TerrAscend (TSNDF) 10-12GRegistration of securities

Exhibit 10.10

April 22, 2020

Keith Stauffer

Via e-mail

Dear Keith,

It is a pleasure to confirm our offer to employ you in the joint role of Chief Financial Officer of TerrAscend USA, Inc. (the “Company”) and Chief Financial Officer of TerrAscend Corp., the Canadian parent of the Company (“TerrAscend”). In these roles, you will be expected to report to the CEO of TerrAscend. This agreement (the “Agreement”) shall set forth our mutual understanding regarding your employment pursuant to the mutual covenants and agreements contained below (the receipt and adequacy of which are acknowledged).

1.            Definitions

The capitalized defined terms shall have the meanings given to them in Schedule “A”.

2.            Transfer, Location, and Travel

Your principal place of employment is to be within the New York area of the United States in your capacity with the Company. You will primarily work from a temporary office in the New York area provided by the Company (until a permanent office is established), unless required to travel to other locations for business purposes. You may also from time to time work from your home office.

As your role with the Company will also include your position as the CFO of TerrAscend, you will be required to periodically travel to TerrAscend facility in Ontario and to other locations as required. In further recognition of your role with TerrAscend, it is a condition of this offer and of your continued employment by the Company that you be permitted to lawfully work in Canada and that you maintain your status to work in Canada throughout your employment. The Company will assist you in applying for necessary immigration permits and will cover the costs associated therewith. In the event that permits are not obtained, through no fault of your own, the terms of this agreement do not change.

3.            Compensation and Tax Equalization

Inasmuch as your principal place of employment will be the United States, your total compensation will be paid exclusively by the Company. You will receive an annual salary of USD $400,000 (the “Annual Salary”), less all withholdings and deductions in the US and in Canada, as required. In the event that your salary increases during the course of your employment, your most current salary shall be deemed to be the Annual Salary for the purpose of this Agreement. You understand and agree that the Annual Salary compensates you for all hours worked. Additionally, for business purposes and the performance of your duties, the Company will provide you with a laptop. Your use of the laptop will be subject to and in accordance with Company policies in effect from time to time. You will also be reimbursed for your cell phone use.

It is the Company’s policy to protect executives on international secondment from loss on personal income taxes from Company-related earnings because of the secondment. The combined US and Canadian tax liability of an executive can vary depending on factors such as level of income derived from each country of secondment, amount of secondment allowances and the interplay of US and Canadian tax laws. To neutralize the income tax impact, the Company intends to “tax equalize” your Company-related income.

Tax equalization of Company-related income means that regardless of where you are seconded and regardless of the amount of tax actually owed, you will pay a hypothetical tax which will be equivalent to the US tax you would have paid had you remained in the US.

4.            Annual Bonus Plan

In connection with the services you are to render exclusively on behalf of the Company within the US, you will have an annual bonus opportunity of 50% of annual salary, based on performance review with the CEO. Such amount is payable at the Company’s option either in cash or RSU’s that will vest immediately upon award. Bonus for the first year will be prorated for the first calendar year of time worked. The review and accrual periods are the calendar year and the payment period is in February. You must be an employee in good standing of the Company at the payment period to be eligible to receive the bonus payment.

5.            Annual LTI/RSU plan

In connection with the services you are to render exclusively on behalf of the Company within the US, you will participate in the company’s Long Term Incentive plan (for purposes of clarification, this is being set up during this calendar year). This program will provide an annual bonus opportunity of 100% of annual salary in annual LTI grants that will vest equally over the three years post issuance and will be based on performance review with the CEO. LTI Bonus for the first year will be prorated for the year of time worked. The grant date for LTI annual will generally be in February. If this new plan is not established by any of the vesting dates the default will be cash payments at the originally planned vesting dates. For example, if the first vesting date arrives with no RSU plan set up then cash payment of 1/3 of 100% of annual salary will be made at the first vesting anniversary date and annually thereafter until such time that the RSU plan is established. In the event of a change in control of TerrAscend Corp. (as defined in the Option Plan) that does not include Jason Wild or an affiliate thereof, 100% of the RSUs will accelerate and vest immediately. In this circumstance, if the RSU plan is not yet established, a cash payment will be made equivalent to accelerated vesting of 100% of the RSUs.

