Common use of Separation Benefits Clause in Contracts

Separation Benefits. In the event that Employee’s employment with the Company is terminated by Employee for Good Reason or by the Company without Cause, the Company shall pay or provide to Employee the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In addition, subject to (x) Employee’s execution and delivery to the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) Employee’s non-revocation of such release, the Company shall pay or provide to Employee the following; (a) the Severance Payment, as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreement.

Separation Benefits. In the event that Employee’s employment with the Company is terminated by Employee consideration for Good Reason or by the Company without Cause, the Company shall pay or provide to Employee the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In addition, subject to (x) EmployeeExecutive’s execution and delivery to non-revocation of the Company of a release in the form as General Release attached hereto as Exhibit A no later than forty-five A, and the other duties and obligations set forth in this Agreement, L-3 agrees to the following: (45a) days following L-3 agrees to continue paying to Executive his regular base salary payments at the current level as of the date hereof (less applicable withholdings and deductions) through the Retirement Date, and L-3 will not separate Executive from employment prior to the Retirement Date other than for Cause. For purposes of such termination this Agreement, Cause shall have the meaning set forth in the agreement governing the restricted stock units; issued to Executive on February 22, 2012. In consideration for Executive’s execution and (y) Employee’s non-revocation of such releasethe General Release attached hereto as Exhibit B on or after the Retirement Date, and the Company shall pay or provide to Employee the following; (a) the Severance Payment, as other duties and obligations set forth in Section 3.4.4; this Agreement, L-3 agrees to the following subject to the occurrence of and effective upon the Exhibit B Effective Date: (b) The terms governing the Welfare Benefits Paymenttime vesting restricted stock units issued to Executive on February 22, 2012 shall be deemed amended so as set forth to allow Executive’s termination of employment as of the Retirement Date to satisfy the requirements of the “retirement” definition thereunder, subject to Executive’s continued compliance with this Agreement. For purposes of clarity, Executive’s other outstanding time vesting restricted stock unit awards shall be governed by the terms of the applicable award agreement, which provides that such awards shall become payable in Section 3.4.4; accordance with the terms of the applicable award agreement, but without regard to the requirement of Executive’s continued employment through the applicable settlement date. (c) medical and dental benefits The terms governing Executive’s “Performance Awards” (as defined below) shall be deemed amended to Employee and his covered dependents treat Executive’s termination of employment as a “Retirement” constituting a “Qualified Termination” (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985each, as amended defined under the applicable Performance Award agreements), with deemed service credit through December 31,2012, subject to Executive’s continued compliance with this Agreement. As used above, the term “Performance Awards” means (“COBRA Coverage”i) the performance unit awards granted to Executive on February 23, 2010, February 24, 2011 and making any payments required February 22, 2012 and (ii) the performance cash award granted to be made by Employee or his dependentsExecutive on February 22, if applicable; and 2012. (d) L-3 shall pay Executive a cash amount equal to $975,000, less withholding taxes and other deductions required by law (the payment of Annual Bonus specified in Section 4.2“Separation Payment”). Further, Employee The Separation Payment shall be entitled paid to continued participation Executive in certain welfare plans equal installments in biweekly intervals on the same dates as described in Section 4.2. In additionL-3 payroll is paid, Employee and beginning on the Company shall continue to be bound by any provisions first payroll date following the Exhibit B Effective Date of this Agreement that expressly survive termination and ending on December 31, 2013. (e) L-3 shall pay Executive $925,000 as an annual cash bonus for 2012 (the “2012 Bonus”), less withholding taxes and other deductions required by law, in full satisfaction of this Executive’s right to receive any annual bonus for 2012. The 2012 Bonus shall be paid to Executive in a single lump sum at the same time bonuses are paid to L-3 employees generally, but in no event later than March 15, 2013. (f) L-3 agrees to enter into a consulting agreement with Executive in the form attached hereto as Exhibit C (the “Consulting Agreement”) to become effective upon the Exhibit B Effective Date.

Separation Benefits. In (a) Upon the event that Employee’s employment with Separation Date, Executive shall receive any accrued but unpaid benefits for any period prior to the Company is terminated by Employee for Good Reason or by the Company without Cause, the Company shall pay or provide to Employee the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1Separation Date. In addition, provided that Executive agrees to and accepts the terms of this Agreement, and does not timely revoke his acceptance, and further provided that, upon the Separation Date, Executive executes and delivers, and does not timely revoke, a customary general release in form and substance satisfactory to the Company, Executive shall receive: (i) severance pay in the amount of $183,750, less applicable deductions and withholdings, payable in equal installments and in accordance with the Company’s regular and customary payroll practices, over the period commencing on the Separation Date and ending on March 12, 2013 (the “Benefits Period”) and, (ii) continuation of benefits during the Benefits Period at the same level offered to and enrolled in by the Executive prior to the Separation Date (collectively, the “Separation Benefits”); provided, however, that the Company’s obligation to continue to provide Separation Benefits shall terminate upon the date that Executive commences employment with a new employer. Executive shall provide the Company with written notice not later than one day following his commencement of employment with a new employer. (b) Executive agrees and acknowledges that his receipt of the Separation Benefits is subject to (x) Employee’s execution and delivery conditioned upon his strict compliance with this Agreement, including without limitation the post-employment restrictions set forth in Paragraphs 7, 8, 9, 10 and 11 below. Executive further agrees that, should he fail to the Company of a release in the form as attached hereto as Exhibit A no later than fortycomply with any such post-five (45) days following the date of such termination and (y) Employee’s non-revocation of such releaseemployment restrictions, the Company Company, in addition to any other legal or equitable remedy available to it, shall pay or provide be entitled to Employee immediately and forever cease payment of the following; Separation Benefits, and to recover any consideration already paid to Executive under this Agreement, including without limitation the Separation Benefits. (ac) the Severance PaymentExecutive agrees and acknowledges that, other than as set forth in Section 3.4.4; (b) this Agreement, Executive is not entitled to and shall not receive any additional compensation, payments or benefits of any kind from the Welfare Benefits PaymentCompany, as and that no representations or promises to the contrary have been made to Executive. Executive further agrees and acknowledges that, but for entering into and complying with the terms of this Agreement, Executive would not be entitled to receive the payments and benefits set forth in Section 3.4.4; (c) medical this Agreement, including without limitation the Separation Benefits, that such payments and dental benefits exceed any consideration to Employee which he would otherwise be entitled, and his covered dependents (to the extent applicable) upon the same terms that such payments and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) benefits constitute good and sufficient consideration for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case promises and covenants of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this AgreementExecutive set forth herein.

Separation Benefits. In (a) Provided that Executive agrees to and accepts the event that Employee’s employment with the Company is terminated by Employee for Good Reason or by the Company without Causeterms of this Agreement, and does not timely revoke her acceptance, the Company shall pay or to Executive the amount of $96,406.02, less applicable deductions and withholdings (the “Separation Benefits”), in equal installments and in accordance with the Company’s regular and customary payroll practices, over the period commencing on November 20, 2010 and ending on May 20, 2011 (the “Benefits Period”); provided, however, that the Company’s obligation to continue to provide to Employee Separation Benefits shall terminate upon Executive’s commencement of employment with a new employer. (b) Executive agrees and acknowledges that her receipt of the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In addition, Separation Benefits is subject to (x) Employee’s execution and delivery conditioned upon her strict compliance with this Agreement, including without limitation the post-employment restrictions set forth in Sections 7, 8, 9, 10 and 11 below. Executive further agrees that, should she fail to the Company of a release in the form as attached hereto as Exhibit A no later than fortycomply with any such post-five (45) days following the date of such termination and (y) Employee’s non-revocation of such releaseemployment restrictions, the Company Company, in addition to any other legal or equitable remedy available to it, shall pay or provide be entitled to Employee immediately and forever cease payment of the following; Separation Benefits, and to recover any consideration already paid to Executive under this Agreement, including without limitation the Separation Benefits. (ac) the Severance PaymentExecutive agrees and acknowledges that, other than as set forth in Section 3.4.4; (b) this Agreement, Executive is not entitled to and shall not receive any additional compensation, payments or benefits of any kind from the Welfare Benefits PaymentCompany, as and that no representations or promises to the contrary have been made to Executive. Executive further agrees and acknowledges that, but for entering into and complying with the terms of this Agreement, Executive would not be entitled to receive the payments and benefits set forth in Section 3.4.4; (c) medical this Agreement, including without limitation the Separation Benefits, that such payments and dental benefits exceed any consideration to Employee which she would otherwise be entitled, and his covered dependents (to the extent applicable) upon the same terms that such payments and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) benefits constitute good and sufficient consideration for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case promises and covenants of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this AgreementExecutive set forth herein.

