AGREEMENT AND RELEASE
This Employment Separation Agreement and Release (the Agreement) dated as of June 12, 2017 (the Effective Date), is entered into by and among Banc of California, Inc., a Maryland corporation (the Corporation), Banc of California, N.A., a national banking association (the Bank), and J. Francisco A. Turner (Executive and, together with the Corporation and the Bank, the Parties).
W I T N E S S E T H:
WHEREAS, Parties are party to an amended and restated employment agreement dated as of January 6, 2014, as amended by that First Amendment to Amended and Restated Employment Agreement dated as of March 24, 2016 (as amended, the Employment Agreement); and
WHEREAS, the Parties wish to set forth certain promises, agreements, and understandings in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the legal sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Termination of Employment and Other Positions and Payments and Benefits.
(a) Notwithstanding anything to the contrary in this Agreement, Executives employment with the Corporation and the Bank will terminate on the Effective Date. As of the Effective Date, Executive is relieved of all duties and responsibilities for the Corporation, the Bank and their respective affiliates (collectively, the Affiliated Entities), and Executive shall not have the authority to bind the Affiliated Entities, or any of them. As of the Effective Date, Executive shall cease to hold, and be deemed to have resigned from, any and all titles, positions and appointments Executive holds with the Affiliated Entities, whether as an officer, director, employee, trustee, committee member or otherwise. Executive agrees to execute any documents reasonably requested any of the Affiliated Entities in connection with the actions contemplated by the preceding sentence. As used in this Agreement, the term affiliate shall include any company controlled by, controlling, or under common control with the Corporation or the Bank, as applicable.
(b) Subject to Executives execution and delivery of and compliance with the terms of this Agreement (including, without limitation, the release it contains in Section 5), and subject to Executive returning to the Corporation all property described in Section 2 below by June 15, 2017, Executive shall receive a one-time lump-sum cash payment of $2,750,000 by June 15, 2017. In addition, the Corporation shall for up to 18 months or until he obtains alternative benefits coverage, which occurs first, following the Effective Date, reimburse Executive for the monthly premium payments made by Executive to continue his health care coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).
Executive affirmatively acknowledges that he has forfeited any future contractual or other anticipated future award of equity-based shares or stock options of Bancorp common stock or any affiliates to which he may have had rights prior to the Effective Date of this Agreement, and acknowledges that no further amounts are due and owing to him other than amounts for Base Salary and any accrued but unused vacation, unreimbursed costs and expenses as of the Effective Date of this Agreement, as those terms are defined in Executives Amended and Restated Employment Agreement.
(c) Executive specifically agrees to (i) carve out of his Indemnification Agreement (as defined in paragraph (e) below) any Expenses, as that term is defined in the Indemnification Agreement, and (ii) affirmatively agrees to not seek from the Bank or Corporation any indemnification pursuant to that Indemnification Agreement, as that term is defined in the Indemnification Agreement, per the specific terms of a confidential side letter, which is incorporated by reference herein.
(d) Notwithstanding anything herein to the contrary, the compensation and benefits provided under this Agreement are subject to modification, solely to the minimum extent necessary to comply with the Final Interagency Guidance on Sound Incentive Compensation Policies issued on an interagency basis by the Federal Reserve System, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation and the Office of Thrift Supervision, effective June 25, 2010, or any amendment, modification, or supplement thereto, which shall be deemed to include, without limitation, any rules adopted pursuant to Section 956 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
(e) Executive acknowledges that, regardless of executing this Agreement, the Affiliated Entities have paid him all compensation earned through the Effective Date and have reimbursed him for all reasonable business expenses incurred through the Effective Date. Other than the payments and benefits specifically set forth in this Agreement, Executive agrees that none of the Affiliated Entities owes Executive (and Executive shall not become entitled to) any additional vesting, payments, compensation, remuneration, bonuses, incentive payments, benefits, stock options, warrants, stock appreciation rights, restricted stock, restricted stock units, severance, reimbursement of expenses, or commissions of any kind whatsoever, or other similar compensation, including any obligations owed to Executive under any employment agreement, offer letter or otherwise; provided, however, that the foregoing shall not extend to the following: (i) any vested shares or stock in the Affiliated Entities; (ii) any benefits vested under the Banc of California, Inc. 401(k) Plan, and (iii) Executives rights under that certain indemnification agreement dated March 24, 2016 between the Corporation and the Executive (the Indemnification Agreement), and other rights to indemnification and advancement of expenses in accordance with the Corporations certificate of incorporation, bylaws or other corporate governance document, or any applicable insurance policy. The Corporation and its Board shall take no action to reduce the indemnification rights of the Executive pursuant to any existing document, policy, agreement or otherwise and shall ensure all advancement and reimbursement is paid timely and in no event more than 20 business days after submission.
