Exhibit 10.1


 


TRANSITION
AND SEPARATION AGREEMENT


 


This
Transition and Separation Agreement (the “Agreement”) is entered into by and between Scott A. Hill (“Employee”)
and Intercontinental Exchange Holdings, Inc., a wholly-owned subsidiary of Intercontinental Exchange, Inc. (“ICE”,
and collectively with Intercontinental Exchange Holdings, Inc., the “Company”).


 


WHEREAS,
Employee and Intercontinental Exchange, Inc. entered an Employment Agreement dated as of February 24, 2012 (the
 “Employment Agreement”) and the Company, for purposes of the Employment Agreement, is the successor-in-interest
to Intercontinental Exchange, Inc.; and


 


WHEREAS,
it has been determined that Employee’s employment with the Company shall end; and


 


WHEREAS,
Employee and the Company wish to memorialize in writing the terms upon which the employment relationship is ending;


 


THEREFORE,
Employee and the Company agree as follows:


 


1.            
Date of Separation. Employee’s employment with the Company and all affiliated companies shall end effective
as of February 28, 2023 (the “Separation Date”).


 


2.            
Transitional Employment Period. In exchange for Employee’s execution and non-revocation of this Agreement,
and Employee’s compliance with its terms and conditions, the Company and Employee agree to the following:


 


(a)            The
Company shall continue to employ Employee for a period from the Effective Date (defined in Section 17 below) to the Separation
Date (the “Employment Term”). Employee’s employment shall remain “at-will,” subject to the terms
of this Agreement and the Employment Agreement (as modified or amended herein), and a termination of Employee’s employment
(by either party) shall not constitute a breach of this Agreement. In the event that Employee’s employment with the Company
terminates prior to the Separation Date for any reason, the Employment Term will end on Employee’s date of termination and
that date will be the Separation Date for all purposes of this Agreement.


 


(b)            Employee
shall be paid a 2021 performance year annual bonus on the date, expected to be in early February 2022, that annual bonuses are
generally paid to other employees of the Company (the “2021 Bonus”). Employee acknowledges and agrees that during
and after the Employment Term he shall not be entitled to any bonus compensation other than the 2021 Bonus (including, for the
avoidance of doubt, any annual performance bonus in relation to the performance years 2022-23), and Employee hereby waives any
and all rights to additional bonus compensation including as provided in Section 3.2 of the Employment Agreement. In the event
that the Company terminates Employee’s employment without Cause (as defined in the Employment Agreement) prior to February
28, 2023, then provided that Employee timely signs and does not revoke the Separation Waiver and Release appended to this Agreement,
(i) Employee will be entitled to (to the extent not yet paid) the 2021 Bonus; the equity treatment described in Section 4.2(a)(3)
of the Employment Agreement (including without limitation the accelerated vesting described therein); and the right to elect continued
group health insurance coverage(s) pursuant to COBRA (to be partially subsidized by the Company through February 28, 2023), and
(ii) Employee will receive no other compensation, severance pay, separation entitlements or other termination benefits pursuant
to this Agreement, the Employment Agreement or otherwise.


 






     


     


    

 


(c)           
Employee’s previously granted equity awards shall continue to vest during the Employment Term in accordance with
the terms of the applicable equity incentive plan document and any applicable equity grant agreement(s). For the avoidance of
doubt, unless Employee is terminated for Cause, Employee’s vested stock options shall remain exercisable for 60 days following
termination of his employment. Employee acknowledges and agrees that during the Employment Term he shall not be entitled to the
grant of, and will not receive, any additional equity awards. Employee hereby waives any and all rights to additional equity awards
including as provided in Section 3.3 of the Employment Agreement; and Employee acknowledges that, as of the Separation Date, all
unvested portions of any previously granted equity awards shall be forfeited.


