**Exhibit 10.46**
**Superconductor Technologies Inc.**
**EMPLOYMENT AGREEMENT**
     This Employment Agreement (the “Agreement”) is made and entered into as of February14, 2005, by and between Superconductor Technologies Inc., a Delaware corporation (the“Company”), and Jeffrey A. Quiram, an individual (the “Executive”), with referenceto the following facts:
     A. The Company, headquartered in Santa Barbara, California, is the global leader indeveloping, manufacturing, and marketing superconducting products for wireless networks.
     B. Executive is a senior global executive with broad general management and sales experiencein the telecommunications industry.
     C. The Company wishes to hire Executive for the position of President and Chief ExecutiveOfficer, and Executive wishes to be hired for such position, on the terms and conditions set forthin this Agreement.
     NOW, THEREFORE, based on the above premises and in consideration of the mutual covenants andagreements contained herein, and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties agree as follows:
     1. Employment with the Company.
          1.1 Position and Duties. Subject to the terms set forth herein, the Company agrees toemploy Executive as President and Chief Executive Officer, and Executive hereby accepts suchemployment. Executive shall serve in an executive capacity and shall perform such duties as arecustomarily associated with his position, consistent with the Restated Bylaws of the Company and asreasonably required by the Company’s Board of Directors (the “Board”). The Company willalso appoint Executive to the Board and any executive committee thereof that may exist from time totime. Executive will report solely and directly to the Board, and all other employees will reportsolely and directly to the Executive or his designees. Notwithstanding the foregoing, the Boardmembers will have unrestricted access to communicate on a confidential basis with any and allemployees as and when they deem necessary or appropriate in the discharge of their fiduciaryduties.
          1.2 Full Time and Best Efforts. Executive will perform his duties faithfully and tothe best of his ability and will devote his full business time and effort to the performance of hisduties hereunder. Executive will not engage in any other employment or business activities for anydirect or indirect remuneration that would be directly harmful or detrimental to, or that maycompete with, the business and affairs of the Company, or that would interfere with his dutieshereunder. Executive acknowledges that frequent travel may be necessary in carrying out his dutieshereunder
          1.3 Transition. Executive will commence services to the Company on February 17, 2005,but the Company will continue to employ M. Peter Thomas as President and Chief Executive Officeruntil the completion and filing with the Securities and Exchange Commission of the Company’s AnnualReport on Form 10-K for the year ended December 31, 2004. The Company will appoint Executive tothe position of President and Chief Executive Officer immediately after the filing of the AnnualReport on Form 10-K. Executive will use the
 

 

interim period to work with Mr. Thomas to prepare for and effect a smooth transition of Mr.Thomas’ responsibilities to Executive.
          1.4 Company Policies. The employment relationship between the parties shall begoverned by the general employment policies and practices of the Company, including but not limitedto those relating to protection of confidential information and assignment of inventions, exceptthat when the terms of this Agreement differ from or are in conflict with the Company’s generalemployment policies or practices, this Agreement shall control. Subject to the foregoing,Executive will sign within ten (10) days the Company’s standard Employee Proprietary InformationAgreement.
     2. At-Will Employment. Executive’s employment with the Company is “at-will” and maybe terminated at any time without cause by either party upon thirty (30) days prior written notice;*provided, however*, that the Company is not required to give notice of a termination forCause. Termination of the employment relationship is the right of each party and will notconstitute a breach of this Agreement. No provision of this Agreement shall be construed asconferring upon Executive a right to continue as an employee or executive of the Company or anysubsidiary or affiliated entity. In the event of termination, Executive will voluntarily andimmediately resign from the Board and any similar position with any subsidiary or affiliate.
     3. Compensation.
          3.1 Base Salary. The Company will compensate Executive for services renderedhereunder at the rate of Three Hundred Thousand Dollars ($300,000) per year payable in accordancewith the Company’s normal payroll practices and subject to payroll deductions as may be necessaryor customary for the Company’s salaried employees. The Compensation Committee of the Board (the“Compensation Committee”) will review, and in its sole discretion may increase, the BaseSalary each year.