2. Return of Property. On or before June 15, 2017, Executive agrees to return to the Corporation any and all files, documents, or other property of the Affiliated Entities (said property includes, but is not limited to, financial reports and statements, projections, forecasts,
balance sheets, income statements, budgets, actual or prospective client lists, investor reports, books, reports to directors, minutes, resolutions, certificates, bank account numbers, passwords, credit cards, computers, laptops, cellular or other telephones, Blackberrys, calculators, identification and security cards, beepers, keys, deeds, contracts, office equipment and supplies, records, computer discs, emails and other electronic files) within his possession, custody or control, without retaining any copies or extracts thereof; provided, however, Executive shall be entitled to have transferred to a personal phone or other personal device all personal information and communications including contact lists contained on his work cellphone, Blackberry, computer or similar device, provided that no other information is transferred. Likewise, the Affiliated Entities will allow Executive a reasonable opportunity to retrieve his personal effects from his office.
(a) Executive agrees that he will cooperate fully with the Corporation and the Bank in connection with any existing or future investigations, claims, litigation, audits, inquiries or similar actions involving the Corporation, the Bank or their respective affiliates, whether informal, administrative, civil or criminal in nature, in which and to the extent the Corporation or the Bank deems Executives cooperation necessary. Executive agrees to respond to reasonable requests from the Corporation and its counsel for information that relates to the time period during which Executive provided services to the Corporation and the Bank prior to the termination of his services.
(b) Executive represents and warrants that, for the reporting period during which he served as the Corporations Principal Financial Officer, he is not aware of (i) any material misstatement or error in the Corporations publicly reported quarterly or annual financial statements, (ii) any need to correct or restate any such prior financial statements, or (iii) any material weakness in the Corporations internal controls (other than as reported by the Corporation in its quarterly report on Form 10-Q for the quarter ended September 30, 2016, and in its annual report on Form 10-K for the 2016 fiscal year). Executive further represents and warrants that he is not aware of any material inaccuracy in the (i) the certifications he made as the Companys Principal Financial Officer with respect to the Corporations quarterly reports on Form 10-Q and annual reports on Form 10-K or (ii) any representations he made in writing, in his capacity as the Corporations Principal Financial Officer, to the Corporations external auditors. Executive further represents and warrants that his separation from the Corporation is not as a result of any disagreement between Executive and the Corporation regarding accounting principles or practices or regarding financial statement disclosures.
4. Clawback and Restrictive Covenants. Executive acknowledges and agrees that the clawback provisions in Section 3(b)(v) of the Employment Agreement and the confidential information and non-solicitation covenants in Section 8 of the Employment Agreement remain in full force and effect in accordance with the terms thereof. Notwithstanding anything to the contrary in the Employment Agreement or this Agreement, nothing in Section 8 of the Employment Agreement or this Agreement is intended to prohibit or prohibits Executive from reporting alleged violations of law to an appropriate government agency. In addition, Executive is hereby notified that 18 U.S.C. § 1833(b) states as follows:
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that(A) is made(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
Accordingly, notwithstanding anything to the contrary in this Agreement, Executive understands that he has the right to disclose in confidence trade secrets to federal, state, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. Executive understands that he also has the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Executive understands and acknowledges that nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).
