SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE

Exhibit 99.1

SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE

This SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE (this “Agreement”) dated as of January 10, 2017 is by and between Xxxxxxxx X. Xxxx (“Executive”) and American Campus Communities, Inc., a Maryland corporation (the “Company”).

WHEREAS, the Company and Executive have entered into an Employment Agreement dated as of November 1, 2007, as amended (“Employment Agreement”);

WHEREAS, Executive shall resign as an officer of the Company and all entities related to the Company, and also resign as an officer, director, manager or similar functionary of all entities related to the Company, effective as of March 31, 2017 (the “Initial Termination Date”);

WHEREAS, Executive shall resign as an employee of the Company and all entities related to the Company effective as of June 30, 2017 (the “Final Termination Date”); and

WHEREAS, Executive and the Company have agreed to provide each other with a general release of claims as contained herein and in the Supplemental Mutual General Release Agreement in the form attached hereto as Exhibit A (the “Supplemental Release”).

NOW, THEREFORE, Executive and the Company agree to enter into this Agreement setting forth their respective obligations related to Executive’s separation as follows:

1. Resignation. Effective as of the Initial Termination Date, Executive resigns as an officer of the Company and all entities related to the Company, and as an officer, director, manager or similar functionary of all entities related to the Company. Effective as the Final Termination Date, Executive resigns as an employee of the Company and all entities related to the Company. The Company and Executive hereby waive any rights to prior notification of the separation of Executive’s employment.

2. Special Compensation and Benefits.

(a) The Company will pay to executive an Annual Bonus for 2016 equal to $575,000 on or before February 3, 2017.

(b) The Company will pay to Executive the Accrued Obligations within five business days of the Final Termination Date. Executive agrees that upon satisfaction of the obligation set forth in Section 2(a), there is no unpaid Annual Bonus owed to him in respect to any fiscal year.

(c) The Company will pay to Executive an amount equal to $2,138,467, less applicable withholding and deductions, in a lump sum payment within five business days of the effective date of the Supplemental Release (the “Separation Payment”).

(d) Executive shall retain all of the restricted stock awards, common units and other stock-based awards previously granted to Executive under the Plan or otherwise that have vested as of the Final Termination Date. As of the effective date of the Supplemental Release, any and all portions of any restricted stock awards or other stock-based awards unvested as of the

Final Termination Date previously granted to Executive under the Plan or otherwise shall vest and become non-forfeitable. With respect to all common units held by Executive, Executive shall have all rights as all other common unitholders under the Limited Partnership Agreement of American Campus Communities Operating Partnership LP and, with respect to such restricted stock and other stock-based awards, Executive shall have all rights set forth in the Plan and the applicable award agreements that apply to vested awards.

(e) From and after the effective date of the Supplemental Release Executive shall remain on the Company’s then-in-effect health, vision and dental benefit plans (with family coverage) through and including December 31, 2019; provided, that if prior to such date, Executive is eligible to receive health insurance benefits from a subsequent employer, benefits under this Section 2(e) shall cease as of the date Executive becomes so eligible. Executive acknowledges and agrees that as a result of the foregoing, he will have no right to COBRA benefits under any of the Company’s health benefit plans.

(f) As of the Initial Termination Date, neither the Company nor any of its affiliates shall have any obligation to Executive arising out of the Employment Agreement.

(g) On the Final Termination Date, Executive and the Company shall sign and deliver to the other the Supplemental Release. Should Executive or the Company fail to sign and deliver the Supplemental Release on the Final Termination Date, he or it shall be deemed to have willfully breached a material provision of this Agreement. In the event of a breach of this Section 2(g), the non-breaching party shall be entitled to an order of specific performance from a court of competent jurisdiction requiring the breaching party to sign and deliver the Supplemental Release to the other and the breaching party hereby consents to the entry of such an order.