 


(d)            Except as otherwise provided herein, during the Employment Term, Employee will continue to be entitled to participate in
Company employee benefit plans. Employee’s base annual salary shall remain at its current rate through December 31, 2021.
Effective January 1, 2022, Employee’s base annual salary shall be $20,000. All compensation paid to Employee, whether pursuant
to this paragraph or otherwise, shall be subject to applicable tax withholdings and payroll deductions.


 


(e)            Employee Benefits Upon Separation. Employee shall be entitled to the following employee benefits upon separation
of employment regardless of whether Employee signs this Agreement:


 


(i)               Group
Health Insurance Coverage. Upon employee’s separation from employment with the Company, in accordance with the terms
of the applicable plans, Employee may elect to continue group health insurance coverage(s) at Employee’s own expense pursuant
to COBRA and in accordance with the group health insurance plan. Additional information about continuation coverage under COBRA
will be provided to Employee separately.


 


(ii)             
Accrued Vacation. Employee shall be entitled to additional pay for accrued but unused vacation time (subject to
company policy and applicable law). The payment for accrued vacation shall be made in a lump sum, subject to all applicable tax
withholdings, in the first regular payroll period following Employee’s actual separation date (unless required by law to
be paid earlier).


 


(iii)           
Long-term Incentive Compensation. Except as provided otherwise in this Agreement, the term of exercise any stock
options, restricted stock units (“RSU’s”), or other forms of equity previously issued to Employee by the Company
shall be governed by the terms of the applicable equity incentive plan document and any applicable equity grant agreement(s).


 


(iv)            
Qualified Retirement Plan. Employee shall be eligible for distribution of any vested account balance under any qualified
retirement plan (such as a 401(k) plan) sponsored by the Company, pursuant to the terms and conditions of applicable plan documents.


 


(v)              
 Other benefits. Except as otherwise expressly stated herein or as otherwise required by law, Employee shall cease
to participate in all employee benefits, plans, policies and practices provided by the Company.


 






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3.             Continuing Performance. During the period of the Employment Term through May 14, 2021, Employee shall devote all
of Employee’s time and attention during usual business hours to the satisfactory performance of Employee’s pre-existing
duties for the Company in accordance with Section 2.2 of the Employment Agreement. Effective May 15, 2021: (a) Employee’s
title shall be Advisor to the Chief Executive Officer (reporting to the Chief Executive Officer); (b) Employee’s job responsibilities
shall be limited to providing (i) advisory services on financial, strategic, market and regulatory matters to one or more of the
Chief Executive Officer, the President of ICE, and/or their delegees, as well as (ii) transitional advice and support to the Chief
Financial Officer; (c) Employee shall not be required to report to work at the Company’s facilities, and shall perform such
services as and when requested, upon reasonable notice to Employee, from remote locations by email and/or telephone, or at the
Company’s facilities or other locations; (d) Employee shall have regular access to the Company’s corporate networks,
systems, and facilities; (e) Employee shall not participate in or retain authority regarding the management or operations of the
Company; (f) Employee hereby resigns from (i) any position as an officer, director or trustee of the Company or any of its subsidiaries
or affiliates, and (ii) any board to which Employee has been appointed or nominated on behalf of the Company; and (g) Employee
hereby surrenders all perquisites previously provided to Employee as a named executive officer. During the entirety of the Employment
Term, all policies generally applicable to Company employees shall be applicable to and binding upon Employee. Nothing in this
Agreement (including without limitation in this Section 3 or Section 2 above) shall constitute an event of Good Reason (as such
term is defined in Section 4.2(f) of the Employment Agreement), and Employee specifically waives any and all rights under the
Employment Agreement arising upon an event of Good Reason or a termination by the Company without Cause (except as expressly provided
in Section 2(b) above).


 


4.             Execution
and Waiver. In exchange for Employee’s timely execution and non-revocation of this Agreement, and timely execution and
non-revocation of the appended Separation Waiver and Release on or within 7 days following the Separation Date, the Company agrees
to provide the benefits described above, including without limitation the offer of continued employment through the Separation
Date (subject to the terms and conditions of this Agreement). Employee waives any and all rights to any compensation upon or relating
to termination pursuant to the Employment Agreement or otherwise (including without limitation any compensation, equity vesting,
or other benefits described in Section 4 of the Employment Agreement).


