ANY FURTHER ACTION ON THE PART OF THE EXECUTIVE OR THE
COMPANY, EFFECTIVE ON THE SEPARATION DATE, THE EMPLOYMENT AGREEMENT, DATED
DECEMBER 3, 2004, 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.
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 LAW 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
EVER HAD, NOW HAS OR MAY HAVE OR CLAIM TO HAVE IN THE FUTURE AGAINST ANY OF THE
COMPANY RELEASED PARTIES FOR OR BY REASON OF ANY CAUSE, MATTER OR EVENT
WHATSOEVER, FROM THE BEGINNING OF TIME TO THE DATE OF THIS AGREEMENT.
THE
EXECUTIVE FURTHER AGREES THAT HE WILL NOT BRING ANY LAW SUIT OR ARBITRATION
AGAINST ANY OF THE COMPANY RELEASED PARTIES FOR ANY CLAIMS HEREBY RELEASED.
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 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.
2
(B)
BECAUSE THE EXECUTIVE IS AT LEAST FORTY (40) YEARS OF AGE, HE HAS
SPECIFIC RIGHTS UNDER THE OLDER WORKERS BENEFIT PROTECTION ACT ("OWBPA"), WHICH
PROHIBITS