Common use of Conditions to Receipt of Severance No Duty to Mitigate Clause in Contracts

Conditions to Receipt of Severance No Duty to Mitigate. (a) Separation Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless (x) Executive signs and does not revoke a separation agreement and release of claims in the form attached as Exhibit A, but with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company with the protection it would have if the Release was executed as of the date of this Agreement (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. Severance payments or benefits will not be paid or provided until the Release becomes effective and irrevocable. For avoidance of doubt, although Executive’s severance payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason of Executive’s “separation from service” during a period in which Executive is a “specified employee” (within the meaning of Code Section 409A as determined by the Company), then any payment or benefits will be delayed until the earliest date on which they could be paid or distributed without being subject to penalty taxation under Code Section 409A. (c) Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2).

Conditions to Receipt of Severance No Duty to Mitigate. The severance payments and benefits provided herein shall be conditioned on the following: (a) Separation The receipt of any severance or other benefits pursuant to this Employment Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless be subject to (xi) Executive signs signing and does not revoke revoking a separation agreement and release of claims in a form acceptable to the form attached as Exhibit A, but Company; (ii) Executive’s promptly resigning from all positions with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company as requested; and (iii) Executive continuing to comply with the protection it would have if the Release was executed as terms of the date of this any Confidential Information Agreement (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”)by which he is then bound. If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to No severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. Severance payments or other benefits will not be paid or provided until the Release release agreement becomes effective effective. The requirement for a release in this Section 7(a) shall be construed in accordance with Section 409A, and irrevocable. For avoidance Executive shall not have the ability to determine the timing of doubt, although Executive’s severance any payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement that are subject to Section 409A (“409A Payments”) by reason virtue of the time the Executive executes and delivers the release. To the extent that Executive is required to execute and deliver a release to receive a 409A Payment and this Agreement provides for such 409A Payment to be provided prior to the 60th day following the Executive’s “separation from service” during a period in which pursuant to Section 409A (“Separation from Service”), such 409A Payment will be provided upon the 60th day following Executive’s Separation from Service provided the release has been executed, delivered and effective prior to such time. To the extent that Executive is required to execute and deliver a “specified employee” release to receive a 409A Payment and this Agreement provides for such 409A Payment to be provided in accordance with Section 10, such 409A Payment will be provided as set forth in Section 10 provided the release has been executed, delivered and effective prior to such time. If a release is required for a 409A Payment and such release is not executed, delivered and effective by the date six (within 6) months after the meaning of Code Executive’s Separation from Service if such 409A Payment is subject to the limitations set forth in Section 10 or the 60th day following Executive’s Separation from Service if such 409A Payment is not subject to the limitations set forth in Section 10, such 409A Payment shall not be provided to the Executive to the extent that providing such 409A Payment would cause such 409A Payment to fail to comply with Section 409A. To the extent that any payments or benefits under this Agreement are intended to be exempt from Section 409A as determined by a short-term deferral pursuant to Treasury Regulations §1.409A-1(b)(4) (or any successor thereto) or otherwise and require Executive to provide a release to obtain such payments or benefits, any release required for such payment or benefit must be provided no later than March 11th of the calendar year following the calendar year of the Executive’s Separation from Service. (b) During the period of Executive’s employment with the Company and the twelve (12) months following the termination of Executive’s employment with the Company), then Executive will not knowingly and materially disparage, criticize, or otherwise make any payment derogatory statements regarding the Company or benefits any officer, director or agent of the Company nor will the Company knowingly and materially disparage, criticize, or otherwise make any derogatory statements regarding Executive. Notwithstanding the foregoing, nothing contained in this Employment Agreement will be delayed until deemed to restrict Executive, the earliest date on which Company or any of the Company’s current or former officers and/or directors from providing information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they could be paid are requested or distributed without being subject required to penalty taxation under Code Section 409A.provide such information pursuant to applicable law or regulation. (c) Each payment Executive acknowledges that the nature of the Company’s business is such that if Executive were to become employed by, or substantially involved in, the business of a competitor of the Company during the six (6) months following the termination of the Executive’s employment with the Company, it would be very difficult for Executive not to rely on or use the Company’s trade secrets and benefit payable under confidential information. Thus, to avoid the inevitable disclosure of the Company’s trade secrets and confidential information, Executive agrees and acknowledges that Executive’s right to receive the separation payments set forth in Section 6 of this Employment Agreement shall be conditioned upon Executive not directly or indirectly engaging in (whether as an employee, consultant, agent, proprietor, principal, partner, stockholder, corporate officer, director or otherwise), nor having any ownership interested in or participating in the financing, operation, management or control of, any person, firm, corporation or business that competes with Company or is intended a customer of the Company; provided, however, that nothing contained in this Section 7(c) shall be construed to constitute a separate payment under Treasury Regulations prohibit Executive from purchasing and owning (directly or indirectly) up to two percent (2%) of the capital stock or other securities of any competitor corporation or other or other entity whose stock or securities are traded on any national or regional securities exchange or the national over-the-counter market and such ownership shall be excluded from the prohibition set forth in this Section 1.409A-2(b)(27(c). Upon any breach of this section, all severance payments pursuant to this Employment Agreement shall immediately cease. (d) Until the date six (6) months after the termination of Executive’s employment with the Company for any reason, Executive agrees and acknowledges that Executive’s right to receive the separation payments set forth in Section 6 of this Employment Agreement shall be conditioned upon Executive not either directly or indirectly soliciting, inducing, attempting to hire, recruiting, encouraging, taking away, hiring any employee of the Company or causing an employee to leave his or her employment either for Executive or for any other entity or person.

