Exhibit 10.6
EMPLOYMENT AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇-▇▇▇▇, INC.
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EMPLOYMENT AGREEMENT
This Employment Agreement ("the Agreement") is made and
entered into effective as of November 1, 1996, by and between
▇▇▇▇▇▇-▇▇▇▇, Inc., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Executive"). The Company and Executive are
hereinafter collectively referred to as the "Parties," and may
individually be referred to as a "Party."
RECITALS
A. The Executive is presently employed by the Company as
Chairman, President and Chief Executive Officer.
B. As the Executive's contribution to the growth and
success of the Company since its inception has been substantial,
the Board of Directors (the "Board") of the Company desires to
provide for the continued employment of the Executive and to make
certain changes in the Executive's employment arrangements with
the Company which the Board has determined will reinforce and
encourage the continued attention and dedication to the Company
of the Executive as a member of the Company's management.
C. The Executive desires to continue his employment with
the Company, and is willing to accept such continued employment
on the terms and conditions set forth in this Agreement.
AGREEMENT
In consideration of the foregoing premises and the mutual
covenants herein contained, and for other good and valuable
consideration, the Parties, intending to be legally bound, agree
as follows:
1. EMPLOYMENT.
1.1 The Company hereby agrees to continue to employ
Executive, and Executive hereby accepts continued employment by
the Company, upon the terms and conditions set forth in this
Agreement, effective as of the date first set forth above
("Effective Date").
1.2 Executive shall be the Chairman, President and Chief
Executive Officer of the Company, its subsidiaries, and its
successors (if any) and their subsidiaries (collectively, the
"Company Affiliates"), and shall serve in such other capacity or
capacities, with the consent of the Executive, as the Board may
from time to time prescribe.
1.3 Executive shall do and perform all services, acts or
things necessary or advisable to manage and conduct the business
of the Company and which are normally associated with the
positions of Chairman, President and Chief Executive Officer and
are not inconsistent with the provisions of the charter documents
of the Company Affiliates. However, at all times during his
employment Executive shall be subject to the direction and
policies from time to time established by the Board.
Notwithstanding the foregoing, Executive shall have such
corporate power and authority as shall be reasonably required to
enable the Executive to discharge the Executive's duties in any
office that Executive may hold.
1.4 Unless the Parties otherwise agree in writing, prior to
Executive's termination in accordance with this Agreement,
Executive shall perform the services he is required to perform
pursuant to this Agreement at the Company's offices, located at
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, or,
with the consent of the Executive, at any other place at which
the Company maintains an office; provided, however, that the
Company may from time to time reasonably require Executive to
travel temporarily to other locations in connection with the
Company's business.
2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION.
2.1 During his employment by the Company, Executive shall
devote his full business energies, interest, abilities and
productive time to the proper and efficient performance of his
duties under this Agreement. The foregoing shall not preclude
Executive from engaging in civic, charitable or religious
activities, or from serving on boards of directors of companies
or organizations which will not present any direct conflict of
interest with the Company or affect the performance of
Executive's duties hereunder.
2.2 Prior to the Executive's termination in accordance with
this Agreement, Executive shall not engage in competition with
the Company, either directly or indirectly, in any manner or
capacity, as adviser, principal, agent, partner, officer,
director, employee, member of any association or otherwise, in
any phase of the business of developing, manufacturing and
marketing of products which are in the same field of use or which
otherwise directly compete with the products or proposed products
of the Company.
2.3 Ownership by Executive, as a passive investment, of
less than one percent (1%) of the outstanding shares of capital
stock of any corporation with one or more classes of its capital
stock listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of
this paragraph.
3. COMPENSATION OF EXECUTIVE.
3.1 The Company shall pay Executive a base salary of not
less than $195,000.00 per year, payable in regular periodic
payments in accordance with Company policy but in no event less
frequent than semi-monthly. Executive's base salary shall
increase to not less than $225,000.00 at such time as the Company
obtains financing of an aggregate of at least $5,000,000.00 from
one or more transactions, including but not limited to the
receipt of cash upon the exercise of warrants to purchase Common
Stock of the Company. Such salaries shall be prorated for any
partial year of employment on the basis of a 365-day fiscal year.