Separation Benefits. In the event that consideration of Employee’s employment acceptance of this Agreement, and expressly subject to the Employee's ongoing compliance with the Company is terminated by Employee for Good Reason or by the Company without CauseAgreement, the Company shall pay or provide including but not limited to Employee the Accrued Obligations payable as described in Section 3.2.1 Sections 7-9, 11-13, and the payments described in 4.1. In addition16 herein, and further subject to (x) Employee’s execution and delivery his execution, upon the conclusion of the Consultancy Period, of a Release in a form substantially similar to the Company of a release in the form as agreement attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) Employee’s non-revocation of such releaseA, the Company shall shall: A. pay or provide to Employee fifty-two (52) weeks of pay at the followingBase Rate (the “Separation Pay”). The Separation Pay shall be paid in 52 equal weekly installments pursuant to the Company’s normal payroll procedures. The first of the Separation Pay installments shall be made on the first regular pay period following the termination of the Consultancy Period; and B. if, after the conclusion of the Consultancy Period, Employee elects to continue health and dental insurance through COBRA continuation coverage, the Company agrees to pay, for a period of up to fifty-two (a52) weeks, a portion of the Severance Payment, as premium cost such that Employee’s premium payment does not exceed what Employee would otherwise have paid if he were employed by the Company at the time of each such payment. The parties hereto agree that the covenants and restrictions set forth in Section 3.4.4; (b) this Agreement are reasonable and necessary for the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee protection of the Company (and to protect its business and confidential information; and Employee further expressly agrees that the provisions in all events below determined without regard for any diminution Sections 7-9, 11-13, and 16 herein are material terms of such coverage constituting Good Reason for his resignation hereunder) for the Severance Periodthis Agreement. Subsequent to the Severance Period, Employee (or his dependentsAccordingly, in the case event that Employee breaches this Agreement, expressly including but not limited to Sections 7-9, 11-13, and 16 herein, Employee agrees that, in addition to compensation for any damages incurred by the Company as a result of Employee’s death) will be eligible such breach, and/or any injunctive relief provided for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee herein or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Furtherotherwise, Employee shall be entitled liable for the repayment of all amounts paid to continued participation Employee pursuant to this Paragraph 3, and he agrees to repay all such amounts in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreementfull.

Separation Benefits. In consideration for Executive’s general release of all claims set forth below and Executive’s other obligations under this Agreement and in satisfaction of all of the event that EmployeeCompany’s obligations to Executive, and further provided that: (i) this Agreement is signed by Executive and delivered to the Company on or before December 5, 2013, (ii) this Agreement is not revoked by Executive under Section 7 below and therefore becomes effective on or before December 13, 2013, (iii) Executive remains in continuing material compliance with all of the terms of this Agreement, (iv) the termination of Executive’s employment with the Company is terminated treated as a Qualifying Termination by Employee for Good Reason the Company, and (v) on or within 60 days after the Termination Date, Executive (or his estate, if applicable) timely re-executes a second general release of claims (in a form prescribed by the Company and which will be substantially the same as this Agreement) and Executive (or his estate, if applicable) timely delivers to the Company such second release and does not revoke it, then the Company agrees to provide (and continue to provide) the separation benefits specified in Section 4(a) below to Executive (or his estate, if applicable). The Parties agree and acknowledge that (A) the separation payments and benefits provided under Section 4(a) are being provided in lieu of all post-employment benefits set forth in the Employment Agreement and any post-employment benefits under any other agreement, and (B) this Agreement as of its effective date hereby supersedes and replaces in their entirety any and all compensation, severance, separation, benefits and/or termination plans, policies, agreements and/or programs between Executive and Company (including, without Causelimitation, the Employment Agreement). In the event that the Company believes Executive is not in continuing material compliance with the terms of this Agreement, then the Company shall provide Executive with written notice of the same and the Company’s intention to terminate the separation benefits specified in Section 4(a) below within ninety (90) days of the date on which the Chief Executive Officer or the General Counsel of the Company first becomes aware of the initial existence of the condition(s) giving rise to such lack of material compliance. If the Company does not timely provide such notice during the applicable 90 days, then the Company will be deemed to have waived the right to assert any such breach with respect to such condition(s), provided that at least one of such persons with knowledge of the initial existence of the condition(s) remains in service with the Company through the conclusion of the ninety (90) day notice period. Notwithstanding the foregoing, in the event that the actions or inactions giving rise to such lack of material compliance are reasonably capable of being cured, the written notice from the Company shall provide Executive with at least twenty (20) days to cure such noncompliance, prior to the effective date of the termination of separation benefits specified in Section 4(a) below. During such twenty (20) day period, the Company will suspend payment(s) of the separation benefits specified in Section 4(a) below, and if the actions or inactions giving rise to such lack of material compliance are not timely cured, then the Company shall immediately terminate any and all such separation payments and benefits. If Executive cures the circumstances giving rise to such lack of material compliance within such twenty (20) day period, the Company shall pay or remove the suspension and continue to provide to Employee the Accrued Obligations payable as described separation payments and benefits specified in Section 3.2.1 and the payments described in 4.1. In addition, subject 4(a) below retroactive to (x) Employee’s execution and delivery to the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) Employee’s non-revocation of such release, the Company shall pay or provide to Employee the following; (a) the Severance Payment, as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreementsuspension.

Separation Benefits. In Provided you (i) sign this Agreement and do not revoke your signature as set forth below in Paragraphs 6 and 7 hereof and (ii) comply with all the event terms of this Agreement, the Company will provide you with the payments and other benefits described below. Income will be imputed to you in connection with these payments and benefits as required by applicable law, and the Company will withhold any amounts required by applicable law. You will be responsible for any taxes related to your receipt of this income. You acknowledge that Employee’s employment with the Company is terminated by Employee for Good Reason not advising you with respect to the tax consequences to you of entering into this Agreement or by any other tax issues. You also acknowledge that the provision of the pay and other benefits specified below completely satisfies any obligations that the Company without Causehas or may have to you, except (i) to the extent otherwise required by law or (ii) as otherwise expressly provided in this Agreement. All payments to you hereunder shall be deemed made when personally delivered to you or sent to you by regular U.S. mail at your address set forth in Paragraph 16 hereof (a) Following the Separation Date, you will be paid (i) in accordance with applicable law, your accrued and unpaid salary through the Separation Date, and (ii) in accordance with Company policy, the amount of $20,468.75 for all your accrued but unused PTO days through the Separation Date. You will be reimbursed in accordance with Company policy for any substantiated but previously unreimbursed Company business expenses, provided you furnish the Company with proper evidence of and a reimbursement request for such business expenses within five business days from the Separation Date. Payments under various employee plans, programs, and other arrangements are addressed elsewhere in this Agreement. (b) Following the Effective Date (as defined below), you will be paid, in four separate equal installments, a special separation payment equal to a total of One Hundred and Eight Thousand Three Hundred and Thirty-Six Dollars and No Cents ($108,336.00), payable as follows: (i) the first installment of $27,084.00 will be paid within three business days of the 30th day following the Effective Date; (ii) the second installment of $27,084.00 will be paid within three business days of the 60th day following the Effective Date; (iii) the third installment of $27,084.00 will be paid within three business days of the 90th day following the Effective Date; and (iv) the fourth installment of $27,084.00 will be paid within three business days of the 120th day following the Effective Date. (c) Information regarding your health and welfare benefit coverage will be provided by TaxSaver Plan. If you elect COBRA continuation coverage for medical benefits, the Company shall pay or provide to Employee will reimburse you for the Accrued Obligations payable as described in Section 3.2.1 cost of this coverage for you and the payments described in 4.1your spouse through December 31, 2015. In addition, subject to (x) Employee’s execution and delivery The Company will reimburse you promptly after you submit sufficient evidence to the Company of a release in the form continuation coverage costs you incur. Your reimbursement payments will be subject to applicable withholding and you will be responsible for any taxes related to your receipt of this income. (d) Under the Magnum Hunter Resources Corporation Stock Incentive Plan, your unvested awards are forfeited as attached hereto as Exhibit A no later than forty-five of your Separation Date. Your previously vested and currently outstanding stock options under the Stock Incentive Plan (45if any) days following will remain exercisable for three months from your Separation Date, subject to the date terms of the Stock Incentive Plan (including earlier termination of such termination and (y) Employee’s non-revocation of such release, the Company shall pay or provide to Employee the following; (a) the Severance Payment, options as set forth in Section 3.4.4; such plan or your stock option agreement). (be) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (Pursuant to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (Magnum Hunter Resources Corporation 401(k) Employee Stock Ownership Plan and in all events below determined without regard compliance with federal law, your eligibility for any diminution of such coverage constituting Good Reason for his resignation hereunder) for contributions under the Severance Periodplan will end on the Separation Date. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) You will be eligible for coverage pursuant a distribution from the plan subject to and in accordance with its terms. You hereby authorize the Company, to the Consolidated Omnibus Budget Reconciliation Act extent such authorization herein is valid under and permitted by applicable law, to deduct from the amounts set forth in this Paragraph 3 (other than, for the avoidance of 1985doubt, as amended (“COBRA Coverage”your benefits under the Magnum Hunter Resources Corporation 401(k) and making any payments required to be made by Employee or his dependentsStock Ownership Plan) amounts, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Furtherany, Employee shall be entitled owed by you to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue for personal expenditures charged to be bound by any provisions of this Agreement the Company or other amounts that expressly survive termination of this Agreementyou have agreed to pay to or are contractually obligated to pay the Company.

