collectively
referred to as the Parties.
1.
MUTUAL RELEASE OF CLAIMS.
THE PARTIES HEREBY RELEASE AND FOREVER
DISCHARGE EACH OTHER FROM ALL CLAIMS, DEMANDS, OBLIGATIONS, LOSSES, CAUSES OF
ACTION, COSTS, EXPENSES, ATTORNEYS' FEES AND LIABILITIES OF ANY NATURE
WHATSOEVER, WHETHER KNOWN OR UNKNOWN, AND WHETHER BASED ON CONTRACT, TORT,
STATUTORY OR OTHER LEGAL OR EQUITABLE THEORY OF RECOVERY, WHICH THE PARTIES
HAVE, HAD, OR CLAIM TO HAVE AGAINST EACH OTHER PRIOR TO AND INCLUDING THE
EFFECTIVE DATE OF THIS AGREEMENT (THE "RELEASED CLAIMS"); PROVIDED, HOWEVER,
THAT THE FOREGOING RELEASE SHALL NOT APPLY TO (A) ANY CLAIMS RELATING TO
EMPLOYEE'S SERVICE AS A MEMBER OF THE COMPANY'S BOARD OF DIRECTORS AND (B) ANY
STOCKHOLDER DERIVATIVE CLAIMS THAT EMPLOYEE MAY BRING AGAINST THE COMPANY. THE
FOREGOING MUTUAL RELEASES OF THE RELEASED CLAIMS SHALL BE BINDING UPON, AND
SHALL INURE TO THE BENEFIT OF, NOT ONLY THE PARTIES, BUT ALSO, AS APPLICABLE,
THE PARTIES' PAST AND PRESENT OFFICERS, DIRECTORS, PRINCIPALS, GENERAL PARTNERS,
LIMITED PARTNERS, EMPLOYEES, SHAREHOLDERS, AGENTS, ATTORNEYS, ACCOUNTANTS,
INSURERS, REPRESENTATIVES, LICENSEES AND LICENSORS, SERVANTS, AFFILIATES,
SUBSIDIARIES, PARENT COMPANIES, SUCCESSORS, HEIRS, AND ASSIGNS.
THESE MUTUAL
RELEASES SHALL HAVE NO EFFECT UPON THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THE EMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT
AGREEMENT, ENTERED INTO AS OF DECEMBER 31, 2003 (THE "EMPLOYMENT AGREEMENT"), OR
UPON ANY RIGHTS EMPLOYEE MAY HAVE TO INDEMNIFICATION BY THE COMPANY IN HIS
CAPACITY AS AN OFFICER OR DIRECTOR OF THE COMPANY PURSUANT TO THE COMPANY'S
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION, BYLAWS (AS AMENDED),
INSURANCE POLICIES OR LAWS, AS APPLICABLE.
2.
WAIVER & RELEASE OF UNKNOWN CLAIMS:
CALIFORNIA CIVIL CODE SECTION 1542.
THE PARTIES EXPRESSLY WAIVE AND RELINQUISH ANY AND ALL RIGHTS AND BENEFITS THEY
NOW HAVE OR MAY HAVE IN THE FUTURE THAT ARE RELATED TO THE RELEASED CLAIMS UNDER
THE TERMS OF SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The Parties acknowledge that they are aware that, after executing this
Agreement, they or their attorneys or agents may discover claims or facts in
addition to or different from those which they now know or believe to exist with
respect to the subject matter of this Agreement, the Released Claims described
in Paragraph 1 above, or the Parties hereto, but that it is the Parties'
intention to fully, finally and forever settle and release all of the Released
Claims, claims, matters, disputes and differences known or unknown, suspected or
unsuspected, which now exist, may exist, or heretofore may have existed against
each other relating to the Released Claims.
3.
ACKNOWLEDGEMENT OF WAIVER OF CLAIMS UNDER ADEA.
EMPLOYEE ACKNOWLEDGES
THAT HE IS WAIVING AND RELEASING ANY RIGHTS HE MAY HAVE UNDER THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967 ("ADEA") FOR THE PERIOD OF TIME DURING
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