6.           Stock Options

In connection with the services you are to render exclusively on behalf of the Company within the US, the Company will also cause TerrAscend to issue to you a total of 1,000,000 employment stock options of TerrAscend (the “Options”) in accordance with TerrAscend’s Stock Option Plan (the “Option Plan”). Your Options will be granted at your commencement of employment date referenced in this agreement, and the grant will be at the exercise price as determined by the rules and regulations of the applicable securities stock exchange after the date hereof It is understood that 300,000 of the options will be replaced with RSUs, subject to applicable securities laws, once the RSU program is put into place. The vesting schedule of the newly granted RSUs will be equivalent to the original vesting dates of the originally granted options. If the RSU program is not in place by the vesting dates a cash payment will be made on each vesting date equivalent to the value of what was anticipated to be the RSUs.

7.            Position and Key Responsibilities

Upon the execution of this Agreement, you will assume the position of CFO of TerrAscend USA and CFO of TerrAscend. Your responsibilities as CFO include but are not limited to:

CFO of TerrAscend Corp.

CFO of TerrAscend USA

Perform other functions related to the CFO role or as may be reasonably requested by the Board. Your job duties and reporting may change from time to time at the discretion of the Company and/or TerrAscend. You may also be asked to assist with corporate initiatives on behalf of either company.

8.            Term

Your employment under this Agreement will commence on April 27, 2020 and will continue indefinitely until it is terminated in accordance with the terms set forth in this Agreement.

9.            Hours of Work

The normal work week shall be forty (40) hours Monday to Friday. You will however be required to work such additional or alternative hours as may be required from time to time to fulfill the responsibilities of the position. You understand and agree that you are classified as an exempt employee and the Annual Salary compensates you for all hours worked.

10.         Standard Operating Procedures and Policies

It is a term and condition of your employment with the Company that you agree to comply with the policies and procedures of the Company and TerrAscend Corp, including but not limited to those set out in TerrAscend’s Standard Operating Procedures, as may be amended from time to time by the Company or TerrAscend Corp. in its absolute discretion.

It is a term and condition of your employment that you shall fully and faithfully serve the Company and TerrAscend and use your reasonable efforts to promote the interests of the Company and TerrAscend (including their related companies).

You understand and agree that, upon your breach of this Agreement or responsibilities thereunder, the Company and/or TerrAscend has the right to implement discipline short of termination, including verbal or written warning and suspensions with or without pay, as determined necessary by the Company and/or TerrAscend in their sole discretion and that the implementation of such discipline does not constitute a termination of employment under this Agreement.

11.          Benefits

The Company offer health insurance coverage for you under the applicable plan of the Company.

12.          Reimbursement

The Company will reimburse you the cost of eligible travel and other expenses which are incurred for business purposes, including reasonable travel expenses from your home to areas you are required to travel to for the purpose of carrying out your responsibilities. The Company reserves the right to deny any expense claim for expenses not incurred for work-related purposes. Expenses must be submitted monthly, with appropriate documentation, in accordance with the Company’s Expense Reimbursement Policy.

13.          Paid Time Off (“PTO”)

You are eligible for four (4) weeks of paid time off per calendar year, prorated for partial years of employment. Time off for vacation purposes will be at a mutually convenient time for the Company and the employee and must be requested at least 2 weeks in advance of the requested days off. You will only be allowed to carry forward any unused vacation time into the next year to the extent same is permitted by the Company’s policies.

14.         Confidentiality and Ownership of Inventions

It is a condition of your employment that you agree to the Non-Competition, Non-Solicitation, and Confidentiality Agreement and the accompanying Code of Conduct (the “Code”), copies of which shall be provided to you. The obligations set out in the Non-Competition, Non-Solicitation, and Confidentiality and the Code shall survive and remain in effect notwithstanding the termination of your employment for any reason or any finding that your employment with the Company and/or TerrAscend has been terminated, unlawfully or otherwise.

15.          Termination

In the event of your death during the term of your employment with the Company, this Agreement shall automatically terminate, and the Company shall have no further obligations hereunder except to pay your estate all earned compensation (including all benefits and reimbursements accrued and due) as of the date of your death. Additionally, your Options shall be treated under the same terms as set forth in section 15(d)(iv) below as if you were terminated without Cause.