Separation Benefits. In Subject to Section 4 below, in consideration of, and subject to and conditioned upon (i) Employee’s timely execution of this Agreement, (ii) Employee’s continued employment through the event Separation Date; provided, however, that Employee’s employment with the Company is terminated by Employee for Good Reason or termination by the Company without Cause, other than for Cause (as defined in the Company Company’s Change-in-Control Plan) prior to the Separation Date shall pay not alter or provide reduce the separation benefits to be paid to Employee the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In additionhereunder, subject to (xiii) Employee’s continued compliance with the terms and conditions of Sections 6-8 of this Agreement and the Restrictive Covenants (as defined below) and (iv) Employee’s timely execution and delivery to non-revocation of the Company of a general release in the form as attached hereto as Exhibit A (the “General Release”), the Company will pay Employee the following separation benefits that Employee would not be entitled to receive if Employee did not enter into this Agreement: (a) Continued payment of Employee’s annual base salary as in effect as of the Separation Date during the period commencing on the Separation Date and ending on the first (1st) anniversary of the Separation Date (i.e., June 30, 2023) (the “Severance Period”), payable in substantially equal installments in accordance with the Company’s normal payroll practices during the Severance Period; provided, however, that no later than fortypayments shall be made prior to the first regularly-five scheduled Company payroll date occurring on or after the thirtieth (4530th) days day following the date of such termination on which the General Release becomes effective and irrevocable (ythe “First Payroll Date”) Employee(with amounts otherwise payable under the Company’s non-revocation of such release, the Company shall pay or provide to Employee the following; (a) the Severance Payment, as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (normal payroll practices prior to the extent applicable) upon First Payroll Date paid on the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined First Payroll Date without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreement.interest thereon);

Separation Benefits. In the event that Employee’s employment with the Company is terminated by Employee for Good Reason or by the Company without Cause, the Company shall pay or provide to Employee the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In addition, subject Subject to (xi) Employee’s the execution and delivery of this Agreement, and the expiration of the applicable revocation period without this Agreement being revoked by Executive, in each case by December 11, 2008, and in full discharge of all obligations owed to Executive by the Companies and their Subsidiaries under the Employment Agreement, and (ii) continued observance by Executive in all material respects of the covenants contained in Section 11 of the Employment Agreement (as modified herein), Executive shall be entitled to the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) Employee’s non-revocation of such release, the Company shall pay or provide to Employee the following; benefits: (a) On or before November 30, 2008, and without regard to whether Executive complies with Section 2 of this Agreement, Holdings shall pay Executive (i) the Severance Payment, Accrued Compensation (as set forth defined in Section 3.4.4; 9(a) of the Employment Agreement, without regard to clause (iii) thereof), which shall include three days of unused paid time off and (ii) reimbursement in accordance with Section 7(b) of all expenses reasonably incurred by Executive in connection with the performance of his duties under the Employment Agreement or for promoting, pursuing or otherwise furthering the business or interests of Holdings or its Subsidiaries incurred through the Separation Date and presented to Holdings for reimbursement. (b) the Welfare Benefits Payment, Holdings shall pay Executive a Bonus (as set forth defined in Section 3.4.4; 4(a) of the Employment Agreement) in an amount equal to (i) the product of (A) Fall Bonus (as defined in Section 4(b) of the Employment Agreement) that would otherwise have been payable to Executive for the period ending on January 31, 2009, (had Executive continued to be an employee of Holdings through the end of such period) determined based on the actual performance of the Companies and their Subsidiaries through such date and (B) 50% (the “Pro Rata Fall Bonus”) and (ii) the product of (A) Full Year Bonus (as defined in Section 4(b) of the Employment Agreement) that would otherwise have been payable to Executive for the period ending January 31, 2009, (had Executive continued to be an employee of Holdings through the end of such period) determined based on the actual performance of the Companies and their Subsidiaries through such date and (B) 75% (the “Pro Rata Full Year Bonus”). If such bonuses become due, the Pro Rata Fall Bonus and Pro Rata Full Year Bonus shall each be paid to Executive when similar fall and annual bonuses, respectively, are paid to Xxxxxx’x employees generally, but in any event, on or after April 24, 2009 and prior to May 8, 2009. (c) As consideration for the continued observance by Executive in all material respects of the covenants contained in Section 11(b) of the Employment Agreement (as modified herein), Holdings shall continue Executive’s Base Salary (as defined in Section 3 of the Employment Agreement) of $600,000 from the date immediately following the Separation Date to the second anniversary of the Separation Date (the “Salary Continuation Period”). Payments during the Salary Continuation Period (the “Salary Continuation Payments”) shall be made on a weekly basis, the gross amount of each such weekly payment being $11,538.46, with the first such payment being made on the first day of the seventh month following the Separation Date in respect of the Salary Continuation Payments that otherwise would have been made to Executive during the period beginning on the first day of the Salary Continuation Period and ending on April 24, 2009. Payments following this initial payment shall be made on a weekly basis, the gross amount of each such weekly payment being $11,538.46, through the duration of the Salary Continuation Period. (d) As consideration for the continued observance by Executive in all material respects of the covenants contained in Section 11(b) of the Employment Agreement (as modified herein), Holdings shall pay Executive an amount equal to (i) Executive’s Spring Target Bonus ($157,500) (as defined in Section 4(b) of the Employment Agreement) for the six-month period commencing on each of February 1, 2009 and January 31, 2010, with each such payment to be made at the time Spring Target Bonuses are paid to other executives, but in any event prior to August 31, 2009 (in the case of the first payment) and on or after January 1, 2010, but in any event prior to August 31, 2010 (in the case of the second payment), (ii) Executive’s Fall Target Bonus ($202,500) (as defined in Section 4(b) of the Employment Agreement) for the six-month period commencing on each of August 2, 2009 and August 1, 2010, with each such payment to be made at the time Fall Target Bonuses are paid to other executives, but in any event on or after January 1, 2010 and prior to March 31, 2010 (in the case of the first payment) and on or after January 1, 2011 and prior to March 31, 2011 (in the case of the second payment), and (iii) Executive’s Full-Year Target Bonus ($90,000) (as defined in Section 4(b) of the Employment Agreement) for the twelve-month period commencing on each of February 1, 2009 and January 31, 2010, with each such payment to be made at the time Full-Year Target Bonuses are paid to other executives, but in any event on or after January 1, 2010 and prior to March 31, 2010 (in the case of the first payment) and on or after January 1, 2011 and prior to March 31, 2011 (in the case of the second payment). No payment under this Section 3(d) shall be made prior to April 24, 2009. (e) Holdings shall take such actions as may be necessary to immediately vest Executive’s unvested stock option or other unvested long-term incentive awards that, by their terms, would have vested during the calendar year in which Executive’s employment was terminated. Since there are no unvested stock options or long-term incentive awards held by Executive that, by their terms, vest during 2008, Executive is not entitled to additional vesting of any outstanding equity awards and all equity awards held by or through Executive shall continue to be subject to the terms and conditions applicable to such equity awards. (f) During the Salary Continuation Period, Holdings shall, at its expense, provide to Executive and Executive’s covered dependents medical and dental benefits substantially similar in the aggregate to Employee those provided to Executive and his Executive’s covered dependents immediately prior to the Separation Date, including benefits provided under the New York & Company Executive Medical Plan (the “Executive Medical Plan”). Holdings shall (i) provide Executive with a monthly cash reimbursement equal to the total monthly premium payment (employee and employer portion) paid for coverage of Executive and Executive’s covered dependents, such payment to be made within one month of Executive’s payment of the applicable premium, and (ii) provide a monthly cash reimbursement to Executive of amounts not covered under such continued medical coverage, to the extent applicable) upon permitted by the same terms and conditions Executive Medical Plan, such monthly reimbursement to be made as if Employee continued to remain an active employee soon as administratively practicable after submission of the Company (documents required for reimbursement. The amount of expenses eligible for reimbursement under this Section 4(f) during one taxable year of the Executive shall not affect the expenses eligible for reimbursement in all events below determined without regard any other taxable year of the Executive. The Executive’s right to reimbursement under this Section 4(f) shall not be subject to liquidation or exchange for any diminution another benefit. Notwithstanding the foregoing provisions of such this Section 4(f), Holdings’ obligation with respect to coverage constituting Good Reason for his resignation hereunderunder this Section 4(f) for the Severance Period. Subsequent shall be eliminated to the Severance extent that Executive or Executive’s covered dependents, as applicable, obtain, during the Salary Continuation Period, Employee (equivalent or his dependents, in the case of Employee’s death) will be eligible for coverage substantially similar benefits pursuant to a subsequent employer’s benefit plans. Holdings hereby acknowledges and agrees that Executive’s termination of employment with the Companies as of the Separation Date shall not be treated as a “qualifying event” within the meaning of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA CoverageCOBRA”), and that, upon the cessation of coverage under this Section 4(f), Executive and Executive’s covered dependents shall have all rights to which they are entitled under COBRA. Thereafter, Holdings’ obligation with respect to such coverage shall be eliminated to the extent that such coverage terminates in accordance with COBRA. (g) Holdings will provide Executive with Holdings’ executive level outplacement services through Xxx Xxxxx Xxxxxxxx; provided that Executive begins using such service no later than January 31, 2009. (h) Holdings shall cause its legal counsel to render any number of opinions (but not more than two opinions in any 45 day period and making not more than 15 opinions in the aggregate) to its transfer agent to permit the sale of Executive’s shares of Holdings common stock pursuant to Rule 144 under the Securities Act of 1933, as amended, within ten business days of receiving all documentation reasonably requested from Executive, including any payments certificates from third parties, as being necessary for legal counsel to render such opinions. Holdings or its counsel shall provide appropriate instruction to Executive regarding documentation necessary in order to render such opinions. (i) Holdings shall, at its expense, assist Executive in compliance with Executive’s obligations under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including, but not limited to, preparation and filing of any Forms 4 required to be filed by Executive; provided, however, that Executive shall provide Holdings with appropriate notice of any transactions required to reported under Section 16(a) of the Exchange Act, either prior to the time such transactions are effected or contemporaneously with such transactions if prior notice is impractical, so that Holdings will have adequate time to prepare any necessary filings on a timely basis. (j) Each weekly or monthly installment payment made pursuant to this Section 3 shall be treated by Employee or his dependentsthe Companies and Executive as a separate payment for all purposes of the Final Treasury Regulations under Section 409A (“409A”) issued on April 17, if applicable; 2007 (the “Regulations”). (k) For purposes of determining whether Executive has incurred a “separation from service” under the Regulations, the Companies agree that the “default rule” should be applied for purposes of defining “service recipient” and “employer” under the Regulations. (dl) The parties acknowledge and agree that Executive is not entitled to any further payment under the Employment Agreement, including Section 9 thereof, and that any of the Companies’ payment of Annual Bonus specified obligations contained in the Employment Agreement (other than those set forth in Section 4.2. Further23 of the Employment Agreement) shall become null and void upon the Effective Date. (m) Notwithstanding anything in this Agreement to the contrary, Employee Xxxxxx shall be entitled jointly and severally liable for the obligations to continued participation in certain welfare plans as described in Executive under this Agreement, including, but not limited to, the obligations of Holdings under Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination 3 of this Agreement. (n) In the event of Executive’s death prior to the end of the Salary Continuation Period, Holdings shall pay to Executive’s estate, or as may be directed by the legal representatives of such estate, the benefits due pursuant to (a)-(f) of this Section 3, at the time and in the same form that such payments are due to the Executive thereunder. (o) Section 11(b) of the Employment Agreement is hereby modified so that only Competitive Activity for any of the entities listed on Exhibit A hereto, including their Subsidiaries and successors and assigns by reason of merger, consolidation, reorganization or otherwise, will be considered restricted by such Section 11(b) of the Employment Agreement.

