**Exhibit10.12**

EMPLOYMENT AGREEMENT

THIS AGREEMENT (this “Agreement”), dated as of August10, 2001 is between Henry Company (the “Employer” or the “Company”), andWilliam Baribault (the “Executive”).

WITNESSETH:

WHEREAS, the Employer is a California corporation; and

WHEREAS, the Employer desires to retain the servicesof the Executive in an executive capacity and the Executive desires to beemployed by the Employer upon the terms and conditions hereinafter set forth;

NOW, THEREFORE, in consideration of the agreementsherein contained, the parties hereto agree as follows:

1.             EMPLOYMENT.

(a)           The Employer hereby employs theExecutive, and the Executive hereby accepts such employment, as President andChief Operating Officer of the Employer. The Executive shall report, and be subject, to the direction of theEmployer’s Chief Executive Officer, and shall have such powers and dutiesgenerally consistent with the duties and offices of a President and ChiefOperating Officer as shall from time to time be reasonably assigned to him bythe Employer’s Chief Executive Officer or Board of Directors.

(b)           The Executive agrees to (i) usehis best efforts to promote the interests of the Employer, (ii) devote hisfull business time and energies to the business and affairs of the Employerduring the Term, (iii) comply with Employer’s employment and conflict ofinterest policies, and (iv) discharge his duties in a diligent andfaithful manner in accordance with the directives of the Chief ExecutiveOfficer and Board of Directors. Notwithstanding the foregoing, it is expressly understood and agreedthat it shall in no way be deemed a violation of any of the terms of thisAgreement if (i) Executive engages in such charitable and/or volunteer work ashe reasonably elects during the Term and/or (ii) Executive continues hisinvolvement with those entities more particularly described in Exhibit Ahereto; provided such activity does not materially hinder the Executive’sability, or materially infringe on the time necessary, to perform his dutieshereunder.

2.             APPOINTMENT AS DIRECTOR.  The Employer shall use its best efforts tocause the Executive to be appointed, and Warner Henry shall exercise his votingpower to elect Executive, as a Director of the Employer and a member of the Auditand Executive Committees of the Board of Directors.  The Executive shall remain a Director during the Term unless:

(a)           the Executive notifies the Employer’sBoard of Directors that he is no longer willing to be a director, or

(b)           Executive’s employment has beenterminated hereunder.

 

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3.             TERM OF EMPLOYMENT.  The Executive’s employment term shall be deemed to have commencedon August 10, 2001, and shall end on December 31, 2005, unless earlier terminatedpursuant to Section 5 of this Agreement (the “Term”).  Upon the end of the Term, neither party shall have an obligation,express or implied, to extend the Agreement or to negotiate a new agreement.

4.             COMPENSATION.

(a)           Base Salary.  As compensation for services hereunderduring the Term, the Employer shall pay the Executive an annual salary of$300,000.00 (“Base Salary”), which shall be payable in appropriate installmentsto conform with the regular payroll dates for salaried personnel of the Employer.  The amount of Executive’s Base Salary shallbe reviewed annually by the Employer’s Board of Directors.

(b)           Bonus.  The Employer shall pay the Executive anannual performance bonus (a “Performance Bonus”) in an amount to be calculatedbased on the Employer’s Operating Result for that year, as set forth in ExhibitA attached hereto, but in no event shall the Employer pay the Executive aPerformance Bonus of less than $100,000 with respect to the Employer’s 2001fiscal year.  The Performance Bonus willbe paid to Executive thirty (30) days after the Employer’s determination of thePerformance Bonus set forth in Exhibit B.

If Executive’s employment is terminated pursuant to Sections 5(b), 5(d) 5(e) or 5(g)hereof, Executive will receive a Performance Bonus with respect to the year inwhich his employment is terminated as follows:

(i)            If the termination occurs on orbefore June 30 of any fiscal year, the Performance Bonus for the fiscal year inwhich the termination occurs will be pro rated for the number of full monthselapsed in the fiscal year of termination.

(ii)           If the termination occurs after June30 in any fiscal year, Executive will receive the Performance Bonus to which hewould have been entitled for the entire fiscal year in which the terminationoccurs.

If Executive’s employment is terminated pursuant toSections 5(a), (c) or (f), Executive shall receive no Performance Bonus withrespect to the year in which his employment is terminated.