 


5.             Cooperation.
As further consideration for the covenants set forth herein, Employee hereby agrees to cooperate fully with any lawyer, law
firm, or consultant that the Company designates with respect to any litigation, deposition, hearing, arbitration, or other
proceeding, in any jurisdiction (including, but not limited to, support of the Company’s, or that of any of its
affiliates’, position in defending any lawsuits or claims concerning which Employee has knowledge, or audits,
investigations, lawsuits, complaints or proceedings by government entities of state or federal law compliance) where the
legal or financial interests of the Company or any of its affiliates are at issue. Employee further covenants that, except
with respect to an investigation or proceeding conducted by a governmental entity, Employee will (i) contact the Company
promptly in the event that Employee is served with or notified in writing of any subpoena, notice or other instruction
directing Employee to appear, or produce documents or other information, in any legal proceeding involving the Company or any
of its affiliates, and (ii) will make no such appearance or disclosure, unless required by law, until the Company has had a
reasonable opportunity to contest the right of the requesting person or entity to such appearance or disclosure. The Company
shall reimburse Employee for reasonable travel expenses and other reasonable out-of-pocket expenses (including fees and
expenses of counsel and other experts) associated with Employee’s compliance with the obligations in this
paragraph.


 






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6.                 
General Release by the Employee.


 


(a)            Release. Employee, on behalf of himself and Employee’s spouse, heirs, executors, administrators, assigns,
insurers, attorneys and other persons or entities, acting or purporting to act on Employee’s behalf (collectively, the “Employee
Parties”), does hereby irrevocably and unconditionally release, acquit and forever discharge the Company and its subsidiaries,
parent and sister companies, affiliates, predecessors, successors and assigns, and the present and former directors, officers,
employees, partners, members, representatives, agents, shareholders, attorneys and insurers of any of them (collectively, the
 “Company Parties”), from any and all actions, causes of action, suits, claims, charges, obligations, rights, entitlements,
liabilities, debts, demands, allegations, contentions, damages, judgments, levies and executions of any kind (collectively, “Claims”),
whether in law or in equity, known, unknown or unforeseen, vested or contingent, which the Employee Parties have or may have against
the Company Parties, including all Claims by reason of, arising out of, related to, or resulting from Employee’s employment
with the Company or the termination thereof, existing as of the Effective Date.


 


(b)           
Specific Types of Claims Included in Release. Without limiting the generality of the foregoing, this Agreement is
intended to and shall release the Company Parties from any and all Claims, whether known, unknown or unforeseen, vested or contingent,
which the Employee Parties ever had, now have, or may have against the Company Parties arising out of Employee’s employment
and/or separation from employment, including, but not limited to: (i) any Claim under Title VII of the Civil Rights Act of 1964,
the Civil Rights Act of 1991, the Americans with Disabilities Act, the Employee Retirement Income Security Act of 1974 (excluding
Claims for accrued, vested benefits under any employee benefit or pension plan of the Company Parties subject to the terms and
conditions of such plan and applicable law), the Family and Medical Leave Act, the Fair Labor Standards Act, the Worker Adjustment
Retraining and Notification Act, the Older Workers Benefit Protection Act of 1990, and the Age Discrimination in Employment Act
of 1967 (“ADEA”); (ii) any other Claim (whether based on any federal, state, or local law, statutory or decisional,
or regulation) relating to or arising out of Employee’s employment, the terms and conditions of such employment, the termination
of such employment, and/or any of the events relating directly or indirectly to or surrounding the termination of that employment,
including but not limited to breach of contract (express or implied), tort and other common law Claims, wrongful discharge, retaliation,
detrimental reliance, defamation, libel, slander, emotional distress or compensatory or punitive damages; and (iii) any Claim
for attorneys’ fees, costs, disbursements and/or the like. With respect to unknown Claims, Employee expressly waives (and
understands the significance of doing so) all rights Employee might have under any law that is intended to protect Employee from
waiving such Claims.