Conditions to Receipt of Severance No Duty to Mitigate. (a) Separation Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless (x) Executive signs and does not revoke a separation agreement and release of claims substantially in the form attached hereto as Exhibit A, but with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company with the protection it would have if the Release was executed as of the date of this Agreement A (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) 60 days following the termination date (such deadline, the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. 409A of the Code (“Section 409A”). Severance payments or benefits will not be paid or provided until the Release becomes effective and irrevocable. For avoidance of doubt, although Executive’s severance payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason of Executive’s “separation from service” during a period in which Executive is a “specified employee” (within the meaning of Code Section 409A as determined by the Company), then any payment or benefits will be delayed delayed, without payment of interest, until the earliest date on which they it could be paid or distributed without being subject to penalty taxation under Code Section 409A. (c) Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2). (d) Executive’s receipt of any payment or benefits other than Accrued Obligations will be subject to Executive continuing to comply with Executive’s confidentiality obligations to the Company.

Conditions to Receipt of Severance No Duty to Mitigate. (a) Separation Agreement and Release of Claims. The payment of any severance set forth in Section 6(a), Section 6(b), Section 6(c) and Section 6(d) above is contingent upon Executive will signing and not receive severance pay or benefits other than the Accrued Obligations unless (x) Executive signs and does not revoke revoking a separation agreement and release of claims in the form attached as Exhibit A, but agreement with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company with (which may include an agreement not to disparage the protection it would have if Company, non-solicit provisions and other standard terms and conditions) in a form reasonably acceptable to the Release was executed as of the date of this Agreement Company (the “Release”) upon or following Executive’s separation from service and (y) such Release becomes becoming effective and irrevocable no later than sixty (60) days following the termination date Executive’s separation from service (such deadline, the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Agreement. All payments In no event will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. Severance severance payments or benefits will not be paid or provided until the Release actually becomes effective and irrevocableeffective. For avoidance of doubt, although Executive’s Any severance payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason will be paid on, or, in the case of installments, will not commence until, the sixtieth (60th) day following Executive’s “separation from service” during a period in which Executive is a “specified employee” (within , or, if later, such time as required by Section 8(b)(ii); provided, however, that any acceleration of vesting of options and restricted stock will be provided on the meaning of Code Release effectiveness date. Except as required by Section 409A as determined by the Company8(b)(ii), then any payment or payments and benefits that would have been made to Executive during the sixty (60)-day period immediately following Executive’s separation from service but for the preceding sentence will be delayed until paid to Executive on the earliest date on which they could sixtieth (60th) day following Executive’s separation from service and the remaining payments will be paid made as provided in this Agreement. In no event will Executive have discretion to determine the taxable year of payment of any severance payments or distributed without being subject to penalty taxation under Code Section 409A. (c) Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2)benefits.

