SUCH STATEMENTS THAT DEFAME,
DISPARAGE OR IN ANY WAY CRITICIZE THE REPUTATION, PERFORMANCE, BUSINESS
PRACTICES OR CONDUCT OF DR. OWENS AS AN EMPLOYEE OR DIRECTOR OF THE COMPANY.
9.
PROMISE TO REFRAIN FROM SUIT OR ADMINISTRATIVE ACTION.
DR. OWENS PROMISES
AND AGREES THAT HE WILL NEVER SUE THE COMPANY OR ANY OF THE OTHER COMPANY
RELEASEES, OR OTHERWISE INSTITUTE OR PARTICIPATE IN ANY LEGAL OR ADMINISTRATIVE
PROCEEDINGS AGAINST THE COMPANY OR ANY OF THE OTHER COMPANY RELEASEES, WITH
RESPECT TO ANY CLAIM COVERED BY THE RELEASE.
10.
INTEGRATED AGREEMENT.
THE PARTIES ACKNOWLEDGE AND AGREE THAT NO
PROMISES OR REPRESENTATIONS WERE MADE TO THEM CONCERNING THE SUBJECT MATTER OF
THIS AGREEMENT WHICH DO NOT APPEAR WRITTEN HEREIN AND THAT THIS AGREEMENT
CONTAINS THE ENTIRE AGREEMENT OF THE PARTIES ON THE SUBJECT MATTER THEREOF.
THE
PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT PAROL EVIDENCE SHALL NOT BE REQUIRED
TO INTERPRET THE INTENT OF THE PARTIES.
THE PARTIES FURTHER AGREE AND
ACKNOWLEDGE THAT THE RETENTION AGREEMENT, DATED APRIL 19, 2006, IS TERMINATED
UPON THE PARTIES EXECUTION OF THIS AGREEMENT.
11.
VOLUNTARY EXECUTION.
THE PARTIES HEREBY ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THIS AGREEMENT AND THAT THEY SIGN THIS AGREEMENT VOLUNTARILY
AND WITHOUT COERCION.
12.
WAIVER, AMENDMENT AND MODIFICATION OF AGREEMENT.
THE PARTIES AGREE
THAT NO WAIVER, AMENDMENT OR MODIFICATION OF ANY OF THE TERMS OF THIS AGREEMENT
SHALL BE EFFECTIVE UNLESS IN WRITING AND SIGNED BY ALL PARTIES AFFECTED BY THE
WAIVER, AMENDMENT OR MODIFICATION.
NO WAIVER OF ANY TERM, CONDITION OR DEFAULT
OF ANY TERM OF THIS AGREEMENT SHALL BE CONSTRUED AS A WAIVER OF ANY OTHER TERM,
CONDITION OR DEFAULT.
13.
REPRESENTATION BY COUNSEL.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE
THE RIGHT TO HAVE BEEN REPRESENTED IN BY COUNSEL OF THEIR OWN CHOOSING.
DR.
OWENS FURTHER ACKNOWLEDGES AND AGREES THAT HELLER EHRMAN LLP ("HELLER EHRMAN")
IS LEGAL COUNSEL FOR THE COMPANY SOLELY, AND THAT HE IS NOT RELYING ON THE
COMPANY OR HELLER EHRMAN FOR LEGAL ADVICE REGARDING THIS AGREEMENT.
THE PARTIES
FURTHER ACKNOWLEDGE THAT THEY HAVE ENTERED INTO THIS AGREEMENT VOLUNTARILY,
WITHOUT COERCION, AND BASED UPON THEIR OWN JUDGMENT AND NOT IN RELIANCE UPON ANY
REPRESENTATIONS OR PROMISES MADE BY THE OTHER PARTY OR PARTIES, OTHER THAN THOSE
CONTAINED WITHIN THIS AGREEMENT.
THE PARTIES FURTHER AGREE THAT IF ANY OF THE
FACTS OR MATTERS UPON WHICH THEY NOW RELY IN MAKING THIS AGREEMENT HEREAFTER
PROVE TO BE OTHERWISE, THIS AGREEMENT WILL NONETHELESS REMAIN IN FULL FORCE AND
EFFECT.
14.
CALIFORNIA LAW.
THE PARTIES AGREE THAT THIS AGREEMENT AND ITS
TERMS SHALL BE CONSTRUED UNDER CALIFORNIA LAW.
-6-
15.
DRAFTING.
THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE CONSTRUED
WITHOUT REGARD TO THE DRAFTER OF THE SAME AND SHALL BE CONSTRUED AS THOUGH EACH
PARTY TO THIS AGREEMENT PARTICIPATED EQUALLY IN THE PREPARATION AND DRAFTING OF
THIS AGREEMENT.
16.
COUNTERPARTS.
THIS AGREEMENT MAY BE SIGNED IN COUNTERPARTS AND
SAID COUNTERPARTS SHALL BE TREATED AS THOUGH SIGNED AS ONE DOCUMENT.
17.
RETURN OF COMPANY PROPERTY.
DR. OWENS HAS RETURNED TO THE