 


(c)            Exceptions
to Release. The foregoing release does not release or impair: (i) the Company’s promises and obligations
under this Agreement; (ii) any rights Employee has under any grants of stock options, restricted stock, or other forms of
equity that may have been provided to Employee during his/her employment (such grants to be governed by the applicable equity
plan and grant agreement(s)); (iii) any rights Employee has under applicable workers compensation laws; (iv) any vested
rights under a qualified retirement plan; (v) any other Claims that cannot lawfully be released; (vi) Employee’s
ability to respond truthfully to a valid subpoena issued by, file a charge with, or participate in any investigation
conducted by, a governmental agency; (vii) any Claims arising for actions or omissions occurring, and any ADEA Claims that
may arise, after the date of Employee’s execution of this Agreement; (viii) any rights to insurance benefits under any
Directors & Officers liability insurance policy maintained by the Company; or (ix) any indemnification rights or rights
to the advancement of expenses which Employee may have (in the absence of this Agreement and independent of the Employment
Agreement) as an employee, officer or director of the Company under applicable law or in accordance with the Company’s
Articles of Incorporation or Bylaws, or under any contractual arrangements concerning such indemnification or rights or
clauses governing the Company’s insurance policies or applicable law.


 






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7.            
Representations by Employee.


 


(a)            Employee represents and warrants to the Company Parties that Employee has read this Agreement and fully understands the
effect hereof, that Employee executes this Agreement of Employee’s own free will and accord for the consideration set forth
herein, which he is not already entitled to receive, and that Employee is not relying on any representations whatsoever of the
Company, other than those set forth herein, as an inducement to enter into this Agreement.


 


(b)           Employee
further represents and warrants to the Company Parties that no litigation or other proceeding has been filed or is pending by
the Employee Parties against the Company Parties; that no person or entity other than Employee has or has had any interest in
the matters released herein; that Employee has the sole right, capacity, and exclusive authority to execute this Agreement; that
Employee has not sold, assigned, transferred, conveyed or otherwise disposed of any of the Claims released herein; and that Employee
is not entering into this Agreement in resolution of an asserted claim of employment discrimination, harassment, or retaliation.


 


(c)            Employee
represents that Employee has had the opportunity to discuss this Agreement with an attorney, and Employee has been advised by
the Company to do so if Employee so desires. Employee covenants and agrees that Employee has been given at least 21 days to contemplate
the terms of this Agreement before executing it, and that if Employee chooses to execute it in fewer than 21 days, Employee does
so voluntarily and of Employee’s own free will and volition.


 


8.             Attorneys’ Fees. In any subsequent litigation or other proceeding to enforce the terms of this Agreement or
the appended Separation Waiver and Release, whether initiated by Employee or the Company, the prevailing party shall be entitled
to recover its reasonable attorneys’ fees and costs, expert witness fees and costs, and court costs, from the other party.


 






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9.              Restrictive Covenants.


 


(a)            Nondisparagement. Employee will not make any statements that are derogatory or disparaging towards any of the Company
Parties. For the purposes of this Agreement, the term “disparage” includes, without limitation, comments or statements
made in any manner or medium (including, without limitation, to the press and/or media, the Company Parties or any individual
or entity) which would adversely affect in any manner (i) the conduct of the business of any of the Company Parties (including,
without limitation, any Company Party’s business plans or prospects) or (ii) the business reputation of any Company Party.
This paragraph shall not prohibit Employee from (A) filing a charge with, or participating in any investigation conducted by,
a governmental agency, (B) testifying truthfully in response to a subpoena or other court rule or order, or (C) in good faith
making any statement (1) in order to comply with any legal duty, (2) in furtherance of lawful commerce (that is not in breach
of subsection (c) below), (3) to defend against reputational harm from any statement that disparages Employee that is made after
the execution of this Agreement, (4) to defend against or prosecute any legal claim, or (5) in response to an investigation by
a regulatory or law enforcement agency. The Company agrees that, in response to any inquiries concerning Employee’s employment,
the inquiring party will be referred to Mr. Doug Foley, SVP, HR & Administration (or his successor/designee), who will state
that it is the Company’s policy to only provide, and the Company will only provide, Employee’s dates of employment
and last position held. Nothing in this paragraph shall restrict the Company’s ability to provide complete information with
respect to Employee’s employment when required to do so by law and/or applicable regulatory requirements.


