ex1091.htm


    Exhibit
10.91

     

    CHANGE
OF CONTROL AGREEMENT

     

    This Change
Of Control Agreement (the “Agreement”)
is entered into this 8th day of
April, 2009 (the “Effective
Date”), between Chordiant
Software, Inc. (the “Company”)
and Marchai
Bruchey (“Executive”).  This
Agreement is intended to provide Executive with the compensation and benefits
described herein upon the occurrence of specific events.

     

    Whereas,
Executive is employed by the Company pursuant to the terms of Executive’s offer
letter with the Company; and

     

    Whereas,
the Company believes it is imperative to provide Executive with certain
severance benefits, including certain equity acceleration, in the event that
Executive is terminated without Cause (as defined herein) or resigns for Good
Reason (as defined herein) in connection with a Change of Control (as defined
herein);

     

    Now,
Therefore, in consideration of the foregoing, the mutual covenants
contained herein, and other good and valuable consideration, the parties hereto
hereby agree as follows:

     

    1. Termination of Employment and Change
of Control Benefits.

     

    (a) At-Will
Employment.  Executive’s employment is at-will, which means
that the Company may terminate Executive’s employment at any time, with or
without advance notice, and with or without Cause (as defined
herein).  Similarly, Executive may resign her employment at any time,
with or without advance notice or Good Reason (as defined
herein).  Executive shall not receive any compensation of any kind,
including, without limitation, severance benefits, following Executive’s last
day of employment with the Company (the “Termination
Date”), except as expressly provided herein, or as provided in any plan
documents governing the compensatory equity awards that have been or may be
granted to Executive from time to time in the sole discretion of the Company
(the “Stock
Awards”).  Executive shall devote all reasonable efforts to the
performance of Executive’s duties, and shall perform such duties in good
faith.

     

    (b) Termination Related to a Change of
Control.  If Executive’s employment is terminated without Cause
(and other than as a result of Executive’s death or disability) or Executive
resigns for Good Reason, in either case on or within twelve (12) months after a
Change of Control (a “Covered
Termination”), and provided such termination constitutes a “separation
from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)),
and provided Executive signs and allows to become effective a release
substantially in the form attached hereto as Exhibit A (the “Release”)
within the time period provided therein, then the Company shall provide
Executive with the following severance benefits (the “Benefits”):

     

    (i) If
the Covered Termination occurs prior to the first anniversary of the Effective
Date, the Company shall make severance payments to Executive in the form of
continuation of Executive’s base salary (at the rate in effect on the
Termination Date) for that number of months immediately following the
Termination Date equal to the product of (x) the Applicable Fraction (as defined
herein) and (y) twelve (12).  If the Covered Termination occurs on or
after the one (1) year anniversary of the Effective Date, the Company shall make
severance payments to Executive in the form of continuation of Executive’s base
salary (at the rate in effect on the Termination Date) for the first twelve (12)
months following the Termination Date.  These payments will be made on
the Company’s ordinary payroll dates, in equal installments, and will be subject
to standard payroll deductions and withholdings.  The number of months
during which severance payments are paid to Executive as calculated pursuant to
this Section 1(b)(i) is hereinafter referred to as the “Severance
Period”).

     

    (ii) The
Company will pay Executive a portion or all of Executive’s annual bonus as
determined based on the date of the Covered Termination.  If the
Covered Termination occurs prior to the one (1) year anniversary of the
Effective Date, the Company will pay Executive a portion of Executive’s annual
bonus equal to the product of (x) the Applicable Fraction and (y) the annual
bonus.  If the Covered Termination occurs on or after the one (1) year
anniversary of the Effective Date, the Company will pay Executive 100% of
Executive’s annual bonus.  The annual bonus will be calculated at one
of the following rates, whichever is higher: (1) as if both Executive and the
Company achieved one hundred (100) percent of their specified performance
objectives for the year in which the Termination Date occurs; or (2) the actual
performance of the Company and Executive, determined as of the Termination Date,
as measured against the specified performance objectives for the year in which
the Termination Date occurs.  The bonus amount will be paid over the
Severance Period on the Company’s ordinary payroll dates, in equal installments,
and will be subject to standard payroll deductions and
withholdings.

