Exhibit 10.9


 


SEPARATION AGREEMENT AND
RELEASE


 


THIS
SEPARATION AGREEMENT AND RELEASE (this “Agreement”) is
made as of September 30, 2005 by and among National Mentor Holdings, Inc., a
Delaware corporation (the “Company”), National Mentor, Inc., a Delaware
corporation (“Employer”), and Elizabeth V. Hopper (“Executive”).


 


WHEREAS, as of the date
hereof, Employer is a direct or indirect subsidiary of the Company.


 


WHEREAS, Executive and
Employer are party to an Employment Agreement dated September 29, 1999, as
amended by the First Amendment to Employment Agreement, dated March 9, 2001 (as
amended, the “Employment Agreement”).


 


WHEREAS, Executive was a
participant in the National Mentor, Inc. Equity Deferred Compensation Plan,
adopted on March 9, 2001 (as amended, the “2001 Equity Plan”) and in the
National Mentor Services, LLC 2003 Deferred Compensation Plan, adopted on April
30, 2003 (as amended, the “2003 Equity Plan”), which plans have
distributed all amounts owing or to become owing thereunder to Executive.


 


WHEREAS, Executive is a
participant in the National Mentor, Inc. Executive Deferred Compensation Plan,
adopted on March 9, 2001 (as amended, the ‘Executive Plan”), the
National Mentor, Inc. Executive Deferral Plan (as amended, the “Deferral
Plan”) and in a 401(k) plan of Employer or one of its Subsidiaries (the “401(k)
Plan”).


 


WHEREAS, in connection
with Executive’s resignation referenced below, pursuant to the terms and
conditions of the Executive Plan, all amounts owing or to become owing under
the Executive Plan are to be paid in a Jump-sum to Executive.


 


WHEREAS, in connection
with Executive’s resignation referenced below, pursuant to the terms and
conditions of the Deferral Plan, all amounts owing or to become owing under the
Deferral Plan are to be paid to Executive.


 


WHEREAS, pursuant to a
Management Stock Purchase Agreement dated March 9, 2001 (as amended, the “First
Purchase Agreement”), between the Company and Executive, Executive acquired
116,577.52 shares of the Company’s Common Stock, par value $.01 per share (“Common
Stock”) at a price per share of $1.00.


 


WHEREAS, pursuant to a
Management Stock Purchase Agreement dated May 31, 2003 (as amended, the “Second
Purchase Agreement” and together with the First Purchase Agreement, the “Purchase
Agreements”), between the Company and Executive, Executive acquired
15,666.296 shares of Common Stock at a price per share of $7.00.


 


WHEREAS, pursuant to a
Stock Option Agreement dated on or about December 8, 2003 (as amended, the “Stock
Option Agreement”), by and between the Company and Executive, Executive was
granted an option to acquire up to 10,000 shares of Common Stock at a price per
share of $7.00.


 


1

















 


WHEREAS, the Company,
Executive and certain other stockholders of the Company are parties to an
Amended and Restated Stockholders Agreement dated as of May 1, 2003 (as
amended, the “Stockholders Agreement”).


 


WHEREAS, the Company,
Executive and certain other stockholders of the Company are parties to a Registration
Agreement dated as of March 9, 2001 (as amended, the “Registration Agreement”),


 


WHEREAS, Executive wishes
to resign her positions with the Company and Employer and each of their
respective subsidiaries and the Company and Employer and each of their
respective subsidiaries wish to accept such resignations, in each case,
effective as of September 30, 2005 (the “Termination Date”).


 


WHEREAS, on the date
hereof and in connection herewith, Executive and the Company are entering into
a Stock Repurchase Agreement in the form attached hereto as Exhibit A
(as amended, the “Repurchase Agreement”).


 


WHEREAS, the Company and
Executive have conditioned their execution of this Agreement upon the
concurrent execution of the Repurchase Agreement.


 


NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:


 


1.           Resignations. Effective as of the Termination Date,
Executive hereby irrevocably resigns (i) as an employee of the Company,
Employer and any of their respective subsidiaries, (ii) to the extent she
serves on the board of directors of the Company or any of its subsidiaries, as
a member of such boards of directors and (iii) to the extent that she serves as
an officer, trustee, manager or in a similar position or office to the Company
or any of its subsidiaries, as an officer, trustee, manager or similar position
or office to the Company or any of its subsidiaries. As used in this Agreement,
the term “subsidiary” and “subsidiaries” includes, without limitation, any
not-for-profit-entities affiliated with the Company or any of its subsidiaries.


