EMPLOYMENT AGREEMENT









Exhibit

10.12




EMPLOYMENT AGREEMENT




THIS AGREEMENT (this “Agreement”), dated as of August

10, 2001 is between Henry Company (the “Employer” or the “Company”), and

William Baribault (the “Executive”).




W  I  T  N  E  S

S  E  T  H:




WHEREAS, the Employer is a California corporation; and




WHEREAS, the Employer desires to retain the services

of the Executive in an executive capacity and the Executive desires to be

employed by the Employer upon the terms and conditions hereinafter set forth;




NOW, THEREFORE, in consideration of the agreements

herein contained, the parties hereto agree as follows:




1.             EMPLOYMENT.




(a)           The Employer hereby employs the

Executive, and the Executive hereby accepts such employment, as President and

Chief Operating Officer of the Employer. 

The Executive shall report, and be subject, to the direction of the

Employer’s Chief Executive Officer, and shall have such powers and duties

generally consistent with the duties and offices of a President and Chief

Operating Officer as shall from time to time be reasonably assigned to him by

the Employer’s Chief Executive Officer or Board of Directors.




(b)           The Executive agrees to (i) use

his best efforts to promote the interests of the Employer, (ii) devote his

full business time and energies to the business and affairs of the Employer

during the Term, (iii) comply with Employer’s employment and conflict of

interest policies, and (iv) discharge his duties in a diligent and

faithful manner in accordance with the directives of the Chief Executive

Officer and Board of Directors. 

Notwithstanding the foregoing, it is expressly understood and agreed

that it shall in no way be deemed a violation of any of the terms of this

Agreement if (i) Executive engages in such charitable and/or volunteer work as

he reasonably elects during the Term and/or (ii) Executive continues his

involvement with those entities more particularly described in Exhibit A

hereto; provided such activity does not materially hinder the Executive’s

ability, or materially infringe on the time necessary, to perform his duties

hereunder.




2.             APPOINTMENT AS DIRECTOR.  The Employer shall use its best efforts to

cause the Executive to be appointed, and Warner Henry shall exercise his voting

power to elect Executive, as a Director of the Employer and a member of the Audit

and Executive Committees of the Board of Directors.  The Executive shall remain a Director during the Term unless:




(a)           the Executive notifies the Employer’s

Board of Directors that he is no longer willing to be a director, or




(b)           Executive’s employment has been

terminated hereunder.




 




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3.             TERM OF EMPLOYMENT.  The Executive’s employment term shall be deemed to have commenced

on August 10, 2001, and shall end on December 31, 2005, unless earlier terminated

pursuant 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 hereunder

during the Term, the Employer shall pay the Executive an annual salary of

$300,000.00 (“Base Salary”), which shall be payable in appropriate installments

to conform with the regular payroll dates for salaried personnel of the Employer.  The amount of Executive’s Base Salary shall

be reviewed annually by the Employer’s Board of Directors.




(b)           Bonus.  The Employer shall pay the Executive an

annual performance bonus (a “Performance Bonus”) in an amount to be calculated

based on the Employer’s Operating Result for that year, as set forth in Exhibit

A attached hereto, but in no event shall the Employer pay the Executive a

Performance Bonus of less than $100,000 with respect to the Employer’s 2001

fiscal year.  The Performance Bonus will

be paid to Executive thirty (30) days after the Employer’s determination of the

Performance 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 in

which his employment is terminated as follows:




(i)            If the termination occurs on or

before June 30 of any fiscal year, the Performance Bonus for the fiscal year in

which the termination occurs will be pro rated for the number of full months

elapsed in the fiscal year of termination.




(ii)           If the termination occurs after June

30 in any fiscal year, Executive will receive the Performance Bonus to which he

would have been entitled for the entire fiscal year in which the termination

occurs.




If Executive’s employment is terminated pursuant to

Sections 5(a), (c) or (f), Executive shall receive no Performance Bonus with

respect to the year in which his employment is terminated.




(c)           Benefits.  During the Term, the Executive shall receive

a benefits package consisting of the following:




(i)            The Executive shall be entitled to

participate in and receive benefits on the same basis as other senior

executives of the Employer, under the Employer’s standard medical and dental

plans and the Employer’s executive long term disability plan, each as in effect

on the date hereof, or any such plans made available by the Employer in the

future 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 to

participate on the same basis as other senior executives of the Employer in the

Employer’s 401(k) program.




(iii)          The Executive shall be entitled to

participate on the same basis as other senior executives of the Employer in

other benefit programs made available to senior executives of Employer, such as

the 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 such

elective benefits as are offered by Employer to other senior executives, such

as seminars, country club dues, YPO events, etc.  Employer shall be obligated to reimburse Executive for the

elective benefits only if it receives adequate documentation of the

expenditure.




(v)           The Executive shall be entitled to

four weeks paid vacation time during each year of the Term.




5.             TERMINATION. 

The Term will terminate:




(a)           by and upon the mutual consent of the

Executive and the Employer;




(b)           upon the death of the Executive;




(c)           by the Employer, for “Cause,” upon

written notice.  “Cause” shall mean and

be limited to the Executive’s:  (i)

conviction (or the indictment of) or the entering of a guilty plea or plea of

no contest with respect to a felony or any crime involving fraud or moral

turpitude ; (ii) any act or omission involving dishonesty, misappropriation,

embezzlement or fraud affecting Employer; (iii) continued failure to perform

duties specified by the Chief Executive Officer after written notice and, if

susceptible to remedy or cure, is not cured or remedied and continues for ten

business days after the Employer’s Chief Executive Officer has given written

notice with a copy to the Board of Directors and Executive specifying the

manner in which the duties have not been performed; (v) repeated insobriety or

use of any illegal drugs while rendering services hereunder; (vi) gross neglect

or gross misconduct resulting in material harm to the Employer or any of its

affiliates; or (vii) material breach of this Agreement and failure to cure such

breach within 30 days of written notice from the Employer;




(d)           by the Employer, if, as a result of

the Executive’s incapacity due to physical or mental illness, the Executive

shall have been absent from his duties hereunder on a full-time basis for 180

consecutive days, and, within thirty (30) days after a Notice of Termination

(as hereinafter defined) is given by the Employer, the Executive shall not have

returned to the performance of his duties hereunder on a full-time basis.  Such Notice of Termination shall be provided

by the Employer on or after the date on which the Executive has been absent for

150 consecutive days;




 




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(e)           by the Employer, without Cause, at

any time;




(f)            by Executive, after 30 days after

Notice of Termination is given to Employer’s Board of Directors.




(g)           by Executive for Good Reason, after

30 days after Notice of Termination is given to Employer’s Board of Directors.  Good

Reason shall mean and be limited to Employer’s material breach of this

Agreement and failure to cure such breach within 30 days of written notice from

Executive.




(h)           Notice of Termination.  Any termination by the Employer pursuant to

subparagraphs (a), (c), (d), or (e) above or by the Executive pursuant to

subparagraph (f) or (g) above shall be communicated by written Notice of

Termination to the other party hereto.




(i)            Date of Termination.  Date of Termination shall mean (i) if the

Executive’s employment is terminated pursuant to subparagraph (b), the day

after the Executive’s death; (ii) if the Executive’s employment is terminated

pursuant to subparagraph (d) above, thirty (30) days after Notice of Termination

is given provided that the Executive shall not have returned to the performance

of his duties on a full-time basis during such thirty day period), and (iii) if

the 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 shall

be terminated pursuant to Sections 5(a), (c) or (f) hereof, the Executive shall

only be entitled to his accrued but unpaid Base Salary at the time of

Termination and benefits and reimbursement for his accrued but unused vacation

time, through the date of termination. 

Upon making the payments pursuant to this Section 6(a), the Employer

shall have no further obligations to the Executive.