     

    (iii) If
the Covered Termination occurs prior to the one (1) year anniversary of the
Effective Date, the Company will pay Executive an additional amount equal to the
product of (x) the Applicable Fraction and (y) $3,000.  If the Covered
Termination occurs on or after the one (1) year anniversary of the Effective
Date, the Company will pay Executive an additional amount of
$3,000.  Executive may, but is not obligated to, use this payment to
pay for life insurance benefits during the Severance Period.  This
amount will be paid over the Severance Period on the Company’s ordinary payroll
dates, in equal installments, and will be subject to standard payroll deductions
and withholdings.

     

    (iv) Provided
that Executive elects continued coverage under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended (together with any state or local laws of
similar effect, “COBRA”),
the Company will pay the premiums for Executive’s group health (including dental
and vision) insurance coverage, including coverage for Executive’s eligible
dependents, for that number of months following the Covered Termination equal to
the product of (x) the Applicable Fraction and (y) twelve (12) if the Covered
Termination occurs prior to the one (1) year anniversary of the Effective Date
or for a period of twelve (12) months following the Covered Termination if the
Covered Termination occurs on or after the one (1) year anniversary of the
Effective Date, but in no event after such earlier date on which Executive and
Executive’s eligible dependents cease to be eligible for such
coverage.  In addition, the Company will pay premiums for Executive
and Executive’s eligible dependents only for coverage for which they were
enrolled immediately prior to the Termination Date.  Executive (and
Executive’s dependents, as applicable) will be solely responsible for making a
timely and accurate election for continuation of coverage pursuant to
COBRA.  No premium payments will be made by the Company pursuant to
this paragraph following the effective date of Executive’s coverage by a health
(including dental and vision) insurance plan of a subsequent employer or such
other date on which Executive (and Executive’s dependents, as applicable) cease
to be eligible for COBRA coverage.  After the Severance Period, for
the balance of the COBRA period, if any, Executive shall maintain any such
coverage at Executive’s own expense.

     

    (v) After
taking into account any additional acceleration of vesting Executive may be
entitled to receive under any other plan or agreement, the Company will
accelerate the vesting of each of the Stock Awards other than the RSU such that
the following shall vest effective as of the Termination Date:  (a) if
the Covered Termination occurs prior to the one (1) year anniversary of the
Effective Date, the lesser of (A) the product of (x) the Applicable Fraction and
(y) 50% of the then-unvested shares, rights, or units, as applicable subject to
the applicable Stock Award and (B) that number of shares, rights or units
subject to such Stock Award that would have vested if Executive had worked for
the Company for a period of months beyond the Termination Date equal to the
product of (x) the Applicable Fraction and (y) twelve (12); and (b) if the
Covered Termination occurs on or after the one (1) year anniversary of the
Effective Date, the lesser of (C) 50% of the then-unvested shares, rights, or
units, as applicable subject to the applicable Stock Award and (D) that number
of shares, rights or units subject to such Stock Award that would have vested if
Executive had worked for the Company for twelve (12) additional months beyond
the Termination Date.  This acceleration of vesting will be in
addition to any acceleration of vesting of the Stock Awards that Executive would
otherwise receive under the Company’s 2000 Nonstatutory Equity Incentive Plan,
1999 Equity Incentive Plan, 2005 Equity Incentive Plan or any other documents
governing the Stock Awards.  In addition, Executive shall have one (1)
year to exercise (if applicable) any vested Stock Awards, but in no event shall
such exercise period extend beyond the expiration of the original term of the
Stock Award.  Except as expressly set forth herein, the Stock Awards
shall continue to be governed by the terms of the applicable award agreements
and equity incentive plan documents.  Notwithstanding anything to the
contrary contained herein, the maximum number of months of accelerated vesting
that may be credited to any Stock Award under this Agreement, when added to any
accelerated vesting provided for under any award agreement or equity incentive
plan documents, shall not exceed twenty-four (24) months in the
aggregate.