 


2.           Severance. In exchange for the general release of
all claims pursuant to Section 6 and the Release (as defined below), the
provisions of Section 3 hereof, and the other promises, covenants and
agreements by Executive set forth herein, subject to Executive’s execution and
delivery of the Release as provided in Section 6 below (a) during the
24-month period commencing on the Termination Date (the “Severance Period”),
Employer shall pay Executive severance at a rate equal to $280,000 per annum
(subject to withholdings for taxes) (“Base Severance”), payable in equal
installments on the Company’s regular salary payment dates, (b) notwithstanding
that Executive will resign her employment effective on the Termination Date,
Executive shall be entitled to receive any bonus for the fiscal year ending on
the Termination Date to which she would otherwise be entitled pursuant to the
terms and conditions of The Mentor Executive Leadership Incentive Plan (as
amended, the “Bonus Plan”), any such bonus to be paid at the time(s)
provided in the Bonus Plan or, if such time(s) are not set forth in the Bonus
Plan, at the time(s) that other officers of Employer are paid bonuses for
fiscal year 2005 under the Bonus Plan, and (c) on or about the date of the
Closing (as defined in the Repurchase Agreement), Employer shall pay to
Executive in cash a special bonus


 


2

















 


in the amount of $56,944.26 (subject to withholdings
for taxes) (clauses (a) through (c), collectively, the “Severance
Payments and Benefits”). During the 25-month period commencing on the Termination
Date (the “Benefits Continuation Period”), at Executive’s option,
Executive shall continue to participate in Employer’s group health and dental
benefit plan(s) (excluding, for the avoidance of doubt, any bonus or incentive
compensation plans) on substantially the same terms and conditions as apply
from time to time to Employer’s then employed senior executives; provided that
Executive shall pay all costs for coverage under such plans (including, without
limitation, Executive’s costs and Employer’s and its affiliates’ costs under
such plans), which costs shall be substantially the same as the applicable
premium rates that would be paid by an employee receiving such benefit plan
coverage following a termination of employment pursuant to COBRA (as defined
below); provided further that Employer shall be entitled to withhold any
amounts owed by Executive pursuant to this sentence from any amounts otherwise
owed to Executive pursuant to this Agreement. In addition to the foregoing,
Employer may, at its option and in its sole discretion and subject to the
approval of the Company’s board of directors, award an additional cash bonus to
Executive, any such additional bonus to be paid on or about December 20, 2005.
Following the Benefits Continuation Period, to the extent permitted by the
continuation coverage provisions of Section 4980B of the U.S. Internal Revenue
Code of 1986, as amended (the “Code”), Executive shall be offered the
opportunity to elect continuation coverage under Employer’s group medical and
dental benefit plan(s) (“COBRA coverage”). Employer shall provide
Executive with the appropriate COBRA coverage notice and election form, if any,
for this purpose. If Executive is permitted to and elects COBRA coverage,
Executive shall pay 100% of Executive’s (and her dependents’) health and dental
insurance premiums under COBRA, for up to 18 months following the end of the
Benefits Continuation Period; provided that Executive shall notify Employer
immediately of any change in her circumstances that would warrant
discontinuation of her COBRA coverage and benefits (including but not limited
to Executive’s receipt of group medical, dental or vision benefits from any
other employer). The existence and duration of Executive’s COBRA rights and/or
the COBRA rights of any of Executive’s eligible dependents shall be determined
in accordance with Section 4980B of the Code. Except as set forth in this Section
2, Executive agrees that she is not entitled to any other salary, bonus,
severance, reimbursement, benefit or expectation of remuneration or other
monies from the Company or Employer or any of their respective subsidiaries or
Affiliates (as defined in the Release) except as required by law and except for
the distribution of amounts to Executive pursuant to the terms of (i) the
Executive Plan in the aggregate amount of $120,307.18 (the “Executive Plan
Balance Amount”), (ii) the Deferral Plan in the aggregate amount of
$19,282.11 (the “Deferral Plan Balance Amount”) and (iii) amounts
payable pursuant to the Repurchase Agreement; provided that, for the avoidance
of doubt, Executive may continue as a participant in the 401 (k) Plan to the
extent permitted under the terms thereof. For purposes of the Stock Option
Agreement, the payments set forth in this Section 2 shall constitute
severance payments and the Noncompetition Period (as defined therein) shall
continue until the end of the Severance Period. Within 15 days following the
Termination Date, pursuant to the terms and conditions of the Executive Plan,
Executive shall be distributed her full balance under the Executive Plan in a
lump-sum payment (subject to withholdings for taxes) in an aggregate amount
equal to the Executive Plan Balance Amount. Within 15 days following the
Termination Date, pursuant to the terms and conditions of the Deferral Plan,
Executive shall be distributed her full balance under the Deferral Plan in a
lump-sum payment (subject to withholdings for taxes) in an aggregate amount
equal to the Deferral Plan Balance Amount. In the event of a material breach by
Executive of this Agreement, the Release, the Repurchase Agreement or the
provisions of the other agreements that survive pursuant to Section 3