          3.2 Performance Bonus. The Company will pay Executive an annual performance bonus ofup to One Hundred Percent (100%) of his Base Salary based upon achievement of performance goals.The Compensation Committee and Executive will work together in good faith on an annual basis todevelop mutually acceptable performance goals for the coming year.
          3.3 Equity Incentive Compensation.
               3.3.1 Option Grants. The Company will grant Executive the following equity-basedcompensation awards under its 2003 Equity Incentive Plan:
                    3.3.1.1 A non-qualified stock option to purchase One Million Two Hundred Thousand(1,200,000)shares of common stock with a per share exercise price equal to the fair market value of theCompany’s common stock on the date the Board approves this Agreement (the “Start Date ExercisePrice”); and
                    3.3.1.2 A non-qualified stock option to purchase an additional One Million Two HundredThousand (1,200,000) shares of common stock (subject to increase in accordance with Section 3.3.3)with a per share exercise price equal to the fair market value of the Company’s common stock on thedate the stockholders approve an increase in the number of shares of stock authorized for grantsunder the 2003 Equity Incentive Plan (the “Approval Date Exercise Price”).
               3.3.2 Other Terms. All of the options granted under this Section 3.3 will (a) have aterm of ten (10) years, (b) vest 25% on the first anniversary of Executive’s start date with theCompany and 75% in 36 equal monthly installments thereafter, (c) have such other terms as arecontained in the Company’s standard form of stock option agreement presently in
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use and not inconsistent with the terms of this either this Agreement or the stock optionagreement entered into by Executive and the Company and executed contemporaneously herewith (the“Option Agreement”) and (d) be subject to all the terms and conditions of the Company’s2003 Equity Incentive Plan. The Compensation Committee is considering other performance-basedcriteria for earlier accelerated vesting of employee stock options. The Compensation Committeemay, in its sole discretion, include such criteria for accelerated vesting in the foregoing stockoptions.
               3.3.3 Stockholder Approval of Plan Increase. The Company will submit a request to itsstockholders at the upcoming 2005 annual meeting to increase the number of shares of stockauthorized for grants under the 2003 Equity Incentive Plan. If the stockholders decline to approvethe increase, the Company will grant options to Executive under the 2003 Equity Plan (priced with aper share exercise price equal to the fair market value of the Company’s common stock on the datethe stockholders decline to approve the increase) as and when additional options become availableunder the plan as a result of the expiration and forfeiture of other stock options outstandingunder the plan until is has fulfilled its obligations to Executive under Section 3.3.1.2. TheCompany will not grant any further stock options under the 2003 Equity Incentive Plan until it hasfulfilled its obligations to Executive under Section 3.3.1.2.
               3.3.4 Impact of Interim Stock Price Increase. If the Approval Date Exercise Priceexceeds the Grant Date Exercise Price, the Company will compensate Executive for the increase bygranting him another non-qualified stock option to purchase at the Approval Date Exercise Priceadditional shares of common stock. The number of shares for such additional stock option will bedetermined based on a linear scale of 0 shares to 250,000 shares as the difference in exerciseprices increases from $0 to $1.00. For example, if the Grant Date Exercise Price is $1.05 and theApproval Date Exercise Price is exercise price $1.35, then the number of shares would equal ($1.35- $1.05)/$1.00 X 250,000, or 75,000 shares. Under this formula, the maximum number is 250,000shares regardless of any further increase in the exercise price between the two dates.
     4. Benefits.
          4.1 Commuting and Travel Expenses. The Company understands that Executive presentlyresides in Minnesota and has not committed to relocate his family to Santa Barbara, California.However, Executive has committed to perform services under this Agreement at the Company’sheadquarters in Santa Barbara and will effectively commute to work. Executive will devotesufficient time working at the Company’s headquarters in Santa Barbara and meeting with customersat their offices, in each case to the extent required to perform the duties of his office. TheCompany will (a) pay for Executive’s reasonable travel expenses commuting to/from his home inMinnesota (based on the Company’s travel policy guidelines) and (b) lease a suitable apartment forExecutive within ten (10) miles of its Santa Barbara headquarters.