(b)           If the Executive’s employment is

terminated pursuant to Sections 5(b) or (d) hereof, the Employer shall pay the

Executive the amounts as provided in Section 6(a) hereof, and any earned

Performance Bonus as determined by Section 4(b) hereof.  Upon making the payments pursuant to this

Section 6(b), the Employer shall have no further obligations to the Executive.




(c)           If the Executive’s employment is

terminated pursuant to Section 5(e) or (g) hereof, the Employer shall pay the

Executive the amounts as provided in Section 6(a) and any earned Performance

Bonus as determined by Section 4(b) hereof. 

In addition, if Executive’s employment is terminated on or before the

following 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 be

obligated to pay such Severance Pay on the eighth (8th) day following

Executive’s execution and delivery of the form of General Release set forth as

Exhibit C hereof.  The total amount of

Severance Pay payable to the Executive shall be prorated over the period from the

date of termination through December 31, 2005 and paid in equal quarterly

installments (beginning with the first day of the next fiscal quarter) through

January 1, 2006.  Upon making the

payments pursuant to this Section 6(c), the Employer shall have no further

obligations to the Executive.




(d)           The amounts payable hereunder upon

termination of the Executive’s employment shall be the Employer’s entire

liability to the Executive in connection with Executive employment or

termination thereof.  If the Employer

purports to terminate the Executive for Cause, but it is later determined that

the termination was without Cause, Employer’s liability shall be limited to

that provided for in this Section 6.




7.             CONFIDENTIAL INFORMATION; NON-SOLICIT AGREEMENT.




(a)           Executive acknowledges that during

the Term and as part of his employment, Executive will be provided special

access to “Confidential Information” and that any unauthorized disclosure of

such Confidential Information could have an adverse impact on Employer and its

business.  Executive will hold all such

Confidential Information in a fiduciary capacity for the benefit of the

Employer.  After termination of

Executive’s employment, Executive will not, without the prior written consent

of the Employer or as may otherwise be required by court order, communicate or

divulge any such Confidential Information to anyone other than the Employer and

those designated by it.  “Confidential

Information” means information not known by the trade generally or not

reasonably available to a knowledgeable person in the trade, even though such

information may have been disclosed to one or more third parties pursuant to

consulting agreements, joint venture agreements or other agreements entered

into by the Employer and includes, without limitation, trade secrets, designs,

plans, formulas, customer lists, lists of suppliers and all other confidential

and proprietary information.




(b)           During the Term, the Executive agrees

that 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 other

participant, participate in, carry on, or engage in an enterprise anywhere in

the United States or Canada whose primary business is similar to or competes

with 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 years

after Executive’s employment terminates hereunder, the Executive agrees that he

will not directly or indirectly: 

request or advise any customer of the Employer to withdraw, curtail or

cancel its business or dealings with the Employer; solicit or accept the

business of such customers with respect to the Employer’s coating business on

behalf of anyone except the Employer; disclose to any person, corporation, or

entity outside the Employer the names of, or other identifying facts

concerning, any of the 




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Employer’s customers or suppliers; or induce or

solicit any employee of the Employer to terminate his or her employment with

the Employer or hire any employee of the Employer (except Executive’s personal

assistant).




(d)           The parties hereto acknowledge and

agree that monetary damages for breach of this Section 7 would not be easily

ascertainable and that the remedy at law for breach of this Section 7 is

inadequate.  The Employer shall

therefore be entitled, in addition to such other remedies (whether at law or at

equity) as it may have, to temporary and permanent injunctive relief for any

breach or threatened breach of this Section 7 without proof of any actual

damages that have been or may be caused by such breach.




8.             INDEMNIFICATION. 

Executive shall be entitled to all such indemnity rights as may be

generally available to officers, directors and/or agents of Employer  pursuant to any applicable law or to any

other contract with, or the Bylaws of, Employer as may be now or hereafter in

effect.  Notwithstanding any other

provision of this Agreement, such rights shall survive any termination or

expiration of this Agreement.