     

    (c) Termination For Cause
Procedure.  The Company may not terminate Executive’s
employment for Cause unless and until Executive receives a copy of a resolution
duly adopted by the affirmative vote of at least a majority of the Board of
Directors of the Company or any successor thereto (“Board”)
finding that in the good faith opinion of the Board, Executive was guilty of the
conduct constituting “Cause” and specifying the particulars thereof in
detail.  The Company shall provide Executive with reasonable notice of
the Board vote and an opportunity for Executive, together with Executive’s
counsel, to be heard before the Board.

     

    (d) Change in Control Vesting
Acceleration.  Subject to Executive’s Continuous Service (as
defined in the Company’s 2005 Equity Incentive Plan) with the Company through
the time that is immediately prior to a Change of Control, the Company will
accelerate the vesting, effective as of immediately prior to the Change of
Control, of a portion or all of the shares subject to that restricted stock unit
award that is expected to be granted to Executive on or about May 6, 2009
covering 50,000 shares of the Company’s common stock (the “RSU”),
with the amount of accelerated vesting determined as follows.  If the
Change of Control occurs prior to or on the three (3) month anniversary of the
Effective Date, the Company will accelerate the vesting of that number of shares
subject to the RSU equal to the product of (x) 1/4 and (y) the total number of
shares subject to the RSU.  If the Change of Control occurs after the
three (3) month anniversary of the Effective Date but prior to the one (1) year
anniversary of the Effective Date, the Company will accelerate the vesting of
that number of shares subject to the RSU equal to the product of (x) the number
of full months of service completed by Executive since the Effective Date
(rounded up for any partial month completed but in no event shall such number
exceed 12 months) and (y) 1/12 and (z) the total number of shares subject to the
RSU.   If the Change of Control occurs on or after the one (1)
year anniversary of the Effective Date, the Company will accelerate the vesting
of 100% of the then-unvested shares subject to the RSU.  This Section
1(d) shall govern the acceleration of vesting of the RSU.  Executive
understands and agrees that she will not be entitled to additional acceleration
of vesting of the RSU under either Section 1(b)(v) above or the Company’s 2005
Equity Incentive Plan or any successor plan.

     

    2. Limitations
And Conditions On Benefits

     

    (a) Release Prior to Payment of
Benefits.  Upon the occurrence of a Covered Termination, and
prior to the payment of any of the Benefits, Executive shall execute, and allow
to become effective, the Release within the time frame set forth therein, but
not later than the 60th day following the Termination Date.  Such
Release shall specifically relate to all of Executive’s rights and claims in
existence at the time of such execution and shall confirm Executive’s continuing
obligations to the Company (including but not limited to obligations under any
confidentiality and/or non-solicitation agreement with the
Company).  Notwithstanding the payment schedules set forth in Section
1 above, no Benefits will be paid prior to the effective date of the Release. On
the first regular payroll pay day following the effective date of the Release,
the Company will pay Executive the Benefits Executive would otherwise have
received on or prior to such date but for the delay in payment related to the
effectiveness of the Release, with the balance of the Benefits being paid as
originally scheduled.

     

    (b) Compliance with Section
409A.  It is intended that each installment of the payments and
benefits provided for in this Agreement is a separate “payment” for purposes of
Treasury Regulation Section 1.409A-2(b)(2)(i).  For the avoidance of
doubt, it is intended that payments of the amounts set forth in this Agreement
satisfy, to the greatest extent possible, the exemptions from the application of
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
(Section 409A of the Code, together, with any state law of similar effect,
“Section
409A”) provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(5)
and 1.409A-1(b)(9). However, if the Company (or, if applicable, the successor
entity thereto) determines that the severance payments and benefits provided
under this Agreement (the “Agreement
Payments”) constitute “deferred compensation” under Section 409A and
Executive is, on the Termination Date, a “specified employee” of the Company or
any successor entity thereto, as such term is defined in Section
409A(a)(2)(B)(i) of the Code (a “Specified
Employee”), then, solely to the extent necessary to avoid the incurrence
of the adverse personal tax consequences under Section 409A, the timing of the
Agreement Payments shall be delayed as follows:  on the earlier to
occur of (i) the date that is six months and one day after Executive’s
“separation from service” (as defined above) or (ii) the date of Executive’s
death (such earlier date, the “Delayed Initial
Payment Date”), the Company (or the successor entity thereto, as
applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the
Agreement Payments that Executive would otherwise have received through the
Delayed Initial Payment Date if the commencement of the payment of the Agreement
Payments had not been so delayed pursuant to this Section 2(b) and (B) commence
paying the balance of the Agreement Payments in accordance with the applicable
payment schedules set forth in this Agreement.