(a) In consideration for the payments and benefits to be provided to Executive under this Agreement, Executive for himself, his heirs, administrators, representatives, executors, successors, and assigns (collectively Releasors) does hereby irrevocably and unconditionally release, acquit and forever discharge the Affiliated Entities and their respective predecessors and successors and their respective, current and former, trustees, officers, directors, partners, shareholders, agents, employees, attorneys, consultants, independent contractors, and representatives (collectively, Releasees), and each of them from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, remedies, actions, causes of action, suits, rights, demands, costs, losses, debts, and expenses (including attorneys fees and costs) of any nature whatsoever, known or unknown, whether in law or equity and whether arising under federal, state, or local law (Claims), including without limitation, Claims for personal injury, Claims for breach of any implied or express contract or covenant, Claims for promissory estoppel, Claims failure to pay wages, benefits, vacation pay, severance pay, attorneys fees, or any compensation of any sort; failure to grant equity or allow equity to vest, defamation, Claims for wrongful termination, public policy violations, defamation, interference with contract or prospective economic advantage, invasion of privacy, fraud, misrepresentation, emotional distress, breach of fiduciary duty, breach of the duty of loyalty or other common law or tort causes of action; Claims of harassment, retaliation or discrimination based upon race, color, sex, national origin, ancestry, age, disability, handicap, medical condition, religion, marital status, or any other protected class or status under federal, state, or local law; Claims arising under or relating to employment, employment contracts; unlawful effort to prevent employment, or unfair or unlawful business practices, including without limitation all claims arising under Section 806 of the employee protection provisions of the Sarbanes-Oxley Act of 2002, 18 U.S.C.A. §1514A; the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, 15 U.S.C. § 78o; Title VII of the Civil Rights Act of 1964 (Title VII); the Civil Rights Act of 1991; the Civil Rights Acts of 1866 and/or 1871, 42 U.S.C. Section 1981; the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C § 12101 et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.,; the Older Workers Benefits Protection Act (OWBPA); the Family Medical Leave Act, 29 U.S.C. § 2601
et seq.; the California Labor Code, including without limitation section 1102.5 of the Labor Code; the California Fair Employment and Housing Act (FEHA), Cal. Gov. Code § 12940 et seq.; the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq. or any other health/safety laws, statutes or regulations; the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.; the Internal Revenue Code; the California Family Rights Act (CFRA), Cal. Gov. Code § 12945 et seq.; including any amendments to or regulations promulgated under these statutes and including the similar laws of any other states, any state human rights act, or any other applicable federal, state or local employment statute, law or ordinance, which Executive and Releasors had, now have, or may have in the future against each or any of the Releasees arising out of acts or omissions occurring from the beginning of the world until the date hereof.
(b) Executive understands and agrees that the release set forth in Section 5(a) above does not in any way affect the rights and obligations of the Parties created under this Agreement and the rights of either party to take whatever steps may be necessary to enforce the terms of this Agreement or to obtain appropriate relief in the event of any breach of the terms of this Agreement. The parties agree that, notwithstanding the generality of Section 5(a), this Agreement does not release Executives rights to (i) any benefits vested under the Banc of California, Inc. 401(k) Plan, (ii) Executives rights to indemnification and advancement of expenses in accordance with the Corporations certificate of incorporation, bylaws or other corporate governance document, the Indemnification Agreement (except as otherwise provided herein), or any applicable insurance policy, and (iii) any right that cannot be released by private agreement. Executive represents that, except for anonymous whistleblower complaints filed with the SEC or other similar regulatory agencies, the Releasors have not initiated, filed, or caused to be filed any Released Claims against any of the Releasees. Executive further agrees not to initiate, file, cause to be filed, or otherwise pursue any Released Claims, either as an individual on his own behalf or as a representative, member or shareholder in a class, collective or derivative action. Executive acknowledges that the release set forth in Section 5(a) does not prohibit Executive from challenging the validity of the waiver of Executives claims under the ADEA as contained in Section 5(a) of this Agreement (but no other portion of such waiver) or from filing a charge with or participating in an investigation by a governmental administrative agency or reporting alleged violations of law to an appropriate government agency; provided, however, that, except with respect to the Securities and Exchange Commission, Executive hereby waives any right to receive any monetary award resulting from such a charge or investigation and provided further that Executive agrees not to encourage any person, including any current or former employee of the Affiliated Entities, to file any kind of Claim whatsoever against any of the Affiliated Entities.
