This Agreement ("Agreement") dated January 20, 2009 is made and entered into

(a)            Release and Assignment of All Claims by ▇▇▇▇▇▇▇▇. In consideration of

 

BES's agreement to provide the Consideration described in Paragraph 3  of this

Agreement, ▇▇▇▇▇▇▇▇, his spouse, heirs, executors, trustees, assigns, and attorneys, if any

(collectively, the "Releasors"), hereby release and forever discharge BES and all of its

past, present and future officers, directors, stockholders, partners, representatives, board

members, subsidiaries, parent companies, related entities, insurance carriers, agents,

servants, employees, successors, assigns, heirs, legatees, and attorneys, in their individual

and official capacities (the "Released Parties"), from any and all claims, causes of

 

action, lawsuits, proceedings, damages, interests, benefits, and all other demands of any kind

or character whatsoever, in law or in equity, in any way directly or indirectly related to or

connected with his employment or separation therefrom with the Released Parties.

This Release includes, without limitation, the following:

 

(i)            Claims related to ▇▇▇▇▇▇▇▇'▇ employment and/or the termination of

his employment including, without limitation, any allegation of a violation of any

employment, bonus, or other compensation agreement with BES, including, without

limitation, the Employment Agreement;

 

(ii)            Claims that could have been asserted in any Charge of

Discrimination filed by ▇▇▇▇▇▇▇▇ with the Equal Employment Opportunity

Commission and/or the Texas Workforce Commission--Civil Rights Division;

 

(iii)            Claims arising under state or federal constitution or state or federal

statute (including, without limitation, all tort claims), city ordinance, or public

policy, including, without limitation, the Securities Exchange Act of 1934, as

amended, the Employee Retirement Income Security Act of 1974, 29 U.S.C.

§ 1001 et seq. and claims involving employment discrimination, harassment,

and/or retaliation of any form (including, without limitation, claims under the Age

Discrimination in Employment Act of 1967, 29 U.S.C. §621 et seq., Title VII of  the Civil Rights

Act of 1964 as amended, 42 U.S.C.  §2000e et seq., the Civil Rights Act of 1870, 42 U.S.C. §1981,

 the Americans with Disabilities Act of 1990, ▇▇ ▇.▇.▇. §▇▇▇▇▇  et seq., the Family and Medical

 Leave Act of 1993, 29 U.S.C. §2601 et seq., the Equal Pay Act, 29 U.S.C. §206, the Texas Commission

on Human Rights Act, Tex. Lab. Code ▇▇▇. §21.001 et seq., and/or the Texas Workers' Compensation

Act, Tex. Lab. Code §451.001 et seq.);

 

(iv)            Claims arising under state or federal contract, tort, or common law,

including, without limitation, any claim of breach of contract, promissory

estoppel, detrimental reliance, wrongful discharge, false imprisonment, assault,

battery, intentional infliction of emotional distress, defamation, slander, libel,

fraud, invasion of privacy, breach of the covenant of good faith and fair dealing,

breach of fiduciary duty, conversion, and tortious interference with any type of

third-party relationship, as well as any and all damages that may arise out of any

such claims, including, without limitation, claims for economic loss, lost profits,

loss of capital, lost wages, lost earning capacity, emotional distress, mental

anguish, personal injuries, punitive damages, or any future damages;

(v)            Claims of retaliation of any nature, including, but not limited to,the anti-

retaliatory provisions of the statues identified in Paragraph 4(a)(iii) of this Agreement; and

 

(vi)            CLAIMS OF NEGLIGENCE OF ANY KIND INCLUDING,WITHOUT

LIMITATION, GROSS NEGLIGENCE AGAINST BES BASED UPON THE ACTION OR INACTION OF BES.

 

The claims described in Paragraph  4 (a)(i) through (vi) are hereinafter collectively

referred to as the "Claims." This Agreement may be pleaded as, and shall constitute, an

absolute and final bar to any and all lawsuits or administrative claims now pending, or

that may hereafter be filed or prosecuted by Releasors against the Released Parties that

arose out of or in connection with any of the Claims. Additionally, ▇▇▇▇▇▇▇▇ agrees that

at no time subsequent to the execution of this Agreement will he permit the filing or

maintenance, in any state, federal, or foreign court, or before any local, state, federal, or

foreign administrative agency, or any other tribunal, of any charge, claim, or action of

any kind arising out of or in any way related to any of the Claims. Finally, it is the

intention of the Parties that this Agreement shall be construed as broadly and all-

encompassing as permitted by law and that, notwithstanding such intention, if it is found