 


(b)            Return
of Property. As of the Separation Date, Employee shall turn over to Mr. Foley (or his designee) (i) any and all Property of
the Company, as such term is defined in Section 5.1 of the Employment Agreement, and (ii) all other data and information, regardless
of form, in any way pertaining to the Company’s business, employees or customers (and Employee will not retain any such
information or any reproduction or excerpt thereof).


 


(c)           Employment
Agreement Covenants. The covenants contained in Sections 5 and 6 of the Employment Agreement, including without
limitation the arbitration, confidentiality and other post-employment obligations described therein, are incorporated by
reference into this Agreement, and shall continue in full force and effect during the Employment Term and following the
Separation Date; provided, however, that the covenants described in Section 5.5 of the Employment Agreement (Nonsolicitation
of Customers or Employees) and the covenant described in Section 5.7 of the Employment Agreement (Non-Compete) each shall
apply in full force and effect to the one-year period following the Separation Date. Employee hereby acknowledges
Employee’s understanding of all the terms of, and the reasonableness of, such covenants and reaffirms Employee’s
obligations thereunder. Employee further acknowledges that Employee’s obligations under such covenants shall be in
addition to Employee’s obligations under the covenants contained in this Section 9; provided, however, that to the
extent a discrepancy exists between any such provisions and this Agreement, the terms of this Agreement shall govern.
Notwithstanding anything in this Agreement or the Employment Agreement, Employee may not be held criminally or civilly liable
under any federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a
federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of
reporting or investigating a suspected violation of law, or (ii) in a complaint or other document that is filed under seal in
a lawsuit or other proceeding and does not disclose the trade secret, except pursuant
to court order.


 






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(d)           Remedies. The parties acknowledge that the restrictions contained in this Section 9 are reasonable and appropriate
for the protection of the Company’s legitimate business interests, and that they will not unduly impair Employee’s
ability to find other employment. Employee acknowledges and agrees that, in the event of a violation of one or more of Employee’s
covenants in this Section 9, in addition to and not in lieu of any other remedy to which the Company may be entitled, the Company
may be permitted to seek and obtain immediate injunctive relief, restraining further breach by Employee, in a court of competent
jurisdiction, and without the necessity for posting of a bond or other security (and accordingly, if no bond is posted, without
the protection of a bond’s limitation on wrongful injunction liability). In addition to and not in lieu of any other remedy
to which the Company may be entitled, no further payments or benefits of any kind that would otherwise inure to Employee pursuant
to this Agreement shall accrue or be owed, and any future payments and benefits hereunder shall be forfeited, immediately upon
Employee’s breach of any of the covenants in this Section 9.


 


10.          
No Admission of Liability. This Agreement shall not be construed as an admission of liability by the Company, or
an admission that the Company has acted in any way wrongfully towards Employee. The parties specifically deny and disclaim any
such liability or wrongful conduct.


 


11.           Taxation
and Withholding; 409A Compliance.


 


(a)            Employee
acknowledges that payments and benefits hereunder may be taxable and that the Company makes no representation or warranty regarding
the income tax effects of any payment or benefit provided hereunder. Employee shall be solely responsible for any tax liability
with respect to all payments and benefits provided under this Agreement. The Company may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be withheld pursuant to any applicable law or regulation.