In the event of your “permanent disability” (as hereinafter defined) during the term of your employment with the Company, the Company shall have the right, upon written notice to you, to terminate your employment hereunder, effective upon the giving of such notice (or such later date as shall be specified in such notice). In the event of such termination, the Company shall have no further obligations hereunder except to pay you all earned compensation (including all benefits and reimbursements accrued and due) as of the date of your termination. Notwithstanding the foregoing, to the extent applicable, upon the Company’s termination of this Agreement for permanent disability, your right to participate in any applicable benefit plans and programs of the Company in which you had been previously participating, or to receive similar coverage, if any, shall be determined under such plans and programs (at the Company’s expense). For purposes of this Agreement, the term “permanent disability” shall have the meaning set forth in the Company’s applicable disability insurance policy, or, if no such definition is available, any physical or mental disability or incapacity that renders you incapable of performing the services required in accordance with your obligations hereunder for (A) a period of four (4) consecutive months or (B) shorter periods aggregating five (5) months during any one (1) year period during the term of this Agreement. The terms of the Company’s disability plan shall control your benefits under this section 15(b). Additionally, your Options shall be treated under the same terms as set forth in section 1514(d)(iv) below as if you were terminated without Cause.

The Company has the right, at any time, to terminate your employment under this Agreement for Cause with written notice, effective upon the giving of such notice, in which case you shall have no entitlement to any notice, pay in lieu thereof or severance, save and except for where required by any applicable employment standards legislation. “Cause” shall mean: (i) conviction of, or entrance into an admission, plea bargain, plea of no contest, or plea of nolo contendre to, a felony of any kind, or a charge by a law enforcement officer for, conviction of, or entrance into an admission, plea bargain, plea of no contest, or plea of nolo contendre to a misdemeanor involving fraud, dishonesty or an act of moral turpitude, (provided that such conviction of, or entrance into an admission, plea bargain, plea of no contest, or plea of nolo contendre to, a felony of any kind, or a misdemeanor threatens the integrity of any cannabis license held by TerrAscend); (ii) the willful commitment of any act of dishonesty in connection with Employee’s appointment herein, or other willful gross misconduct involving TerrAscend, (iii) willful failure or refusal to materially comply (to the best of Employee’s ability) with any of the TerrAscend’s written policies and procedures, including the TerrAscend’s Standard Operating Procedures and Policies, provided that, to the extent such refusal or failure is susceptible to cure, it is not fully, completely, and permanently cured to the best of Employee’s ability within thirty (30) business days after Employee’s receipt of written notice from Company, or (iv) or (v) the commitment of any act which in the reasonable opinion of the Board of Directors is materially detrimental to the business or reputation of the Company or otherwise materially prejudices the interests of the Company. For purposes of this definition, no action or inaction will be considered “willful” unless done or omitted to be done without good faith or without Employee’s reasonable belief that the action or omission was in the best interests of TerrAscend, as determined by the arbitrator

In the absence of Cause, the Company may, at its sole discretion terminate your employment, and in such event the Company’s sole obligations shall be:

The Company shall have no obligation to provide you with Severance until you execute and deliver to the Company a general release agreement in a form similar to Schedule “B” attached hereto, which shall be modified to be enforceable in the legal jurisdiction governing your employment. Should you elect not to execute and deliver such release, you shall only be entitled to receive to the accrued wages to which you are entitled pursuant to any applicable employment law. Payment set forth in this paragraph 15(d) shall constitute your sole payment from, and remedy against, the Company, its members, officers, directors, shareholders, executives and agents.

Further, you understand and agree that this provision shall apply to you throughout your employment with the Company, regardless of its duration or any changes to your position, reporting relationship, title, duties or compensation.

You may resign from your employment at any time and without Good Reason (as defined below) upon providing the Company with eight (8) weeks’ notice in writing of your resignation, during which time the Company shall provide you with the equivalent of your then Annual Salary and benefits and unreimbursed expenses through and until your termination date, subject to applicable tax withholding and payable in accordance with the Company’s usual payroll practices. The Company may waive the requirement that you work all or part of the notice of resignation period provided by you. You acknowledge the Company will suffer damages by your failure to provide at least the notice as required herein.

You may terminate your employment for “Good Reason” following the occurrence of any of the following without your written consent: (i) any failure to pay, or material reduction in, Annual Salary and bonus compensation, if any, in accordance with the terms hereof that is not also app;;cable to similarly situated employees; (ii)) if the Company (or any successor entity) intentionally and materially reduces or diminishes your working responsibilities, duties, or position in the Company to such an extent that a reasonable person would not consider such duties commensurate with your role as CFO of the Company; (iii) a requirement by the Company that your primary work location be moved to a place that is more than twenty five miles further from your home residence -from its location as of the date of this Agreement; or (iii) requiring you to report to someone other than CEO; provided, however, that you shall provide written notice of any such “Good Reason” not later than thirty (30) days after your discovery thereof to avail yourself of this right and the Company shall have the opportunity to cure same within thirty (30) days after receipt of such written notice. If the Company does not cure within such time, then you shall, upon written notice to the Company, be entitled to terminate your employment for Good Reason, provided you do so within forty five (45) days of giving written notice of such Good Reason grounds not so cured. In the event that you terminate your employment for Good Reason, you shall be entitled to the payments under the same terms as set forth in section 15(d)(i-iii) as if you were terminated without Cause.