     

    3. Definitions.

     

    (a) Definition of Applicable
Fraction.  For purposes of this Agreement, “Applicable
Fraction” shall mean (i) if Executive’s Covered Termination occurs prior to or
on the three (3) month anniversary of the Effective Date, 3/12 and (ii) if the
Covered Termination occurs after the three (3) month anniversary of the
Effective Date but prior to the one (1) year anniversary of the Effective Date,
the product of (x) the number of full months of service completed since the
Effective Date (rounded up for any partial month completed) and (y)
1/12.  So, for avoidance of doubt, if the Covered Termination occurs
on July 31, 2009, the Applicable Fraction is 4/12, and if the Covered
Termination occurs on June 5, 2009, the Applicable Fraction is
3/12.  In no event shall the Applicable Fraction exceed
12/12.

     

    (b) Definition of
Cause.  For purposes of this Agreement, “Cause” shall mean that
Executive has committed, or there has occurred, one or more of the following
events:  (1) conviction of any felony or misdemeanor involving moral
turpitude, fraud or act of dishonesty against the Company; (2) a finding by the
Board, after a good faith and reasonable factual investigation, that Executive
has engaged in gross misconduct; or (3) material violation or material breach of
any Company policy or statutory, fiduciary, or contractual duty of Executive to
the Company; provided, however, that in the event that any of the foregoing
events occurs, the Company shall provide notice to Executive describing the
nature of such event and Executive shall thereafter have ten (10) days to cure
such event if such event is capable of being cured.

     

    (c) Definition of Good Reason. For
purposes of this Agreement, “Good Reason” means that Executive voluntarily
terminates employment with the Company (or any successor thereto) if and only
if:

     

    (i) one
of the following actions has been taken without Executive’s express written
consent:

     

    (1) there
is a material reduction (where material is considered greater than 5%) in
Executive’s annual base compensation from the compensation in effect immediately
preceding the Change of Control;

     

    (2) there
is a material change in Executive’s position or responsibilities that represents
an adverse change from Executive’s position or responsibilities from those in
effect at any time within ninety (90) days preceding the date of the Change of
Control or at any time thereafter;

     

    (3) Executive
is required to relocate Executive’s principal place of employment to a facility
or location that would increase Executive’s one way commute distance by more
than twenty-five (25) miles;

     

    (4) the
Company (or any successor thereto) materially breaches its obligations under
this Agreement or any other then-effective employment agreement with Executive;
or

     

    (5) any
acquirer, successor or assignee of the Company fails to assume and perform, in
all material respects, the obligations of the Company hereunder;
and

     

    (ii) Executive
provides written notice to the Company’s Board within the thirty (30) day period
immediately following such action; and

     

    (iii) such
action is not remedied by the Company within thirty (30) days following the
Company’s receipt of such written notice; and

     

    (iv) Executive’s
resignation is effective not later than sixty (60) days after the expiration of
such thirty (30) day cure period.

     

    The
termination of Executive’s employment as a result of Executive’s death or
disability will not be deemed to be a Good Reason.

