**Exhibit 10.22**

** **

 

**DIEDRICH COFFEE, INC.EMPLOYMENT AGREEMENT**

 

ThisEmployment Agreement (this “Agreement”) is entered into as of March 26, 2004 byand between Martin A. Lynch (“Executive”) and Diedrich Coffee, Inc., a Delawarecorporation (the “Company”).

 

WHEREAS, theCompany has retained Executive to provide personal services to the Company inexchange for certain compensation and benefits;

 

WHEREAS,Executive began working for the Company on October 1, 2003; and

 

WHEREAS, theCompany and Executive mutually desire to memorialize the terms of Executive’semployment with the Company by entering into this Agreement.

 

NOW,THEREFORE, in consideration of the mutual promises and covenants containedherein, it is hereby agreed by and between the parties hereto as follows:

 

**1.****             Employment by theCompany.**

 

1.1           Title andResponsibilities.  Subject to termsset forth herein, the Company agrees to employ Executive as its Chief FinancialOfficer and Executive Vice President and Executive hereby accepts suchemployment.  During his employment withthe Company, Executive will devote his best efforts and substantially all ofhis business time and attention (except for vacation periods as set forthherein and reasonable periods of illness or other incapacity permitted by the Company’sgeneral employment policies) to the business of the Company.

 

1.2           Executive Position.  Executive will continue to serve in anexecutive capacity and shall perform such duties as are customarily associatedwith his title, consistent with the bylaws of the Company and as reasonablyrequired by the Company’s Board of Directors (the “Board”).

 

1.3           Company EmploymentPolicies.  The employmentrelationship between the parties shall also be governed by the generalemployment policies and practices of the Company, including those relating toprotection of confidential information and assignment of inventions, exceptthat if the terms of this Agreement differ from or are in conflict with theCompany’s general employment policies or practices, this Agreement shallcontrol.

 

**2.****             Compensation.**

 

2.1           Salary.  Executive shall receive for services to berendered hereunder an annualized base salary of two hundred twenty thousanddollars ($220,000), payable on a biweekly basis in accordance with the normalpayroll practices of the Company (including deductions, withholdings andcollections as required by law). Executive will be considered for annual increases in base salary inaccordance with Company policy and subject to review and approval by theCompensation Committee of the Board (the “Compensation Committee”).

 

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2.2           Bonus.  Executive shall be eligible to participatein the Company’s executive level bonus plan throughout the duration ofExecutive’s employment with the Company.

 

(a)           *Executive’s Performance*.  The amount of Executive’s bonus will dependupon Executive’s performance with respect to certain measurable goals to beestablished in an executive bonus plan for each fiscal year to be developed bythe Chief Executive Officer and other officers of the Company within sixty (60)days after the beginning of such fiscal year and then approved by theCompensation Committee no later than ninety (90) days after the beginning ofsuch fiscal year.

 

(b)           *Company Profitability*.  The amount of Executive’s bonus will alsodepend on attainment by the Company of its planned financial objectives for thebonus year.

 

(c)           *Determination of Bonus*.  The amount of Executive’s bonus will bedetermined after the close of the Company’s fiscal year and after the Companyhas received its audited financial statement for such fiscal year.  To be eligible to receive a bonus, Executivemust remain in employment with the Company throughout the entire fiscal year.

 

(d)           *No Guaranteed Bonus*.  Notwithstanding the foregoing, no bonus isguaranteed to Executive.  Any bonus issubject to the approval of the Board, which retains the authority to review,grant, deny or revise any bonus in its sole discretion.

 

(e)           *Target Bonus*.  The target bonus for Executive shall be fifty percent (50%) ofhis base salary.  This target may beadjusted upward to reflect additional bonus to be paid for achievement ofstrategic transactions apart from base business objectives.  At Executive’s election, any bonus payableto Executive may be paid in whole or in part through a grant of shares of theCompany’s common stock.

 

(f)            *Withholding.*  Any cash bonus paid to Executive shall be subject to suchwithholdings as may be required by law.

 

2.3           Stock Options.  Executive will be entitled to receivenon-qualified options to purchase up to 150,000 shares of common stock of theCompany (the “Options”) under the Diedrich Coffee, Inc. 2000 Equity IncentivePlan on the terms and subject to the conditions of the Memorandum of OptionGrant delivered to Executive.  Pursuantto the terms of the Memorandum of Option Grant, 25% of the Options will vestevery six months until all of the Options have vested, and have an exerciseprice of $3.38 per share.

