INCLUDING LITIGATION COSTS AND
EXPENSES IN CONNECTION ANY OF THE FOREGOING.
EXECUTIVE ALSO UNDERSTANDS, THAT
BY SIGNING THIS AGREEMENT, HE IS WAIVING ALL CLAIMS AGAINST ANY AND ALL OF THE
RELEASEES RELEASED BY THIS AGREEMENT; PROVIDED, HOWEVER, THAT AS SET FORTH IN
SECTION 7(F)(1)(C) OF THE ADEA, AS ADDED BY THE OLDER WORKERS BENEFIT PROTECTION
ACT OF 1990, NOTHING IN THIS AGREEMENT CONSTITUTES OR SHALL BE CONSTRUED TO
CONSTITUTE A WAIVER BY EXECUTIVE OF ANY RIGHTS OR CLAIMS THAT MAY ARISE AFTER
THE DATE HEREOF; PROVIDED, FURTHER, THAT THE FOREGOING IS NOT INTENDED TO
RELEASE ANY CLAIM THAT EXECUTIVE MAY HAVE TO (I) INDEMNIFICATION OR DIRECTORS
AND OFFICERS LIABILITY INSURANCE COVERAGE, (II) PAYMENT OF THE BENEFITS PROVIDED
UNDER THIS AGREEMENT (INCLUDING ACCRUED AND UNPAID VACATION, BASE SALARY AND
BONUS THROUGH THE DATE OF TERMINATION OF EMPLOYMENT), (III) ACCRUED AND VESTED
BENEFITS UNDER ANY RETIREMENT PLAN OR DEFERRED COMPENSATION ACCOUNT OR PLAN AND
(IV) BENEFITS TO WHICH EXECUTIVE IS ENTITLED UNDER THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED.
6
IN ADDITION, EXECUTIVE WAIVES ANY RIGHT TO INITIATE OR OTHERWISE VOLUNTARILY
PARTICIPATE IN ANY SHAREHOLDERS' DERIVATIVE ACTION WITH RESPECT TO EMPLOYER AND
ITS MAJORITY-OWNED SUBSIDIARIES BY REASON OF ANY ACT OR OMISSION PRIOR TO THE
DATE OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BEING A NAMED PLAINTIFF
IN OR CAUSING TO BE FILED ON EXECUTIVE'S BEHALF OR AS A CLASS ACTION ANY SUCH
DERIVATIVE ACTION.
6.3
RELEASE BY EMPLOYER.
EMPLOYER AND ITS MAJORITY CONTROLLED
SUBSIDIARIES HEREBY IRREVOCABLY REMISE, RELEASE AND FOREVER DISCHARGE EXECUTIVE
FROM ANY CLAIMS ARISING PRIOR TO THE DATE HEREOF, EXCEPT ANY CLAIM ARISING UNDER
THIS AGREEMENT.
6.4
COVENANT NOT TO SUE.
EXECUTIVE COVENANTS AND AGREES NOT TO SUE
THE RELEASEES AND EACH OR ANY OF THEM FOR ANY CLAIMS RELEASED BY THIS AGREEMENT
AND TO WAIVE ANY RECOVERY RELATED TO ANY CLAIMS COVERED BY THIS AGREEMENT.
EMPLOYER AND ITS MAJORITY CONTROLLED SUBSIDIARIES COVENANT AND AGREE NOT TO SUE
EXECUTIVE FOR ANY CLAIMS RELEASED BY THIS AGREEMENT AND TO WAIVE ANY RECOVERY
RELATED TO ANY CLAIMS COVERED BY THIS AGREEMENT.
7.
REVIEW AND CONSIDERATION PERIOD. EXECUTIVE ACKNOWLEDGES THAT HE
HAS BEEN INSTRUCTED TO AND HAS HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT WITH
AN ATTORNEY AND/OR ANY PERSON OF HIS CHOOSING BEFORE SIGNING IT. EXECUTIVE
FURTHER ACKNOWLEDGES THAT HE HAS HAD TWENTY-ONE (21) DAYS TO CONSIDER THIS
AGREEMENT. BY EXECUTING THIS AGREEMENT, EXECUTIVE ACKNOWLEDGES THAT, AS OF THE
DATE OF EXECUTION, HE HAS EITHER CONSIDERED THE AGREEMENT FOR TWENTY-ONE (21)
DAYS, OR HAS, ON THE ADVICE OF COUNSEL, WAIVED THE TWENTY-ONE (21) DAY
CONSIDERATION PERIOD.
8.
REVOCATION RIGHT. EXECUTIVE SHALL HAVE SEVEN (7) DAYS AFTER
SIGNING THIS AGREEMENT TO REVOKE IT. THIS AGREEMENT SHALL NOT BE EFFECTIVE NOR
WILL ANY CONSIDERATION BE PROVIDED UNTIL AFTER THE REVOCATION PERIOD HAS PASSED.
A REVOCATION OF THIS AGREEMENT SHALL BE WRITTEN AND SHALL NOT BE EFFECTIVE
UNLESS ACTUALLY RECEIVED BY THE CHAIRMAN OR GENERAL COUNSEL OF EMPLOYER ON OR
BEFORE THE 7TH DAY AFTER THIS AGREEMENT HAS BEEN SIGNED.
9.