 


(b)           If a payment date that complies with Section 409A of the Internal Revenue Code of 1986, as amended, and the official guidance
thereunder (“Section 409A”) is not otherwise provided herein for any payment (in cash or in-kind) or reimbursement
that would otherwise constitute “deferred compensation” under Section 409A, then such payment or reimbursement, to
the extent such payment or reimbursement becomes due hereunder, shall in all events be made not later than 21⁄2 months after
the end of the later of the fiscal year or the calendar year in which the payment or reimbursement is no longer subject to a substantial
risk of forfeiture.


 


(c)           It is the intention of both Employee and the Company that the benefits and rights to which Employee is entitled pursuant
to this Agreement are exempt from or comply with Section 409A, to the extent that the requirements of Section 409A are applicable
thereto, and the provisions of this Agreement shall be construed in a manner consistent with that intention. If Employee or the
Company believe, at any time, that any such benefit or right that is subject to Section 409A does not so comply, Employee or the
Company shall promptly advise the other and shall negotiate reasonably and in good faith to amend the terms of such benefits and
rights such that they comply with Section 409A (with the most limited possible economic effect on Employee and the Company).


 






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(d)           Notwithstanding any time of payment otherwise designated in this Agreement, if on Employee’s “separation from
service” as defined in Section 409A Employee is a “specified employee” within the meaning of Section 409A, to
the extent required by Section 409A any amounts payable to Employee by reason of Employee’s “separation from service”
with the Company will not be paid to Employee until the date that is 6 months and one day following Employee’s separation
from service.


 


12.           Severability. In the event any portion or clause of this Agreement is deemed invalid or unenforceable in a court
of law, the remainder of the Agreement shall be severed from the invalid or unenforceable portion.


 


13.           Entire Agreement. Except as otherwise expressly provided in this Agreement (including to the extent this Agreement
incorporates by reference provisions of the Employment Agreement and any continuing post-employment obligations therein), any
prior agreement (whether written or oral) between the parties with respect to the subject matter of this Agreement is null and
void, as this Agreement expresses the entire agreement of the parties with respect to its subject matter. This Agreement may only
be modified in writing signed by both parties.


 


14.           Assignment.
This Agreement shall accrue to the benefit of the Company and its successors and assigns, and shall be freely assignable to any
entity with which the Company may merge or otherwise combine, or to which the Company may transfer substantial assets. This Agreement
is personal to Employee and may not be assigned by Employee.


 


15.           Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Georgia.


 


16.           Counterparts.
This Agreement may be executed in counterparts, including those transmitted by electronic means, each of which shall be deemed
an original and all of which taken together shall constitute one and the same document.


 


(remainder
of page left intentionally blank)


 






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17.           Effective Date. Employee may accept this Agreement by signing it and returning it to Mr. Foley no later than 21
days after Employee has received it, or this offer will be deemed revoked. After executing this Agreement, Employee shall have
seven (7) days (the “Revocation Period”) to revoke it by indicating Employee’s desire to do so in writing delivered
to the Company contact by no later than 5:00 p.m. on the seventh (7th) day after the date Employee signs this Agreement. The effective
date of this Agreement shall be the eighth (8th) day after Employee signs it (the “Effective Date”). If the last day
of the Revocation Period falls on a Saturday, Sunday or holiday, the last day of the Revocation Period will be deemed to be the
next business day. In the event Employee does not accept this Agreement as set forth above, or in the event Employee revokes it
during the Revocation Period, this Agreement, including but not limited to the obligation of the Company to provide Employee with
the payments and benefits described above, shall be deemed automatically null and void.


 


IN
WITNESS WHEREOF, the parties have executed this Agreement effective on the Effective Date.


 


	 	Intercontinental Exchange Holdings, Inc.
	 	 