16.         General

17.          Indemnification and D&O

TerrAscend shall procure and maintain a Directors and Officers insurance policy during the term of your employment pursuant to which TerrAscend and the Company agree to defend and indemnify you pursuant to TerrAscend’s indemnification policy. The Company will provide for your criminal defense in the event of any criminal proceedings related to cannabis. This will remain in effect for up to 3 years after your termination of employment, in the event that should occur.

18.           Representations, Warranties and Covenants

Please carefully read and consider this document and its attachments. It is a condition of this offer that you execute and return the attached policies.

We request that you review, initial each page, sign and date below acknowledging your acceptance of the terms outlined in this letter. Retain a copy of this letter for your records and return an original copy to me no later than April 24, 2020

Keith, we hope that the opportunities we provide and the values we stand for will encourage you to become an integral part of the TerrAscend team. We look forward to working with you.

Sincerely,

ACCEPTANCE

By my signature below, I confirm that I have read, understand and agree with the foregoing terms, that I have been afforded a reasonable opportunity to consult with independent legal counsel with respect to the above terms before signing below, and that I sign this Agreement freely and voluntarily and without any pressure, duress or undue influence. I have not relied on any representations, inducements or statements, oral or written, which are not contained in this letter.

SCHEDULE B

FORM OF
CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT

This Confidential Separation and Release Agreement (this “Agreement”) shall serve as a fully binding separation agreement between ________________ (“Employee”) and ______________ (the “Company” and collectively the “Parties”). Employee’s employment with the Company is terminated effective ________________ (the “Separation Date”). Following the Effective Date of this Agreement, and in consideration of the Employee’s execution, non-revocation, and assent to all terms and provisions of this Agreement, the Company will pay to Employee the severance benefits outlined below.

Severance Payment. Employee acknowledges and agrees that Employee will not be entitled to any compensation or benefits from the Company, except as expressly provided for in this Agreement, and Employee specifically waives and foregoes all rights to any compensation or benefits of any kind that are not expressly provided to Employee in this Agreement In exchange for Employee executing and not revoking the general release set forth in this Agreement and other valuable consideration given and received by the Parties, the Parties agree as follows:

In consideration of the promises set forth herein, without any other obligation to do so, provided that Employee does not exercise his right to revoke this Agreement as set forth below, the Company will pay Employee severance in the amount of ______________________________ Dollars ($__________), less applicable payroll deductions (“Severance Payment”). The Company will pay the Severance Payment on the first regular payday occurring at least eight (8) days after this Agreement is fully executed.

Employee acknowledges and agrees that the Severance Payment referenced above constitute adequate consideration to support the releases set forth in this Agreement and fully compensate Employee for the claims Employee is releasing. For purposes of this Paragraph, “Consideration” means the payments and benefits set forth in this Section 0, which are enhanced payments and benefits to which Employee is not already or otherwise entitled to receive.

Release of Claims.