(c) Executive acknowledge that he is aware of the provisions of California Civil Code, Section 1542, which reads as follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.
Executive hereby expressly gives up all the benefits of Section 1542 and of any other similar law of this or any other jurisdiction, except as expressly provided herein.
6. No Admission of Liability. Executive acknowledges and agrees that any payments or benefits provided to Executive under the terms of this Agreement do not constitute an admission by any of the Affiliated Entities that they have violated any law or legal obligation with respect to any aspect of Executives employment with the Corporation. Likewise, this Agreement does not constitute an admission by Executive that he has violated any law or legal obligation with respect to any aspect of Executives employment with the Corporation.
7. Mutual Non-Disparagement. To the full extent permitted by law, the Parties agree after the date of the execution of this Agreement, they will not, to the public or to any individual person or entity, disparage, criticize, condemn or impugn the reputation or character of the other or any related business entity, any of their officers or employees, or any of their actions or writings, specifically including but not limited to any of the conduct, policies, practices, procedures or advertisements, which are, have been or may be taken or produced by these entities. For the purposes of this paragraph only, the Parties means Mr. Turner and the current Board and Executive Officers of the Corporation and/or Bank, to the extent the current Board and the Executive Officers are engaged in their capacity as managing speaking agents on behalf of the Affiliated Entities at the time the statement is made.
8. Standstill. Executive agrees that during the Standstill Period (as hereinafter defined):
(a) Executive will not, and will cause his Affiliates (as hereinafter defined) not to, directly or indirectly, acquire Beneficial Ownership (as hereinafter defined) of any shares of common stock or common stock equivalents or the Corporation, in each case, now or hereafter outstanding (collectively, Securities) without the consent of the Corporation, if the effect of such acquisition would be to increase the aggregate Beneficial Ownership of Securities of Executive to greater than 4.99% of the total number of shares of Company common stock then outstanding (the Percentage Limitation); provided, that the foregoing limitation shall not apply to Executives acquisition of common stock pursuant to the exercise of the stock options granted to him or the vesting of any stock options, SARs, or equity he currently holds. In addition, Executive will not, and will cause his Affiliates not to, make any public announcement with respect to, or submit any proposal for or with respect to (i) the acquisition of Beneficial Ownership of any Securities if the effect of such acquisition would be to cause the Beneficial Ownership of Executive and his Affiliates to exceed the Percentage Limitation. For purposes of this Section, the term Affiliates shall have the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the Exchange Act), and Beneficial Ownership shall be determined in accordance with Rule 13d-3 under the Exchange Act.
(b) Without the express prior written approval of the Board of Directors of the Corporation (the Board), Executive will not, and will cause his Affiliates not to, directly or indirectly, solicit proxies or initiate, propose or become a participant in a solicitation (as such terms are defined in Regulation 14A under the Exchange Act), in opposition to any matter that has been recommended by a majority of the members of the Board or in favor of any matter that has not been approved by the Board or seek to advise, encourage or influence any person (as such term is used in Section 13(d) and 14(d) of the Exchange Act, Person) with respect to the voting of Securities in such manner, or initiate, or induce or attempt to induce any Person to initiate, any shareholder proposal relating to the Corporation.