 


3

















 


below, the Company shall, in addition to any other
rights or remedies available at law or in equity or under the Release, be
entitled to cease making payments pursuant to this Section 2.


 


3.           Termination and Survival of Agreements. (i) As of
the Closing Sections 2, 3 and 4 of the First Purchase Agreement and Sections
2, 3 and 4 of the Second Purchase Agreement shall terminate and be of no
further force or effect and all other sections of the First Purchase Agreement
and the Second Purchase Agreement shall survive and remain in full force and
effect, (ii) as of the Closing, Section 1 through 14 of the Stock Option
Agreement shall terminate and be of no further force or effect and all other
sections of the Stock Option Agreement shall survive and remain in full force
and effect and (iii) on the Termination Date, Sections 1 through 7 and Section
13 of the Employment Agreement shall terminate and be of no further force
or effect and all other sections of the Employment Agreement shall survive and
remain in full force and effect. Executive hereby reaffirms her obligations
pursuant to (i) Section 5 of the First Purchase Agreement and Section
5 of the Second Purchase Agreement, which sections shall
remain in full force and effect after the Closing, (ii) Sections 8 through
12 and Sections 14 through 19 of the Employment Agreement, which
sections shall remain in full force and effect after the Closing, (iii) Sections
15 through 28 of the Stock Option Agreement, which sections shall remain in
full force and effect after the Closing and (iv) the Stockholders Agreement and
the Registration Agreement, which agreements shall remain in full force and
effect after the Closing. On the date hereof, Executive and the Company shall
enter into the Repurchase Agreement. The Repurchase Agreement shall survive the
execution of this Agreement and remain in full force and effect after the
Closing.


 


4.           Cooperation. Executive agrees to reasonably
cooperate with the Company and its subsidiaries in any internal investigation,
any administrative, regulatory, or judicial proceeding or any dispute with a
third party. Executive understands and agrees that this cooperation may
include, but not be limited to, making herself available to the Company and its
subsidiaries upon reasonable notice for interviews and factual investigations;
appearing at the Company’s or its subsidiary’s request to give testimony
without requiring service of a subpoena or other legal process; volunteering to
the Company and its subsidiaries pertinent information; and turning over to the
Company and its subsidiaries all relevant documents which are or may come into
her possession all at times and on schedules that are reasonably consistent
with her other permitted activities and commitments. Executive understands that
in the event the Company or its subsidiaries ask for her cooperation in
accordance with this provision, the Company or such subsidiary will reimburse
her solely for reasonable travel expenses, (including lodging and meals), upon
her submission of receipts.


 


5.           Non-Disparagement, etc. Executive agrees not to disparage
the Company, its past and present investors, officers, directors or employees
or its Affiliates (as defined in the Release) and to keep all confidential and
proprietary information about the past or present business affairs of the
Company and its Affiliates confidential unless a prior written release from the
Company is obtained. Executive further agrees that as of the Termination Date,
Executive will return to the Company or its subsidiaries any and all property,
tangible or intangible, belonging to the Company or its subsidiaries, which she
presently possesses (including, but not limited to, company-provided credit
cards, building or office access cards, keys, computer equipment, manuals,
files, documents, records, software, customer data base and other data) and
that Executive shall not retain any copies, compilations, extracts, excerpts,
summaries or other notes of any such manuals, files, documents, records,
software, customer data base or other data.