that any claim of any kind has not been released, ▇▇▇▇▇▇▇▇ agrees that any such claim is

hereby assigned to BES. Nothing in this Agreement shall be construed to affect the

rights and responsibilities of the Equal Employment Opportunity Commission (the

"Commission"), the National Labor Relations Board  (the "NLRB"), or any otherfederal, state

or local agency with similar responsibilities to enforce any laws pertaining to employment discrimination

or retaliation, or union activity or participation. Likewise, this waiver will not be used to justify interfering

with the protected right of any employee to file a charge or participate in an investigation or proceeding c

onducted by the Commission, the NLRB or any similar agency; however, ▇▇▇▇▇▇▇▇ waives the right to any

 benefits or recovery arising out of any such proceeding.

 

(b)           Limited Release by BES. In consideration of the payments made to ▇▇▇▇▇▇▇▇ pursuant

 to this Agreement and the Release and Assignment of all Claims by

 

▇▇▇▇▇▇▇▇ pursuant to Paragraph 4, BES, its past, present and future officers, directors, stockholders,

partners, representatives, board members, subsidiaries, parent companies, related entities, insurance

carriers, agents, servants, employees, successors, assigns, heirs, legatees, and attorneys, hereby

release ▇▇▇▇▇▇▇▇ and forever discharge him from any and all claims or causes of action which it or

 any of them may have against him arising out of or relating in any manner whatsoever to his

 employment with BES, except for breaches of fiduciary duty, violations of securities laws or fraud.

 

5.           Director. ▇▇▇▇▇▇▇▇ is currently a member of the Board of Directors of BES with a term of office expiring

at the Company's annual meeting of stockholders in 2009. ▇▇▇▇▇▇▇▇ shall remain as a director of BES until the

expiration of his term of office.

 

6.           No Future Employment. ▇▇▇▇▇▇▇▇ agrees that BES has no obligation,contractual or otherwise, to employ

▇▇▇▇▇▇▇▇ as an employee of BES in the future. ▇▇▇▇▇▇▇▇ hereby waives any right to future employment as an employee of BES.

7.           Stock Options. ▇▇▇▇▇▇▇▇ has previously been granted the following options to purchase shares of the Company's common stock:

 

Exercise

 

Number of                            Price                                                     Expiration

 

Options                       Per Share                        Date of Grant                                     Date                                Vesting

 

300,000                        $0.16                      ▇▇▇▇▇ ▇, ▇▇▇▇                               ▇▇▇▇▇ 5, 2013                                     Immediate

 

300,000                        $0.50                      ▇▇▇▇▇ ▇, ▇▇▇▇                               ▇▇▇▇▇ 5, 2013                                       December 31, 2008

 

All of such options shall remain in full force and effect in accordance with their respective terms.

 

S.           No Admission of Wrongdoing. Both Parties acknowledge and agree that thisAgreement

shall not be construed as an admission by the other of any act of wrongdoing,liability, or responsibility

for any wrongdoing of any kind.

 

9.           Taxation Consequences and Indemnity. ▇▇▇▇▇▇▇▇ acknowledges and agreesthat BES

has made no representations to him regarding the taxation of any portion of the Consideration.

▇▇▇▇▇▇▇▇ also understands that he is solely responsible for the payment of alltaxes, if any, related

to the Consideration and that BES has no duty to defend him against any such claims. Finally,

▇▇▇▇▇▇▇▇ understands and agrees that he shall fully indemnify BES for any claims brought by taxing

authorities against BES seeking payment of taxes, penalties, and/or interest related in any way to the

assessment, determination, and/or reporting of taxes under federal, state, and/or local law. This agreement

to indemnify BES includes the agreement to pay all attorneys' fees and other costs that BES may reasonably

incur in the defense of such claims; additionally, the choice of counsel to represent BES in any such proceedings

to which this agreement to indemnify applies shall at all times rest within the sole discretion of BES. Finally,

▇▇▇▇▇▇▇▇ agrees that, if requested by BES at any time following his execution of this Agreement,

he shall complete, execute, and deliver to BES a Form W-4 and/or Form W-9 providing such

information as may be necessary for any party issuing the appropriate Internal Revenue Service

form related to the Consideration.

 

10.           Entire Agreement. ▇▇▇▇▇▇▇▇ acknowledges and agrees that, except as expressly

set forth herein, no representations of any kind or character have been made by or on behalf of

BES to induce his execution of this document and that this Agreement constitutes the complete

understanding and agreement between him and BES. ▇▇▇▇▇▇▇▇ also acknowledges and agrees

that this Agreement supersedes any and all prior agreements, promises, or inducements

concerning the subject matter of this Agreement. By executing and delivering this Agreement,

▇▇▇▇▇▇▇▇ expressly disclaims any reliance on any representations, promises, or other statements

by BES, except to the extent such representations, promises, or other statements are expressly

contained in this Agreement.