(c)           Benefits.  During the Term, the Executive shall receivea benefits package consisting of the following:

(i)            The Executive shall be entitled toparticipate in and receive benefits on the same basis as other seniorexecutives of the Employer, under the Employer’s standard medical and dentalplans and the Employer’s executive long term disability plan, each as in effecton the date hereof, or any such plans made available by the Employer in thefuture to its employees, subject to and on a basis 

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consistent with the terms,conditions and overall administration of such plans and arrangements.

(ii)           The Executive shall be entitled toparticipate on the same basis as other senior executives of the Employer in theEmployer’s 401(k) program.

(iii)          The Executive shall be entitled toparticipate on the same basis as other senior executives of the Employer inother benefit programs made available to senior executives of Employer, such asthe Employer’s Executive Deferral Program and car allowance program.

(iv)          The Executive shall be entitled,commencing the date hereof, to an allowance of up to $2,000 per month for suchelective benefits as are offered by Employer to other senior executives, suchas seminars, country club dues, YPO events, etc.  Employer shall be obligated to reimburse Executive for theelective benefits only if it receives adequate documentation of theexpenditure.

(v)           The Executive shall be entitled tofour weeks paid vacation time during each year of the Term.

5.             TERMINATION. The Term will terminate:

(a)           by and upon the mutual consent of theExecutive and the Employer;

(b)           upon the death of the Executive;

(c)           by the Employer, for “Cause,” uponwritten notice.  “Cause” shall mean andbe limited to the Executive’s:  (i)conviction (or the indictment of) or the entering of a guilty plea or plea ofno contest with respect to a felony or any crime involving fraud or moralturpitude ; (ii) any act or omission involving dishonesty, misappropriation,embezzlement or fraud affecting Employer; (iii) continued failure to performduties specified by the Chief Executive Officer after written notice and, ifsusceptible to remedy or cure, is not cured or remedied and continues for tenbusiness days after the Employer’s Chief Executive Officer has given writtennotice with a copy to the Board of Directors and Executive specifying themanner in which the duties have not been performed; (v) repeated insobriety oruse of any illegal drugs while rendering services hereunder; (vi) gross neglector gross misconduct resulting in material harm to the Employer or any of itsaffiliates; or (vii) material breach of this Agreement and failure to cure suchbreach within 30 days of written notice from the Employer;

(d)           by the Employer, if, as a result ofthe Executive’s incapacity due to physical or mental illness, the Executiveshall have been absent from his duties hereunder on a full-time basis for 180consecutive days, and, within thirty (30) days after a Notice of Termination(as hereinafter defined) is given by the Employer, the Executive shall not havereturned to the performance of his duties hereunder on a full-time basis.  Such Notice of Termination shall be providedby the Employer on or after the date on which the Executive has been absent for150 consecutive days;

 

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(e)           by the Employer, without Cause, atany time;

(f)            by Executive, after 30 days afterNotice of Termination is given to Employer’s Board of Directors.

(g)           by Executive for Good Reason, after30 days after Notice of Termination is given to Employer’s Board of Directors. ** **GoodReason shall mean and be limited to Employer’s material breach of thisAgreement and failure to cure such breach within 30 days of written notice fromExecutive.

(h)           Notice of Termination.  Any termination by the Employer pursuant tosubparagraphs (a), (c), (d), or (e) above or by the Executive pursuant tosubparagraph (f) or (g) above shall be communicated by written Notice ofTermination to the other party hereto.

(i)            Date of Termination.  Date of Termination shall mean (i) if theExecutive’s employment is terminated pursuant to subparagraph (b), the dayafter the Executive’s death; (ii) if the Executive’s employment is terminatedpursuant to subparagraph (d) above, thirty (30) days after Notice of Terminationis given provided that the Executive shall not have returned to the performanceof his duties on a full-time basis during such thirty day period), and (iii) ifthe Executive’s employment is terminated pursuant to subparagraph (a), (c),(e), (f) or (g) above, the date specified in the Notice of Termination.