 

2.4           Automobile Allowance.  Executive will be entitled to receive anautomobile allowance equal to seven hundred fifty dollars ($750) per month,paid on a biweekly basis, in reimbursement of all expenses associated with theoperation, maintenance and use of a vehicle for business purposes.

 

2.5           Standard CompanyBenefits and Vacation.  Executiveshall be entitled to those benefits provided to the Company’s executivesgenerally and for which he is eligible pursuant to the terms and conditions ofthe relevant plans.  Executive shall beentitled to four (4) weeks of paid vacation per year.

 

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2.6           Business Expenses.  The Company shall promptly reimburseExecutive for all reasonable and necessary business expenses incurred byExecutive in connection with the business of the Company and the performance ofhis duties under this Agreement, subject to Executive providing the companywith reasonable documentation thereof. It is agreed that Executive shall be reimbursed for mid-week lodgingexpense in Orange County, California.

 

2.7           Excise Tax.  If any payments or transfers of property tobe made to Executive hereunder are subject, in whole or in part, to the excisetax imposed by Section 4999 of the Internal Revenue Code of 1986 (the “ExciseTax”) and application of Section 280G of such Code, and can be avoided by anappropriate stockholder vote pursuant to Section 280G(b)(5)(A) of the Code, theCompany and Executive agree that, if requested by Executive at least 15 daysprior to the date that proxy materials are first submitted to the Securitiesand Exchange Commission or mailed to stockholders, the Company will (i) includein any such proxy materials information appropriate to submit the benefitsprovided to Executive under this Agreement to stockholder vote and (ii)recommend approval of any such proposal.

 

**3.****             ConfidentialInformation, Rights and Duties.**

 

3.1           Agreement.

 

(a)           *Confidential Information*.

 

(i)            Executive specificallyagrees that he shall not at any time, either during or subsequent to the termof his employment with the Company, in any fashion, form or manner, eitherdirectly or indirectly, unless expressly consented to in writing by theCompany, use, divulge, disclose or communicate to any person or entity anyconfidential information of any kind, nature or description concerning anymatters affecting or relating to the business of the Company, including, butnot limited to: the Company’s sales and marketing methods, programs and relateddata, or other written records used in the Company’s business; the Company’scomputer processes, programs and codes; the names, addresses, buying habits orpractices of any of its clients or customers; compensation paid to otheremployees and independent contractors and other terms of this employment orcontractual relationships; or any other confidential information of, about orconcerning the business of the Company, its manner of operations, or other dataof any kind, nature or description.  Theparties to this Agreement hereby stipulate that, as between them, the aboveinformation and items are important, material and confidential trade secretsthat affect the successful conduct of the Company’s business and its good will,and that any breach of any term of this section is a material breach of thisAgreement.  All equipment, notebooks,documents, memoranda, reports, files, samples, books, correspondence, lists orother written and graphic records, and the like, including tangible orintangible computer programs, records and data, affecting or relating to thebusiness of the Company, which the Executive might prepare, use, construct,observe, posses or control, shall be and shall remain the Company’s soleproperty.

 

(ii)           For purposes of thisAgreement, the term “confidential information” shall not include anyinformation that:  (A) has been madepublic by the Company (other than by acts of Executive in violation of thisAgreement or other obligation of confidentiality); (B) is developed byExecutive independently of any information the Executive learns in the courseof fulfilling his duties hereunder; or (C) Executive is legally compelled to

 

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disclose; *provided**that* (1) Executive is advised bywritten opinion of the Executive’s counsel, who shall be reasonablysatisfactory to the Company, that he is legally required to disclose suchinformation and (2) Executive notifies the Company of such proposed disclosurein as far in advance of its disclosure as is practicable and uses his bestefforts to obtain assurances that confidential treatment will be accorded tosuch information.

 

(b)           *Non-Interference*.  Any wrongful interference with the Company’sbusiness, property, confidential information, trade secrets, clients,customers, employees or independent contractors by the Executive or any ofExecutive’s agents during or after the term of Executive’s employment shall betreated and acknowledged by the parties as a material breach of thisAgreement.  If such interference occursat a time that Executive is employed by the Company, such interference shall begrounds for the Company to terminate Executive for Cause.

 

3.2           Remedies.  Executive’s duties under this Section 3shall survive termination of Executive’s employment with the Company.  Executive acknowledges that a remedy at lawfor any breach or threatened breach by Executive of the provisions of thisSection 3 would be inadequate, and Executive therefore agrees that the Companyshall be entitled to injunctive relief in case of any such breach or threatenedbreach.