In exchange for the Severance Payment and other consideration set forth herein, the sufficiency of which is hereby acknowledged, Employee (on behalf of Employee, Employee’s executors, heirs, administrators, assigns and anyone else claiming by, through or under Employee) irrevocably and unconditionally, fully and forever releases and discharges the Employer, and its predecessors, successors and related and affiliated entities, including parents (including holding companies) and subsidiaries, and each of their respective directors, officers, “Releasees”), for, from, and with respect to, any and all rights, remedies, demands, actions, causes of action, suits, covenants, contracts, wages, bonuses, damages, and any and all claims, debts, liabilities, liens, and expenses (including attorneys’ fees and costs) whatsoever of any name or nature both in law and in equity that Employee now has, ever had, or may in the future have against the Releasees (severally and collectively, “Claims”) related to anything occurring prior to Employee’s execution of this Agreement, for or by reason of any matter, cause or thing whatsoever (as allowed by law). Without limiting the generality of the foregoing, this waiver and release of claims includes any and all Claims in tort or contract, whether by statute or common law, and any Claims relating to or arising out of salary, wages, bonuses, stock options, equity compensation, stock ownership and commissions, the breach of an oral or written contract, breach of fiduciary duty, rights to indemnification and contribution, unjust enrichment, promissory estoppel, misrepresentation, defamation, and interference with prospective economic advantage, interference with contract, wrongful termination, intentional and negligent infliction of emotional distress, negligence, breach of the covenant of good faith and fair dealing, and Claims arising out of, based on, or connected with Employee’s employment with or termination from the Employer, including any Claims for unlawful employment discrimination of any kind, whether based on age, race, sex, disability or otherwise, including claims arising under or based on Title VII of the Civil Rights Act of 1964, as amended; or any other relevant antidiscrimination laws or state statutes or municipal ordinances related to discrimination; the Age Discrimination in Employment Act (“ADEA”), as amended; the Older Workers Benefit Protection Act (“OWBPA”); the Civil Rights Act of 1991, as amended; the Family and Medical Leave Act; the Americans with Disabilities Act; the Fair Labor Standards Act; the Employee Retirement Income Security Act; the Equal Pay Act of 1963; the Delaware Labor Code, and any other local, state or federal equal employment opportunity or anti-discrimination law, statute, policy, order, ordinance or regulation affecting or relating to Claims that Employee ever had, now has, or claims to have against the Releasees (collectively, the “Released Claim(s)”).

Except as set forth below, Employee agrees not to prosecute, maintain or institute any action at law, suit or proceeding of any kind or nature whatsoever against Company for any reason related in any way to any Released Claim. Employee further agrees that Employee will not raise any claim against Company by way of defense, counterclaim or cross-claim or in any other manner, on any alleged claim, demand, liability or cause of action released herein. At the time of Employee’s execution of this Agreement, Employee represents that there are no claims, complaints or charges pending against Company in which Employee is a party or complainant. Further, Employee acknowledges and agrees there are no non-asserted workers’ compensation claims through the date of Employee’s execution of this Agreement. Employee agrees not to assert any Released Claim in a class or collective action and further agrees not to become, and promises not to consent to become, a member (including a representative class plaintiff) of any class in a case brought in court or in arbitration in which claims are asserted against any of the Released Parties that are related in any way to Employee’s employment with or termination from Company and/or that involve events which have occurred as of the Effective Date of this Release. If Employee, without Employee’s prior knowledge and consent, is made a member of a class in any proceeding, whether in court or in arbitration, Employee will opt out of the class at the first opportunity afforded to him/her after learning of Employee’s inclusion.

Employee understands that nothing in this Agreement is intended to interfere with or deter Employee’s right to challenge the waiver of an ADEA claim or state law age discrimination claim or the filing of an ADEA charge or ADEA complaint or state law age discrimination complaint or charge with the EEOC or any state discrimination agency or commission or to participate in any investigation or proceeding conducted by those agencies. Further, Employee understands that nothing in this Agreement would require Employee to tender back the money received under this Agreement if Employee seeks to challenge the validity of the ADEA or state law age discrimination waiver, nor does the Employee agree to ratify any ADEA or state law age discrimination waiver that fails to comply with the Older Workers’ Benefit Protection Act by retaining the money received under the Agreement. Further, nothing in this Agreement is intended to require the payment of damages, attorneys’ fees or costs to the Company should Employee challenge the waiver of an ADEA or state law age discrimination claim or file an ADEA or state law age discrimination suit except as authorized by federal or state law.

This release specifically excludes (i) any claim which cannot be released by private agreement, such as workers’ compensation claims, claims after the Effective Date of this Agreement (as defined below); (ii) the right to file administrative charges with certain government agencies; and (iii) any and all rights to vested benefits. In particular, nothing in this Agreement shall be construed to prohibit Employee from filing a charge with, making a complaint to, or participating in any investigation or proceeding conducted by the Equal Employment Opportunity Commission, National Labor Relations Board, or a comparable state or local agency, or to the Securities Exchange Commission or Internal Revenue Service. Employee agrees to waive the right to receive future monetary recovery directly from Employer, including Employer payments that result from any complaints or charges that Employee files with any governmental agency or that are filed on Employee’s behalf.