9.             BREACH BY EXECUTIVE.  Both parties recognize that the services to be rendered under

this Agreement by the Executive are special, unique and extraordinary in

character, and that in the event of the breach by the Executive of the terms

and conditions of this Agreement to be performed by him, or in the event the

Executive performs services for any person, firm or corporation engaged in a

competing line of business with the Employer, then the Employer shall be

entitled, if it so elects, to institute and prosecute proceedings in any court

of competent jurisdiction, either in law or in equity, to obtain damages for

any breach of this Agreement, or to enforce the specific performance thereof by

the Executive, or to enjoin the Executive from performing services for any such

other person, firm or corporation.




10.           ASSIGNMENT.  This Agreement shall inure to the benefit

of, and shall be binding upon, the parties hereto and their respective successors,

assigns, heirs, and legal representatives, including any entity with which the

Employer may merge or consolidate or to which all or substantially all of its

assets may be transferred. The duties and covenants of the Executive under this

Agreement, being personal, may not be delegated.




11.           NO WAIVER.  The failure of a party to insist upon strict

adherence to any term of this Agreement on any occasion shall not be considered

a waiver or deprive that party of the right to insist upon adherence to that

term 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 under

this Agreement is subject to any and all withholdings by Employer as required

by applicable law.




13.           GOVERNING LAW; CAPTIONS.  This Agreement contains the entire agreement

between the parties as to the employment relation between the parties and shall

be governed by the laws of the State of California.  This Agreement may not be changed orally, but only by agreement

in 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 be

considered a part of this Agreement.




 




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14.           ARBITRATION.




(a)           Arbitrable Disputes.  The Employer and the Executive agree to use

final and binding arbitration to resolve any dispute each may have with the other

or any affiliate relating to this Agreement or the Executive’s employment with

and/or termination from the Employer (an “Arbitrable Dispute”).  An

Arbitrable Dispute may include, but shall not be limited to, any dispute about

the validity, interpretation, or effect of this Agreement, or alleged

violations of it; any and all claims arising out of any alleged discrimination,

harassment, or retaliation; and any and all claims arising under or covered by

the Fair Labor Standards Act, as amended, the Age Discrimination in

Employment Act of 1967, as amended, Title VII of the Civil Rights Act of

1964, as amended, the Equal Pay Act, as amended, the Rehabilitation Act of

1973, as amended, the Employee Retirement Income Security Act of 1974, as

amended, the Americans with Disabilities Act of 1990, as amended, Section 1981

of Title 42 of the United States Code, as amended; the California Fair

Employment and Housing Act, as amended, California Labor Code Section 200 et

seq., 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 or

threatened, and where either party is seeking only injunctive relief (e.g., a

temporary restraining order, temporary injunction or permanent injunction),

such party may file suit or bring an application for such injunctive relief in

any federal or state court of competent jurisdiction without violating this

Agreement and such suit for injunctive relief will not be considered an

Arbitrable Dispute.




(c)           The Arbitration.  The Executive and the Employer agree that

the arbitration will take place in Los Angeles County, California, in

accordance with the arbitration rules and procedures of the American

Arbitration Association then in effect. 

The arbitration shall take place before a single, neutral arbitrator

experienced in employment matters who is licensed to practice law in

California,  The Executive and the

Employer agree to select a mutually agreeable arbitrator, and if the parties

are unable to do so within ten (10) business days, an arbitrator shall be

selected in accordance with the rules of the American Arbitration

Association.  The arbitrator may not

modify or change this Agreement in any way. 

Discovery shall be governed by CCP Section 1283.05.  At the conclusion of the arbitration, the

arbitrator shall issue a written ruling setting forth the essential findings of

fact and conclusions of law on which the arbitration finding or award is

based.  To the extent that the applicable

arbitration rules are inconsistent with this Section 14, Section 14 shall

govern.




