OR ANY OF THE RELEASEES, WHICH HAVE NOT BEEN DISMISSED,
CLOSED, WITHDRAWN OR OTHERWISE TERMINATED ON OR BEFORE THE DATE OF THIS
AGREEMENT.
EXECUTIVE FURTHER REPRESENTS AND WARRANTS THAT EXECUTIVE HAS NOT
ASSIGNED OR TRANSFERRED OR ATTEMPTED TO ASSIGN OR TRANSFER, NOR WILL EXECUTIVE
ATTEMPT TO ASSIGN OR TRANSFER, TO ANY PERSON OR ENTITY NOT A PARTY TO THIS
AGREEMENT ANY OF THE CLAIMS EXECUTIVE IS RELEASING IN THIS AGREEMENT.
FURTHERMORE, BY SIGNING THIS GENERAL RELEASE OF CLAIMS, EXECUTIVE REPRESENTS AND
AGREES THAT EXECUTIVE WILL NOT BE ENTITLED TO ANY PERSONAL RECOVERY IN ANY
ACTION OR PROCEEDING THAT MAY BE COMMENCED ON EXECUTIVE'S BEHALF ARISING OUT OF
THE MATTERS RELEASED HEREBY.
(C)
ADEA/OWBPA WAIVER.
EXECUTIVE SPECIFICALLY RELEASES AND WAIVES ANY
RIGHT OR CLAIM AGAINST THE COMPANY ARISING OUT OF HIS EMPLOYMENT OR HIS
RESIGNATION OF EMPLOYMENT WITH THE COMPANY UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT, AS AMENDED, 29 U.S.C. § 621 ET SEQ. ("ADEA") AND THE OLDER
WORKERS BENEFIT PROTECTION ACT, 29 U.S.C. § 621 ET SEQ. ("OWBPA") (SUCH RELEASE
AND WAIVER REFERRED TO AS THE "WAIVER").
EXECUTIVE UNDERSTANDS 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 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;
4
(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.
THE "EFFECTIVE DATE" MEANS THE DATE AS OF WHICH THE REVOCATION
PERIOD EXPIRES WITHOUT EXECUTIVE HAVING REVOKED THE WAIVER.
5.
CONTINUING INDEMNIFICATION.
SUBJECT TO THE TERMS AND CONDITIONS OF
SECTION