6.             COMPENSATION UPON TERMINATION.

(a)           If the Executive’s employment shallbe terminated pursuant to Sections 5(a), (c) or (f) hereof, the Executive shallonly be entitled to his accrued but unpaid Base Salary at the time ofTermination and benefits and reimbursement for his accrued but unused vacationtime, through the date of termination. Upon making the payments pursuant to this Section 6(a), the Employershall have no further obligations to the Executive.

(b)           If the Executive’s employment isterminated pursuant to Sections 5(b) or (d) hereof, the Employer shall pay theExecutive the amounts as provided in Section 6(a) hereof, and any earnedPerformance Bonus as determined by Section 4(b) hereof.  Upon making the payments pursuant to thisSection 6(b), the Employer shall have no further obligations to the Executive.

(c)           If the Executive’s employment isterminated pursuant to Section 5(e) or (g) hereof, the Employer shall pay theExecutive the amounts as provided in Section 6(a) and any earned PerformanceBonus as determined by Section 4(b) hereof. In addition, if Executive’s employment is terminated on or before thefollowing dates, Executive shall receive the following amounts designated as“Severance Pay”:

 

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| **Date of Termination**                                |   | **Severance Pay**                |
|--------------------------------------------------------|--------|----------------------------------|
|                                                   |   |                             |
| On or before January 9, 2003                           |   | 1 times the then Base Salary     |
|                                                   |   |                             |
| After January 9, 2003 and on or before January 9, 2004 |   | 1 1/2 times the then Base Salary |
|                                                   |   |                             |
| After January 9, 2004 and on or before January 9, 2005 |   | 2 times the then Base Salary     |
|                                                   |   |                             |
| After January 9, 2005                                  |   | 2 1/2 times the then Base Salary |

 

; provided, however, that Employer shall only beobligated to pay such Severance Pay on the eighth (8th) day followingExecutive’s execution and delivery of the form of General Release set forth asExhibit C hereof.  The total amount ofSeverance Pay payable to the Executive shall be prorated over the period from thedate of termination through December 31, 2005 and paid in equal quarterlyinstallments (beginning with the first day of the next fiscal quarter) throughJanuary 1, 2006.  Upon making thepayments pursuant to this Section 6(c), the Employer shall have no furtherobligations to the Executive.

(d)           The amounts payable hereunder upontermination of the Executive’s employment shall be the Employer’s entireliability to the Executive in connection with Executive employment ortermination thereof.  If the Employerpurports to terminate the Executive for Cause, but it is later determined thatthe termination was without Cause, Employer’s liability shall be limited tothat provided for in this Section 6.

7.             CONFIDENTIAL INFORMATION; NON-SOLICIT AGREEMENT.

(a)           Executive acknowledges that duringthe Term and as part of his employment, Executive will be provided specialaccess to “Confidential Information” and that any unauthorized disclosure ofsuch Confidential Information could have an adverse impact on Employer and itsbusiness.  Executive will hold all suchConfidential Information in a fiduciary capacity for the benefit of theEmployer.  After termination ofExecutive’s employment, Executive will not, without the prior written consentof the Employer or as may otherwise be required by court order, communicate ordivulge any such Confidential Information to anyone other than the Employer andthose designated by it.  “ConfidentialInformation” means information not known by the trade generally or notreasonably available to a knowledgeable person in the trade, even though suchinformation may have been disclosed to one or more third parties pursuant toconsulting agreements, joint venture agreements or other agreements enteredinto by the Employer and includes, without limitation, trade secrets, designs,plans, formulas, customer lists, lists of suppliers and all other confidentialand proprietary information.

(b)           During the Term, the Executive agreesthat he will not, either directly or indirectly, either as an owner,part-owner, partner, shareholder, principal, officer, director, manager,operator, employee, salesman, agent, independent contractor, or otherparticipant, participate in, carry on, or engage in an enterprise anywhere inthe United States or Canada whose primary business is similar to or competeswith within the Employer’s business, except that he may own less than 2%of a publicly traded company engaged in such activities.

(c)           During the Term and for two yearsafter Executive’s employment terminates hereunder, the Executive agrees that hewill not directly or indirectly: request or advise any customer of the Employer to withdraw, curtail orcancel its business or dealings with the Employer; solicit or accept thebusiness of such customers with respect to the Employer’s coating business onbehalf of anyone except the Employer; disclose to any person, corporation, orentity outside the Employer the names of, or other identifying factsconcerning, any of the 

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Employer’s customers or suppliers; or induce orsolicit any employee of the Employer to terminate his or her employment withthe Employer or hire any employee of the Employer (except Executive’s personalassistant).