          4.2 Automobile Lease. The Company will lease an automobile for Executive’s use inSanta Barbara consistent with past practice for the Company’s Chief Executive Officer.
          4.3 General Programs. Executive shall be entitled to participate in the employeebenefit plans and programs of the Company, if any, to the extent that his position, tenure, salary,age, health and other qualifications make him eligible to participate in such plans or programs,subject to the rules and regulations applicable thereto. Subject to Section 10.7.4, the Companyreserves the right to cancel or change the benefit plans and programs it offers to its employees atany time.
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          4.4 Special Reimbursement for Taxes Resulting from Payment of Commuting Expenses.Executive shall be entitled to receive an additional payment hereunder (the “Tax IndemnityPayment”) in an amount equal to any increase in Executive’s income and payroll taxesattributable to any commuting, automobile and living accommodation payments or expenses paid to oron behalf of Executive, including an additional amount equal to any additional income and payrolltaxes which are attributable to or resulting from the Tax Indemnity Payment, such that Executiveretains an amount of the Tax Indemnity Payment equal to the increase in income and payroll taxesattributable to the payment or reimbursement of the commuting, automobile and living accommodationexpenses to or on behalf of the Executive.
     5. Business Expenses. The Company shall reimburse Executive for reasonable travel,entertainment or other expenses incurred by Executive in the furtherance of or in connection withthe performance of Executive’s duties hereunder, in accordance with the Company’s expensereimbursement policy as in effect from time to time.
     6. Termination Before a Change of Control.
          6.1 Involuntary Termination. If Executive’s employment with the Company is terminatedbefore a Change of Control due to an Involuntary Termination, then Executive shall be entitled toreceive the following:
               6.1.1 a lump sum severance payment equal to one (1.0) times Executive’s Base Salary as ineffect on the date of the Involuntary Termination,
               6.1.2 any Bonus for the twelve (12) month period following Executive’s termination which hadbeen previously authorized,
               6.1.3 twelve (12) months of coverage for Executive and his spouse/dependents under grouphealth, life or other similar insurance plans substantially comparable to the group health, lifeand other similar insurance plans in which Executive and his spouse/dependents participated on thedate of such termination,
               6.1.4 accelerated vesting of all stock options which would have otherwise vested solely by thepassage of time during the twelve (12) months after the date of termination if the InvoluntaryTermination had not occurred (i.e. excluding any vesting dependent on achieving performanceobjectives); and
               6.1.5 six months from the date of termination to exercise any vested stock options, includingany stock options vesting by virtue of the accelerated vesting provisions of Section 6.1.4;*provided, however*, that such options will automatically expire thirty (30) days followingthe date that Executive becomes a director, employee or consultant of any Competing Company.
          6.2 Other Termination. If Executive’s employment is terminated before a Change ofControl for any reason other than an Involuntary Termination, then Executive shall not be entitledto receive severance or other benefits pursuant to this Agreement, but may be eligible for thosebenefits (if any) as may then be established under the Company’s severance and benefits plans andpolicies existing at the time of such termination.
          6.3 Mitigation. Except as may be expressly provided elsewhere in this Agreement, theExecutive shall not be required to mitigate the amount of any payment or benefit contemplated bythis Section 6 (whether by seeking new employment or in any other manner). No such payment shallbe reduced by earnings that the Executive may receive from any other source.
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       7. Change of Control.
          7.1 In the event of a Change of Control, Executive shall be entitled to receive the followingin lieu of any payments or other benefits under Section 6 (Termination Before Change of Control)and regardless of whether Executive’s employment is continued or terminated (except as expresslyprovided below in Section 7.1.5):
               7.1.1 a lump sum payment equal to two (2.0) times the Executive’s Base Salary as in effect onthe date of the Change of Control,
               7.1.2 any Bonus for the twelve (12) month period following Executive’s termination which hadbeen previously authorized,
               7.1.3 twenty-four (24) months of coverage for Executive and his spouse/dependents under grouphealth, life or other similar insurance plans substantially comparable to the group health, lifeand other similar insurance plans in which Executive and his spouse/dependents participated on thedate of such termination,
               7.1.4 accelerated vesting of fifty percent (50%) of Executive’s unvested stock options;
               7.1.5 accelerated vesting of the remaining fifty percent (50%) of Executive’s options if andonly if Executive does not resign during the six month period following the date of the Change ofControl; and
               7.1.6 five years from the date of the Change of Control to exercise any vested stock options,including any stock options vesting by virtue of the accelerated vesting provisions of Section7.1.4 and 7.1.5; *provided, however*, that such options will automatically expire thirty (30)days following the date that Executive becomes a director, employee or consultant of any CompetingCompany.
          Notwithstanding Section 2, Executive may not terminate his employment resign other thanpursuant to an Involuntary Termination under Section 10.7 during the six month period following aChange of Control; provided that purposes of the foregoing, Involuntary Termination shall notinclude Section 10.7.1.
          For purposes of this Section, a termination of Executive’ employment prior to a Change ofControl shall be deemed to have occurred after or in connection with such Change of Control ifExecutive reasonably demonstrates that such termination constitutes an Involuntary Termination andthat the circumstance(s) or event(s) which constitute such Involuntary Termination occurred (a) atthe request of an individual, entity or group who has entered into an agreement with the Company,the consummation of which will constitute a Change of Control (or who has taken other stepsreasonably calculated to effect a Change of Control) or (b) otherwise in connection with, as aresult of or in anticipation of a Change of Control.
          7.2 Modified Reduction. Notwithstanding any other provisions of this Agreement to thecontrary, in the event that any payments or benefits received or to be received by Executive inconnection with Executive’s employment with the Company (or termination thereof) would subjectExecutive to the excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, asamended (the “Excise Tax”), and if the net after-tax amount (taking into account allapplicable taxes payable by Executive, including without limitation any Excise Tax) that Executivewould receive with respect to such payments or benefits does not exceed the net after-tax amountExecutive would receive if the amount of such payments and benefits were reduced to the maximumamount which could otherwise be payable to Executive without the imposition of the Excise Tax,then, only the extent necessary to eliminate the imposition of
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the Excise Tax, such payments and benefits shall be reduced, in the order and as to the typespecified by Executive.
     8. Condition to Severances Payments. All severance payments and other benefitsprovided under Sections 6 and 7 are conditioned on Executive’s continuing compliance with thisAgreement and the Company’s policies and Executive’s execution of a release of claims and covenantnot to sue substantially in the form provided in Exhibit A upon termination ofemployment .
     9. Insurance and Indemnification. The Company will keep in effect duringExecutive’s employment and for six (6) years thereafter director and officer’s liability insurancecomparable in amount and scope to its present policy covering current and former directors andofficers. The Company and Executive will also concurrently herewith execute an IndemnificationAgreement identical in form and substance to the Indemnification Agreement currently in effect forthe Company’s other directors and Executive Officers.
     10. Definitions.
          10.1 Base Salary. “Base Salary” means Executive’s annualized base salary underSection 3.1 and as may be subsequently adjusted upward for increases.
          10.2 Cause. “Cause” means the occurrence of anyone or more of the following:
               10.2.1 Executive’s conviction by, or entry of a plea of guilty or nolo contendere in, a courtof final jurisdiction for any crime which constitutes a felony in the jurisdiction involved;
               10.2.2 Executive’s misappropriation of funds or commission of an act of fraud, whether prioror subsequent to the date hereof, upon the Company;
               10.2.3 gross negligence by Executive in the scope of Executive’s services to the Companyresulting in economic damage to the Company; or
               10.2.4 a failure of Executive to follow the lawful mandates of the Board.
     Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Causewithout (a) reasonable notice to Executive setting forth the reasons for Company’s intention toterminate for Cause and (b) an opportunity for Executive to be heard (with counsel) before theBoard.
          10.3 Change of Control. “Change of Control” means the occurrence of any of thefollowing events on or after the effective date of this Agreement:
               10.3.1 When any “person,” as such term is used in Sections 13(d) and 14(d) of the SecuritiesExchange Act of 1934, as amended, is or becomes the “beneficial owner” (as defined in Rule 13d-3under the Securities Exchange Act of 1934, as amended), directly or indirectly, of securities ofthe Company representing thirty percent (30%) or more of the combined voting power of the Company’sthen outstanding securities entitled to vote generally in the election of directors, *other*than the following persons:
                    10.3.1.1 the Company,
                    10.3.1.2 a subsidiary of the Company,
                    10.3.1.3 a Company employee benefit plan, including any trustee of such plan acting astrustee, or
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                    10.3.1.4 any person who, as of the effective date of this Agreement, has publiclydisclosed infilings with the Securities and Exchange Commission the beneficial ownership of more than 5% of thecombined voting power of the Company’s outstanding securities entitled to vote generally in theelection of directors;
               10.3.2 The stockholders of the Company approve a merger or consolidation of the Company withany other corporation, other than a merger or consolidation which would result in the votingsecurities of the Company outstanding immediately prior thereto continuing to represent (either byremaining outstanding or by being converted into voting securities of the surviving entity) morethan fifty percent (50%) of the total voting power represented by the voting securities of theCompany or such surviving entity outstanding immediately after such merger or consolidation, or thestockholders of the Company approve an agreement for the sale or disposition by the Company of allor substantially all the Company’s assets;
               10.3.3 A change in the composition of the Board of Directors of the Company, as a result ofwhich fewer than a majority of the directors are Incumbent Directors. “IncumbentDirectors” shall mean directors who either (a) are directors of the Company as of the effectivedate of this Agreement, or (b) are elected, or nominated for election, to the Board of Directors ofthe Company with the affirmative votes of at least a majority of the Incumbent Directors at thetime of such election or nomination (but shall not include an individual whose election ornomination is in connection with an actual or threatened proxy contest relating to the election ofdirectors to the Company);
               10.3.4 The sale, transfer or other disposition of all or substantially all of the Company’sassets; or
               10.3.5 The stockholders of the Company approve the dissolution or liquidation of the Company.
          10.4 Competing Company. “Competing Company” means any company engaged in thedevelopment, manufacture or sale of cryogenic receiver front-end devices for communicationssystems.
          10.5 Disability. “Disability” means, on or after the effective date of thisAgreement, the Executive is unable to engage in any substantial gainful activity by reason of anymedically determinable physical or mental impairment which can be expected to result in death orwhich has lasted or can be expected to last for a continuous period of not less than 12 months.
          10.6 “Executive Officer” shall have the meaning set forth in Rule 3b-7 under theSecurities Exchange Act of 1934, as amended.
          10.7 Involuntary Termination. “Involuntary Termination” means the occurrence ofanyone or more of the following:
               10.7.1 without Executive’s express written consent, a material reduction of Executive’s dutiesor responsibilities relative to Executive’s duties or responsibilities in effect immediately priorto such reduction, or the removal of Executive from such duties and responsibilities, unlessExecutive is provided with comparable duties and responsibilities over the same business unit, or achange in the Executive’s reporting obligations or the employees reporting to Executive;
               10.7.2 without Executive’s express written consent, a material reduction of the facilities andperquisites (including office space and location) available to Executive immediately prior to suchreduction;
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               10.7.3 without Executive’s express written consent, a reduction by the Company of Executive’sBase Salary in effect immediately prior to such reduction, unless it occurs in connection with arestructuring or other cost-cutting measure as evidenced by a comparable reduction in the basesalary of all Executive Officers, or a failure to make any travel or living accommodation paymentsrequired hereunder after notice of default and a reasonable opportunity to cure such default;
               10.7.4 a material reduction by the Company in the kind or level of employee benefits to whichthe Executive is entitled immediately prior to such reduction with the result that the Executive’soverall benefits package is significantly reduced;
               10.7.5 any purported termination of the Executive by the Company which is not effected forCause or for which the grounds relied upon are not valid;
               10.7.6 the death or Disability of the Executive, or
               10.7.7 the failure of the Company to obtain the assumption of this Agreement by any successorscontemplated in Section 12.
     11. Advice of Counsel. Executive acknowledges that he has been represented by counselin the negotiation of this Agreement and is fully aware of his rights and obligations under thisAgreement.
     12. Successors.
          12.1 Company’s Successors. Any successor to the Company (whether direct or indirectand whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all orsubstantially all of the Company’s business and/or assets shall assume the obligations under thisAgreement and agree expressly to perform the obligations under this Agreement in the same mannerand to the same extent as the Company would be required to perform such obligations in the absenceof a succession. For all purposes under this Agreement, the term “Company,” shall includeany successor to the Company’s business and/or assets which executes and delivers the assumptionagreement described in this Section 12.1 or which becomes bound by the terms of this Agreement byoperation of law.
          12.2 Executive’s Successors. Without the written consent of the Company, Executiveshall not assign or transfer this Agreement or any right or obligation under this Agreement to anyother person or entity. Notwithstanding the foregoing, the terms of this Agreement and all rightsof Executive hereunder shall inure to the benefit of, and be enforceable by, Executive’s personalor legal representatives, executors, administrators, successors, heirs, distributees, devisees andlegatees.
     13. Notice Clause.
          13.1 Manner. Any notice hereby required or permitted to be given shall besufficiently given if in writing and upon mailing by registered or certified mail, postage prepaid,to either party at the address of such party or such other address as shall have been designated bywritten notice by such party to the other party .
          13.2 Effectiveness. Any notice or other communication required or permitted to begiven under this Agreement will be deemed given on the day when delivered in person, or thebusiness day after the day on which such notice was mailed in accordance with Section 13.1.
     14. Governing Law. This Agreement shall be governed by and construed in accordancewith the internal substantive laws, but not the choice of law rules, of the state of California.
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     15. Arbitration. Any controversy or claim arising out of or relating to thisAgreement, or the breach thereof, shall be settled by arbitration in Los Angeles in accordance withthe Commercial Arbitration Rules of the American Arbitration Association. Discovery shall bepermitted to the same extent as in a proceeding under the Federal Rules of Civil Procedure,including (without limitation) such discovery as is specifically authorized by section 1283.05 ofthe California Code of Civil Procedure, without need of prior leave of the arbitrator under section1283.05(e) of such Code. Judgment on the award rendered by the arbitrator may be entered in anycourt having jurisdiction thereof. The Company shall bear the expense of the arbitrator.
     16. Attorneys’ Fees for Executive. The Company will reimburse Executive for up to$5,000 of legal fees and costs incurred by Executive in connection with the negotiation of thisAgreement. Further, if any litigation or arbitration is commenced (including any proceedings in abankruptcy court) between the parties concerning any provision of this Agreement and Executive isthe prevailing party in such proceeding, the Executive shall be entitled, in addition to such otherrelief as may be granted, to recover his attorneys’ reasonable fees and costs incurred by reason ofsuch litigation or arbitration. The prevailing party shall be determined by the court orarbitrator based upon an assessment of which party’s major arguments or positions taken in theproceedings could fairly be said to have prevailed over the other party’s major arguments orpositions on major disputed issues.
     17. Severability. The invalidity or unenforceability of any provision of thisAgreement, or any terms hereof, shall not affect the validity or enforceability of any otherprovision or term of this Agreement.
     18. Confidentiality and Trading Restrictions. The parties agree the existence andnegotiation of this Agreement, and any non-public information exchanged in connection therewith,are confidential (collectively, “Confidential Information”). They will not disclose anyConfidential Information except as provided herein. Either party may disclose ConfidentialInformation to its employees and advisors who are required to have the information for the purposeof providing assistance in the negotiations. The Company may disclose the existence of thenegotiations and this Agreement at such time as it determines public disclosure is required underthe applicable securities laws. The parties will not use any Confidential Information except forthe decision whether to enter into an employment relationship and negotiating the terms ofemployment. Executive will refrain from trading in the Company’s securities until 72 hours afterpublic disclosure by Company of this Agreement. Thereafter, Executive may trade in the Company’ssecurities only in compliance with the Company’s Insider Trading Policy.
     19. Integration. This Agreement and any other agreement referred to herein orexecuted contemporaneously herewith represent the entire agreement and understanding between theparties as to the subject matter herein and supersedes all prior or contemporaneous agreementswhether written or oral. No waiver, alteration, or modification of any of the provisions of thisAgreement shall be binding unless in writing and signed by duly authorized representatives of theparties hereto.
