NOS. 435 AND 436, UNTIL THE
EARLIER OF MAY 15, 2011 OR THE DATE SET FORTH ON SCHEDULE A.
EMPLOYEE'S
NON-VESTED OPTIONS SHALL TERMINATE ON THE SEPARATION DATE.
COMPANY AND EMPLOYEE
SHALL ENTER INTO AMENDMENTS TO THE AGREEMENTS FOR THE VESTED STOCK OPTIONS TO
MEMORIALIZE THE CHANGES DESCRIBED IN THE FOREGOING TWO SENTENCES, BUT THE
CHANGES SHALL BE EFFECTIVE AS OF THE EXPIRATION OF THE MAY 2008 RESCISSION
PERIODS, NOTWITHSTANDING ANY FAILURE TO ENTER INTO ANY SUCH AMENDMENTS.
3
F.
COMPUTER AND CELL PHONE.
COMPANY SHALL ALLOW EMPLOYEE TO RETAIN
THE LAPTOP COMPUTER, CELL PHONE AND CELL PHONE NUMBER ISSUED BY OR THROUGH THE
COMPANY TO EMPLOYEE; HOWEVER, EMPLOYEE SHALL REMOVE OR DESTROY ANY COMPANY
PROPERTY OR INFORMATION IDENTIFIED BY THE COMPANY CONTAINED ON THE LAPTOP
COMPUTER AND CELL PHONE NO LATER THAN THE DATE OF THIS AGREEMENT, TO THE
SATISFACTION OF THE COMPANY.
FOR SUCH PURPOSE, ON THE DATE THIS AGREEMENT IS
SIGNED BY EMPLOYEE, EMPLOYEE SHALL GIVE ACCESS TO COMPANY TO THE LAPTOP COMPUTER
AND CELL PHONE.
CELL PHONE EXPENSES AFTER THE SEPARATION DATE WILL BE THE FULL
RESPONSIBILITY OF EMPLOYEE.
G.
ACCRUED BUT UNUSED VACATION TIME.
COMPANY SHALL PAY EMPLOYEE FOR
ALL ACCRUED BUT UNUSED VACATION TIME, THROUGH THE DATE OF THIS AGREEMENT, AN
AMOUNT ESTIMATED TO BE $35,680.00, LESS APPLICABLE FEDERAL AND STATE WITHHOLDING
TAXES AND FICA.
EMPLOYEE SHALL BE ELIGIBLE TO CONTINUE TO MAKE CONTRIBUTIONS TO
EMPLOYEE'S 401(K) PLAN ACCOUNT FROM EMPLOYEE'S COMPENSATION AND PAYMENTS UNDER
THIS AGREEMENT IN ACCORDANCE WITH THE TERMS OF THE PLAN AND APPLICABLE LAW.
H.
INDEMNIFICATION OF EMPLOYEE.
EMPLOYEE SHALL RETAIN ALL OF HIS
RIGHTS TO BE INDEMNIFIED, SHALL BE ENTITLED TO ADVANCEMENT OF EXPENSES, AND
SHALL BE HELD HARMLESS BY COMPANY AS AN OFFICER AND DIRECTOR OF THE COMPANY, FOR
ACTS OR OMISSIONS OCCURRING WHILE AN OFFICER, DIRECTOR OR EMPLOYEE OF THE
COMPANY ON OR PRIOR TO THE SEPARATION DATE (THE "INDEMNIFICATION PERIOD"), TO
THE FULLEST EXTENT PERMITTED BY LAW AND THE COMPANY'S ARTICLES OF INCORPORATION
AND BYLAWS, AND ON A BASIS THAT IS NOT LESS FAVORABLE THAN THAT PROVIDED FOR THE
COMPANY'S OTHER OFFICERS AND DIRECTORS, AND SHALL CONTINUE TO BE ELIGIBLE FOR
COVERAGE AND TO BE A NAMED INSURED UNDER THE COMPANY'S CORPORATE DIRECTORS' AND
OFFICERS' LIABILITY POLICIES AS IN EFFECT FROM TIME TO TIME WITH RESPECT TO THE
INDEMNIFICATION PERIOD.
4.
EMPLOYEE OBLIGATIONS.
AS MATERIAL INDUCEMENT TO COMPANY IN
ENTERING INTO THIS AGREEMENT AND PROVIDING THE CONSIDERATION DESCRIBED IN
SECTION 3, EMPLOYEE HEREBY AGREES AS FOLLOWS:
A.
RELEASE.
EMPLOYEE HEREBY RELEASES ALL EMPLOYEE'S CLAIMS.
EMPLOYEE AGREES TO PROVIDE A "BRING DOWN" RELEASE IN THE FORM ATTACHED HERETO AS
SCHEDULE C AND INCORPORATED HEREIN BY THIS REFERENCE.
THIS BRING-DOWN RELEASE
WILL BE PROVIDED ON THE SEPARATION DATE, EXCEPT IN THE EVENT OF HIS DEATH OR
DISABILITY PRIOR TO THE SEPARATION DATE.
EMPLOYEE ACKNOWLEDGES THAT THE MONEY
AND PROMISES RECEIVED AND TO BE RECEIVED BY EMPLOYEE ARE IN EXCHANGE FOR THE
RELEASES OF EMPLOYEE'S CLAIMS.
B.
COVENANT NOT TO SUE.
EMPLOYEE AGREES THAT HE WILL NOT INITIATE