(h) From the Effective Date through the Final Termination Date, the Company shall continue to pay Executive his Base Salary at the rate of $417,150 per year, payable as provided under Section 4(a) of the Employment Agreement and Executive shall be entitled to participate in health, insurance, retirement and other benefits to which he is entitled under Section 5 of the Employment Agreement, subject to the terms and conditions of the applicable plan. Except as expressly set forth herein, the Company shall have no obligation to make to Executive any payment, benefit, award or grant pursuant to the Employment Agreement or otherwise.

(i) From and after the date of this Agreement until the Final Termination Date, Executive shall cooperate in all respects in order to effect an orderly transition of Executive’s functions to other officers and Executive may engage in activities relating to the exploration of other business interests, subject to the provisions of the Noncompete Agreement. From and after the Initial Termination Date, Executive will cease to have any responsibility as an officer of the Company or any of its affiliates and cease to have day-to-day responsibility for running any business division of the Company. The parties agree none of the actions described in this Section 2(i) will be deemed to be a breach of the Employment Agreement (or entitle the Company to terminate Executive’s employment for Cause or entitle Executive to terminate his employment for Good Reason) or this Agreement.

3. General Release by Executive. In return for the special compensation and benefits referenced in this Agreement, Executive agrees to the following:

(a) Executive agrees, on behalf of himself and all of his heirs or personal representatives, to release the Company and all of its subsidiaries, affiliates, predecessors and successors, and all of their present or former officers, directors, managers, representatives, employees, agents, employee benefit programs, and the trustees, administrators, fiduciaries and insurers of such programs (collectively, the “Company Released Parties”), from any and all claims for relief of any kind, whether known to Executive or unknown, which in any way arise out of or relate to Executive’s employment at the Company or any of the other Company Released Parties, the separation of his employment at the Company or any of the other Company Released Parties, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, and concerning any facts or events occurring at any time up to the Effective Date (as defined in Section 4(l) below), including, but not limited to, any and all claims of discrimination, retaliation or wrongful discharge of any kind, and any contractual, tort or other common law claims. This settlement and waiver includes all such claims, whether for breach of contract, quasi-contract, implied contract, quantum meruit, unjust enrichment, compensation, deferred compensation, equity interest, any tort claims, including without limitation fraud and misrepresentation, and any and all claims under any applicable federal laws, including, but not limited to, the Age Discrimination in Employment Act, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, 42 U.S.C. § 1981, the Americans with Disabilities Act, as amended, the Equal Pay Act, as amended, the Worker Adjustment and Retraining Notification Act, the Employee Retirement Income Security Act of 1974, as amended, the Family and Medical Leave Act, as amended, the Fair Labor Standards Act, as amended, or under any applicable state or local laws or ordinances or any other legal restrictions on the Company’s rights, including Chapter 21 of the Texas Labor Code and Section 451 of the Texas Labor Code.

Executive further agrees not to file a suit of any kind against the Company or any of the other Company Released Parties relating to his employment at the Company or any of the other Company Released Parties, the separation thereof, any agreements between the Company or any of other the Company Released Parties and Executive, including but not limited to the Employment Agreement, or any facts or events occurring at any time up to the Effective Date, or to participate voluntarily in any employment-related claim brought by any other party against the Company or any of the other Company Released Parties. Even if a court rules that Executive may file a lawsuit against the Company or any of the other Company Released Parties arising from Executive’s employment at the Company or any of the other Company Released Parties, the separation thereof, or any facts or events occurring at any time up to the Effective Date, Executive agrees not to accept any money damages or any other relief in connection with any such lawsuit. Executive understands that this Agreement effectively waives any right he might have to xxx the Company or any of the other Company Released Parties for any claim arising out of Executive’s employment at the Company or any of the other Company Released Parties, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, or the separation of Executive’s employment. However, Executive recognizes and understands that this release does not prohibit him from filing an administrative charge with any state or federal agency.