 

11.           Confidentiality. ▇▇▇▇▇▇▇▇ agrees to maintain the confidentiality of the terms,

contents and conditions of this Agreement and shall not further disclose or discuss the

Agreement except to governmental officials; as required by law; to tax advisors; and for other

shall instruct his tax advisors as to the terms of this Paragraph and shall insist upon their compliance with

 the terms of this Paragraph.

 

12.           Property and Confidential Information. ▇▇▇▇▇▇▇▇ represents and warrants that

he has returned any and all property, information or documents including, but not limited to, any

and all confidential information belonging to BES, including any originals, copies or summaries

currently in ▇▇▇▇▇▇▇▇'▇ possession, custody or control.

 

13.           Default and Notice. In the event that BES fails to make any payment due under

the provisions of this Agreement, ▇▇▇▇▇▇▇▇ shall give written notice of such failure to BES, and

 

BES shall have a period of fifteen (15) business days from receipt of such notice in which to cure

such default. For purposes of this Paragraph 13, all notices to BES for failure to make any payment

due under this Agreement shall be in writing and either hand delivered or sent by Certified Mail,

Return Receipt Requested, to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,

▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.

 

14.           No Presumption Against Interest. This Agreement has been jointly negotiated,

drafted, and reviewed by ▇▇▇▇▇▇▇▇ and BES and, therefore, no provision arising directly or

indirectly herefrom may be construed against any Party as being drafted by that Party.

 

15.           Waiver. No waiver of any of the terms of this Agreement shall be valid unless in

writing and signed by all Parties to this Agreement. The waiver by any party hereto of any

provision of this Agreement shall not operate or be construed as a waiver of any subsequentbreach by

any party, nor shall any waiver operate or be construed as a rescission of this Agreement.

 

16.           Severability. The Parties agree that should any part of this Agreement be

declared or determined by a court of competent jurisdiction to be illegal, invalid, or

unenforceable, the Parties intend that the legality, validity, and enforceability of

the remaining parts shall not be affected thereby, and said illegal, invalid or

unenforceable part shall be deemed not to be a part of this Agreement.

 However, the Parties have carefully read and understand the provisions herein

and agree that all aspects of this Agreement are reasonable.

 

17.           Captions.  The captions contained in this Agreement are intended for

convenience only and should not be considered in interpreting the terms of this Agreement.

 

18.           Understanding of Agreement.   By signing this Agreement, ▇▇▇▇▇▇▇▇

acknowledges that he has fully and carefully read this Agreement, that he fully understands and

agrees to its contents and effects, and that he is entering into this Agreement of his own free will

and accord. ▇▇▇▇▇▇▇▇ further agrees and acknowledges that:

 

•           He has read and considered the terms of this Agreement, including the Release

and Assignment of All Claims set forth in Paragraph 4;

 

•           He understands and agrees to such terms of his own free will and accord;

 

•           He has had an opportunity to consult with an attorney prior to executing this

 

Agreement, and he is hereby advised in writing to consult with counsel of his

choice prior to executing and delivering this Agreement;

•           The Release and Assignment of all Claims set forth in Paragraph 4 specifically

refers to rights and/or claims that may arise under the Age Discrimination in

Employment Act, 29 U.S.C.  §§  621    et seq., and any similar state or local

protective statute;

 

•           Through this Agreement, he is releasing BES, along with the other parties named

above as the "Released Parties," from any and all claims that he has or may have

against them;

 

•           He has been given at least twenty-one (21) days to consider this Agreement (but

remains free to execute this Agreement before the expiration of the twenty-one

(21) days);

 

•           For a seven (7) day period following his execution of this Agreement, he may

revoke it, and it will not become effective or enforceable until the expiration of

the seven (7) day period; and

 

•           His revocation, if any, must be in writing and sent to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇

▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,

on or before the expiration of the seventh day after this Agreement is executed

 by ▇▇▇▇▇▇▇▇ via facsimile at (▇▇▇) ▇▇▇-▇▇▇▇ or hand delivery at the address

above or e-mail to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ at ▇▇▇▇▇▇▇@▇▇.▇▇▇. If ▇▇▇▇▇▇▇▇ revokes

this Agreement, he shall not be entitled to receive any payments under it.

 

19.       Successors and Assigns. This Agreement shall be binding upon and inure to the

benefit of the parties and their respective successors and assigns.