Conditions to Receipt of Severance No Duty to Mitigate. (a) Separation Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless (x) Executive signs and does not revoke a separation agreement and release of claims in the form attached as Exhibit A, but with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company with the protection it would have if the Release was executed as of the date of this Agreement (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. Severance payments or benefits will not be paid or provided until the Release becomes effective and irrevocable. For avoidance of doubt, although Executive’s severance payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason of Executive’s “separation from service” during a period in which Executive is a “specified employee” (within the meaning of Code Section 409A as determined by the Company), then any payment or benefits will be delayed until the earliest date on which they could be paid or distributed without being subject to penalty taxation under Code Section 409A. (c) Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2).

Conditions to Receipt of Severance No Duty to Mitigate. (a) Separation Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless (x) Executive signs and does not revoke a separation agreement and release of claims in the form attached as Exhibit A, but with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company with the protection it would have if the Release was executed as of the date of this Agreement (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation the imposition on Executive of additional taxes under Section 409A. Severance payments or benefits will not be paid or provided until the Release becomes effective and irrevocable. For avoidance of doubt, although Executive’s severance payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason of Executive’s “separation from service” during a period in which Executive is a “specified employee” (within the meaning of Code Section 409A as determined by the Company), then to the extent necessary to avoid the imposition on Executive of additional taxes under Section 409A, any payment or benefits will be delayed until the earliest date on which they could be paid earlier of six (6) months and one (1) day following Executive’s separation from service or distributed without being subject to penalty taxation under Code Section 409A.Executive’s death. (c) Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2).

Conditions to Receipt of Severance No Duty to Mitigate. (a) Separation Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless (x) Executive signs and does not revoke a separation agreement and release of claims in the form attached as Exhibit AB, but with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company with the protection it would have if the Release was executed as of the date of this Agreement (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. Severance payments or benefits will not be paid or provided until the Release becomes effective and irrevocable. For avoidance of doubt, although Executive’s severance payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason of Executive’s “separation from service” during a period in which Executive is a “specified employee” (within the meaning of Code Section 409A as determined by the Company), then any payment or benefits will be delayed until the earliest date on which they could be paid or distributed without being subject to penalty taxation under Code Section 409A. (c) Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2).

Conditions to Receipt of Severance No Duty to Mitigate. (a) Separation Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless (x) Executive signs and does not revoke a separation agreement and release of claims in the a form attached as Exhibit A, but with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary reasonably satisfactory to provide the Company with and the protection it would have if the Release was executed as of the date of this Agreement Employer (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) 60 days following the termination date (such deadline, the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. 409A of the Code (“Section 409A”). Severance payments or benefits will not be paid or provided until the Release becomes effective and irrevocable. For avoidance of doubt, although Executive’s severance payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason of Executive’s “separation from service” during a period in which Executive is a “specified employee” (within the meaning of Code Section 409A as determined by the Company), then any payment or benefits will be delayed delayed, without payment of interest, until the earliest date on which they it could be paid or distributed without being subject to penalty taxation under Code Section 409A. (c) Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2). (d) Executive’s receipt of any payment or benefits other than Accrued Obligations will be subject to Executive continuing to comply with her confidentiality obligations to the Company and the Employer.