Further, this release does not waive Executive’s rights to enforce this Agreement. In addition, this release does not give up Executive’s rights, if any, to COBRA benefits under the Company’s standard benefit programs applicable to Executive. Further, this release does not waive Executive’s rights to vested equity interests, vested 401(k) or pension monies or Executive’s rights to indemnification under the Company’s charter or bylaws or the Indemnification Agreement, dated as of November 1, 2007, between Executive and the Company.

(b) General Release by the Company. Except as set forth in the last paragraph of this Section 3, the Company agrees, on behalf of itself and all of its parent companies, subsidiaries, affiliates, predecessors and successors, to release Executive and his heirs (collectively, the “Executive Released Parties”), from any and all claims for relief of any kind, whether known to it or unknown, which in any way arise out of or relate to Executive’s employment at the Company any of the other Company Released Parties, the separation of Executive’s employment at the Company or any of the other Company Released Parties, or any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, and concerning any facts or events occurring at any time up to the Effective Date. This settlement and waiver includes all claims, whether for breach of contract, quasi-contract, implied contract, quantum meruit, unjust enrichment, any tort claims, including without limitation misrepresentation, breach of fiduciary duty, and any and all claims under any applicable law.

Except as set forth in the last paragraph of this Section 3, the Company further agrees not to file a suit of any kind against Executive or any of the other Executive Released Parties relating to Executive’s employment at the Company, the separation thereof, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, or to participate voluntarily in any employment-related claim brought by any other party against Executive or any of the other Executive Released Parties. Except as set forth in the last paragraph of this Section 3, even if a court rules that the Company may file a lawsuit against Executive or any of the other Executive Released Parties arising from Executive’s employment at the Company or any of the other Company Released Parties, or the separation thereof, the Company agrees not to accept any money damages or any other relief in connection with any such lawsuit. The Company understands that this Agreement effectively waives any right it might have to xxx Executive or any of the other Executive Released Parties for any claim arising out of Executive’s employment at the Company or any of the other Company Released Parties, any agreements between the Company or the other Company Released Parties and Executive, including but not limited to the Employment Agreement, the separation of Executive’s employment, or any facts or events occurring at any time up to the Effective Date, except as set forth in the last paragraph of this Section 3.

Notwithstanding the generality of the foregoing, nothing contained herein shall release the Executive or the other Executive Released Parties from any claim relating to (i) a breach by Executive of any provision of any agreement that survives the execution hereof, including but not limited to the Noncompete Agreement, (ii) Executive’s obligations set forth herein or (iii) Executive’s fraud, willful misconduct, gross negligence or illegal act.

4. Restrictive Covenants and Miscellaneous Provisions.

(a) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other Confidential Information (as defined in the Noncompete Agreement) of the Company or any of the other Company Released Parties and shall not make use of such trade secrets or Confidential Information in any fashion at any time, including in any future employment, work or business.

(b) Executive agrees to comply at all times after the date hereof with the provisions of the Noncompete Agreement. Executive acknowledges and agrees that the Noncompete Agreement (i) prohibits Executive until the second anniversary of the Final Termination Date from, among other things, (x) engaging in Competitive Activities (as defined in the Noncompete Agreement), and (y) encouraging, soliciting or inducing any employee of the Company to terminate such person’s employment, and (ii) shall survive the separation of his employment, regardless of the separation reason, and shall survive the execution of this Agreement.

(c) Executive understands and agrees that the Company shall have the right to and may xxx him for breach of this Agreement if he violates the provisions of the Noncompete Agreement or this Agreement. Executive further acknowledges that but for his agreements to comply with his obligations described in this Agreement and the Noncompete Agreement, the Company would not provide him with the compensation, benefits and consideration set forth herein.

(d) The parties acknowledge and agree that (a) a breach of any material provision of this Agreement by the Company shall entitle Executive to terminate this Agreement and the Employment Agreement for Good Reason, in which event Executive shall be entitled to the payments and benefits set forth in Section 8(e) of the Employment Agreement, and (b) a breach of any material provision of this Agreement by Executive shall entitle the Company to terminate this Agreement and the Employment Agreement for Cause, in which event Executive shall be entitled to the payment set forth in Section 8(c)(ii) of the Employment Agreement (but no other payment or other benefits or consideration set forth herein).

