OF CLARIFICATION, THE PARTIES ACKNOWLEDGE THAT
THE ONE YEAR PERIOD IN WHICH EMPLOYEE WILL HAVE TO EXERCISE HIS OUTSTANDING
STOCK OPTIONS OR SIMILAR RIGHTS TO ACQUIRE COMPANY COMMON STOCK UNDER CLAUSE (D)
OF SECTION 7(A) OF THE EMPLOYMENT AGREEMENT WILL COMMENCE ON THE TERMINATION
DATE AND ALL OF EXECUTIVE'S EQUITY AWARDS GRANTED BY THE COMPANY WILL CEASE
VESTING AS OF TERMINATION DATE, EXCEPT AS SET FORTH IN THE CONSULTING AGREEMENT,
AND ANY UNVESTED PORTION OF THE EMPLOYEE'S EQUITY AWARDS (AFTER TAKING INTO
ACCOUNT ANY ACCELERATION OF VESTING SET FORTH IN THE CONSULTING AGREEMENT) WILL
TERMINATE EFFECTIVE AS OF THE TERMINATION DATE AND EMPLOYEE WILL HAVE NO FURTHER
RIGHTS WITH RESPECT THERETO.
(B)
CONSULTING.
COMMENCING ON THE TERMINATION DATE AND SUBJECT TO
THIS AGREEMENT BECOMING EFFECTIVE (AS SET FORTH IN SECTION 24), EMPLOYEE WILL
MAKE HIMSELF AVAILABLE TO SERVE AS A CONSULTANT TO THE COMPANY THROUGH DECEMBER
31, 2006, PURSUANT TO THE WRITTEN CONSULTING AGREEMENT (THE "CONSULTING
AGREEMENT"), ATTACHED HERETO AS EXHIBIT A.
3.
CONFIDENTIAL INFORMATION AND NON-SOLICITATION.
EMPLOYEE WILL
CONTINUE TO MAINTAIN THE CONFIDENTIALITY OF ALL CONFIDENTIAL AND PROPRIETARY
INFORMATION OF THE COMPANY AND WILL CONTINUE TO COMPLY WITH THE TERMS AND
CONDITIONS OF THE CONFIDENTIALITY AGREEMENT BETWEEN EMPLOYEE AND THE COMPANY,
INCLUDING, WITHOUT LIMITATION, THE NON-SOLICITATION PROVISIONS OF SECTION 14 OF
THE CONFIDENTIALITY AGREEMENT.
EMPLOYEE WILL RETURN ALL OF THE COMPANY'S
PROPERTY AND CONFIDENTIAL AND PROPRIETARY INFORMATION IN HIS POSSESSION TO THE
COMPANY ON THE EFFECTIVE DATE OF THIS AGREEMENT.
4.
PAYMENT OF SALARY.
EMPLOYEE ACKNOWLEDGES AND REPRESENTS THAT THE
COMPANY HAS PAID ALL SALARY, WAGES, BONUSES, ACCRUED VACATION, COMMISSIONS AND
ANY AND ALL OTHER BENEFITS DUE TO EMPLOYEE ONCE THE ABOVE NOTED PAYMENTS AND
BENEFITS ARE RECEIVED.
5.
RELEASE OF CLAIMS. EMPLOYEE AGREES THAT THE FOREGOING
CONSIDERATION REPRESENTS SETTLEMENT IN FULL OF ALL OUTSTANDING OBLIGATIONS OWED
TO EMPLOYEE BY THE COMPANY AND ITS OFFICERS, MANAGERS, SUPERVISORS, AGENTS AND
EMPLOYEES.
EMPLOYEE, ON HIS OWN BEHALF, AND ON BEHALF OF HIS RESPECTIVE HEIRS,
FAMILY MEMBERS, EXECUTORS, AGENTS, AND ASSIGNS, HEREBY FULLY AND FOREVER
RELEASES THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INVESTORS,
SHAREHOLDERS, ADMINISTRATORS, AFFILIATES, DIVISIONS, SUBSIDIARIES, PREDECESSOR
AND SUCCESSOR CORPORATIONS, AND ASSIGNS (THE "RELEASEES"), FROM, AND AGREE NOT
TO SUE CONCERNING, ANY CLAIM, DUTY, OBLIGATION OR CAUSE OF ACTION RELATING TO
ANY MATTERS OF ANY KIND, WHETHER PRESENTLY KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED, THAT EMPLOYEE MAY POSSESS ARISING FROM ANY OMISSIONS, ACTS OR FACTS
THAT HAVE OCCURRED UP UNTIL AND INCLUDING THE EFFECTIVE DATE OF THIS AGREEMENT
INCLUDING, WITHOUT LIMITATION:
2
(A)
ANY AND ALL CLAIMS RELATING TO OR ARISING FROM EMPLOYEE'S
EMPLOYMENT RELATIONSHIP WITH THE COMPANY AND THE TERMINATION OF THAT
RELATIONSHIP;
(B)
ANY AND ALL CLAIMS RELATING TO, OR ARISING FROM, EMPLOYEE'S RIGHT
TO PURCHASE, OR ACTUAL PURCHASE OF SHARES OF STOCK OF THE COMPANY, INCLUDING,
WITHOUT LIMITATION, ANY CLAIMS FOR FRAUD, MISREPRESENTATION, BREACH OF FIDUCIARY
DUTY, BREACH OF DUTY UNDER APPLICABLE STATE CORPORATE LAW, AND SECURITIES FRAUD
UNDER ANY STATE OR FEDERAL LAW;
(C)
ANY AND ALL CLAIMS UNDER THE LAW OF ANY