 


4

















 


6.           General Release. For the consideration received
(including but not limited to the promises, agreements and payments), all as
provided for in this Agreement and the Repurchase Agreement, Executive agrees
to execute and deliver to the Company on the Termination Date, the General
Release, in the form attached hereto as Exhibit B, which release shall
constitute a part of this Agreement as if it were set forth herein (the “Release”).
The execution of the Release shall supplement and shall not supersede the terms
of this Agreement or the Repurchase Agreement.


 


7.           Effective Date and Revocation. Executive agrees that
she has been given 21 days in which to consider whether to sign this Agreement
(including the Release) and the Repurchase Agreement and has either used that
full 21-day period or voluntarily decided to sign this Agreement before the end
of such period. The parties agree that Executive may revoke the Release at any
time within seven days after executing it, at which time the Release and this Agreement
and the Repurchase Agreement will all revoked and will become null and void.
The Release, this Agreement and the Repurchase Agreement will not be effective
or enforceable until the end of such seven-day period, but they shall be fully
effective and enforceable if the Release is not revoked within such seven-day
period.


 


8.         Notices. All notices, demands or
other communications to be given or delivered under or by reason of the
provisions of this Agreement shall be in writing and shall be deemed to have
been given when delivered personally to the recipient, sent to the recipient by
reputable express courier service (charges prepaid) or mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid.
Such notices, demands and other communications shall be sent to Executive, to
the Company and to Employer at the address indicated below:


 


If to the Company or
Employer:


 


National Mentor Holdings, Inc. 

313 Congress Street 6th Floor

Boston, MA 02210 

Attention: President


 


with a copy to:


 


Madison Dearborn Capital Partners, LLC 

Three First National Plaza, Suite 3800 

Chicago, Illinois 60602 

Attention: Timothy Sullivan


 


If to Executive:


 


Elizabeth V. Hopper

917 D Avenue

West Columbia, South Carolina 29169


 


or to such other address or to the attention of such
other person as the recipient party has specified by prior written notice to
the sending party.


 


5

















 


9.           General Provisions.


 


(a)         Severability. Whenever possible,
each provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained herein.


 


(b)         Complete Agreement. This
Agreement (including the Release once executed), the Repurchase Agreement, and
the provisions of the First Purchase Agreement, the Second Purchase Agreement,
the Stock Option Agreement, the Employment Agreement, the Stockholders
Agreement and the Registration Agreement which remain in full force and effect
as described in Section 3 above, embody the complete agreement and
understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof or thereof in any
way. For the avoidance of doubt, nothing in this Agreement is intended to amend
or modify the terms and conditions of the Executive Plan or the Deferral Plan.


 


(c)         Counterparts. This Agreement may
be executed in separate counterparts, each of which is deemed to be an original
and all of which taken together constitute one and the same agreement.


 


(d)         Successors and Assigns. Except as
otherwise provided herein, this Agreement shall bind and inure to the benefit
of and be enforceable by Executive and the Company and Employer and each of
their respective subsidiaries and each of their respective successors and
assigns; provided that the rights and obligations of Executive under this
Agreement will not be assignable without the prior written consent of the
Company.


 


(e)         Choice of Law. All questions
concerning the construction, validity and interpretation of this Agreement will
be governed by and construed in accordance with the domestic laws of the
Commonwealth of Massachusetts, without giving effect to any choice of law or
conflict of law provision or rule (whether of the Commonwealth of Massachusetts
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the Commonwealth of Massachusetts.


 


(f)          Amendment and Waiver. The
provisions of this Agreement may be amended and waived only with the prior
written consent of each of the parties hereto.


 


(g)         Business Days. If any time period
for giving notice or taking action hereunder expires on a day which is a
Saturday, Sunday or holiday in the state in which the Company’s chief executive
office is located, the time period shall be automatically extended to the
business day immediately following such Saturday, Sunday or holiday.


 


* * * * *


 


6

















 


IN WITNESS WHEREOF, the
parties hereto have executed this Separation Agreement and Release on the date
first written above.