 

**4.****             Outside Activities.**

 

4.1           Activities.  Except with the prior written consent of theChief Executive Officer, Executive will not during his employment with theCompany undertake or engage in any other employment, occupation or businessenterprise, other than ones in which Executive is a passive investor.  Executive may engage in civic andnot-for-profit activities so long as such activities do not materiallyinterfere with the performance of his duties hereunder.  It is acknowledged by the Company andExecutive that Executive’s membership on two boards of directors of publiclylisted, non-competing companies will not materially interfere with theperformance of his duties hereunder and that such positions are deemed approvedby the Company.

 

4.2           Investments andInterests.  Executive agrees not toacquire, assume or participate in, directly or indirectly, any materialposition, investment or interest known by him to be adverse or antagonistic tothe Company, its business or prospects, financial or otherwise.

 

4.3           Non-Competition.  During his employment by the Company, excepton behalf of the Company, Executive will not directly or indirectly, whether asan officer, director, stockholder, partner, proprietor, associate,representative, consultant, or in any capacity whatsoever engage in, becomefinancially interested in, be employed by or have any business connection withany other person, corporation, firm, partnership or other entity whatsoeverwhich were known by him to compete directly with the Company, throughout theworld, in any line of business engaged in (or planned to be engaged in) by theCompany.

 

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**5.****             Termination OfEmployment.**

 

5.1           Termination With orWithout Cause.

 

(a)           *At-Will Employment*.  Executive’s relationship with the Company isat-will.  The Company shall have theright to terminate Executive’s employment with the Company at any time with orwithout Cause and with or without notice.

 

(b)           *Definition of Cause*.  For purposes of this Agreement and theMemorandum of Option Grant, “Cause” is defined as the occurrence of one or moreof the following:  (i) Executive isconvicted of or pleads guilty or no lo contendere to a felony or any crimeinvolving moral turpitude; (ii) Executive breaches this Agreement or anyAgreement entered into with the Company in a manner that materially andadversely affects the Company; (iii) Executive commits willful misconduct thatmaterially and adversely impacts the Company; or (iv) Executive fails, afterreceipt of written notice and after receiving a period of at least fifteen (15)days following such notice, to follow the direction of the Board of Directorsand perform his obligations hereunder.

 

(c)           *Termination for Cause*. If Executive isterminated with Cause, the Company shall pay Executive the compensation andbenefits otherwise payable to Executive under Section 2.1 through the date oftermination.  Executive’s rights underthe Company’s benefit plans of general application shall be determined underthe provisions of those plans.  Allother compensation from and after such termination shall cease (except forthose benefits that must be continued pursuant to applicable law or by theterms of such benefit plans), and Executive shall not be entitled to anyseverance pay or other payment or compensation whatsoever upon such termination.

 

5.2           VoluntaryTermination; Death or Disability.

 

(a)           *Voluntary Termination*.  Executive may voluntarily terminate hisemployment with the Company at any time, after which no further compensationwill be paid to Executive, except as specifically set forth herein.

 

(b)           *Death or Disability*.  The Executive’s employment under thisAgreement shall terminate immediately and without notice by the Company uponthe death or disability of the Executive. In the event of Executive’s termination due death or disability, he willnot be entitled to severance pay, pay in lieu of notice or any other suchcompensation.  For purposes of thisAgreement and the Memorandum of Option Grant, the Executive will be deemed tohave a disability if he becomes physically or mentally incapacitated ordisabled or otherwise unable to fully discharge his duties hereunder for aperiod of 60 consecutive calendar days or for 120 days in any 360-day period.

 

(c)           *No Severance Pay*.  In the event of Executive’s death ordisability or if Executive voluntarily terminates his employment other than dueto a Constructive Termination, he will not be entitled to severance pay, pay inlieu of notice or any other such compensation.

 

(d)           *Definition of Constructive Termination*.  For purposes of this Agreement and theMemorandum of Option Grant, “Constructive Termination” shall mean any one ofthe following events which occurs on or after the date of this Agreement: (i)reduction of the Executive’s annual base salary; (ii) a material reduction inExecutive’s duties or a reduction in Executive’s title; (iii) a relocation ofExecutive’s office to a location outside of Los Angeles

 

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County or Orange County, California;  (iv) any material breach by the Company of itsobligations under this Agreement; or (v) any failure by the Company to obtainthe assumption of this Agreement by any successor or assign of the Company.