(d)           The parties hereto acknowledge andagree that monetary damages for breach of this Section 7 would not be easilyascertainable and that the remedy at law for breach of this Section 7 isinadequate.  The Employer shalltherefore be entitled, in addition to such other remedies (whether at law or atequity) as it may have, to temporary and permanent injunctive relief for anybreach or threatened breach of this Section 7 without proof of any actualdamages that have been or may be caused by such breach.

8.             INDEMNIFICATION. Executive shall be entitled to all such indemnity rights as may begenerally available to officers, directors and/or agents of Employer  pursuant to any applicable law or to anyother contract with, or the Bylaws of, Employer as may be now or hereafter ineffect.  Notwithstanding any otherprovision of this Agreement, such rights shall survive any termination orexpiration of this Agreement.

9.             BREACH BY EXECUTIVE.  Both parties recognize that the services to be rendered underthis Agreement by the Executive are special, unique and extraordinary incharacter, and that in the event of the breach by the Executive of the termsand conditions of this Agreement to be performed by him, or in the event theExecutive performs services for any person, firm or corporation engaged in acompeting line of business with the Employer, then the Employer shall beentitled, if it so elects, to institute and prosecute proceedings in any courtof competent jurisdiction, either in law or in equity, to obtain damages forany breach of this Agreement, or to enforce the specific performance thereof bythe Executive, or to enjoin the Executive from performing services for any suchother person, firm or corporation.

10.           ASSIGNMENT.  This Agreement shall inure to the benefitof, and shall be binding upon, the parties hereto and their respective successors,assigns, heirs, and legal representatives, including any entity with which theEmployer may merge or consolidate or to which all or substantially all of itsassets may be transferred. The duties and covenants of the Executive under thisAgreement, being personal, may not be delegated.

11.           NO WAIVER.  The failure of a party to insist upon strictadherence to any term of this Agreement on any occasion shall not be considereda waiver or deprive that party of the right to insist upon adherence to thatterm or any other term of this Agreement. Any waiver or amendment to this Agreement must be in writing.

12.           WITHHOLDINGS.  All compensation provided by Employer underthis Agreement is subject to any and all withholdings by Employer as requiredby applicable law.

13.           GOVERNING LAW; CAPTIONS.  This Agreement contains the entire agreementbetween the parties as to the employment relation between the parties and shallbe governed by the laws of the State of California.  This Agreement may not be changed orally, but only by agreementin writing signed by the party against whom enforcement of any waiver, change,modification or discharge is sought. Paragraph headings are for convenience of reference only and shall not beconsidered a part of this Agreement.

 

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14.           ARBITRATION.

(a)           Arbitrable Disputes.  The Employer and the Executive agree to usefinal and binding arbitration to resolve any dispute each may have with the otheror any affiliate relating to this Agreement or the Executive’s employment withand/or termination from the Employer (an “Arbitrable Dispute”).  AnArbitrable Dispute may include, but shall not be limited to, any dispute aboutthe validity, interpretation, or effect of this Agreement, or allegedviolations of it; any and all claims arising out of any alleged discrimination,harassment, or retaliation; and any and all claims arising under or covered bythe Fair Labor Standards Act, as amended, the Age Discrimination inEmployment Act of 1967, as amended, Title VII of the Civil Rights Act of1964, as amended, the Equal Pay Act, as amended, the Rehabilitation Act of1973, as amended, the Employee Retirement Income Security Act of 1974, asamended, the Americans with Disabilities Act of 1990, as amended, Section 1981of Title 42 of the United States Code, as amended; the California FairEmployment and Housing Act, as amended, California Labor Code Section 200 etseq., as amended; and California Labor Code Section 500 et seq., as amended..

(b)           Injunctive Relief.  The Executive and the Employer agree that,notwithstanding Section 14(a), above, when irreparable harm is present orthreatened, and where either party is seeking only injunctive relief (e.g., atemporary restraining order, temporary injunction or permanent injunction),such party may file suit or bring an application for such injunctive relief inany federal or state court of competent jurisdiction without violating thisAgreement and such suit for injunctive relief will not be considered anArbitrable Dispute.