Separation Benefits. In As consideration for the event that EmployeeExecutive’s employment execution of, non-revocation of, and compliance with this Agreement, including the Executive’s waiver and release of claims in Section 8 and other post-termination obligations, and Executive’s subsequent execution of an attestation within then (10) days after his Separation Date, the Company agrees to provide the following separation benefits (“Separation Benefits”) to which the Executive is not otherwise entitled: (a) Pay continuation from the Execution Date to the Separation Date, at Executive’s current base salary rate, less all relevant deductions for benefits, taxes and other withholdings, which shall be payable in accordance with the Company is terminated by Employee for Good Reason or by Company’s normal payroll practices. Notwithstanding the Company without Causeforegoing, the Company shall pay or have no obligation to provide any of the Separation Benefits prior to Employee the Accrued Obligations payable Effective Date of this Agreement as described defined in Section 3.2.1 13. The Executive understands, acknowledges, and agrees that these benefits exceed what the Executive is otherwise entitled to receive on separation from employment, and that these benefits are being given as consideration in exchange for executing this Agreement and the payments described general release and restrictive covenants contained in 4.1it. In addition, subject Except for Executive’s ability to (x) Employee’s execution and delivery continue vesting in restricted stock units and/or stock options granted to him as an employee provided he meets the Company definition of a release “continuous service” as defined in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) EmployeeCompany’s non-revocation of such release2018 Equity Incentive Plan, the Company Executive further acknowledges that the Executive is not entitled to any additional payment or consideration not specifically referenced in this Agreement. Nothing in this Agreement shall pay be deemed or provide to Employee the following; (a) the Severance Payment, construed as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee express or implied policy or practice of the Company (in all events below determined without regard for to provide these or other benefits to any diminution of such coverage constituting Good Reason for his resignation hereunder) for individuals other than the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this AgreementExecutive.

Separation Benefits. In the event that Employee’s employment with the Company is terminated by Employee for Good Reason or by the Company without Cause, the Company shall pay or provide to Employee the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In addition, subject to (x) Employee’s execution and delivery to the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) Employee’s non-revocation of such release, the Company shall pay or provide to Employee the following; (a) Provided that Executive agrees to and accepts the Severance Paymentterms of this Agreement, and does not timely revoke his acceptance, and further provided that, upon the Separation Date, Executive executes and delivers, and does not timely revoke, a customary general release in form and substance satisfactory to the Company, Executive shall receive: (i) the amount of $266,958.00, less applicable deductions and withholdings, payable in equal installments and in accordance with the Company’s regular and customary payroll practices, over the period commencing on December 1, 2010 and ending on November 30, 2011 (the “Benefits Period”); and, (ii) continuation of benefits during the Benefits Period at the same level offered to and enrolled in by the Executive prior to commencement of the Transition Period (collectively, the “Separation Benefits”); provided, however, that the Company’s obligation to continue to provide Separation Benefits shall terminate upon Executive’s commencement of employment with a new employer. (b) Executive agrees and acknowledges that his receipt of the Separation Benefits is subject to and conditioned upon his strict compliance with this Agreement, including without limitation the post-employment restrictions set forth in Paragraphs 7, 8, 9, 10 and 11 below. Executive further agrees that, should he fail to comply with any such post-employment restrictions, the Company, in addition to any other legal or equitable remedy available to it, shall be entitled to immediately and forever cease payment of the Separation Benefits, and to recover any consideration already paid to Executive under this Agreement, including without limitation the Separation Benefits. (c) Executive agrees and acknowledges that, other than as set forth in Section 3.4.4; (b) this Agreement, Executive is not entitled to and shall not receive any additional compensation, payments or benefits of any kind from the Welfare Benefits PaymentCompany, as and that no representations or promises to the contrary have been made to Executive. Executive further agrees and acknowledges that, but for entering into and complying with the terms of this Agreement, Executive would not be entitled to receive the payments and benefits set forth in Section 3.4.4; (c) medical this Agreement, including without limitation the Separation Benefits, that such payments and dental benefits exceed any consideration to Employee which he would otherwise be entitled, and his covered dependents (to the extent applicable) upon the same terms that such payments and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) benefits constitute good and sufficient consideration for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case promises and covenants of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this AgreementExecutive set forth herein.