	 	By:	 /s/ Jeffrey C. Specher
	 	Title:	Chairman and Chief Executive Officer
	 	 
	 	/s/ Scott A. Hill
	 	Scott A. Hill
	 	March 2, 2021
	 	Date of signature




 






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SEPARATION
WAIVER AND RELEASE


 


I, Scott
A. Hill, in exchange for good and valuable consideration as set forth more fully in the Transition and Separation Agreement between
me and Intercontinental Exchange Holdings, Inc., a wholly-owned subsidiary of Intercontinental Exchange, Inc. (“ICE”,
and collectively with Intercontinental Exchange Holdings, Inc., the “Company”), dated _____________, 2021 (the “Transition
Agreement”), the receipt and adequacy of which is hereby acknowledged, for myself and on behalf of my spouse, heirs,
executors, administrators, assigns, insurers, attorneys and other persons or entities, acting or purporting to act on my behalf
(collectively, the “Releasors”), hereby irrevocably and unconditionally release and forever discharge the Company
and its subsidiaries, parent and sister companies, affiliates, predecessors, successors and assigns, and the present and former
directors, officers, employees, partners, members, representatives, agents, shareholders, attorneys and insurers of any of them
(collectively, the “Releasees”) from any and all actions, causes of action, suits, claims, charges, obligations,
rights, entitlements, liabilities, debts, demands, allegations, contentions, damages, judgments, levies and executions of any
kind (collectively, “Claims”), whether in law or in equity, known, unknown or unforeseen, vested or contingent, which
any of the Releasors have or may have against the Releasees, including all Claims by reason of, arising out of, related to, or
resulting from my employment with the Company or the termination thereof, including, without limitation, Claims under any federal,
state, local or foreign law; breach of contract; fraud or misrepresentation; intentional or negligent infliction of emotional
distress; breach of the covenant of good faith and fair dealing; promissory estoppel; negligence; wrongful termination of employment;
or unlawful employment practices. This includes, without limitation, a release to the fullest extent permitted by law of all rights
and claims arising on or before the date I sign this Separation Waiver and Release, involving Claims under (i) Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act, the Employee Retirement Income Security
Act of 1974 (excluding Claims for accrued, vested benefits under any employee benefit or pension plan of the Company Parties subject
to the terms and conditions of such plan and applicable law), the Family and Medical Leave Act, the Fair Labor Standards Act,
the Worker Adjustment Retraining and Notification Act, the Older Workers Benefit Protection Act of 1990, and the Age Discrimination
in Employment Act of 1967 (“ADEA”); (ii) any other Claim (whether based on any federal, state, or local law, statutory
or decisional, or regulation) relating to or arising out of my employment, the terms and conditions of such employment, the termination
of such employment, and/or any of the events relating directly or indirectly to or surrounding the termination of that employment,
including but not limited to breach of contract (express or implied), tort and other common law Claims, wrongful discharge, retaliation,
detrimental reliance, defamation, libel, slander, emotional distress or compensatory or punitive damages; and (iii) any Claim
for attorneys’ fees, costs, disbursements and/or the like. With respect to unknown claims, I expressly waive (and understand
the significance of doing so) all rights I might have under any law that is intended to protect me from waiving such claims.


 


The
foregoing release does not release or impair: (a) the Company’s promises and obligations under the Transition
Agreement; (b) any rights under any grants of stock options, restricted stock, or other forms of equity that may have been
provided to me during my employment (such grants to be governed by the applicable equity plan and grant agreement(s)); (c)
any rights under applicable workers compensation laws; (d) any vested rights under a qualified retirement plan; (e) any other
Claims that cannot lawfully be released; (f) my ability to respond truthfully to a valid subpoena issued by, file a charge
with, or participate in any investigation conducted by, a governmental agency; (g) any Claims arising for actions or
omissions occurring, and any ADEA Claims that may arise, after the date of my execution of this Agreement; (h) any rights to
insurance benefits under any Directors & Officers liability insurance policy maintained by the Company; or (i) any
indemnification rights or rights to the advancement of expenses which he may have (in the absence of this Agreement and
independent of the Employment Agreement) as an employee, officer or director of the Company under applicable law or in
accordance with the Company’s Articles of Incorporation or Bylaws, or under any contractual arrangements concerning
such indemnification or rights or clauses governing the Company’s insurance policies or applicable law.