(c)           The Arbitration.  The Executive and the Employer agree thatthe arbitration will take place in Los Angeles County, California, inaccordance with the arbitration rules and procedures of the AmericanArbitration Association then in effect. The arbitration shall take place before a single, neutral arbitratorexperienced in employment matters who is licensed to practice law inCalifornia,  The Executive and theEmployer agree to select a mutually agreeable arbitrator, and if the partiesare unable to do so within ten (10) business days, an arbitrator shall beselected in accordance with the rules of the American ArbitrationAssociation.  The arbitrator may notmodify or change this Agreement in any way. Discovery shall be governed by CCP Section 1283.05.  At the conclusion of the arbitration, thearbitrator shall issue a written ruling setting forth the essential findings offact and conclusions of law on which the arbitration finding or award isbased.  To the extent that the applicablearbitration rules are inconsistent with this Section 14, Section 14 shallgovern.

(d)           Fees and Expenses.  Each party will pay the fees of theirrespective attorneys, the expenses of their witnesses, costs of any record ortranscript of the arbitration, and any other expenses connected with thearbitration that such party might be expected to incur had the dispute beensubject to resolution in court, but all costs of the arbitration that would notbe incurred by the parties if the dispute was litigated in court, including thefees of the arbitrator and any arbitration association administrative fees(“Unique Arbitration Costs”), will be paid by the Employer.  **The prevailing party may be entitled to recover theirreasonable attorney fees and costs from the nonprevailing party to the extentpermitted by law; provided, however, that the Unique Arbitration Costs will bepaid by the Employer.**

 

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(e)           Jury Right.  The Executive and the Employer understandthat this arbitration agreement constitutes a waiver of each party’s respectiverights to a jury trial and relates to the resolution of every ArbitrableDispute brought by the Executive or the Employer.

(f)            Severability.  The Executive and the Employer agree that tothe extent any specific provision of this agreement to arbitrate claims shallbe held void, voidable or unenforceable, the remaining provisions shall remainin full force and effect.

15.           COMPLETE AGREEMENT.  This Agreement terminates all prioragreements between the parties relating to the subject matter hereinaddressed.  In the event of terminationof employment under any of the circumstances described herein, the arrangementsprovided for by this Agreement will constitute the entire obligation of the Employerto the Executive and performance thereof by the Employer will constitute fullsettlement of any claim that the Executive might otherwise assert against theEmployer or any affiliate of the Employer on account of such termination.

16.           SEVERABILITY.  If any provision of this Agreement is illegaland unenforceable in whole or in part, the remainder of this Agreement shallremain in full force and effect.

17.           EFFECT OF TERMINATION.  Notwithstanding the termination of thisAgreement at the end of the Term, or earlier pursuant to Section 5 orotherwise, Sections 4-20 of this Agreement shall survive.

18.           NOTICES.  Any notices or other communications requiredor permitted hereunder shall be in writing and shall be deemed effective(i) when delivered in person (in the Employer’s case to the ChiefExecutive Officer), (ii) sent by facsimile (with written confirmation ofreceipt), provided that a copy is mailed by registered mail, or (iii) ifsent by overnight mail, on the date received by the respective party at theEmployer’s headquarters offices, or such other address as shall have beenspecified in writing by either party to the other.

19.           ATTORNEYS’ FEES.  If it is necessary for either party toinstitute any proceeding (including arbitration), action or suit to enforce anyrights under this Agreement, the party not prevailing in such proceeding,action or suit agrees to pay the prevailing party’s reasonable costs anddisbursements and such sums as the judge of the court (or arbiters of forum)may adjudge reasonable as attorney fees in any such proceeding, action or suitor in any appeal thereof.

20.           BINDING EFFECT.  The covenants, conditions and terms of thisAgreement shall extend to and be binding upon and inure to the benefit of theparties, their successors, heirs, personal representatives, trustees, and otherlegal representatives.