Important Notice to Employee Concerning Release of Claims under the Age Discrimination in Employment Act. Employee hereby acknowledges that Employee knowingly and voluntarily enters into this Agreement, which is made in accordance with the Older Workers’ Benefit Protection Act (“OWBPA”), and is made with the purpose of waiving and releasing any age discrimination claims Employee may have under the Age Discrimination in Employment Act of 1967 (“ADEA”). Employee further acknowledges and agrees that:

this Agreement is written in a manner in which Employee fully understands;

Employee specifically waives any rights or claims arising under the ADEA and OWBPA;

this Agreement does not waive rights or claims under the ADEA and OWBPA that may arise after the date this Agreement is executed;

the rights and claims waived in this Agreement are in exchange for consideration over and above anything to which Employee is already entitled;

Employee has been advised in writing to consult with an attorney prior to executing this Agreement, and has, in fact, had an opportunity to do so;

Employee has been given a period of up to at least 21 days, if desired, within which to consider this agreement;

Employee has a period of 7 days within which Employee can revoke this agreement, and the agreement shall not be effective until the seven-day revocation period has been exhausted. Thus, the Effective Date of this Agreement is the eighth day after this Agreement has been executed, providing it was not revoked (“Effective Date”). Notice of revocation must be delivered in writing and received by the Company at the address of the Company set forth on the signature page hereto, by the end of the 7-day revocation period; and

Any changes made to this Agreement, whether material or immaterial, will not restart the running of this 21-day period.

Confidentiality.

In addition, Employee agrees to keep the terms, conditions and circumstances of Employee’s separation from the Company confidential and to not aid or render assistance in any form to any person or entity pursuing, or that may in the future pursue, any claim against the Company or its officers, directors, shareholders, employees or affiliates of any nature unless required to do so by law.

Employee acknowledges and agrees that Employee will keep the terms, amount, and facts of, and any discussions leading up to, this Agreement STRICTLY AND COMPLETELY CONFIDENTIAL, and that Employee will not communicate or otherwise disclose to any employee of the Company (past, present, or future), or to any member of the general public, the terms, amounts, copies, or fact of this Agreement, except as may be required by law or compulsory process; provided, however, that Employee may make such disclosures to Employee’s spouse, tax/financial advisors or legal counsel as long as they agree to keep the information confidential. If asked about any of such matters, Employee’s response shall be that Employee may not discuss any of such matters.

Employee’s Return of Company Property and Transition Obligations. Employee agrees to execute any paperwork necessary and otherwise cooperate in full with the Company’s efforts to transfer to the Company all data, phone, internet or website access, and fax lines and/or numbers currently maintained by Employee for the purpose of conducting business on behalf of the Company. Any and all transfer fees incurred will be the responsibility of the Company. Upon such transfer, the Company shall be the sole authorized user of all such data, phone, and fax lines and/or numbers. Employee further agrees to immediately return to Company employee identification badge, keys, and all Company-owned equipment, data, lists, forms, and documents (paper and electronic) and will not maintain copies of the same in any form, whether tangible or intangible, hard copy or electronic.

Miscellaneous.

Governing Law and Venue. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of Delaware, without giving effect to principles of conflicts of law. For purposes of litigating any dispute that may arise directly or indirectly from this Agreement, the parties hereby submit and consent to the exclusive jurisdiction of the state of Delaware and agree that any such litigation shall be conducted only in the courts of Delaware.

Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof, except for the NON-COMPETITION, NON-SOLICITATION, and CONFIDENTIALITY AGREEMENT and the surviving sections of the __________ DATE Employment Agreement that you signed upon hire.

Amendments and Waivers. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance.

Successors and Assigns.

Company’s Successors. This Agreement shall be binding upon any successor (whether direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or substantially all of the Company’s business and/or assets. For all purposes under this Agreement, the term “Company” shall include any successor to the Company’s business or assets that becomes bound by this Agreement.

Your Successors. This Agreement and all of your rights hereunder shall inure to the benefit of, and be enforceable by, your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.

Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written notice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books and records.

Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.

Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.

Counterparts. This Agreement may be executed in any number of counterparts, either manually or electronically, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement.

Electronic Delivery. The Company may, in its sole discretion, decide to electronically sign and deliver any documents related to this Agreement or any notices required by applicable law or the Company’s Certificate of Incorporation of Incorporation or Bylaws by email or any other electronic means. The undersigned hereby consents to receive such documents and notices by such electronic delivery and agrees to participate through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.

The Parties agree that the offer or execution of this Agreement is not an admission of liability of any nature by the Company or Employee and that it cannot be used in any proceeding other than one to enforce its terms.

PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES THE RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AND MUST BE RETURNED BY DATE TO BE VALID.

AGREED: