DATED
JULY 23, 2008, BETWEEN THE COMPANY AND THE EXECUTIVE SHALL TERMINATE AND BE OF
NO FURTHER FORCE AND EFFECT.
IN ADDITION, THE EXECUTIVE AGREES THAT ALL RIGHTS
OF THE EXECUTIVE IN AND TO ANY OUTSTANDING STOCK OPTIONS, WARRANTS, RESTRICTED
STOCK OR OTHER RIGHTS IN AND TO EQUITY OR OTHER SECURITIES OF THE COMPANY,
WHETHER OR NOT EXERCISABLE (BUT EXCLUDING SHARES OF COMMON STOCK HELD OUTRIGHT
BY THE EXECUTIVE FREE OF RESTRICTIONS OTHER THAN SECURITIES LAW RESTRICTIONS)
ARE TERMINATED AND THE EXECUTIVE WAIVES ANY AND ALL RIGHTS THEREUNDER OR
THEREUNTO, EXCEPT FOR THE STOCK OPTIONS FOR 30,000 SHARES OF THE COMPANY'S
COMMON STOCK WHICH WERE VESTED AS OF THE SEPARATION DATE AND RESULTED FROM A
GRANT DATED JULY 23, 2008, WHICH SHALL REMAIN EXERCISABLE FOR A PERIOD OF
90-DAYS AFTER THE SEPARATION DATE.
5.
GENERAL RELEASE OF CLAIMS.
(A)
THE EXECUTIVE, FOR HIMSELF AND HIS HEIRS, EXECUTORS,
ADMINISTRATORS AND ASSIGNS, IF ANY, AND ANYONE PURPORTING TO CLAIM BY OR THROUGH
THE EXECUTIVE, DOES HEREBY WAIVE, RELEASE AND FOREVER DISCHARGE THE COMPANY, ITS
SUBSIDIARIES, PREDECESSORS, SUCCESSORS, ASSIGNS, EMPLOYEE BENEFIT PLANS AND
TRUSTS, IF ANY, AND EACH OF THEIR PAST, PRESENT AND FUTURE MANAGERS, MEMBERS,
DIRECTORS, OFFICERS, PARTNERS, AGENTS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES,
FIDUCIARIES, PLAN SPONSORS, ADMINISTRATORS AND TRUSTEES, IF ANY, (HEREINAFTER
COLLECTIVELY "THE COMPANY RELEASED PARTIES"), OF AND FROM ANY AND ALL ACTIONS,
CAUSES OF ACTION, CLAIMS (INCLUDING WITHOUT LIMITATION, ANY CLAIM FOR WRONGFUL
DISCHARGE OR BREACH OF CONTRACT AND CLAIMS UNDER THE FEDERAL, STATE OR LOCAL
EMPLOYMENT DISCRIMINATION LAWS SUCH AS TITLE VII OF THE CIVIL RIGHTS ACT, THE
AMERICANS WITH DISABILITIES ACT, THE AGE DISCRIMINATION IN EMPLOYMENT ACT AND
OTHER SIMILAR LAWS) SUITS, DEMANDS, RIGHTS, DAMAGES, ACCOUNTS, JUDGMENTS, WAGES,
COMMISSIONS, EXECUTIONS, DEBTS, OBLIGATIONS, ATTORNEYS' FEES, COSTS AND ALL
OTHER LIABILITIES OF ANY KIND OR DESCRIPTION WHATSOEVER, EITHER AT LAW OR IN
EQUITY, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED AND WHETHER OR NOT
BASED ON HIS EMPLOYMENT OR THE TERMINATION OF HIS EMPLOYMENT, THAT THE EXECUTIVE
NOW HAS OR HAS HAD AGAINST ANY OF THE COMPANY RELEASED PARTIES FOR OR BY REASON
OF ANY CAUSE, MATTER OR EVENT WHATSOEVER, THROUGH THE DATE THE EXECUTIVE SIGNS
THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY SET FORTH IN THIS SECTION, THIS RELEASE SHALL NOT APPLY TO CLAIMS
RELATING TO THE VALIDITY OR ENFORCEMENT OF THIS AGREEMENT, CLAIMS THAT CANNOT BE
WAIVED UNDER APPLICABLE LAW (E.G., UNEMPLOYMENT COMPENSATION CLAIMS), CLAIMS FOR
ANY ACCRUED BENEFIT UNDER THE TERMS OF ANY EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT MAINTAINED BY THE COMPANY
(EXCEPT THAT IT WILL APPLY TO ANY SEVERANCE BENEFITS THAT OTHERWISE MIGHT BE
PAYABLE OUTSIDE OF THIS AGREEMENT) OR CLAIMS FOR INDEMNIFICATION OR DEFENSE TO
WHICH THE EXECUTIVE IS ENTITLED UNDER THE CERTIFICATE OF INCORPORATION, THE
BYLAWS AND/OR ANY INSURANCE POLICY OF THE COMPANY OR ITS SUBSIDIARIES.
NOTHING
IN THIS AGREEMENT PRECLUDES THE FILING OF AN ADMINISTRATIVE CHARGE WITH THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ("EEOC") OR THE EXECUTIVE'S ABILITY TO
TESTIFY, ASSIST OR PARTICIPATE IN AN INVESTIGATION,