Separation Benefits. In consideration for Executive’s general release of all claims set forth below and Executive’s other obligations under this Agreement and in satisfaction of all of the event that EmployeeCompany’s obligations to Executive and further provided that: (i) this Agreement is signed by Executive and delivered to the Company on or before May 16, 2011, (ii) this Agreement is not revoked by Executive under Section 7 below and therefore becomes effective on or before May 23, 2011, (iii) Executive remains in continuing material compliance with all of the terms of this Agreement, (iv) the termination of Executive’s employment with the Company is terminated treated as a Qualifying Termination by Employee for Good Reason the Company, (v) Executive does not resign from the Board at anytime before the annual meeting of Company stockholders in 2011, and (vi) on or within 60 days after the Termination Date, Executive (or his estate, if applicable) timely re-executes a second general release of claims (in a form prescribed by the Company and which will be substantially the same as this Agreement) and Executive (or his estate, if applicable) timely delivers to the Company such second release and does not revoke it, then the Company agrees to provide (and continue to provide) the separation benefits specified in Section 4(a) below to Executive (or his estate, if applicable). The Parties agree and acknowledge that (A) the separation payments and benefits provided under Section 4(a) are being provided in lieu of all post-employment benefits set forth in the Employment Agreement and any post-employment benefits under any other agreement, and (B) this Agreement as of its effective date hereby supersedes and replaces in their entirety any and all compensation, severance, separation, benefits and/or termination plans, policies, agreements and/or programs between Executive and the Company (including, without Causelimitation, the Employment Agreement). In the event that the Company believes Executive is not in continuing material compliance with the terms of this Agreement, then the Company shall provide Executive with written notice of the same and the Company’s intention to terminate the separation benefits specified in Section 4(a) below within ninety (90) days of the date on which the General Counsel of the Company or a member of the Board (other than Executive) first becomes aware of the initial existence of the condition(s) giving rise to such lack of material compliance. If the Company does not timely provide such notice during the applicable 90 days, then the Company will be deemed to have waived the right to assert any such breach with respect to such condition(s), provided that at least one of such persons with knowledge of the initial existence of the condition(s) remains in service with the Company through the conclusion of the ninety (90) day notice period. Notwithstanding the foregoing, in the event that the actions or inactions giving rise to such lack of material compliance are reasonably capable of being cured, the written notice from the Company shall provide Executive with at least twenty (20) days to cure such noncompliance, prior to the effective date of the termination of separation benefits specified in Section 4(a) below. During such twenty (20) day period, the Company will suspend payment(s) of the separation benefits specified in Section 4(a) below, and if the actions or inactions giving rise to such lack of material compliance are not timely cured, then the Company shall immediately terminate any and all such separation payments and benefits. If Executive cures the circumstances giving rise to such lack of material compliance within such twenty (20) day period, the Company shall pay or remove the suspension and continue to provide to Employee the Accrued Obligations payable as described separation payments and benefits specified in Section 3.2.1 and the payments described in 4.1. In addition, subject 4(a) below retroactive to (x) Employee’s execution and delivery to the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) Employee’s non-revocation of such release, the Company shall pay or provide to Employee the following; (a) the Severance Payment, as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreementsuspension.

Separation Benefits. In Provided that the event that Employee’s employment with Executive executes this Agreement within sixty days subsequent to the Company is terminated by Employee for Good Reason or by the Company without CauseSeparation Date and does not revoke this Agreement as provided herein, the Company shall (i) pay or provide as severance pay to Employee the Accrued Obligations payable as described Executive, an amount equal to $445,200.00; (ii) pay an amount equal to $10,827.12 (an amount equal to the Company's share of the premium paid for Executive while Executive was an active employee for medical insurance coverage under the Company's health care plan for a period of twelve (12) months following the Separation Date) (in Section 3.2.1 both cases less applicable tax withholdings and the payments described in 4.1. In addition, deductions); and (iii) subject to (x) Employee’s execution the approval of the Administrator in accordance with its policies and delivery to the Company of a release procedures as provided in the form as attached hereto as Exhibit A no later than forty-five 2014 Incentive Plan (45) days following the date of such termination and (y) Employee’s non-revocation of such release“Plan”), the Company shall pay modify the terms of the outstanding option agreements granted to you on March 23, 2016, and September 1, 2017 (the “Option Agreements”) such that each tranche of unvested options in the Option Agreements will continue to vest on the same schedule through September 23, 2018, notwithstanding any language in the Option Agreements or provide to Employee the following; (a) the Severance Payment, as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (Plan to the extent applicablecontrary; provided, however, that any unvested options which are permitted to continue to vest under this Section 2, (whether unvested or vested and unexercised) upon the same terms shall void and conditions as if Employee continued to remain an active employee be of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, no further value in the case of Employee’s death) will be eligible for coverage pursuant event you breach this Agreement or any other agreement between the parties. (the items in clauses (i), (ii), and (iii), collectively, the “Severance Benefit”). The Severance Benefit with respect to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”i) and making any payments required (ii) shall be paid in substantially equal installments in accordance with the Company’s payroll practices (as in effect from time to be made by Employee or his dependentstime) during the one-year period immediately following the Separation Date commencing on the first payroll date following the date on which the release of claims becomes effective. Executive specifically acknowledges and agrees that but for signing this Agreement and the consideration thereunder, if applicable; and (d) including without limitation Section 3, the payment of Annual Bonus specified in Section 4.2. Further, Employee shall Executive would not be entitled to continued participation in certain welfare plans receive the Severance Benefit. The Executive further acknowledges and agrees that he has abided by the Confidentiality, Intellectual Property, Non-Competition and Non-Solicitation Agreement with the Company, dated as described in Section 4.2. In additionof February 4, Employee and 2016 (the “Restrictive Covenant Agreement”), the terms of which are incorporated herein; provided, however, that the Company shall continue to be bound by any provisions hereby waives section 5.1.1 through 5.1.3 of this the Restrictive Covenant Agreement that expressly survive termination as of the Effective Date of this Agreement.

