AND AGREES THAT
(I) THIS AGREEMENT IS WRITTEN IN A MANNER THAT HE UNDERSTANDS; (II) HE DOES NOT
RELEASE OR WAIVE RIGHTS OR CLAIMS THAT MAY ARISE AFTER HE SIGNS THIS AGREEMENT;
(III) HE WAIVES RIGHTS AND CLAIMS HE MAY HAVE HAD UNDER THE OWBPA AND THE ADEA,
BUT ONLY IN EXCHANGE FOR PAYMENTS AND/OR BENEFITS IN ADDITION TO ANYTHING OF
VALUE TO WHICH HE IS ALREADY ENTITLED; (IV) EXECUTIVE HAS BEEN ADVISED TO
CONSULT WITH AN ATTORNEY BEFORE
3
SIGNING THIS AGREEMENT; (V) HE HAS TWENTY-ONE (21) CALENDAR DAYS (THE "OFFER
PERIOD") FROM RECEIPT OF THIS AGREEMENT TO CONSIDER WHETHER TO SIGN IT.
IF
EXECUTIVE SIGNS BEFORE THE END OF THE OFFER PERIOD, EXECUTIVE ACKNOWLEDGES THAT
HIS DECISION TO DO SO WAS KNOWING, VOLUNTARY, AND NOT INDUCED BY FRAUD,
MISREPRESENTATION, OR A THREAT TO WITHDRAW, ALTER, OR PROVIDE DIFFERENT TERMS
PRIOR TO THE EXPIRATION OF THE OFFER PERIOD.
EXECUTIVE AGREES THAT CHANGES OR
REVISIONS TO THIS AGREEMENT, WHETHER MATERIAL OR IMMATERIAL, DO NOT RESTART THE
RUNNING OF THE OFFER PERIOD; (VI) EXECUTIVE HAS SEVEN (7) CALENDAR DAYS AFTER
SIGNING THIS AGREEMENT TO REVOKE THE WAIVER (THE "REVOCATION PERIOD") AND
(VII) THIS WAIVER SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION
PERIOD HAS EXPIRED.
IF EXECUTIVE REVOKES THE WAIVER, SECTION 5 OF THIS
AGREEMENT AND THE PROVISIONS OF THIS AGREEMENT RELATING TO EXECUTIVE'S SERVICES
AS A CONSULTANT (I.E., SECTIONS 6, 7, 8, AND 9) SHALL NOT BE EFFECTIVE OR
ENFORCEABLE AND EXECUTIVE SHALL NOT BE ENTITLED TO THE PAYMENTS OR BENEFITS
PROVIDED FOR IN SECTIONS 8 OR 9 OF THIS AGREEMENT.
TO BE EFFECTIVE, THE
REVOCATION MUST BE IN WRITING AND RECEIVED BY JEFFREY R. BINDER, CHIEF EXECUTIVE
OFFICER AT THE COMPANY'S ADDRESS SET FORTH IN SECTION 13.
5.
CONTINUING INDEMNIFICATION.
SUBJECT TO THE TERMS AND CONDITIONS
OF SECTION 6.3 OF THE COMPANY'S RESTATED ARTICLES OF INCORPORATION AS IN EFFECT
ON THE DATE HEREOF, THE COMPANY WILL ADVANCE AND PAY REASONABLE EXPENSES
(INCLUDING ATTORNEYS' FEES BUT NOT INCLUDING JUDGMENTS, PENALTIES, FINES, OR
SETTLEMENTS) INCURRED BY EXECUTIVE IN CONNECTION WITH (A) PROCEEDINGS ARISING
OUT THE COMPANY'S HISTORIC GRANT OF COMPENSATORY STOCK OPTIONS; (B) ANY OTHER
PROCEEDING AGAINST EXECUTIVE PENDING AS OF THE DATE HEREOF ARISING OUT OF HIS
POSITION AS A DIRECTOR, OFFICER, OR EMPLOYEE OF THE COMPANY; AND (C) ANY OTHER
PROCEEDING AGAINST OR INVOLVING THE COMPANY IN WHICH EXECUTIVE MAY BE INVOLVED;
PROVIDED THAT THE COMPANY'S OBLIGATION TO ADVANCE AND PAY SUCH EXPENSES SHALL BE
SUBJECT TO THE TERMS OF ANY UNDERTAKING SIGNED BY EXECUTIVE PRIOR TO THE DATE
HEREOF (WHICH, UNDER CERTAIN CIRCUMSTANCES, REQUIRES REPAYMENT OF EXPENSES PAID
OR ADVANCED) OR, IN THE ABSENCE OF SUCH AN UNDERTAKING, TO THE COMPANY'S USUAL
AND CUSTOMARY PRACTICE WITH REGARD TO ITS CURRENT AND FORMER EMPLOYEES IN SUCH
MATTERS.
6.
CONSULTING TERM.
THE COMPANY HEREBY AGREES TO ENGAGE EXECUTIVE
AS A CONSULTANT DURING THE PERIOD COMMENCING ON THE SEPARATION DATE AND, UNLESS
TERMINATED EARLIER PURSUANT TO SECTION 9, CONTINUING UNTIL THE SIX MONTH
ANNIVERSARY OF THE SEPARATION DATE (AS