(c) Without the express prior written approval of the Board, Executive will not, and will cause his Affiliates not to, join a consortium, partnership, limited partnership, syndicate or other group (within the meaning of Section 13(d)(3) of the Exchange Act), or otherwise act in concert with any Person, for the purpose of acquiring, holding, voting or disposing of Securities, or for any other purpose which would require disclosure under Item 4 of Schedule 13D adopted by the Securities and Exchange Commission under the Exchange Act.
(d) The Standstill Period shall commence on the Date of Termination and shall terminate on December 31, 2018.
9. Entire Agreement. The Parties each represent and warrant that no promise or inducement has been offered or made except as herein set forth and that the consideration stated herein is the sole consideration for this Agreement. This Agreement is a complete and entire agreement and states fully all agreements, understandings, promises and commitments as between the Affiliated Entities and Executive and as to the termination of their relationship; this Agreement supersedes and cancels any and all other negotiations, understandings and agreements, oral or written, respecting the subject matter hereof, including any prior employment agreements between the Affiliated Entities and Executive, including but not limited to the Employment Agreement, except as otherwise set forth in this Agreement. This Agreement may not be modified except by an instrument in writing signed by the party against whom the enforcement of any waiver, change, modification, or discharge is sought.
10. No Transfer. Executive represents and warrants that Executive has not sold, assigned, transferred, conveyed or otherwise disposed of to any third party, by operation of law or otherwise, any action, cause of action, suit, debt, obligations, account, contract, agreement, covenant, guarantee, controversy, judgment, damage, claim, counterclaim, liability or demand of any nature whatsoever relating to any matter covered by this Agreement.
11. Assignability, Successors, Choice of Law. This Agreement is personal to Executive and Executive may not assign, pledge, delegate or otherwise transfer to any person or entity any of Executives rights, obligations or duties under this Agreement; provided, however, that Executive shall not be precluded from designating in writing one or more beneficiaries to receive any amount that may be payable after Executives death and shall not preclude the legal representative of Executives estate from assigning any right hereunder to the person or persons entitled thereto. This Agreement shall be binding upon and shall inure to the benefit of, and shall be enforceable by, Executive, Executives heirs and legal representatives and the Corporation, the Bank, and their respective successors and assigns. This Agreement shall be governed by, construed in accordance with, and enforced pursuant to the laws of the State of California without regard to principles of conflict of laws.
12. Enforceability. The failure of either party at any time to require performance by the other party of any provision hereunder will in no way affect the right of that party thereafter to enforce the same, nor will it affect any other partys right to enforce the same, or to enforce any of the other provisions in this Agreement; nor will the waiver by either party of the breach of any provision hereof be taken or held to be a waiver of any prior or subsequent breach of such provision or as a waiver of the provision itself.
13. Counterparts. This Agreement may be executed in counterparts, each of which together constitute one and the same instrument. Signatures delivered by facsimile or email PDF shall be effective for all purposes.
14. Notices. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other parties or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
1. If to Executive: Timothy B. McCaffrey, Jr., Chesler McCaffrey LLC, 11377 West Olympic Boulevard, Suite 500, Los Angeles, California 90064-1683, and at the most recent address on file at the Corporation.
2. If to the Corporation:
Banc of California, Inc.
3 MacArthur Place
Santa Ana, California 92707
Attention: General Counsel
or to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be effective when actually received by the addressee.
15. Nonadmissibility. To the extent permitted by applicable law, nothing contained in this Agreement, or the fact of its submission to Executive, shall be admissible evidence against the Corporation in any judicial, administrative, or other legal proceeding (other than in an action for breach of this Agreement).