Conditions to Receipt of Severance No Duty to Mitigate. The severance payments and benefits provided herein shall be conditioned on the following: (a) Separation The receipt of any severance or other benefits pursuant to this Employment Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless be subject to (xi) Executive signs signing and does not revoke revoking a separation agreement and release of claims in a form acceptable to the form attached as Exhibit A, but Company; (ii) Executive’s promptly resigning from all positions with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company as requested; and (iii) Executive continuing to comply with the protection it would have if the Release was executed as terms of the date of this any Confidential Information Agreement (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”)by which s/he is then bound. If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to No severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. Severance payments or other benefits will not be paid or provided until the Release release agreement becomes effective effective. The requirement for a release in this Section 7(a) shall be construed in accordance with Section 409A, and irrevocable. For avoidance Executive shall not have the ability to determine the timing of doubt, although Executive’s severance any payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement that are subject to Section 409A (“409A Payments”) by reason virtue of the time the Executive executes and delivers the release. To the extent that Executive is required to execute and deliver a release to receive a 409A Payment and this Agreement provides for such 409A Payment to be provided prior to the 60th day following the Executive’s “separation from service” during a period in which pursuant to Section 409A (“Separation from Service”), such 409A Payment will be provided upon the 60th day following Executive’s Separation from Service provided the release has been executed, delivered and effective prior to such time. To the extent that Executive is required to execute and deliver a “specified employee” release to receive a 409A Payment and this Agreement provides for such 409A Payment to be provided in accordance with Section 10, such 409A Payment will be provided as set forth in Section 10 provided the release has been executed, delivered and effective prior to such time. If a release is required for a 409A Payment and such release is not executed, delivered and effective by the date six (within 6) months after the meaning of Code Executive’s Separation from Service if such 409A Payment is subject to the limitations set forth in Section 10 or the 60th day following Executive’s Separation from Service if such 409A Payment is not subject to the limitations set forth in Section 10, such 409A Payment shall not be provided to the Executive to the extent that providing such 409A Payment would cause such 409A Payment to fail to comply with Section 409A. To the extent that any payments or benefits under this Agreement are intended to be exempt from Section 409A as determined by a short-term deferral pursuant to Treasury Regulations §1.409A-1(b)(4) (or any successor thereto) or otherwise and require Executive to provide a release to obtain such payments or benefits, any release required for such payment or benefit must be provided no later than March 11th of the calendar year following the calendar year of the Executive’s Separation from Service. (b) During the period of Executive’s employment with the Company and the twelve (12) months following the termination of Executive’s employment with the Company), then Executive will not knowingly and materially disparage, criticize, or otherwise make any payment derogatory statements regarding the Company or benefits any officer, director or agent of the Company nor will the Company knowingly and materially disparage, criticize, or otherwise make any derogatory statements regarding Executive. Notwithstanding the foregoing, nothing contained in this Employment Agreement will be delayed until deemed to restrict Executive, the earliest date on which Company or any of the Company’s current or former officers and/or directors from providing information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they could be paid are requested or distributed without being subject required to penalty taxation under Code Section 409A.provide such information pursuant to applicable law or regulation. (c) Each payment Executive acknowledges that the nature of the Company’s business is such that if Executive were to become employed by, or substantially involved in, the business of a competitor of the Company during the six (6) months following the termination of the Executive’s employment with the Company, it would be very difficult for Executive not to rely on or use the Company’s trade secrets and benefit payable under confidential information. Thus, to avoid the inevitable disclosure of the Company’s trade secrets and confidential information, Executive agrees and acknowledges that Executive’s right to receive the separation payments set forth in Section 6 of this Employment Agreement shall be conditioned upon Executive not directly or indirectly engaging in (whether as an employee, consultant, agent, proprietor, principal, partner, stockholder, corporate officer, director or otherwise), nor having any ownership interested in or participating in the financing, operation, management or control of, any person, firm, corporation or business that competes with Company or is intended a customer of the Company; provided, however, that nothing contained in this Section 7(c) shall be construed to constitute a separate payment under Treasury Regulations prohibit Executive from purchasing and owning (directly or indirectly) up to two percent (2%) of the capital stock or other securities of any competitor corporation or other or other entity whose stock or securities are traded on any national or regional securities exchange or the national over-the-counter market and such ownership shall be excluded from the prohibition set forth in this Section 1.409A-2(b)(27(c). Upon any breach of this section, all severance payments pursuant to this Employment Agreement shall immediately cease. (d) Until the date six (6) months after the termination of Executive’s employment with the Company for any reason, Executive agrees and acknowledges that Executive’s right to receive the separation payments set forth in Section 6 of this Employment Agreement shall be conditioned upon Executive not either directly or indirectly soliciting, inducing, attempting to hire, recruiting, encouraging, taking away, hiring any employee of the Company or causing an employee to leave his or her employment either for Executive or for any other entity or person.