 

5.3           Severance Benefits.

 

(a)           *Severance Payment*.  In the event the Company terminatesExecutive’s employment without Cause or if Executive terminates his employmentdue to a Constructive Termination, and provided that Executive timely executesa release as described in Section 8 hereof, Executive shall be entitled to aseverance payment equal to:  (i) 25% ofExecutive’s then existing base salary (exclusive of bonus or any otherbenefits) if such termination occurs on or prior to March 31, 2004; (ii) 50% ofExecutive’s then existing base salary (exclusive of bonus or any otherbenefits) if such termination occurs after March 31, 2004 and on or prior toSeptember 30, 2004; or (iii) 100% of Executive’s then existing base salary(exclusive of bonus or any other benefits) if such termination occurs afterSeptember 30, 2004.

 

(b)           *Stock Options*.  In the event the Company terminates Executive’s employmentwithout Cause or if Executive terminates his employment due to a ConstructiveTermination, Executive’s outstanding stock options shall be treated as providedin the documents governing such stock option grants.

 

(c)           *Healthcare Coverage*.  If Executive has been employed by theCompany for more than one year, he may elect to continue his medical coverageunder COBRA.  Assuming Executiveexercises his right to continued medical benefits in accordance with COBRA, theCompany will pay the premiums for Executive’s COBRA coverage as they become due(including the premiums for any dependent coverage he elects) until the earlierof:  (i) the date Executive accepts fulltime employment and/or becomes covered under another plan; (ii) the date he isotherwise no longer eligible for COBRA coverage; or (iii) twelve (12) monthsafter the effective date of separation. This Section 5.3(c) shall not apply if Executive’s employment isterminated due to death or disability.

 

5.4           Cessation.  If Executive violates any provision ofSections 3, 7 or 8 of this Agreement, any severance payments or other benefitsbeing provided to Executive will cease immediately, and Executive will not beentitled to any further compensation from the Company.

 

**6.****             Change Of Control.**

 

6.1           Definition of Changeof Control.  For purposes of thisAgreement and the Memorandum of Option Grant, “Change of Control” means theoccurrence of any of the following: (i) a sale of all or substantially all ofthe assets of the Company to any other person or entity (other than anaffiliate of the Company); (ii) a merger or consolidation involving the Companyin which the Company is not the surviving corporation and the stockholders ofthe Company immediately prior to the completion of such transaction hold,directly or indirectly, less than fifty percent (50%) of the beneficialownership (within the meaning of Rule 13d-3 promulgated under the SecuritiesExchange Act of 1934, as amended (the “Exchange Act”), or comparable successorrules) of the securities of the surviving corporation (excluding anystockholders who possessed a beneficial ownership interest in the survivingcorporation prior to the completion of such transaction); or (iii) anacquisition by any person, entity or group within

 

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the meaning of Section 13(d) or 14(d) of theExchange Act or any comparable successor provisions (excluding any Affiliate ofthe Company or any employee benefit plan, or related trust, sponsored ormaintained by the Company) of the beneficial ownership (within the meaning ofRule 13d-3 promulgated under the Exchange Act, or comparable successor rules)of securities of the Company representing at least fifty percent (50%) of thecombined voting power entitled to vote in the election of directors.

 

6.2           Change of ControlTermination.  NotwithstandingSection 5.3(a) to the contrary, in the event Executive’s employment with theCompany terminates other than (a) for Cause or (b) due to death, disability orvoluntary termination by the Executive, and such termination occurs sixty (60)days prior to or twelve (12) months after such Change of Control (a “Change ofControl Termination”), then Executive shall be eligible to receive, upon timelyexecution of a release as described in Section 8 hereof, (i) a severancepayment in cash equal to 100% of Executive’s then existing base salary(exclusive of bonus or any other benefits) and (ii) the benefits set forth inthe Memorandum of Option Grant.

 

**7.****             Noninterference.**

 

While employedby the Company, and for two (2) years immediately following the terminationdate of Executive’s employment, Executive agrees not to interfere with thebusiness of the Company.

 

7.1           Employees.  Executive shall not solicit, attempt to solicit,induce, or otherwise cause any employee of the Company to terminate his or heremployment in order to become an employee, consultant or independent contractorto or for any competitor of the Company.

