 of the Bankruptcy Code or under applicable state law, or otherwise, as a result of which the Separation Payment must be repaid by Executive; then, in either scenario (a) or (b) above, notwithstanding language herein to the contrary, Executive’s waiver of any right to receive full severance payments and benefits under the Employment Agreement or otherwise arising out of the termination of his employment by the Company without Cause will be of no force or effect, and Executive shall have the right to receive compensation and benefits due to him under the Employment Agreement and equity grants for a termination of Executive’s employment by the Company without Cause, offset only by the amount of the Separation Payment received by him hereunder.
2. Acknowledgement of Resignations. Executive hereby (a) acknowledges that he resigned as a member of the Board as of December 30, 2019, (b) resigned his employment with the Company and his positions as President and Chief Executive Officer of the Company by agreement, effective as of the Date of Termination, and (c) resigned, effective as of the Date of Termination, from the board of directors of any subsidiary of the Company, from any other board to which Executive has been appointed or nominated by or on behalf of the Company and from any other position Executive holds with the Company or any of its subsidiaries. In accordance with Section 7(c) of the Employment Agreement, Executive acknowledges that he will execute any additional document that the Company reasonably determines to be necessary or appropriate to give effect to such resignations.
3. Employment Agreement Terms and Conditions. Executive hereby acknowledges that, following the Date of Termination, he will continue to be subject to all applicable terms and conditions under the Employment Agreement, including, but not limited to, the non-competition, non-solicitation and confidentiality obligations set forth in Section 10 thereof (and any in connection with equity grants); provided, however, that the Company and Executive hereby agree and acknowledge that, for the portion of the Prohibited Period following the Date of Termination, the non-competition obligations set forth in Section 10(c)(ii)(A) of the Employment Agreement (and any parallel provisions from equity grants) shall apply solely with respect to the companies set forth on Appendix 1 hereto and incorporated herein by reference or any successor thereto.
4. General Release. Executive knowingly and voluntarily waives, terminates, cancels, releases and discharges forever the Released Parties from any and all suits, actions, causes of action, claims, allegations, rights, obligations, liabilities, demands, entitlements or charges (collectively, “Claims”) that Executive (or Executive’s heirs, executors, administrators, successors and assigns) has or may have, whether known, unknown or unforeseen, vested or contingent, by reason of any matter, cause or thing occurring at any time before and including the date of this Separation Agreement, arising under or in connection with Executive’s employment or termination of employment with the Company, including, without limitation: Claims under United States federal, state or local