(d)           Fees and Expenses.  Each party will pay the fees of their

respective attorneys, the expenses of their witnesses, costs of any record or

transcript of the arbitration, and any other expenses connected with the

arbitration that such party might be expected to incur had the dispute been

subject to resolution in court, but all costs of the arbitration that would not

be incurred by the parties if the dispute was litigated in court, including the

fees 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 their

reasonable attorney fees and costs from the nonprevailing party to the extent

permitted by law; provided, however, that the Unique Arbitration Costs will be

paid by the Employer.




 




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(e)           Jury Right.  The Executive and the Employer understand

that this arbitration agreement constitutes a waiver of each party’s respective

rights to a jury trial and relates to the resolution of every Arbitrable

Dispute brought by the Executive or the Employer.




(f)            Severability.  The Executive and the Employer agree that to

the extent any specific provision of this agreement to arbitrate claims shall

be held void, voidable or unenforceable, the remaining provisions shall remain

in full force and effect.




15.           COMPLETE AGREEMENT.  This Agreement terminates all prior

agreements between the parties relating to the subject matter herein

addressed.  In the event of termination

of employment under any of the circumstances described herein, the arrangements

provided for by this Agreement will constitute the entire obligation of the Employer

to the Executive and performance thereof by the Employer will constitute full

settlement of any claim that the Executive might otherwise assert against the

Employer or any affiliate of the Employer on account of such termination.




16.           SEVERABILITY.  If any provision of this Agreement is illegal

and unenforceable in whole or in part, the remainder of this Agreement shall

remain in full force and effect.




17.           EFFECT OF TERMINATION.  Notwithstanding the termination of this

Agreement at the end of the Term, or earlier pursuant to Section 5 or

otherwise, Sections 4-20 of this Agreement shall survive.




18.           NOTICES.  Any notices or other communications required

or permitted hereunder shall be in writing and shall be deemed effective

(i) when delivered in person (in the Employer’s case to the Chief

Executive Officer), (ii) sent by facsimile (with written confirmation of

receipt), provided that a copy is mailed by registered mail, or (iii) if

sent by overnight mail, on the date received by the respective party at the

Employer’s headquarters offices, or such other address as shall have been

specified in writing by either party to the other.




19.           ATTORNEYS’ FEES.  If it is necessary for either party to

institute any proceeding (including arbitration), action or suit to enforce any

rights under this Agreement, the party not prevailing in such proceeding,

action or suit agrees to pay the prevailing party’s reasonable costs and

disbursements 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 suit

or in any appeal thereof.




20.           BINDING EFFECT.  The covenants, conditions and terms of this

Agreement shall extend to and be binding upon and inure to the benefit of the

parties, their successors, heirs, personal representatives, trustees, and other

legal representatives.




 




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IN WITNESS WHEREOF, the Employer has by its

appropriate officer signed this Agreement and the Executive has signed this

Agreement, 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 any

other Employment Agreement between the parties dated August 10, 2001.




 




 




 




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EXHIBIT A




The following are entities which Executive currently

is 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 Executive

shall receive a Performance Bonus pursuant to Section 4 of this Agreement in an

amount 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 Operating

Result is calculated as follows:




	

  Operating

  Result


  	

  =


  	

  Actual EBITDA


  	

   


  
	

   


  	

  Target

  Earnings


  





 




For purposes of the above formula:




a.                                       “Actual EBITDA” means, in any applicable

fiscal year, the Company’s net income before extraordinary and non-recurring

gains net of the expenses incurred to attain those gains (but including

extraordinary and non-recurring losses), interest, income taxes, depreciation,

amortization, and cumulative effects of changes in accounting principles as

determined by the Company from Company’s annual audited financial statements

for such applicable year.




b.                                      “Target Earnings” means, as to any

applicable year, the Company’s projected target earnings before interest,

taxes, depreciation, and amortization for such applicable year as set forth in

the Company’s annual operating plan approved by the Board of Directors.