16. OWBPA; Meaning of Signing This Agreement. By signing this Agreement, Executive expressly acknowledges and agrees that (a) Executive has carefully read it, and fully understands what it means; (b) Executive has been advised in writing to discuss this Agreement with an independent attorney of Executives own choosing before signing it and has had a reasonable opportunity to confer with Executives attorney and has discussed and reviewed this Agreement with Executives attorney prior to executing it and delivering it to the Corporation; (c) Executive has been given twenty-one (21) calendar days to consider this Agreement and understands that he may execute the Agreement in fewer than 21 days if he chooses, and if Executive executes this Agreement in fewer than 21 days, such execution will be deemed to be a voluntary and knowing waiver of the full 21 day consideration period.; (d) Executive has had answered to Executives satisfaction any questions Executive has with regard to the meaning and significance of any of the provisions of this Agreement; (e) Executive has agreed to this Agreement knowingly and voluntarily of Executives own free will and was not subjected to any undue influence or duress, and assents to all the terms and conditions contained herein, including his waiver and release of all Claims under the ADEA, with the intent to be bound hereby; (f) in consideration of Executives promises contained in this Agreement, he is receiving consideration beyond that to which he is otherwise entitled, including, without limitation, the consideration set forth in Section 1(b), above; (g) Executive may revoke Executives waiver and release of Claims under the ADEA within seven (7) calendar days after Executive signs this Agreement by sending
a written Notice of Revocation to the address of the Corporation as set forth in Section 13 above; and (h) except for Executives waiver and release of Claims under the ADEA, which shall not become effective or enforceable as to any Party until the date upon which the revocation period has expired without revocation by Executive, this Agreement shall become effective on the Effective Date. Executive understands and agrees that modifications or amendments to this Agreement will not restart the twenty-one (21) day consideration period set forth in this Section 16. For avoidance of doubt, if Executive revokes his waiver and release of Claims under the ADEA pursuant to the preceding sentence, he will repay in full the payments and any of the benefits set forth in Section 1(b) of this Agreement.
17. No Construction against Drafter. No provision of this Agreement or any related document will be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured or drafted such provision.
18. Compliance with Section 409A. The Parties acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and the Parties agree to use their best efforts to achieve timely compliance with, Section 409A of the Code and the Department of Treasury Regulations and other interpretive guidance issued thereunder (Section 409A), including without limitation any such regulations or other guidance that may be issued after the Effective Date. Notwithstanding any provision of this Agreement to the contrary, in the event that the Corporation and Executive determine that any provision of this Agreement would subject Executive to any additional tax or interest under Section 409A, then the Corporation and Executive shall cooperate in reforming such provision to the extent such reform will mitigate the amount of taxes incurred by Executive under Section 409A while maintaining, to the maximum extent practicable, the original intent of the applicable provision. Any payments that, under the terms of this Agreement, qualify for the short-term deferral exception under Treasury Regulations § 1.409A-1(b)(4), the separation pay exception under Treasury Regulations § 1.409A-1(b)(9)(iii), or any other exception under Section 409A will be paid under the applicable exceptions to the greatest extent possible. Notwithstanding the foregoing, the Corporation and the Bank make no representation or covenant to ensure that the payments and benefits under this Agreement are exempt from, or compliant with, Section 409A.
19. Taxes. Notwithstanding any other provision of this Agreement to the contrary, the Affiliated Entities may withhold from all amounts payable or provided under this Agreement all federal, state, local and foreign taxes that are required to be withheld pursuant to any applicable laws and regulations. Executive shall be responsible for the payment of Executives portion of any and all required federal, state, local and foreign taxes incurred, or to be incurred, in connection with any amounts payable or provided under this Agreement.
(signature page follows)
IN WITNESS WHEREOF, the Parties have executed and delivered this Employment Separation Agreement and Release as of the day and year set forth below.
|BANC OF CALIFORNIA, INC.|
|By:||BANC OF CALIFORNIA, INC.|
|Title:||President and CEO|
|BANC OF CALIFORNIA, N.A.|
|By:||BANC OF CALIFORNIA, N.A.|
|Title:||EVP and Deputy General Counsel|
|J. Francisco A. Turner|
(signature page to Employment Separation Agreement and Release)