 

7.2           Customers.  Executive shall not directly or indirectlysolicit (for a business competitive with the Company) the business of anycustomer of the Company which at the time of termination or one (1) yearimmediately prior thereto was listed on the Company’s customer list.

 

**8.****             Release.**

 

In exchange forthe benefits and other consideration under this Agreement to which Executivewould not otherwise be entitled, Executive shall enter into and execute arelease substantially in the form attached hereto as Exhibit A (the“Release”) upon his termination of employment. Unless the Release is executed by Executive and delivered to the Companywithin twenty-one (21) days after the termination of Executive’s employmentwith the Company, Executive shall not receive any severance benefits providedunder this Agreement or under the Memorandum of Option Grant.  Additionally, unless the Release is executedby Executive and delivered to the Company within twenty-one (21) days after thetermination of Executive’s employment with the Company (and such release is notrevoked), any acceleration of Executive’s options as provided in the Memorandumof Option Grant shall not be effective.

 

**9.****             General Provisions.**

 

9.1           Notices.  Any notices provided hereunder must be inwriting and shall be deemed effective upon the earlier of personal delivery(including personal delivery by facsimile

 

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transmission) or the third day after mailingby first class mail, to the Company at its primary office location and toExecutive at his address as listed on the Company payroll.

 

9.2           Severability.  Whenever possible, each provision of thisAgreement and the Memorandum of Option Grant will be interpreted in such manneras to be effective and valid under applicable law, but if any provision of thisAgreement or the Memorandum of Option Grant is held to be invalid, illegal orunenforceable in any respect under any applicable law or rule in anyjurisdiction, such invalidity, illegality or unenforceability will not affectany other provision or any other jurisdiction, but this Agreement or theMemorandum of Option Grant, as the case may be, will be reformed, construed andenforced in such jurisdiction as if such invalid, illegal or unenforceableprovisions had never been contained herein or therein.

 

9.3           Waiver.  If either party should waive any breach ofany provisions of this Agreement, he or it shall not thereby be deemed to havewaived any preceding or succeeding breach of the same or any other provision ofthis Agreement.

 

9.4           Complete Agreement.  This Agreement, together with the Memorandumof Option Grant, constitutes the entire agreement between Executive and theCompany and it is the complete, final, and exclusive embodiment of theiragreement and supersedes any prior agreement written or otherwise betweenExecutive and the Company with regard to this subject matter.  It is entered into without reliance on anypromise or representation other than those expressly contained herein ortherein, and it cannot be modified or amended except in a writing signed by anofficer of the Company.

 

9.5           Counterparts.  This Agreement may be executed in separatecounterparts, any one of which need not contain signatures of more than oneparty, but all of which taken together will constitute one and the sameagreement or plan.

 

9.6           Headings.  The headings of the sections hereof and ofthe Memorandum of Option Grant are inserted for convenience only and shall notbe deemed to constitute a part hereof or thereof nor to affect the meaningthereof.

 

9.7           Successors and Assigns.  This Agreement is intended to bind and inureto the benefit of and be enforceable by Executive and the Company and theirrespective successors, assigns, heirs, executors and administrators, exceptthat Executive may not assign any of his duties hereunder or thereunder and hemay not assign any of his rights hereunder or thereunder without the writtenconsent of the Company.

 

9.8           Attorney Fees.  If either party hereto brings any action toenforce his or its rights hereunder, the prevailing party in any such actionshall be entitled to recover his or its reasonable attorneys’ fees and costsincurred in connection with such action.

 

9.9           Arbitration.  To provide a mechanism for rapid andeconomical dispute resolution, Executive and the Company agree that any and alldisputes, claims, or causes of action, in law or equity, arising from orrelating to this Agreement (including the Release) and the Memorandum of OptionGrant or their respective enforcement, performance, breach, or interpretation,will be resolved, to the fullest extent permitted by law, by final, binding,and confidential arbitration before a single arbitrator held in Irvine,California and conducted by Judicial Arbitration & MediationServices/Endispute (“JAMS”), under its then-existing Rules

 

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and Procedures.  The parties shall be entitled to conduct adequate discovery, andthey may obtain all remedies available to the parties as if the matter had beentried in court.  The arbitrator shall issuea written decision which specifies the findings of fact and conclusions of lawon which the arbitrator’s decision is based. Judgment upon the award rendered by the arbitrator may be entered by anycourt having jurisdiction thereof. Unless otherwise required by law, the arbitrator will award reasonableexpenses (including reimbursement of the assigned arbitration costs) to theprevailing party.  Nothing in thisSection 9.9 or in this Agreement or the Memorandum of Option Grant is intendedto prevent either Executive or the Company from obtaining injunctive relief incourt to prevent irreparable harm pending the conclusion of any sucharbitration.