 


 


	
   

  	
  /s/ Elizabeth V. Hopper

  	
   

  
	
   

  	
  ELIZABETH V. HOPPER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NATIONAL MENTOR HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward Murphy

  	
   

  
	
   

  	
   

  
	
   

  	
  Its: 

  	
  Asst Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NATIONAL MENTOR, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Denis Holler

  	
   

  
	
   

  	
   

  
	
   

  	
  Its: 

  	
  Asst Secretary

  	
   

  



 


7

















 


EXHIBIT B 


 


GENERAL RELEASE


 


I, Elizabeth V. Hopper,
in consideration of and subject to the performance by National Mentor Holdings,
Inc., a Delaware corporation (the “Holdings”), and National Mentor, Inc.
(“Employer” and collectively with Holdings and their respective
subsidiaries, the “Company”), of their obligations under the Separation
Agreement and Release, dated as of the September 30, 2005 (as amended, the “Agreement”),
and the Repurchase Agreement (as defined in the Agreement), do hereby release
and forever discharge as of the date hereof the Company and its Affiliates (as
defined below) and all present and former directors, officers, agents,
representatives, employees, successors and assigns of the Company and its
Affiliates and the Company’s direct or indirect owners (collectively, the “Released
Parties”) to the extent provided below. This release constitutes a part of
the Agreement.


 


1.                          I
understand that any payments or benefits paid or granted to me under Section
2 of the Agreement represent, in part, consideration for signing this
General Release and are not salary, wages or benefits to which I was already
entitled. I understand and agree that I will not receive the payments and
benefits specified in Section 2 of the Agreement unless I execute this
General Release and do not revoke this General Release within the time period
permitted hereafter or breach this General Release. I also acknowledge and
represent that I have received all payments and benefits that I am entitled to
receive by virtue of any employment by the Company, except for payments and
benefits to be made or provided under the Agreement, and my continued
participation in Employer’s benefits plans to the extent described in the
Agreement.


 


2.                          Except
(i) as provided in paragraph 4 below, (ii) for my rights under the Repurchase
Agreement (as defined in the Agreement), (iii) for the provisions of the
Employment Agreement (as defined in the Agreement), the Stock Option Agreement
(as defined in the Agreement), the First Purchase Agreement (as defined in the
Agreement), the Second Purchase Agreement (as defined in the Agreement), the
Stockholders Agreement (as defined in the Agreement) and the Registration
Agreement (as defined in the Agreement) which expressly survive the termination
of my employment with the Company in accordance with the Agreement, (iv) for my
rights under the Agreement, (v) for my rights to be paid a lump-sum payment in
an aggregate amount equal to the Executive Plan Balance Amount (as defined in
the Agreement) pursuant to the Executive Plan (as defined in the Agreement) and
for my rights to be paid an aggregate amount equal to the Deferral Plan Balance
Amount (as defined in the Agreement) pursuant to the Deferral Plan, and (vi)
for my rights under the 401 (k) Plan, I knowingly and voluntarily (for myself,
my heirs, executors, administrators and assigns) release and forever discharge
the Company and the other Released Parties from any and all claims, suits,
controversies, actions, causes of action, cross-claims, counter-claims,
demands, debts, compensatory damages, liquidated damages, punitive or exemplary
damages, other damages, claims for costs and attorneys’ fees, or liabilities of
any nature whatsoever in law and in equity, both past and present (through the
date this General Release becomes effective and enforceable) and whether known
or unknown, suspected, or claimed against the Company or any of the Released
Parties which I, my spouse, or any of my heirs, executors, administrators or
assigns, may have, which arise out of or are connected with my employment with,
or my separation or termination from, the


 


1

















 


Company (including, but not limited to, any allegation,
claim or violation, arising under: the sections of the Purchase Agreements (as
defined in the Agreement) being terminated pursuant to Section 3 of the
Agreement; the sections of the Employment Agreement and the Stock Option
Agreement that are being terminated pursuant to Section 3 of the
Agreement; the 2001 Equity Plan (as defined in the Agreement); the 2003 Equity
Plan (as defined in the Agreement); the Executive Plan (as defined in the
Agreement); the Deferral Plan (as defined in the Agreement); Title VII of the
Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age
Discrimination in Employment Act of 1967, as amended (including the Older
Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended; the
Americans with Disabilities Act of 1990; the Family and Medical Leave Act of
1993; the Worker Adjustment Retraining and Notification Act; the Employee
Retirement Income Security Act of 1974; any applicable Executive Order
Programs; the Fair Labor Standards Act; or their state or local counterparts;
or under any other federal, state or local civil or human rights law, or under
any other local, state, or federal law, regulation or ordinance; or under any
public policy, contract or tort, or under common law; or arising under any
policies, practices or procedures of the Company; or any claim for wrongful
discharge, breach of contract, infliction of emotional distress, defamation; or
any claim for costs, fees, or other expenses, including attorneys’ fees
incurred in these matters) (all of the foregoing collectively referred to
herein as the “Claims”).