Conditions to Receipt of Severance No Duty to Mitigate. The severance payments and benefits provided herein shall be conditioned on the following: (a) Separation The receipt of any severance or other benefits pursuant to this Employment Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless be subject to (xi) Executive signs signing and does not revoke revoking a separation agreement and release of claims in a form acceptable to the form attached as Exhibit A, but Company; (ii) Executive's promptly resigning from all positions with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company as requested; and (iii) Executive continuing to comply with the protection it would have if the Release was executed as terms of the date of this any Confidential Information Agreement (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”)by which s/he is then bound. If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to No severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. Severance payments or other benefits will not be paid or provided until the Release release agreement becomes effective effective. The requirement for a release in this Section 7(a) shall be construed in accordance with Section 409A, and irrevocableExecutive shall not have the ability to determine the timing of any payments under this Agreement that are subject to Section 409A (“409A Payments”) by virtue of the time the Executive executes and delivers the release. For avoidance of doubt, although Executive’s severance payments and benefits are contractual rights, not “damages,” To the extent that Executive is not required to seek other employment execute and deliver a release to receive a 409A Payment and this Agreement provides for such 409A Payment to be provided prior to the 60th day following the Executive's “separation from service” pursuant to Section 409A (“Separation from Service”), such 409A Payment will be provided upon the 60th day following Executive's Separation from Service provided the release has been executed, delivered and effective prior to such time. To the extent that Executive is required to execute and deliver a release to receive a 409A Payment and this Agreement provides for such 409A Payment to be provided in accordance with Section 10, such 409A Payment will be provided as set forth in Section 10 provided the release has been executed, delivered and effective prior to such time. If a release is required for a 409A Payment and such release is not executed, delivered and effective by the date six (6) months after the Executive's Separation from Service if such 409A Payment is subject to the limitations set forth in Section 10 or the 60th day following Executive's Separation from Service if such 409A Payment is not subject to the limitations set forth in Section 10, such 409A Payment shall not be provided to the Executive to the extent that providing such 409A Payment would cause such 409A Payment to fail to comply with Section 409A. To the extent that any payments or benefits under this Agreement are intended to be exempt from Section 409A as a short-term deferral pursuant to Treasury Regulations §1.409A-1(b)(4) (or any successor thereto) or otherwise “mitigate damages” as and require Executive to provide a condition of receiving release to obtain such payments and or benefits, any release required for such payment or benefit must be provided no later than March 11th of the calendar year following the calendar year of the Executive's Separation from Service. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason During the period of Executive’s “separation from service” during a period in which Executive is a “specified employee” 's employment with the Company and the twelve (within 12) months following the meaning termination of Code Section 409A as determined by Executive's employment with the Company), then Executive will not knowingly and materially disparage, criticize, or otherwise make any payment derogatory statements regarding the Company or benefits any officer, director or agent of the Company nor will the Company knowingly and materially disparage, criticize, or otherwise make any derogatory statements regarding Executive. Notwithstanding the foregoing, nothing contained in this Employment Agreement will be delayed until deemed to restrict Executive, the earliest date on which Company or any of the Company's current or former officers and/or directors from providing information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they could be paid are requested or distributed without being subject required to penalty taxation under Code Section 409A.provide such information pursuant to applicable law or regulation. (c) Each payment Executive acknowledges that the nature of the Company's business is such that if Executive were to become employed by, or substantially involved in, the business of a competitor of the Company during the six (6) months following the termination of the Executive's employment with the Company, it would be very difficult for Executive not to rely on or use the Company's trade secrets and benefit payable under confidential information. Thus, to avoid the inevitable disclosure of the Company's trade secrets and confidential information, Executive agrees and acknowledges that Executive's right to receive the separation payments set forth in Section 6 of this Employment Agreement shall be conditioned upon Executive not directly or indirectly engaging in (whether as an employee, consultant, agent, proprietor, principal, partner, stockholder, corporate officer, director or otherwise), nor having any ownership interested in or participating in the financing, operation, management or control of, any person, firm, corporation or business that competes with Company or is intended a customer of the Company; provided, however, that nothing contained in this Section 7(c) shall be construed to constitute a separate payment under Treasury Regulations prohibit Executive from purchasing and owning (directly or indirectly) up to two percent (2%) of the capital stock or other securities of any competitor corporation or other or other entity whose stock or securities are traded on any national or regional securities exchange or the national over-the-counter market and such ownership shall be excluded from the prohibition set forth in this Section 1.409A-2(b)(27(c). Upon any breach of this section, all severance payments pursuant to this Employment Agreement shall immediately cease. (d) Until the date six (6) months after the termination of Executive's employment with the Company for any reason, Executive agrees and acknowledges that Executive's right to receive the separation payments set forth in Section 6 of this Employment Agreement shall be conditioned upon Executive not either directly or indirectly soliciting, inducing, attempting to hire, recruiting, encouraging, taking away, hiring any employee of the Company or causing an employee to leave his or her employment either for Executive or for any other entity or person.