 

9.10         Governing Law.  All questions concerning the construction,validity and interpretation of this Agreement will be governed by the law ofthe State of California as applied to contracts made and to be performedentirely within California, excluding the rules on conflicts of law.

 

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IN WITNESSWHEREOF, the parties have executed this Agreement on the day and year firstabove written.

 

 
| **DIEDRICH COFFEE,  INC.** | **EXECUTIVE**           |
|----------------------------|-------------------------|
|                       |                    |
|                       |                    |
| By:                        | /s/ Roger M. Laverty    |   | /s/ Martin A. Lynch |   |
|                       | Roger M. Laverty        | Martin A. Lynch |
|                       | Chief Executive Officer |   |
|                            |                         |  |  |  |

 

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**EXHIBIT A**

 

**RELEASE AGREEMENT**

 

I understand that my position with DiedrichCoffee, Inc. (the “Company”) terminated effective                            ,20      (the “Separation Date”).  The Company has agreed that if I choose to signthis Agreement, the Company will pay me severance benefits (minus the standardwithholdings and deductions) pursuant to the terms of the Employment Agreemententered into as of the 26 day of March 2004 between myself and the Company.  I understand that I am not entitled to thisseverance payment unless I sign this Agreement.  I understand that in addition to this severance, the Company willpay me all of my accrued salary and vacation, to which I am entitled by lawregardless of whether I sign this release.

 

In consideration for the severance payment Iam receiving under this Agreement, I agree not to use or disclose any of theCompany’s proprietary information without written authorization from theCompany, to immediately return all Company property and documents (includingall embodiments of proprietary information) and all copies thereof in mypossession or control, and to release the Company and its current and formerofficers, directors, agents, attorneys, employees, shareholders, and affiliatesfrom any and all claims, liabilities, demands, causes of action, attorneys’fees, damages, or obligations of every kind and nature, whether they are knownor unknown, arising at any time prior to the date I sign this Agreement.  This general release includes, but is notlimited to: all federal and state statutory and common law claims, claimsrelated to my employment or the termination of my employment or related tobreach of contract, tort, wrongful termination, discrimination, wages orbenefits, or claims for any form of compensation.  This release is not intended to release any claims I have or mayhave against any of the released parties for (a) indemnification as a director,officer, agent or employee under applicable law, charter document or agreement,(b) severance and other termination benefits specifically provided for in myEmployment Agreement and the Memorandum of Option Grant which constitute a partof the consideration for this release, (c) health or other insurance benefitsbased on claims already submitted or which are covered claims properlysubmitted in the future, (d) vested rights under pension, retirement or otherbenefit plans, or (e) in respect of events, acts or omissions occurring afterthe date of this Release Agreement.  Inreleasing claims unknown to me at present, I am waiving all rights and benefitsunder Section 1542 of the California Civil Code, and any law or legal principleof similar effect in any jurisdiction: “A general release does not extend to claims which the creditor does notknow 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 thedebtor.”

 

I acknowledge that I am knowingly andvoluntarily waiving and releasing any rights I may have under the federal AgeDiscrimination in Employment Act of 1967, as amended (“ADEA”).  I also acknowledge that the considerationgiven for the waiver in the above paragraph is in addition to anything of valueto which I was already entitled.  I havebeen advised by this writing, as required by the ADEA that: (a) my waiver andrelease do not apply to any claims that may arise after my signing of thisAgreement; (b) I should consult with an attorney prior to executing thisrelease, (c) I have twenty-one (21) days within which to consider this release(although I may choose to voluntarily execute this release earlier); (d) I haveseven (7) days following the execution of this release to revoke the Agreement;and (e) this Agreement will not

 

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be effective until the eighth day after thisAgreement has been signed both by me and by the Company.

 

This Agreement constitutes the complete,final and exclusive embodiment of the entire agreement between the Company andme with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that isnot expressly stated herein.  ThisAgreement may only be modified by a writing signed by both me and a dulyauthorized officer of the Company.

 

I accept and agree to the terms andconditions stated above:

 

 
| /s/ Martin  A. Lynch |   |   |
|----------------------|--------|--------|
| Martin A.  Lynch     |   |   |

 

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