 


3.                          I
represent that I have made no assignment or transfer of any right, claim,
demand, cause of action, or other matter covered by paragraph 2 above.


 


4.                          I
agree that this General Release does not waive or release any rights or claims
that I may have under the Age Discrimination in Employment Act of 1967 which
arise after the date I execute this General Release. I acknowledge and agree
that my separation from employment with the Company in compliance with the
terms of the Agreement shall not serve as the basis for any claim or action
(including, without limitation, any claim under the Age Discrimination in
Employment Act of 1967).


 


5.                          In
signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove mentioned or
implied, I expressly consent that this General Release shall be given full
force and effect according to each and all of its express terms and provisions,
including those relating to unknown and unsuspected Claims (notwithstanding any
state statute that expressly limits the effectiveness of a general release of
unknown, unsuspected and unanticipated Claims), if any, as well as those
relating to any other Claims hereinabove mentioned or implied. I acknowledge
and agree that this waiver is an essential and material term of this General
Release and that without such waiver the Company would not have agreed to the
terms of the Agreement. I further agree that in the event I should bring a
Claim seeking damages against the Company, or in the event I should seek to
recover against the Company in any Claim brought by a governmental agency on my
behalf, this General Release shall serve as a complete defense to such Claims.
I further agree that I am not aware of any pending charge or complaint of the
type described in paragraph 2 as of the execution of this General Release.


 


2

















 


6.                          I
agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at any
time to be an admission by the Company, any Released Party or myself of any
improper or unlawful conduct.


 


7.                          I
agree that I will forfeit all amounts payable by the Company pursuant to the
Agreement if I challenge the validity of this General Release. I also agree
that if I violate this General Release by suing the Company or the other
Released Parties, I will pay all costs and expenses of defending against the
suit incurred by the Released Parties, including reasonable attorneys’ fees,
and return all payments received by me pursuant to the Agreement.


 


8.                          I
agree that this General Release is confidential and agree not to disclose any
information regarding the terms of this General Release, except to my immediate
family and any tax, legal or other counsel I have consulted regarding the
meaning, effect or terms hereof or as required by law, and I will instruct each
of the foregoing not to disclose the same to anyone. Any nondisclosure
provision in this General Release does not prohibit or restrict me (or my
attorney) from responding to any inquiry about this General Release or its
underlying facts and circumstances by the Securities and Exchange Commission
(SEC), the National Association of Securities Dealers, Inc. (NASD), any other
self-regulatory organization or governmental entity or as required by
applicable law.


 


9.                          Notwithstanding
anything in this General Release to the contrary, this General Release shall
not release, relinquish, diminish, or in any way affect any rights or claims
arising out of any breach by the Company or by any Released Party of the
Agreement or the Repurchase Agreement after the date hereof.


 


10.                    Whenever
possible, each provision of this General Release shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this General Release is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or any
other jurisdiction, but this General Release shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


11.                    As
used in the Agreement and herein, the term “Affiliate” of any particular
person means (a) any other person directly or indirectly controlling,
controlled by or under common control with such particular person, where “control”
means the possession, directly or indirectly, of the power to direct the
management and policies of a person whether through the ownership of voting
securities, contract or otherwise and (b) any stockholder, partner or officer
of such person or any person who has a management contract with such person.


 


BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE
THAT:


 


1.                         I
HAVE READ IT CAREFULLY;


 


2.                         I
UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING
BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF
1967, AS AMENDED, TITLE VII


 


3

















 


OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL
PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;


 


3.                         I
VOLUNTARILY CONSENT TO EVERYTHING IN IT;


 


4.                         I
HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I HAVE
DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT TO DO SO
OF MY OWN VOLITION;


 


5.                         I
HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM TO CONSIDER IT AND THE CHANGES MADE SINCE THE
FIRST VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE
REQUIRED 21-DAY PERIOD;


 


6.                         I
UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO REVOKE
IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE
REVOCATION PERIOD HAS EXPIRED;


 


7.                         I
HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE
OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND


 


8.                         I
AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED,
CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE COMPANY AND BY ME.


 


 


	
  DATE: SEPTEMBER 30, 2005

  	
  /s/ Elizabeth V. Hopper

  	
   

  
	
   

  	
  ELIZABETH V. HOPPER

  



 


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