 






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By signing
this Separation Waiver and Release, I hereby acknowledge and confirm the following: (i) I am advised by the Company in connection
with my termination to consult with an attorney of my choice prior to signing this Separation Waiver and Release; (ii) I have
been given a period of not fewer than 21 days to consider the terms of this Separation Waiver and Release; (iii) I am providing
the release and discharge set forth in this paragraph only in exchange for consideration in addition to anything of value to which
I am already entitled; and (iv) I knowingly and voluntarily accept the terms of this Separation Waiver and Release.


 


Nothing
in this Separation Waiver and Release shall prohibit or restrict the Releasors, the Company, or the Company’s attorneys
from: (1) making any disclosure of relevant and necessary information or documents in any action, investigation, or proceeding
relating to this Separation Waiver and Release or as required by law or legal process; or (2) participating, cooperating, or testifying
in any action, investigation, or proceeding with, or providing information to, any governmental agency or legislative body, including,
but not limited to, filing a charge with the Equal Employment Opportunity Commission (“EEOC”) and/or pursuant
to the Sarbanes-Oxley Act; provided that, to the extent permitted by law, upon receipt of any subpoena, court
order or other legal process compelling the disclosure of any such information or documents, the disclosing party gives prompt
written notice to the other party so as to permit such other party to protect such party’s interests in confidentiality
to the fullest extent possible. 


 


By signing
this Separation Waiver and Release I acknowledge that I have read this Separation Waiver and Release carefully and understand
all of its terms. Further, I acknowledge that I am entering into this Separation Waiver and Release voluntarily and of my own
free will. In signing this Separation Waiver and Release, I acknowledge that I have not relied on any statements or explanations
made by anyone associated with or employed by the Company.


 


I UNDERSTAND
THAT I HAVE HAD AT LEAST TWENTY-ONE (21) DAYS TO CONSIDER WHETHER TO SIGN THIS SEPARATION WAIVER AND RELEASE, HOWEVER, THIS WAIVER
AND RELEASE WILL NOT BE ACCEPTED IF SIGNED PRIOR TO MY ACTUAL SEPARATION DATE. I WILL HAVE SEVEN (7) DAYS AFTER SIGNING THIS SEPARATION
WAIVER AND RELEASE (“REVOCATION PERIOD”) TO REVOKE THIS SEPARATION WAIVER AND RELEASE. MY REVOCATION WILL NOT
BE EFFECTIVE UNLESS IT IS IN WRITING AND SIGNED BY ME AND RECEIVED BY THE COMPANY PRIOR TO THE EXPIRATION OF THE REVOCATION PERIOD.
THE REVOCATION PERIOD COMMENCES IMMEDIATELY FOLLOWING THE DATE I SIGN AND DELIVER THIS SEPARATION WAIVER AND RELEASE. THE REVOCATION
PERIOD WILL EXPIRE AT 5:00 P.M. EASTERN STANDARD TIME ON THE LAST DAY OF THE REVOCATION PERIOD; PROVIDED, HOWEVER, THAT
IF THE SEVENTH DAY IS A NON-BUSINESS DAY, THE REVOCATION PERIOD SHALL EXTEND TO 5:00 P.M. ON THE NEXT SUCCEEDING BUSINESS DAY.


 






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I UNDERSTAND
THAT BECAUSE THIS SEPARATION WAIVER AND RELEASE IS AN IMPORTANT LEGAL DOCUMENT AND AFFECTS MY LEGAL RIGHTS, THE COMPANY ADVISES
ME TO CONSULT AN ATTORNEY BEFORE SIGNING THIS SEPARATION WAIVER AND RELEASE.


 


	AGREED AND ACCEPTED BY:
	 
	Signature:	 	 
	 
	Dated:	 	 
	 
	Typed or printed name: Scott A. Hill




 








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