Separation Benefits. In Subject to the event Executive's continued compliance with Section 15 of the Employment Agreement: (i) on the first business day immediately following the Revocation Date (as defined in Section 9(a) hereof), the Executive shall receive a cash payment from the Company in the amount of $800,000, and thereafter in accordance with the Company's regular payroll practices, the Executive shall receive a monthly payment from the Company of $66,667 on the Company's first regular payroll date following the Revocation Date and for each of the next 47 succeeding months; provided, however, that Employee’s (1) if the Executive dies prior to all monthly installments having been made under this Section 3(i), each remaining installment payment shall be made to his beneficiary or estate at the time such payment would have been made to the Executive but for his death, and (2) if a Change in Control (as defined in the Employment Agreement) occurs prior to all monthly installments having been made under this Section 3(i), then the Executive (or his beneficiary or estate, as the case may be) shall receive, in a lump sum cash payment, the balance of any such monthly installments not yet paid to the Executive (such payment to be discounted to reflect the time value of money based on then applicable short-term, mid-term or long-term applicable federal rate under Section 1274(d) of the Internal Revenue Code of 1986, as amended); (ii) for the 60-month period immediately following the Separation Date, the Company shall provide the Executive and his dependents life, disability, accident and health insurance benefits substantially similar to those provided to the Executive and his dependents immediately prior to the Separation Date at no greater cost to the Executive than would be the cost to the Executive if he had continued employment with the Company is terminated by Employee for Good Reason or and had continued to receive such benefits on terms and conditions no less favorable than as provided to other senior executives of the Company. Benefits otherwise receivable by the Executive pursuant to this Section 3(ii) shall be reduced to the extent benefits of the same type are received by or made available to the Executive during such 60-month period from subsequent employment (and any such benefits received by or made available to the Executive shall be reported to the Company without Causeby the Executive); provided, however, that the Company shall reimburse the Executive for the excess, if any, of the cost of such benefits to the Executive over the cost to the Executive of benefits provided by the Company; (iii) for the 60-month period immediately following the Separation Date, the Company shall continue to provide the Executive with a monthly car allowance and related operation, maintenance and insurance costs as provided to the Executive immediately prior to the Separation Date. Such allowance and benefits shall be reduced to the extent benefits of the same type are received by or made available to the Executive during such 60-month period (and any such benefits received by or made available to the Executive shall be reported to the Company by the Executive); (iv) for a one-year period immediately following the Separation Date, or, if earlier, until the Executive is provided with an office by a new employer in the New York City metropolitan area, the Company shall pay directly or provide to Employee reimburse the Accrued Obligations payable as described Executive for the cost of maintaining suitable office space in Section 3.2.1 and Manhattan, together with appropriate secretarial services; provided, however, that the payments described in 4.1. In addition, subject to aggregate monthly cost shall not exceed $3,000; and (xv) Employee’s execution and delivery each outstanding stock option granted to the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) Employee’s non-revocation of such release, Executive by the Company shall pay become fully vested and immediately exercisable in full (or provide to Employee the following; (aremain exercisable in full) the Severance Paymentand shall remain exercisable in full, as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon not previously exercised, until the same terms option expiration date (i.e., without regard to the Executive's separation from employment); provided, however, that until the earlier to occur of December 31, 2003 and conditions as if Employee continued to remain an active employee the date the Company files its Annual Report on Form 10-K for the fiscal year of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for ended December 31, 2002, the Severance Period. Subsequent Executive shall be subject to the Severance Period, Employee trading restrictions in Company securities that generally apply (or his dependents, in the case of Employee’s deathif any) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) Company's senior management and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreementdirectors.

Separation Benefits. In the event that Employee’s employment with Executive agrees that, notwithstanding any changes to his duties and responsibilities which the Company is terminated by Employee for Good Reason in its sole discretion has made or by might make, he will not assert at any time before the Company without CauseDetermination Date that his duties and responsibilities have been Diminished. In consideration of such agreement and the other agreements contained herein, the Company agrees to pay Executive separation benefits under this Agreement upon the occurrence or satisfaction of all of the following conditions: 1. Executive shall pay have made a Determination that, as of the Determination Date (a) integration of the NSP and NCE energy marketing organizations has been satisfactorily accomplished; and (b) either the Development Objective has not been satisfactorily accomplished or provide it has been satisfactorily accomplished but Executive has not been employed on mutually acceptable terms to Employee head the Accrued Obligations payable as described in Section 3.2.1 organization or consortium designated to perform the larger role created by the Development Objective; 2. During the period commencing on the Determination Date and ending at the close of the seventh business day thereafter, Executive shall have given written notice of the Determination and the payments described in 4.1consequent termination of his employment; and 3. In addition, subject to (x) Employee’s execution Executive shall have executed and delivery to the Company of not revoked a release agreement substantially in the form as attached hereto as Exhibit A no later than forty-five (45) days following described in the date Severance Policy. The separation benefits to which Executive shall be entitled hereunder will be calculated, determined and paid in accordance with the provisions of such termination Section 4.3, 4.4, 4.5, 4.6, and (y) Employee’s non-revocation Schedule I of such releasethe Severance Policy. Notwithstanding any other provision of this Agreement or any other plan, program, practice or policy of the Company or its predecessors or successors, any cash Separation Benefits that Executive becomes entitled to receive under Section 4.4B of this Agreement, shall pay be reduced (but not below zero) by the aggregate amount of cash severance, separation, Change in Control or provide similar benefits that the Executive may be entitled to Employee receive under any other plan, program, policy, contract, agreement or arrangement of the following; Company, its predecessors or successors (a) including without limitation the Xcel Senior Executive Severance PaymentPolicy), as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (except to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for Executive waives his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreementright thereto.

Separation Benefits. In consideration for Executive’s general release of all claims set forth below and Executive’s other obligations under this Agreement and in satisfaction of all of the Company’s obligations to Executive, and further provided that: (i) this Agreement is signed by Executive and delivered to the Company on or before December 25, 2013, (ii) this Agreement is not revoked by Executive under Section 7 below and therefore becomes effective on or before January 1, 2014, (iii) Executive remains in continuing material compliance with all of the terms of this Agreement, (iv) the termination of Executive’s employment with, the Company is treated as a Qualifying Termination by the Company, and (v) on or within 60 days after the Termination Date, Executive (or his estate, if applicable) timely re-executes a second general release of claims (in a form prescribed by the Company and which will be substantially the same as this Agreement) and Executive (or his estate, if applicable) timely delivers to the Company such second release and does not revoke it, then the Company agrees to provide (and continue to provide) the separation benefits specified in Section 4(a) below to Executive (or his estate, if applicable). The Parties agree and acknowledge that (A) the separation payments and benefits provided under Section 4(a) are being provided in lieu of all post-employment benefits set forth in the Employment Agreement and any post-employment benefits under any other agreement, and (B) this Agreement as of its effective date hereby supersedes and replaces in their entirety any and all compensation, severance, separation, benefits and/or termination plans, policies, agreements and/or programs between Executive and Company (including, without limitation, the Employment Agreement). In the event that Employeethe Company believes Executive is not in continuing material compliance with the terms of this Agreement, then the Company shall provide Executive with written notice of the same and the Company’s employment intention to terminate the separation benefits specified in Section 4(a) below within ninety (90) days of the date on which the Chief Executive Officer or the General Counsel of the Company first becomes aware of the initial existence of the condition(s) giving rise to such lack of material compliance. If the Company does not timely provide such notice during the applicable 90 days, then the Company will be deemed to have waived the right to assert any such breach with respect to such condition(s), provided that at least one of such persons with knowledge of the initial existence of the condition(s) remains in service with the Company is terminated by Employee for Good Reason through the conclusion of the ninety (90) day notice period. Notwithstanding the foregoing, in the event that the actions or by inactions giving rise to such lack of material compliance are reasonably capable of being cured, the written notice from the Company without Causeshall provide Executive with at least twenty (20) days to cure such noncompliance, prior to the effective date of the termination of separation benefits specified in Section 4(a) below. During such twenty (20) day period, the Company will suspend payment(s) of the separation benefits specified in Section 4(a) below, and if the actions or inactions giving rise to such lack of material compliance are not timely cured, then the Company shall immediately terminate any and all such separation payments and benefits. If Executive cures the circumstances giving rise to such lack of material compliance within such twenty (20) day period, the Company shall pay or remove the suspension and continue to provide to Employee the Accrued Obligations payable as described separation payments and benefits specified in Section 3.2.1 and the payments described in 4.1. In addition, subject 4(a) below retroactive to (x) Employee’s execution and delivery to the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) Employee’s non-revocation of such release, the Company shall pay or provide to Employee the following; (a) the Severance Payment, as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreementsuspension.

Separation Benefits. In Provided that Executive accepts and executes this Agreement, executes the event that Employee’s employment with the Company is terminated by Employee for Good Reason or by the Company without Cause, the Company shall pay or provide to Employee the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In addition, subject to (x) Employee’s execution and delivery to the Company of a release in the form as General Release attached hereto as Exhibit A no later than forty-five (45the “Release”) within 21 days following of the date Separation Date and does not revoke such General Release, and complies with the terms of such termination and (y) Employee’s non-revocation of such releasethis Agreement, the Company shall pay or will provide to Employee Executive the followingseparation payments and benefits described in Section 3(g) of the CIC Agreement (the “Separation Benefits”), at the times and in the manner set forth in the CIC Agreement, notwithstanding any condition stated therein regarding the timing or method of the termination of Executive’s employment; provided, however, that if a Change In Control (aas defined in the CIC Agreement) occurs on or before November 7, 2022, Executive’s Separation Benefits shall be those described in Section 3(b) of the Severance Payment, CIC Agreement and subject to such modification as set forth in Section 3.4.4; (b3(c) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution CIC Agreement. For the avoidance of such coverage constituting Good Reason for his resignation hereunder) for doubt, the Severance Period. Subsequent parties acknowledge that the calculation of the aggregate gross amount of cash severance payable to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage Executive pursuant to Section 3(g) of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) CIC Agreement is $3,431,552.00. Executive acknowledges and making agrees that any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee him shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In additionless any applicable taxes and withholdings, Employee and that the Company shall continue have no liability for any taxes related to be bound the Executive’s receipt of any of these amounts, and that, upon the payment to him of the Separation Benefits and any base salary and any accrued but unused vacation or unrestricted sick days owed to him as of the Separation Date, Executive shall have no further rights or benefits owed to him by the Company or any provisions of its Affiliates, whether under the Employment Agreement, the CIC Agreement, or otherwise; provided, however, that this Agreement that expressly survive termination shall have no effect whatsoever upon any and all obligations of this the Released Parties to defend, indemnify, hold harmless or reimburse Executive under the Indemnification Agreement, and/or under applicable law and/or under the respective charters and by-laws of the Released Parties, and/or pursuant to insurance policies, if any, for acts or omissions in Executive’s capacity as a director, officer and/or employee thereof, or upon any and all rights Executive may have to vested or accrued benefits or entitlements under and in accordance with any applicable plan, agreement, program, award, policy or arrangement of a Released Party.