     

    (d) Definition of Change of
Control.  For purposes of this Agreement, a “Change of Control”
means: (i) a dissolution, liquidation or sale of all or substantially all of the
assets of the Company; (ii) a merger or consolidation in which the Company is
not the surviving corporation; (iii) a reverse merger in which the Company is
the surviving corporation but the shares of the Company’s common stock
outstanding immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or
otherwise; or (iv) the acquisition by any person, entity or group within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), or any comparable successor provisions (excluding any employee
benefit plan, or related trust, sponsored or maintained by the Company or any
Affiliate of the Company) of the beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of
securities of the Company representing at least fifty percent (50%) of the
combined voting power entitled to vote in the election of
directors.

     

    4. Best After Tax.

     

    (a) If
any payment or benefit (including payments and benefits pursuant to this
Agreement) that Executive would receive in connection with a Change of Control
from the Company or otherwise (“Transaction
Payment”) would (a) constitute a “parachute payment” within the meaning
of Section 280G of the Code, and (b) but for this sentence, be subject to the
excise tax imposed by Section 4999 of the Code (the “Excise
Tax”), then the Company shall cause to be determined, before any amounts
of the Transaction Payment are paid to Executive, which of the following two
alternative forms of payment would result in Executive’s receipt, on an
after-tax basis, of the greater amount of the Transaction Payment
notwithstanding that all or some portion of the Transaction Payment may be
subject to the Excise Tax: (1) payment in full of the entire amount of the
Transaction Payment (a “Full
Payment”), or (2) payment of only a part of the Transaction Payment so
that Executive receives the largest payment possible without the imposition of
the Excise Tax (a “Reduced
Payment”) .  For purposes of determining whether to make a Full
Payment or a Reduced Payment, the Company shall cause to be taken into account
all applicable federal, state and local income and employment taxes and the
Excise Tax (all computed at the highest applicable marginal rate, net of the
maximum reduction in federal income taxes which could be obtained from a
deduction of such state and local taxes).  If a Reduced Payment is
made, (x) Executive shall have no rights to any additional payments and/or
benefits constituting the Transaction Payment, and (y) reduction in payments
and/or benefits shall occur in the following order: (1) reduction of cash
payments; (2) cancellation of accelerated vesting of equity awards other than
stock options; (3) cancellation of accelerated vesting of stock options; and (4)
reduction of other benefits (if any) paid to Executive.  In the event
that acceleration of compensation from Executive’s equity awards is to be
reduced, such acceleration of vesting shall be canceled in the reverse order of
the date of grant.

     

    (b) The
independent registered public accounting firm engaged by the Company for general
audit purposes as of the day prior to the effective date of the Change of
Control shall make all determinations required to be made under this Section
4.  If the independent registered public accounting firm so engaged by
the Company is serving as accountant or auditor for the individual, entity or
group effecting the Change of Control, the Company shall appoint a nationally
recognized independent registered public accounting firm to make the
determinations required hereunder.  The Company shall bear all
expenses with respect to the determinations by such independent registered
public accounting firm required to be made hereunder.

     

    (c) The
independent registered public accounting firm engaged to make the determinations
hereunder shall provide its calculations, together with detailed supporting
documentation, to the Company and Executive within fifteen (15) calendar days
after the date on which Executive’s right to a Transaction Payment is triggered
or such other time as reasonably requested by the Company or
Executive.  If the independent registered public accounting firm
determines that no Excise Tax is payable with respect to the Transaction
Payment, either before or after the application of the Reduced Amount, it shall
furnish the Company and Executive with detailed supporting calculations of its
determinations that no Excise Tax will be imposed with respect to such
Transaction Payment.  Any good faith determinations of the accounting
firm made hereunder shall be final, binding and conclusive upon the Company and
Executive.

     

    5. Other Employment Terms and
Conditions.  The employment relationship between the parties
shall be governed by the general employment policies and procedures of the
Company, including those relating to the protection of confidential information
and assignment of inventions; provided, however, that when the terms of this
Agreement differ from or are in conflict with the Company’s general employment
policies or procedures, this Agreement shall control.