(e) Executive agrees that on or before the Final Termination Date he will return to the Company all of the Company’s property in his possession (including originals and all copies), including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys.

(f) This Agreement does not constitute an admission of any kind by the Company, but is simply an accommodation that offers certain extra benefits to which Executive would not otherwise be entitled in return for his agreeing to and signing this document.

(g) Executive agrees not to make any statements that disparage the reputation of the Company or any of the other Company Released Parties, or their properties or services. Executive agrees that any breach or violation of this non-disparagement provision shall entitle

the Company to xxx him on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(g) shall survive the separation of Executive’s employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent Executive from providing truthful testimony under oath or to a government agency.

(h) The Company agrees not to make any statements that disparage the reputation of Executive. The Company agrees that any breach or violation of this non-disparagement provision shall entitle Executive to xxx the Company on this Agreement for the immediate recovery of any damages caused by such breach. The provisions of this Section 4(h) shall survive the separation of Executive’s employment, regardless of the separation reason, and shall survive the execution of this Agreement. Nothing herein shall prevent any Company official from providing truthful testimony under oath or to a government agency.

(i) All payments and benefits under this Agreement are gross amounts and will be subject to taxes and lawful deductions, if any.

(j) The venue for the litigation of any dispute arising out of this Agreement shall be a court of competent jurisdiction in Xxxxxx County, Texas. If either party files a lawsuit in state court arising out of this Agreement, the other party may remove the lawsuit to federal court to the extent jurisdiction exists. Texas law shall govern the interpretation and enforcement of this Agreement.

(k) Capitalized terms used herein and not otherwise defined shall the meanings assigned to such terms in the Employment Agreement.

(l) Executive is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between Executive and the Company and Executive represents that no other statements, promises, or commitments of any kind, written or oral, have been made to Executive by the Company, or any of its agents, to cause Executive to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing this Agreement, and that he has had sufficient opportunity to do so. Executive understands that he may have up to 21 days from the date he received this Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Xxxxxxx X. Xxxxxxx, Xx., American Campus Communities, Inc., 00000 Xxxx Xxxxxxx Xxxx., Xxxxx X-000, Xxxxxx, Xxxxx 00000. However, if Executive elects to cancel this Agreement, Executive understands that he will not be entitled to the Separation Payment or other benefits or consideration referenced in this Agreement. Executive realizes this Agreement is not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective or enforceable until the eighth day after he signs this Agreement without revocation (the “Effective Date”). Executive understands that the Company will have no duty to provide him with the Separation Payment or other benefits or consideration described in this Agreement until after the Effective Date.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date written below.


	AMERICAN CAMPUS COMMUNITIES, INC., a Maryland corporation

Date: January 10, 2017	By:	/s/ Xxxxxxx X. Xxxxxxx, Xx.
		Xxxxxxx X. Xxxxxxx, Xx.
		President and Chief Executive Officer

Date: January 10, 2017	/s/ Xxxxxxxx X. Xxxx
	Xxxxxxxx X. Xxxx

EXHIBIT A

SUPPLEMENTAL MUTUAL GENERAL RELEASE AGREEMENT

This Supplemental Mutual General Release Agreement (this “Agreement’) is entered into on as of June 30, 2017 by and between American Campus Communities, Inc., a Maryland corporation (the “Company”) and Xxxxxxxx X. Xxxx (“Executive”).