Conditions to Receipt of Severance No Duty to Mitigate. (a) Separation Agreement and Release of Claims. Executive will not receive severance pay or benefits other than the Accrued Obligations unless (x) Executive signs and does not revoke a separation agreement and release of claims in the form attached as Exhibit AB, but with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company with the protection it would have if the Release was executed as of the date of this Agreement (the “Release”) and (y) such Release becomes effective and irrevocable no later than sixty (60) days following the termination date (such deadline, the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Agreement. All payments will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. Severance payments or benefits will not be paid or provided until the Release becomes effective and irrevocable. For avoidance of doubt, although Executive’s severance payments and benefits are contractual rights, not “damages,” Executive is not required to seek other employment or otherwise “mitigate damages” as a condition of receiving such payments and benefits.. 3 (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason of Executive’s “separation from service” during a period in which Executive is a “specified employee” (within the meaning of Code Section 409A as determined by the Company), then any payment or benefits will be delayed until the earliest date on which they could be paid or distributed without being subject to penalty taxation under Code Section 409A. (c) Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2).. (d)

Conditions to Receipt of Severance No Duty to Mitigate. (a) Separation Agreement and Release of Claims. The payment of any severance set forth in Section 6(a), Section 6(b), Section 6(c) and Section 6(d) above is contingent upon Executive will signing and not receive severance pay or benefits other than the Accrued Obligations unless (x) Executive signs and does not revoke revoking a separation agreement and release of claims in the form attached as Exhibit A, but agreement with any appropriate reasonable modifications, reflecting changes in applicable law, as is necessary to provide the Company with (which may include an agreement not to disparage the protection it would have if Company, non-solicit provisions and other standard terms and conditions) in a form reasonably acceptable to the Release was executed as of the date of this Agreement Company (the “Release”) upon or following Executive’s separation from service and (y) such Release becomes becoming effective and irrevocable no later than sixty (60) days following the termination date Executive’s separation from service (such deadline, the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Agreement. All payments In no event will be made upon the effectiveness of the Release but will be delayed until a subsequent calendar year if necessary so their timing does not result in penalty taxation under Section 409A. Severance severance payments or benefits will not be paid or provided until the Release actually becomes effective and irrevocableeffective. For avoidance of doubt, although In the event that Executive’s separation from service occurs at a time during the calendar year where it would be possible for the Release to become effective in the calendar year following the calendar year in which the Executive’s separation from service occurs if Executive took the full provided period to review the Release, all severance payments and benefits are contractual rightswill be paid on the first payroll date to occur during the calendar year following the calendar year in which such separation from service occurs (the “Payroll Date”), not “damages,” Executive is not or, if later: (i) the Release Deadline, (ii) such time as required by the payment schedule applicable to seek other employment each severance benefit, or otherwise “mitigate damages” (iii) such time as a condition required by Section 8(b)(ii); provided, however, that any acceleration of receiving such vesting of options and restricted stock will be provided on the Release effectiveness date. Except as required by Section 8(b)(ii), any payments and benefits that would have been made to Executive prior to the later of the Payroll Date or Release Deadline but for the payment requirements of the preceding sentence will be paid to Executive on the later of the Payroll Date or the Release Deadline following Executive’s separation from service and the remaining payments will be made as provided in this Agreement. In no event will Executive have discretion to determine the taxable year of payment of any severance payments or benefits. (b) If any amount or benefit that would constitute non-exempt “deferred compensation” under Internal Revenue Code (“Code”) Section 409A would be payable under this Agreement by reason of Executive’s “separation from service” during a period in which Executive is a “specified employee” (within the meaning of Code Section 409A as determined by the Company), then any payment or benefits will be delayed until the earliest date on which they could be paid or distributed without being subject to penalty taxation under Code Section 409A. (c) Each payment and benefit payable under this Agreement is intended to constitute a separate payment under Treasury Regulations Section 1.409A-2(b)(2).