     20. Taxes. All payments made pursuant to this Agreement shall be subject towithholding of applicable income and employment taxes.
     21. Counterparts and Facsimile. This Agreement may be executed in counterparts and byfacsimile.
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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as ofthe day and year first above written.   “**Executive**” “**Company**”    SUPERCONDUCTOR TECHNOLOGIES INC.      Jeffrey A. Quiram John D. Lockton, Chairman of the Board
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EXHIBIT A
Form of Release of Claims and Covenant Not To Sue
     In consideration of the payments and other benefits that Superconductor Technologies Inc. (the“Company”) is providing to ______(“Executive”) under the EmploymentAgreement entered into by and between Executive and the Company, dated February ___, 2005, theExecutive, on his/her own behalf and on behalf of Executive’s representatives, agents, heirs andassigns, waives, releases, discharges and promises never to assert any and all claims, demands,actions, costs, rights, liabilities, damages or obligations of every kind and nature, whether knownor unknown, suspected or unsuspected that Executive ever had, now have or might have as of the dateof Executive’s termination of employment with the Company against the Company or its predecessors,parent, affiliates, subsidiaries, stockholders, owners, directors, officers, employees, agents,attorneys, insurers, successors, or assigns (including all such persons or entities that have acurrent and/or former relationship with the Company) (the “Released Parties”) for anyclaims arising from or related to Executive’s employment with the Company, its parent or any of itsaffiliates and subsidiaries and the termination of that employment.
     These released claims also specifically include, but are not limited to, any claims arisingunder any federal, state and local statutory or common law, such as (as amended and as applicable)Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans WithDisabilities Act, the Employee Retirement Income Security Act, the Family Medical Leave Act, theEqual Pay Act, the Fair Labor Standards Act, the Industrial Welfare Commission’s Orders, theCalifornia Fair Employment and Housing Act, the California Constitution, the California GovernmentCode, the California Labor Code and any other federal, state or local constitution, law, regulationor ordinance governing the terms and conditions of employment or the termination of employment, andthe law of contract and tort and any claim for attorneys’ fees; provided, however, that Executivedoes not release or discharge the Released Parties from (i) any of the Company’s obligations to himunder the Employment Agreement, and (ii) any vested benefits to which he may be entitled under anyemployee benefit plan or program subject to ERISA.
     Furthermore, the Executive acknowledges that this waiver and release is knowing and voluntaryand that the consideration given for this waiver and release is in addition to anything of value towhich Executive was already entitled. Executive acknowledges that there may exist facts or claimsin addition to or different from those which are now known or believed by Executive to exist.Nonetheless, this Agreement extends to all claims of every nature and kind whatsoever, whetherknown or unknown, suspected or unsuspected, past or present. Executive also expressly waives theprovisions of California Civil Code section 1542, which provides: “A general release does notextend to claims which the creditor does not know or suspect to exist in his favor at the time ofexecuting the release, which if known by him/her must have materially affected his settlement withthe debtor.” With respect to the claims released in the preceding sentences, the Executive willnot initiate or maintain any legal or administrative action or proceeding of any kind against theCompany or its predecessors, parent, affiliates, subsidiaries, stockholders, owners, directors,officers, employees, agents, successors, or assigns (including all such persons or entities thathave a current or former relationship with the Company), for the purpose of obtaining any personalrelief, nor assist or participate in any such proceedings, including any proceedings brought by anythird parties (except as otherwise required or permitted by law). The Executive furtheracknowledges that he/she has been advised by this writing that:
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 •  he/she should consult with an attorneyprior to executing this release;  •  he/she has at least twenty-one (21) days withinwhich to consider this release;  •  he/she has up to seven (7) days following theexecution of this release by the parties to revokethe release; and  •  this release shall not be effective until suchseven (7) day revocation period has expired.
     Executive agrees that the release set forth above shall be and remain in effect in allrespects as a complete general release as to the matters released.   EXECUTIVE         Date:      
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