Separation Benefits. In the event that Employee’s Since your employment with the Company is being terminated by Employee for Good Reason or by the Company without Cause, the Company shall will pay or and/or provide to Employee you the Accrued Obligations payable as described following in Section 3.2.1 accordance with your Employment Agreement solely in the event that you do not revoke your execution of this Agreement and General Release within the payments described time permitted by law: • a lump sum cash amount equal to $243,750, which represents seventy five percent (75%) of your base salary in 4.1. In addition, subject to (x) Employee’s execution and delivery effect immediately prior to the Company of a release in the form as attached hereto as Exhibit A no later than Termination Date, less applicable withholding and employment taxes, payable within forty-five (45) days following after the date Termination Date in accordance with Section 4(e)(i) of such termination and the Employment Agreement, subject to any adjustments required by Section 4(e)(iii) therein (y) Employee’s non-revocation the “Change in Control Bonus”); • continuation of such release, the Company shall pay or provide to Employee the following; (a) the Severance Payment, as set forth your base salary in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (effect immediately prior to the extent applicableTermination Date, less applicable withholding and employment taxes, for a period of six (6) upon month after the Termination Date, payable in accordance with the Company’s regular payroll processing; • continuation of the benefits you have been receiving immediately prior to the Termination Date in accordance with Section 4(c) for a period of six (6) month after the Termination Date, payable or provided at the same terms time and conditions in the same manner as if Employee continued to remain an active employee your employment had not terminated; and • a prorated portion of the Company (in all events below determined without regard annual bonus that you would have otherwise been entitled to receive under Section 4(b) of the Employment Agreement for any diminution of such coverage constituting Good Reason for his resignation hereunder) for 2016, if any, payable at the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, same time and in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, same manner as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2your employment had not terminated. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination For purposes of this Agreement, the amount described above in this section shall be referred to as the “Separation Benefits” and, along with the Accrued Obligations, shall be paid to you in full satisfaction of any and all of your rights under the Employment Agreement and any other agreements entered into by and between the Company, its affiliates and you in connection with your employment with the Company.

Separation Benefits. In (a) Subject to the event that Employee’s employment with conditions set forth in Section 5(b) below, following the Company is terminated by Employee for Good Reason earlier of the termination or by expiration of the Company without CauseConsulting Period, the Company shall will pay Pedder an amount equal to $840,000 paid less applicable withholding for taxes in substantially equal installments in accordance with the Company’s normal payroll practices over 18 months commencing within 30 days after the earlier of the expiration or provide termination of the Consulting Period (collectively, the “Separation Benefits”). (b) In order to Employee receive the Accrued Obligations payable Separation Benefits, Pedder must (i) sign and return this Agreement within 21 days after he receives it, (ii) not revoke this Agreement as described in Section 3.2.1 Xxxxxxx 00 xxxxx, (xxx) sign and return the payments described in 4.1. In addition, subject to (x) Employee’s execution and delivery to the Company of a release Release Re-Affirmation in the form as attached hereto as Exhibit A no later than forty-five (45) within 21 days following after the date end of such termination the Consulting Period, and (yiv) Employee’s nonnot revoke the Release Re-revocation of such release, the Company shall pay or provide to Employee the following; (a) the Severance Payment, as set forth in Section 3.4.4; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans Affirmation as described in Section 4.213 below. For the avoidance of doubt, the seven-day revocation period described in Section 13, and the provisions of Section 15(f), shall apply to Pedder’s execution and delivery of the Release Re-Affirmation. (c) The Parties intend that this Agreement and the payments made hereunder will be exempt from, or comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”), and this Agreement will be interpreted and applied to the greatest extent possible in a manner that is consistent with the requirements for avoiding taxes or penalties under Section 409A. In additionthe event of any additional tax, interest or penalty is imposed on Pedder by Section 409A or any damages for failing to comply with Section 409A, the Company will indemnify Pedder for those actual amounts. Notwithstanding anything to the contrary set forth herein, any payments and benefits provided under this Section 5 that constitute “deferred compensation” within the meaning of Section 409A will not commence in connection with Pedder’s termination of employment unless and until Pedder has also incurred a “separation from service” (as such term is defined in Treasury Regulation Section 1.409A-1(h)), unless the Company reasonably determines that such amounts may be provided to Pedder without causing Pedder to incur the additional 20% tax under Section 409A. The Parties intend that each installment of the Separation Benefits provided for in this Agreement is a separate “payment” for purposes of Section 409A. For the avoidance of doubt, the Parties intend that the Separation Benefits satisfy, to the greatest extent possible, the exemptions from the application of Section 409A provided under Treasury Regulation Sections 1.409A-1(b)(4) and 1.409A-1(b)(9). However, if the Company determines that the Separation Benefits constitute “deferred compensation” under Section 409A and Pedder is, as if the separation from service, a “specified employee” of the Company or any successor entity thereto, as such term is defined in Section 409A, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A, the timing of the payment of the Separation Benefits will be delayed until the earlier to occur of: (i) the date that is six months and one day after Pedder’s separation from service, or (ii) the date of Pedder’s death (such applicable date, the “Specified Employee Initial Payment Date”), and the Company shall continue (or the successor entity thereto, as applicable) will (A) pay to be bound by any provisions Pedder a lump sum amount equal to the sum of the Separation Benefits payments that Pedder would otherwise have received through the Specified Employee Initial Payment Date if the commencement of the payment of the Separation Benefits had not been so delayed pursuant to this Agreement that expressly survive termination Section, and (B) commence paying the balance of the Separation Benefits in accordance with the applicable payment schedules set forth in this Agreement.

Separation Benefits. In Subject to the event that Employee’s employment with the Company is terminated by Employee for Good Reason or by the Company without Cause, the Company shall pay or provide to Employee the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In addition, subject to Executive's (x) Employee’s compliance with this Agreement including the restrictive covenants contained in Section 6 hereof, (y) execution and delivery to the Company of a an effective and irrevocable general release and waiver of claims in the form as attached hereto as Exhibit A no later than forty-five (45the “Release”) within thirty (30) days following the date of such termination Effective Date, and (yz) Employee’s non-revocation execution and delivery to the Company of such releasean effective and irrevocable general release and waiver of claims in the form attached hereto as Exhibit B (the “Supplemental Release” and together with the “Release” the “Releases”) within thirty (30) days following the end of the Consulting Period, the Company shall pay or provide to Employee the following; Executive with the following benefits: (a) $2,000,000, which shall be deposited by the Severance PaymentCompany as soon as practicable in a “rabbi trust” or similar escrow arrangement (the costs and expenses of which shall be paid by the Company) for the benefit of Executive and shall be payable in equal installments to the Executive in accordance with the Company's normal payroll practices over the fifteen (15) month period beginning on October 31, 2012; provided that any unpaid portion of such $2,000,000 payment shall be forfeited if (i) the Executive voluntarily ceases to provide the consulting services described above for any reason or no reason prior to December 31, 2012 or (ii) on or prior to the first anniversary of the Separation Date the Executive engages in a Restricted Activity. (b) the 111,548 unvested restricted shares held by the Executive set forth on Schedule 2 hereto (the “Restricted Shares”) shall not be forfeited on the Separation Date and, instead, (i) subject to the Executive's satisfaction of the conditions set forth in clauses (x), (y) and (z) of the first paragraph of this Section 3 and (ii) for so long as the Executive does not engage in a Restricted Activity, shall remain outstanding and shall vest in accordance with the time-vesting schedule that would otherwise have been applicable to such Restricted Shares had Executive continued to be employed by the Company; (c) coverage or payment in monthly installments of an amount equal to the applicable COBRA premium rate, if any, for the Executive, his spouse and his eligible dependents during the eighteen (18) month period following the Separation Date with respect to any welfare benefit plans for which the Executive elects COBRA coverage; and (d) outplacement services to be provided by the Company's designated provider, the cost of which shall be billed to and fully paid by the Company in 2012; provided, that, the cost shall not exceed $25,000. For the avoidance of doubt, in the event that the Executive (i) does not satisfy or ceases to satisfy the conditions set forth in clauses (x), (y) and (z) of the first paragraph of this Section 3 or (ii) engages in a Restricted Activity, the then unvested portion of the Restricted Shares shall be immediately forfeited without consideration. Notwithstanding anything to the contrary, in the event that the Executive (i) does not satisfy or ceases to satisfy the conditions set forth in clauses (x), (y) and (z) of the first paragraph of this Section 3, (ii) engages in a Restricted Activity on or prior to the first anniversary of the Separation Date, or (iii) voluntarily ceases to provide the consulting services described above for any reason or no reason prior to December 31, 2012, the Executive shall not be entitled to receive or continue to receive the payments set forth in Section 3.4.4; (b3(a) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreementabove.