c.                                       The Operating Result calculation must

include the Performance Bonus contemplated pursuant to Section 4(b), and still

equal 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 ($10,400,000

plus $150,000 Performance Bonus) Actual EBITDA.  The 1.00 Operating Result would require $13,300,000 ($13,000,000

plus $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 on

behalf of any assignee, heir, or other successor, hereby releases, acquits and

forever 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, attorneys

and insurers (hereinafter, collectively referred to as the “Employer

Releasees”) from any and all claims, expenses, debts, demands, costs,

contracts, liabilities, obligations, actions and causes of action of every

nature, under any theory under the law, whether common, constitutional,

statutory or other of any jurisdiction, foreign or domestic, whether known or

unknown, whether in law or in equity, which he has or had or may claim to have

on his own behalf or on behalf of any other entity by reason of any and all

matters from the beginning of time to the Execution Date.  The claims released by Executive

specifically 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 of

constitutional or statutory rights, attorney fees or costs and/or

discrimination based on race, national origin, sex, religion, age, sexual

orientation and/or disability. 

Executive also expressly recognizes and acknowledges that he is

releasing on his own behalf and on behalf of any other successor any and all

rights and claims arising under any statute, law or constitution including, but

not limited to, any rights or claims under the California Labor Code, as

amended, the Fair Labor Standards Act, as amended, the Age Discrimination in

Employment 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, the

Equal Pay Act, as amended, the Rehabilitation Act of 1973, as amended, the

Employee Retirement Income Security Act of 1974, as amended, the Americans with

Disabilities Act of 1990, the False Claims Act, as amended, the Age

Discrimination in Employment Act of 1967, as amended, and/or Section 1981 of

Title 42 of the United States Code.   

Nothing contained in this General Release is intended to or shall act in

any way to waive, release or limit any rights Executive may have to indemnity

pursuant to any applicable law or to any other contract with, or the Bylaws of,

Employer.




(b)           EXECUTIVE SPECIFICALLY ACKNOWLEDGES THAT

HE IS RELEASING ANY AND ALL AGE DISCRIMINATION CLAIMS ARISING UNDER THE AGE

DISCRIMINATION IN EMPLOYMENT ACT.




(c)           Executive expressly waives any and all

rights under Section 1542 of the Civil Code of the State of California, and any

like provision or principle of common law in any foreign jurisdiction.  Section 1542 provides as follows:




A

general release does not extend to claims which the creditor does not know or

suspect to exist in his favor at the time of executing the release, which if

known by him must have materially affected his settlement with 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 in

its effect, without limitation, claims and causes of action which he does not

know of or suspect to exist in his favor at the time of execution hereof and

that this Agreement contemplates extinguishments of all such claims and causes

of action.




2.             No Pending Charges.  Executive

represents that he has no pending complaints, actions, charges or claims of any

nature against the Employer Releasees based on or related to any events prior

to the execution of this Agreement. 

Moreover, Executive agrees not to file any complaints, actions, charges

or claims of any nature against the Employer Releasees relating to any event or

alleged event, including, but not limited to, those arising from his employment

with and/or separation from the Employer, which occurred from the beginning of

time until the execution of this Agreement.




3.             No Assignments.  Executive warrants and

represents that he has not assigned or in any way conveyed, transferred or

encumbered all or any portion of the claims or rights covered by this Agreement.  Executive further agrees to indemnify and

hold the Employer Releasees harmless from any liability, claims, demands,

costs, expenses, and attorney fees incurred by the Employer Releasees, as a

result of any such person asserting any such assignment or transfer of any

rights or claims under any such assignment or transfer.




4.             Consultation With Counsel.  Executive

represents and warrants that he has been advised to and has discussed this

Agreement with his attorney, that he has carefully read and fully understands

all of the provisions of this Agreement, and that he is entering into this

Agreement voluntarily.  Executive has

twenty-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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