WHEREAS, the Company and Executive entered into a Separation Agreement dated January 10, 2017 (the “Separation Agreement”);

WHEREAS, the Company and Executive agreed to sign and deliver this Agreement as a material inducement to have the other enter into the Separation Agreement; and

WHEREAS, Executive has resigned as an officer of the Company and all entities related to the Company, and also resign as an officer, director, manager or similar functionary of all entities related to the Company, effective as of March 31, 2017;

WHEREAS, Executive shall resign as an employee of the Company and all entities related to the Company effective as of June 30, 2017 (the “Final Termination Date”);

NOW, THEREFORE, Executive and the Company hereby agree to enter into this Agreement setting forth their respective supplemental obligations related to Executive’s separation as follows:

1. Compliance with the Separation Agreement. The parties agree that delivery of this Agreement shall fulfill their obligations under Section 2(g) of the Separation Agreement with respect to delivery of the Supplemental Release.

2. General Release by Executive. In return for the special compensation and benefits referenced in the Separation Agreement and this Agreement, Executive agrees to the following:

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interest, any tort claims, including without limitation fraud and misrepresentation, and any and all claims under any applicable federal laws, including, but not limited to, the Age Discrimination in Employment Act, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, 42 U.S.C. § 1981, the Americans with Disabilities Act, as amended, the Equal Pay Act, as amended, the Worker Adjustment and Retraining Notification Act, the Employee Retirement Income Security Act of 1974, as amended, the Family and Medical Leave Act, as amended, the Fair Labor Standards Act, as amended, or under any applicable state or local laws or ordinances or any other legal restrictions on the Company’s rights, including Chapter 21 of the Texas Labor Code and Section 451 of the Texas Labor Code.

(b) General Release by the Company. Except as set forth in the last paragraph of this Section 2, the Company agrees, on behalf of itself and all of its parent companies, subsidiaries, affiliates, predecessors and successors, to release Executive and his heirs (collectively, the “Executive Released Parties”), from any and all claims for relief of any kind, whether known to it or unknown, which in any way arise out of or relate to Executive’s employment at the Company any of the other Company Released Parties, the separation of Executive’s employment at the Company or any of the other Company Released Parties, or any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, and concerning any facts or events occurring at any time up to the Effective Date. This settlement and waiver includes all claims,

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whether for breach of contract, quasi-contract, implied contract, quantum meruit, unjust enrichment, any tort claims, including without limitation misrepresentation, breach of fiduciary duty, and any and all claims under any applicable law.

Except as set forth in the last paragraph of this Section 2, the Company further agrees not to file a suit of any kind against Executive or any of the other Executive Released Parties relating to Executive’s employment at the Company, the separation thereof, any agreements between the Company or any of the other Company Released Parties and Executive, including but not limited to the Employment Agreement, or to participate voluntarily in any employment-related claim brought by any other party against Executive or any of the other Executive Released Parties. Except as set forth in the last paragraph of this Section 2, even if a court rules that the Company may file a lawsuit against Executive or any of the other Executive Released Parties arising from Executive’s employment at the Company or any of the other Company Released Parties, the separation thereof, or any facts or events occurring at any time up to the Final Termination Date, the Company agrees not to accept any money damages or any other relief in connection with any such lawsuit. The Company understands that this Agreement effectively waives any right it might have to xxx Executive or any of the other Executive Released Parties for any claim arising out of Executive’s employment at the Company or any of the other Company Released Parties, any agreements between the Company or the other Company Released Parties and Executive, including but not limited to the Employment Agreement, or the separation of Executive’s employment, except as set forth in the last paragraph of this Section 2.

Notwithstanding the generality of the foregoing, nothing contained herein shall release the Executive or the other Executive Released Parties from any claim relating to (i) a breach by Executive of any provision of any agreement that pursuant to the Separation Agreement survives the execution thereof, including but not limited to the Noncompete Agreement, (ii) Executive’s obligations set forth in this Agreement, the Separation Agreement or (iii) Executive’s fraud, willful misconduct, gross negligence or illegal act.

3. Miscellaneous Provisions.

(a) Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Separation Agreement.