 

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IN WITNESS WHEREOF, the Employer has by itsappropriate officer signed this Agreement and the Executive has signed thisAgreement, as of the day and year first above written.
| Dated:  August 10, 2001 | Employer          |
|------------------------------|-------------------|
|                         |              |
|                         | HENRY COMPANY     |
|                         |              |
|                         | By:               |   |
|                         |              | Warner W. Henry |
|                         |              | CEO, Henry Company |
|                         |              |
|                         | Executive         |
|                         |              |
|                         |              |
|                         | William Baribault |
|                         |              |

 

This Agreement dated August 10, 2001 supercedes anyother Employment Agreement between the parties dated August 10, 2001.

 

 

 

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EXHIBIT A

The following are entities which Executive currentlyis involved and in which he may remain involved during the Term:
| ENTITY                                              |   | INVOLVEMENT                                   |
|-----------------------------------------------------|--------|-----------------------------------------------|
|                                                |   |                                          |
| PROFESSIONAL BUSINESS BANK                          |   | MEMBER, BOARD OF DIRECTORS; CHAIRMAN OF BOARD |
|                                                |   |                                          |
| APPLIED INDUSTRIAL TECHNOLIGIES                     |   | CONSULTANT                                    |
|                                                |   |                                          |
| EAGLE INVESTMENTS, A CALIFORNIA LIMITED PARTNERSHIP |   | GENERAL PARTNER, MEMBER, BOARD OF DIRECTORS   |
|                                                |   |                                          |
| EAGLE ASSOCIATES, LLC                               |   | MEMBER, MANAGER, PRESIDENT                    |
|                                                |   |                                          |
| ARCHITECTURAL WOODWORKING                           |   | MEMBER, BOARD OF DIRECTORS                    |
|                                                |   |                                          |
| M. CHEMICAL COMPANY                                 |   | MEMBER, BOARD OF DIRECTORS                    |
|                                                |   |                                          |
| DESCANSO GARDENS                                    |   | MEMBER, BOARD OF DIRECTORS, CHAIRMAN          |
|                                                |   |                                          |
| OAKWOOD ENTERPRISES                                 |   | OWNER OF INACTIVE COMPANY                     |
|                                                |   |                                          |
| PAUL MAR                                            |   | OWNER OF INACTIVE COMPANY                     |

 

 

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EXHIBIT B

 

The Executiveshall receive a Performance Bonus pursuant to Section 4 of this Agreement in anamount calculated pursuant to the following table:
| Operating Result                    |   | Performance Bonus                                                                                                                          |
|-------------------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------|
| Less than 0.80                      |   | $0                                                                                                                                         |
| 0.80 or greater  but less than 1.00 |   | 50% of  Executive’s Base Salary                                                                                                       |
| 1.00 or greater                     |   | 100% of Executive’s  Base Salary + 4% percent of each dollar of Actual EBITDA or fraction thereof,  in excess of the Target Earnings. |

 

The Company’s OperatingResult is calculated as follows:
| Operating  Result | =                | Actual EBITDA |   |
|-------------------|------------------|---------------|--------|
|              | Target  Earnings |

 

For purposes of the above formula:

a.                                       “Actual EBITDA” means, in any applicablefiscal year, the Company’s net income before extraordinary and non-recurringgains net of the expenses incurred to attain those gains (but includingextraordinary and non-recurring losses), interest, income taxes, depreciation,amortization, and cumulative effects of changes in accounting principles asdetermined by the Company from Company’s annual audited financial statementsfor such applicable year.

b.                                      “Target Earnings” means, as to anyapplicable year, the Company’s projected target earnings before interest,taxes, depreciation, and amortization for such applicable year as set forth inthe Company’s annual operating plan approved by the Board of Directors.

c.                                       The Operating Result calculation mustinclude the Performance Bonus contemplated pursuant to Section 4(b), and stillequal or exceed the appropriate achievement level to be paid.  For example, if the Target Earnings is$13,000,000, then the .80 Operating Result requires $10,550,000 ($10,400,000plus $150,000 Performance Bonus) Actual EBITDA.  The 1.00 Operating Result would require $13,300,000 ($13,000,000plus $300,000 Performance Bonus) Actual EBITDA.