     

    6. General
Provisions.

     

    (a) This
Agreement, including all exhibits hereto, constitutes the complete, final and
exclusive embodiment of the entire agreement between the parties with regard to
the subject matter hereof.  It is entered into without reliance on any
promise or representation, written or oral, other than those expressly contained
herein, and it supersedes any other such promises or
representations.  Notwithstanding the foregoing, nothing in this
Agreement shall affect the parties’ obligations under the Stock Awards (except
as expressly set forth herein) or Executive’s Employee Proprietary Information
and Inventions Agreement.  This Agreement cannot be modified except in
a writing signed by Executive and a duly-authorized member of the
Board.

     

    (b) Whenever
possible, each provision of this Agreement will be interpreted in such a manner
as to be effective under applicable law.  The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this
Agreement.  Any invalid or unenforceable provision shall be modified
so as to be rendered valid and enforceable in a manner consistent with the
intent of the parties insofar as possible.

     

    (c) Executive’s
or the Company’s failure to insist upon strict compliance with any provision of
this Agreement or the failure to assert any right Executive or the Company may
have hereunder shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.

     

    (d) This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
instrument.  Facsimile signatures shall be deemed as effective as
originals.

     

    (e) This
Agreement is intended to bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective successors, assigns, heirs,
executives and administrators, except that Executive may not assign any of her
duties hereunder and she may not assign any of her rights hereunder without the
written consent of the Company.  This Agreement shall be interpreted
and enforced in accordance with the laws of the State of
California.

     

    (f) If
either party hereto brings any action to enforce such party’s rights hereunder,
the prevailing party in any such action shall be entitled to recover such
party’s reasonable attorneys’ fees and costs incurred in connection with such
action.

     

    (g) For
purposes of construction, this Agreement shall be deemed to have been drafted by
the Company, and the rule of construction of contracts that ambiguities are
construed against the drafting party shall be applied against the
Company.

     

    (h) Any
notice required to be given or delivered to the Company under the terms of this
Agreement shall be in writing and addressed to the Corporate Secretary of the
Company at its principal corporate offices.  Any notice required to be
given or delivered to Executive shall be in writing and addressed to Executive
at the address indicated herein or to the last known address provided by
Executive to the Company.  All notices shall be deemed to have been
given or delivered upon: personal delivery; three (3) days after deposit in the
United States mail by certified or registered mail (return receipt requested);
one (1) business day after deposit with any return receipt express courier
(prepaid); or one (1) business day after transmission by facsimile or
e-mail.

     


    
      
        
                                                                       
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    In Witness
Whereof, the parties have executed this Agreement as of the date written
below.

     

    
      	 
      	
              s/
      Marchai Bruchey

            
	 
      	
              Marchai
      Bruchey

            
	 
      	 
      	 
      	 
      
	 
      	
              Address:

            	
                

            
	 
      	 
      	 
      	 
      
	 
      	
               

            
	 
      	 
      	 
      	 
      
	 
      	
               

            
	 
      	 
      	 
      	 
      
	 
      	
              Date:

            	
                4/7/09

            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
              CHORDIANT
      SOFTWARE, INC.

            
	 
      	 
      	 
      	 
      
	 
      	
              /s/
      Steven R. Springsteel

            
	 
      	
              Name:
      Steven R. Springsteel

            
	 
      	
              Title:  President
      & CEO

            
	 
      	 
      	 
      	 
      
	 
      	
              Date:

            	
                4/8/09

            
	 
      	 
      	 
      	 
      


    


    
      
        
                                                                
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    EXHIBIT
A

     

    


     

    RELEASE
AGREEMENT FOR EMPLOYEES 40 YEARS OF AGE OR OLDER

     

    I
understand and agree completely to the terms set forth in the Chordiant
Software, Inc. Change of Control Agreement (the “Agreement”).

     

    I
understand that this Release, together with the Agreement, constitutes the
complete, final and exclusive embodiment of the entire agreement between
Chordiant Software, Inc. (the “Company”)
and me with regard to the subject matter hereof.  I am not relying on
any promise or representation by the Company that is not expressly stated
therein.  Certain capitalized terms used in this Release are defined
in the Agreement.