Separation Benefits. In (a) If (i) Employee signs this Agreement and the event that Bring-Down Release (as defined below) and both this Agreement and the Bring-Down Release become effective and irrevocable, (ii) Employee performs all duties reasonably assigned to him during the Transition Period, and no circumstances constituting Cause exist as of the Termination Date, then Employee’s separation from employment with the Company is terminated by on the Termination Date will be a termination without Cause for purposes of the Employee for Good Reason or by the Company without Cause, the Company shall pay or provide to Employee the Accrued Obligations payable as described in Section 3.2.1 Protection Agreement and the Award Agreements, which will result in Employee becoming entitled to receive the payments described and benefits set forth in 4.1. In additionsuch agreements, subject as summarized in Annex A attached hereto. (b) Subject to (x) Employee’s execution and delivery to compliance with the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination and (y) Employee’s non-revocation of such release, the Company shall pay or provide to Employee the following; (a) the Severance Payment, as requirements set forth in Section 3.4.4; 2(a) above and in consideration of Employee’s agreement to the extension of his nonsolicit and nonhire covenants pursuant to Section 7 below, each of Employee’s outstanding, fully vested stock option awards, which are listed on Annex B attached hereto, will remain exercisable until the expiration of its original term (b) the Welfare Benefits Payment, as set forth in on Annex B hereto), notwithstanding the terms of the applicable Award Agreement. The Parties agree that this Section 3.4.4; (c) medical 2 and dental Annex A, taken together, constitute a complete and accurate summary of all payments and benefits to which Employee is entitled under this Agreement, the Employee Protection Agreement and his covered dependents (to the extent applicable) upon the same terms Award Agreements on a termination without Cause. The Parties further agree that Annex B is a complete and conditions as if Employee continued to remain an active employee accurate summary of the Company (in all events below determined without regard for any diminution of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act outstanding Company equity awards as of 1985December 31, as amended (“COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee shall be entitled to continued participation in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreement2022.

Separation Benefits. In consideration for Employee's execution, non-revocation of, and compliance with this Agreement, including the event that Employee’s employment with waiver and release of claims hereunder, Employer agrees to provide the Company is terminated by Employee for Good Reason or following benefits: (a) A lump sum of One Hundred Forty Thousand Dollars ($140,000.00) minus all relevant taxes and other withholdings, which has been paid by the Company without Cause, the Company shall pay Employer on or provide prior to Employee the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In addition, subject to (x) Employee’s execution and delivery to the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (45) days following the date of such termination this Agreement and (y) Employee’s non-revocation of such release, the Company shall pay or provide to which Employee the following; (a) the Severance Payment, as set forth in Section 3.4.4; acknowledges receipt thereof; (b) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee As of the Company (in all events below determined without regard for any diminution date of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Periodthis Agreement, Employee is currently the holder of 167,328 shares of the Company’s series A convertible preferred stock (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA CoveragePreferred Stock”) and making any payments required options to be made by purchase 500,000 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”) , which are set to expire on December 31, 2014 (the “Options”). The Employer and Employee agree that on the date of this Agreement, Employee will exchange the Preferred Stock and the Options and settle the lump sum of $140,000 in exchange for 750,000 shares of Common Stock (the “New Securities”). Issued at a share price of $.26 per share. On or his dependents, if applicable; and (d) prior to the payment execution of Annual Bonus specified in Section 4.2. Furtherthis Agreement, Employee shall deliver its Preferred Stock and Options to the Employer and the Employer shall deliver to Employee a certificate evidencing the New Securities in the name of the Employee. Upon receipt of certificates representing the New Securities, any and all obligations of the Employer to Employee under the Preferred Stock and Options shall be fully satisfied, the Preferred Stock and Options shall be terminated and Employee will have no remaining rights, powers, privileges, remedies or interests under the Preferred Stock and Options. The Employee understands, acknowledges and agrees that these benefits exceed what he is otherwise entitled to continued participation receive upon separation from employment, and that these benefits are in certain welfare plans as described in Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of exchange for executing this Agreement. The Employee further acknowledges no entitlement to any additional payment or consideration not specifically referenced herein.

Separation Benefits. In the event that consideration for Employee’s promises and releases contained herein and in the General Release attached hereto as Exhibit B (the “Release”), the provisions of which are hereby fully incorporated herein by reference, and subject to Employee’s (x) continued employment with the Company is terminated by Employee for Good Reason or by through the Company Separation Date in accordance with Section 1 hereof, (y) timely execution, re-execution and non-revocation of the Release in accordance with Sections 13(a) and 13(b) hereof, as applicable, and (z) continued compliance with the terms of this Agreement, including, without Causelimitation, the Company Restrictive Covenants (as defined below) (collectively, the “Separation Conditions”), Employee shall pay or provide receive the following separation benefits (collectively, the “Separation Benefits”): (a) A cash payment equal to Employee $100,000, payable in a lump sum in accordance with the Accrued Obligations payable as described in Section 3.2.1 and the payments described in 4.1. In addition, subject to Company’s regularly scheduled payroll practices within sixty (x) Employee’s execution and delivery to the Company of a release in the form as attached hereto as Exhibit A no later than forty-five (4560) days following the date Re-Execution Effective Date; and (b) Subject to Employee’s timely election of continuation coverage under the Company’s health care plan pursuant to COBRA (as defined below), and the eligibility requirements and other terms and conditions of such termination and (y) coverage, continued payment on Employee’s non-revocation behalf of Employee’s COBRA premiums for a period of six (6) months following the Separation Date, unless Employee becomes employed by another company (and Employee agrees to promptly notify the Company in writing upon commencement of any such releaseemployment), and in such instance, future payment for the health insurance premiums will cease (the “COBRA Subsidy”); provided, that notwithstanding the foregoing, in the event the COBRA Subsidy would, in the determination of the Board or its delegate, subject Employee, the Company shall pay or provide any of its affiliates or subsidiaries to Employee any tax or penalty under the following; Patient Protection and Affordable Care Act (aas amended from time to time, the “ACA”) the Severance Payment, as set forth in or Section 3.4.4; (b105(h) the Welfare Benefits Payment, as set forth in Section 3.4.4; (c) medical and dental benefits to Employee and his covered dependents (to the extent applicable) upon the same terms and conditions as if Employee continued to remain an active employee of the Company (in all events below determined without regard for any diminution Internal Revenue Code of such coverage constituting Good Reason for his resignation hereunder) for the Severance Period. Subsequent to the Severance Period, Employee (or his dependents, in the case of Employee’s death) will be eligible for coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 19851986, as amended (“Section 105(h)”), or applicable regulations or guidance issued under the ACA or Section 105(h), the COBRA Coverage”) and making any payments required to be made by Employee or his dependents, if applicable; and (d) the payment of Annual Bonus specified in Section 4.2. Further, Employee Subsidy shall be entitled treated as taxable payments and be subject to continued participation in certain welfare plans as described in imputed income tax treatment to the extent necessary to eliminate any such adverse consequences under the ACA or Section 4.2. In addition, Employee and the Company shall continue to be bound by any provisions of this Agreement that expressly survive termination of this Agreement105(h).