 

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EXHIBIT C

GENERAL RELEASE

1.             Release by Executive.

(a)           Executive, on his own behalf and onbehalf of any assignee, heir, or other successor, hereby releases, acquits andforever discharges the Employer, its predecessors and successors, parent,subsidiaries, and all of those entities’ current and former partners,shareholders, heirs, assigns, employees, agents, officers, directors, attorneysand insurers (hereinafter, collectively referred to as the “EmployerReleasees”) from any and all claims, expenses, debts, demands, costs,contracts, liabilities, obligations, actions and causes of action of everynature, under any theory under the law, whether common, constitutional,statutory or other of any jurisdiction, foreign or domestic, whether known orunknown, whether in law or in equity, which he has or had or may claim to haveon his own behalf or on behalf of any other entity by reason of any and allmatters from the beginning of time to the Execution Date.  The claims released by Executivespecifically include, but are not limited to, claims for fraudulent inducement,breach of contract, constructive discharge, payment of past-due commissions,interference with contractual relations or prospective business advantage,negligent or intentional infliction of emotional distress, violation ofconstitutional or statutory rights, attorney fees or costs and/ordiscrimination based on race, national origin, sex, religion, age, sexualorientation and/or disability. Executive also expressly recognizes and acknowledges that he isreleasing on his own behalf and on behalf of any other successor any and allrights and claims arising under any statute, law or constitution including, butnot limited to, any rights or claims under the California Labor Code, asamended, the Fair Labor Standards Act, as amended, the Age Discrimination inEmployment Act of 1967, as amended, Title VII of the Civil Rights Act of 1964,as amended, the California Fair Employment and Housing Act, as amended, theEqual Pay Act, as amended, the Rehabilitation Act of 1973, as amended, theEmployee Retirement Income Security Act of 1974, as amended, the Americans withDisabilities Act of 1990, the False Claims Act, as amended, the AgeDiscrimination in Employment Act of 1967, as amended, and/or Section 1981 ofTitle 42 of the United States Code.   Nothing contained in this General Release is intended to or shall act inany way to waive, release or limit any rights Executive may have to indemnitypursuant to any applicable law or to any other contract with, or the Bylaws of,Employer.

(b)           EXECUTIVE SPECIFICALLY ACKNOWLEDGES THATHE IS RELEASING ANY AND ALL AGE DISCRIMINATION CLAIMS ARISING UNDER THE AGEDISCRIMINATION IN EMPLOYMENT ACT.

(c)           Executive expressly waives any and allrights under Section 1542 of the Civil Code of the State of California, and anylike provision or principle of common law in any foreign jurisdiction.  Section 1542 provides as follows:

Ageneral release does not extend to claims which the creditor does not know orsuspect to exist in his favor at the time of executing the release, which ifknown by him must have materially affected his settlement with debtor.

 

 

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Thus, notwithstanding the provisions of Section 1542,and for the purpose of implementing a full and complete release and discharge,Executive expressly acknowledges that this Agreement is intended to include inits effect, without limitation, claims and causes of action which he does notknow of or suspect to exist in his favor at the time of execution hereof andthat this Agreement contemplates extinguishments of all such claims and causesof action.

2.             No Pending Charges.  Executiverepresents that he has no pending complaints, actions, charges or claims of anynature against the Employer Releasees based on or related to any events priorto the execution of this Agreement. Moreover, Executive agrees not to file any complaints, actions, chargesor claims of any nature against the Employer Releasees relating to any event oralleged event, including, but not limited to, those arising from his employmentwith and/or separation from the Employer, which occurred from the beginning oftime until the execution of this Agreement.

3.             No Assignments.  Executive warrants andrepresents that he has not assigned or in any way conveyed, transferred orencumbered all or any portion of the claims or rights covered by this Agreement.  Executive further agrees to indemnify andhold the Employer Releasees harmless from any liability, claims, demands,costs, expenses, and attorney fees incurred by the Employer Releasees, as aresult of any such person asserting any such assignment or transfer of anyrights or claims under any such assignment or transfer.

4.             Consultation With Counsel.  Executiverepresents and warrants that he has been advised to and has discussed thisAgreement with his attorney, that he has carefully read and fully understandsall of the provisions of this Agreement, and that he is entering into thisAgreement voluntarily.  Executive hastwenty-one (21) days from receipt of this Agreement to consider this offer and,after signature, will have seven (7) days to revoke it.

 
|   |              |
|--------|-------------------|
|   |              |
|   |              |
|   | William Baribault |

 

 

 

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