     

    I
hereby confirm my obligations under my Proprietary Information and Inventions
Agreement.

     

    Except
as otherwise set forth in this Release, I hereby generally and completely
release Chordiant Software, Inc. and its current and former directors, officers,
employees, shareholders, partners, agents, attorneys, predecessors, successors,
parent and subsidiary entities, insurers, affiliates, and assigns (collectively,
the “Released
Parties”) from any and all claims, liabilities and obligations, both
known and unknown, that arise out of or are in any way related to events, acts,
conduct, or omissions occurring prior to my signing this Agreement
(collectively, the “Released
Claims”).  The Released Claims include, but are not limited
to:  (1) all claims arising out of or in any way related to my
employment with the Company, or the termination of that employment; (2) all
claims related to my compensation or benefits from the Company, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance
pay, fringe benefits, stock, stock options, or any other ownership interests in
the Company; (3) all claims for breach of contract, wrongful termination, and
breach of the implied covenant of good faith and fair dealing; (4) all tort
claims, including claims for fraud, defamation, emotional distress, and
discharge in violation of public policy; and (5) all federal, state, and local
statutory claims, including claims for discrimination, harassment, retaliation,
attorneys’ fees, or other claims arising under the federal Civil Rights Act of
1964 (as amended), the federal Americans with Disabilities Act of 1990, the
federal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”),
and the California Fair Employment and Housing Act (as
amended).  Notwithstanding the foregoing, the following are not
included in the Released Claims (the “Excluded
Claims”): (1) any rights or claims for indemnification I may have
pursuant to any written indemnification agreement with the Company to which I am
a party, the charter, bylaws, or operating agreements of the Company, or under
applicable law; or (2) any rights which are not waivable as a matter of
law.  In addition, nothing in this Release prevents me from filing,
cooperating with, or participating in any proceeding before the Equal Employment
Opportunity Commission, the Department of Labor, or the California Department of
Fair Employment and Housing, except that I hereby waive my right to any monetary
benefits in connection with any such claim, charge or proceeding.  I
hereby represent and warrant that, other than the Excluded Claims, I am not
aware of any claims I have or might have against any of the Released Parties
that are not included in the Released Claims.

     

    I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under the ADEA.  I also acknowledge that the consideration
given for the Released Claims is in addition to anything of value to which I was
already entitled.  I further acknowledge that I have been advised by
this writing, as required by the ADEA, that: (a) the Released Claims do not
apply to any rights or claims that arise after the date I sign this Release; (b)
I should consult with an attorney prior to signing this Release (although I may
choose voluntarily not to do so); (c) I have twenty-one (21) days to consider
this Release (although I may choose to voluntarily sign it sooner); (d) I have
seven (7) days following the date I sign this Release to revoke the Release by
providing written notice to an officer of the Company; and (e) the Release will
not be effective until the date upon which the revocation period has expired
unexercised, which will be the eighth day after I sign this Release provided
that I do not revoke it (“Effective
Date”).

     

    I
acknowledge that I have read and understand Section 1542 of the California Civil
Code which reads as follows: “A general release does not extend to claims which
the creditor does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must have materially
affected his or her settlement with the debtor.”  I hereby expressly
waive and relinquish all rights and benefits under that section and any law of
any jurisdiction of similar effect with respect to my release of any claims
hereunder, including but not limited to any unknown claims.

     

    I
hereby represent that I have been paid all compensation owed and for all hours
worked, I have received all the leave and leave benefits and protections for
which I am eligible, and I have not suffered any on-the-job injury for which I
have not already filed a workers’ compensation claim.

     

    I
acknowledge that to become effective, I must sign and return this Release to the
Company so that it is received not later than twenty-one (21) days following the
date it is provided to me, and I must not revoke it thereafter.

    

      
        	 
      	
                Marchai
      Bruchey

              
	 
      	 
      	 
      
	 
      	
                Sign:

              	 
      
	 
      	 
      	 
      
	 
      	
                Date: