ANY AND ALL CLAIMS WHICH HOLDINGS AND/OR THE COMPANY (INCLUDING
THEIR RESPECTIVE PREDECESSORS, SUCCESSORS AND ASSIGNS, AND THEIR RESPECTIVE
PRESENT AND FORMER DIRECT OR INDIRECT SUBSIDIARIES) AND/OR WILLIS STEIN &
PARTNERS, L.P. (ALSO REFERRED TO AS "RELEASEES") NOW HAS OR MAY IN THE FUTURE
HAVE AGAINST
4
EXECUTIVE WHICH RELATE IN ANY WAY TO EXECUTIVE'S EMPLOYMENT WITH THE COMPANY,
EXECUTIVE'S OWNERSHIP OF THE REPURCHASED EXECUTIVE SECURITIES OR OTHERWISE
RELATE TO EXECUTIVE'S ASSOCIATION WITH ANY OF THE COMPANY OR HOLDINGS PRIOR TO
THE EFFECTIVE DATE; PROVIDED THAT "CLAIMS" SHALL NOT INCLUDE, AND THIS SECTION
3(B) SHALL NOT BE DEEMED A RELEASE OF, ANY OBLIGATIONS OF EXECUTIVE EXPRESSLY
SET FORTH IN THIS AGREEMENT, THE LLC AGREEMENT OR THE SURVIVING PROVISIONS OF
THE EMPLOYMENT AGREEMENT (AS AMENDED HEREBY).
(C)
BY ENTERING INTO THIS AGREEMENT, EACH OF THE PARTIES INTENDS THAT
IT SHALL BE EFFECTIVE AS A BAR TO EACH AND EVERY ONE OF THE CLAIMS HEREINABOVE
MENTIONED OR IMPLIED. EACH OF THE PARTIES EXPRESSLY CONSENTS THAT THIS AGREEMENT
SHALL BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH AND ALL OF ITS EXPRESS
TERMS AND PROVISIONS, INCLUDING THOSE RELATING TO UNKNOWN AND UNSUSPECTED
CLAIMS.
EACH OF THE PARTIES ACKNOWLEDGES AND AGREES THAT THE PROVISIONS HEREOF
ARE REASONABLE IN CONTEXT AND SCOPE AND THAT THIS WAIVER IS AN ESSENTIAL AND
MATERIAL TERM OF THIS AGREEMENT AND WITHOUT SUCH WAIVER THE PARTIES WOULD NOT
HAVE MADE THE PROMISES DESCRIBED IN THIS AGREEMENT.
(D)
EACH OF THE PARTIES FURTHER AGREES THAT IN THE EVENT SUCH PARTY
BRINGS ITS OWN CLAIM IN WHICH IT SEEKS DAMAGES AGAINST THE RELEASEES OR IN THE
EVENT SUCH PARTY SEEKS TO RECOVER AGAINST ANY OTHER PARTY OR ANY OF THE
RELEASEES IN ANY CLAIM BROUGHT BY A GOVERNMENTAL AGENCY ON SUCH PERSON'S BEHALF,
THE RELEASES SET FORTH IN THIS AGREEMENT SHALL SERVE AS A COMPLETE DEFENSE TO
SUCH CLAIMS.
(E)
EXECUTIVE ACKNOWLEDGES THAT THE COMPANY HAS PROVIDED EXECUTIVE AT
LEAST TWENTY-ONE (21) DAYS TO DECIDE WHETHER TO EXECUTE THIS AGREEMENT.
EXECUTIVE UNDERSTANDS HE HAS UP TO SEVEN (7) DAYS TO REVOKE THIS AGREEMENT AFTER
ITS EXECUTION, AND THAT THIS AGREEMENT, INCLUDING THE RELEASE AND WAIVER IN
SECTION 3(A) ABOVE, SHALL NOT BE EFFECTIVE AND ENFORCEABLE UNTIL THE EIGHTH DAY
FOLLOWING ITS EXECUTION PROVIDED THAT EXECUTIVE HAS NOT REVOKED THIS AGREEMENT
PRIOR TO SUCH TIME (THE "EFFECTIVE DATE").
EXECUTIVE HEREBY AGREES AND
ACKNOWLEDGES THAT THE COMPANY SHALL HAVE NO OBLIGATIONS TO MAKE PAYMENTS TO HIM
HEREUNDER UNLESS AND UNTIL THE EFFECTIVE DATE OCCURS.
REPRESENTATIONS AND WARRANTIES
4.
REPRESENTATIONS AND WARRANTIES OF EXECUTIVE.
EXECUTIVE
REPRESENTS AND WARRANTS TO HOLDINGS AND THE COMPANY AS FOLLOWS:
(A)
AUTHORIZATION.
EXECUTIVE HAS THE POWER AND CAPACITY TO EXECUTE
AND DELIVER THIS AGREEMENT, TO PERFORM FULLY HIS OBLIGATIONS HEREUNDER AND TO
CONSUMMATE THE ACTIONS CONTEMPLATED HEREBY.
EXECUTIVE HAS DULY EXECUTED AND
DELIVERED THIS AGREEMENT AND THIS AGREEMENT IS A LEGAL, VALID AND BINDING
OBLIGATION OF EXECUTIVE, ENFORCEABLE AGAINST EXECUTIVE IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS SUCH ENFORCEABILITY MAY BE LIMITED BY (A) APPLICABLE
INSOLVENCY, BANKRUPTCY, REORGANIZATION,