(b) Executive confirms that, while he understands that he has had such an obligation since he began his employment with the Company or any of the other Company Released Parties, he shall not disclose any of the trade secrets or other Confidential Information (as defined in the Noncompete Agreement) of the Company or any of the other Company Released Parties and shall not make use of such trade secrets or Confidential Information in any fashion at any time, including in any future employment, work or business.

(c) Executive agrees to comply at all times after the Final Termination Date with the provisions of the Noncompete Agreement. Executive acknowledges and agrees that the Noncompete Agreement (i) prohibits Executive until the second anniversary of the Final Termination Date from, among other things, (x) engaging in Competitive Activities (as defined in the Noncompete Agreement), and (y) encouraging, soliciting or inducing any employee of the Company to terminate such person’s employment, and (ii) shall survive the separation of his employment, regardless of the separation reason, and shall survive the execution of this Agreement.

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(d) Executive understands and agrees that the Company shall have the right to and may xxx him for breach if he violates the provisions of the Noncompete Agreement, the Separation Agreement or this Agreement. Executive further acknowledges that but for his agreements to comply with his obligations described in this Agreement, the Separation Agreement and the Noncompete Agreement, the Company would not provide him with the compensation, benefits and consideration set forth in Section 2 and elsewhere in the Separation Agreement.

(e) Executive warrants that he has returned to the Company all of the Company’s property in his possession (including originals and all copies), including, but not limited to, company files, work product, computer equipment, computer software, cell phones, pagers, corporate credit cards, identification cards, manuals, company documents and company keys.

(f) Executive understands that this Agreement does not constitute an admission of any kind by the Company, but is simply an accommodation that offers certain extra benefits to which he would not otherwise be entitled in return for his agreeing to and signing this document.

(g) Executive acknowledges that in the course of Executive’s employment with the Company, Executive has gained knowledge and experience and/or was a witness to events and circumstances that may arise in the Company’s defense or prosecution of subsequent proceedings. Executive agrees to cooperate fully with the Company, including without limitation providing truthful testimony and meeting promptly with Company counsel upon reasonable notice, and to appear upon the Company’s reasonable request as a witness and/or consultant in defending or prosecuting claims of all kinds, including but not limited to any litigation, administrative actions or arbitrations, at the Company’s expense.

(h) Executive is entering into this Agreement freely and voluntarily. Executive has carefully read and understands all of the provisions of this Agreement. Executive has carefully read and understands all of the provisions of this Agreement. Executive understands that it sets forth the entire agreement between Executive and the Company and Executive represents that no other statements, promises, or commitments of any kind, written or oral, have been made to Executive by the Company, or any of its agents, to cause Executive to accept it. Executive acknowledges that he has been advised to consult legal counsel concerning this Agreement prior to signing this Agreement, and that he has had sufficient opportunity to do so. Executive understands and agrees that he shall not sign this Agreement before the Final Termination Date. Executive understands that he may have up to 21 days from the date he received this Agreement to consider this Agreement. Executive understands that if he signs this Agreement, he will then have seven days to cancel it if he so chooses. Executive may cancel this Agreement by delivering a written notice of cancellation to Xxxxxxx X. Xxxxxxx, Xx., American Campus Communities, Inc., 00000 Xxxx Xxxxxxx Xxxx., Xxxxx X-000, Xxxxxx, Xxxxx 00000. However, if Executive elects to cancel this Agreement, Executive understands that he will not be entitled to the consideration referenced in this Agreement. Executive realizes this Agreement is

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not effective or enforceable until the seven-day period expires without revocation. Executive understands that this Agreement will not become effective or enforceable until the eighth day after he signs this Agreement without revocation (the “Effective Date”). Executive understands that the Company will have no duty to provide him with the consideration described in this Agreement until after the Effective Date.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date written below.


	AMERICAN CAMPUS COMMUNITIES, INC.

Date: June 30, 2017	By:
		Xxxxxxx X. Xxxxxxx, Xx.
		President and Chief Executive Officer

Date: June 30, 2017
	Xxxxxxxx X. Xxxx

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SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE

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