3.2 Executive's compensation may be changed from time to
time by mutual agreement of Executive and the Board.
3.3 All of Executive's compensation shall be subject to
customary withholding taxes and any other employment taxes as are
commonly required to be collected or withheld by the Company.
3.4 Executive shall be entitled to at least four weeks of
paid vacation each twelve-month period during Executive's
employment hereunder, which shall continue to accrue during
Executive's employment hereunder, in addition to all national
holidays.
3.5 Executive shall, in the discretion of the Board and in
accordance with Company policy, be entitled to participate in
benefits under any employee benefit plan or arrangement made
available by the Company now or in the future to its executives
and key management employees. Notwithstanding the foregoing,
during Executive's employment hereunder, the Company shall
continuously provide Executive, at the Company's sole cost and
expense, with (i) term life insurance equal to four times
Executive's base salary, (ii) short and long-term disability
insurance, (iii) medical, dental and vision care/insurance for
Executive, Executive's spouse and Executive's children, and (iv)
director and officer liability insurance in amounts customary for
companies similar to the Company.
3.6 Executive's performance shall be reviewed by the Board
on a periodic basis (not less than once each fiscal year) and the
Board may, in its sole discretion, award such bonuses to
Executive as shall be appropriate or desirable based on
Executive's performance. The Company agrees that Executive shall
be reviewed within twelve months of commencing employment
hereunder. The Company agrees to negotiate with Executive an
incentive bonus based upon performance targets mutually agreed to
by the Board and Executive from time to time but at least
annually, in advance of the applicable year. The performance
targets shall be negotiated with the goal of achieving an annual
bonus of 100% of Executive's base salary; provided, however, the
bonus to be earned by Executive upon attaining any such
performance target shall range from not less than 50% of
Executive's base salary to any amount in excess of 100% of
Executive's base salary in the applicable year. Executive and the
Company shall negotiate the other criteria necessary for
Executive's receipt of an annual bonus in excess of 100% of
Executive's base salary.
3.7 Executive shall be entitled to receive prompt
reimbursement of all reasonable expenses incurred by Executive in
performing Company services, including expenses related to
relocation, travel, entertainment, parking, business meetings and
professional dues. Such expenses shall be accounted for in
accordance with the policies and procedures established by the
Company.
4. TERMINATION BY COMPANY. Executive's employment with the
Company may be terminated by the Company under the following
conditions:
4.1 DEATH. Upon Executive's death, in which case
termination shall be effective on the last day of the month in
which Executive's death occurs.
4.2 DISABILITY. If Executive becomes, for six consecutive
months, completely disabled due to physical or mental illness as
defined under Section 4.2.1, or if Executive shall be absent from
duties on a full-time basis due to illness for six consecutive
months, and shall not have returned to the performance of duties
within thirty (30) days after receiving written notice of
termination following such six-month period.
4.2.1 The term "completely disabled" as used in
this Agreement shall mean the inability of Executive to perform
the essential functions of his position under this Agreement by
reason of any incapacity, physical or mental, which the Board,
based upon medical advice or an opinion provided by a licensed
physician acceptable to the Board and approved by the Executive,
which approval shall not be unreasonably withheld, determines to
have incapacitated Executive from satisfactorily performing any
or all essential functions of his position for the Company during
the foreseeable future. Based upon such medical advice or
opinion, the determination of the Board shall be final and
binding and the date such determination is made shall be the date
of such complete disability for purposes of this Agreement.
4.3 FOR CAUSE. The Company may terminate Executive's
employment under this Agreement "for cause" ("For Cause") by (i)
delivery of written notice to Executive specifying the cause or
causes relied upon for such termination; and (ii) giving
Executive, together with his counsel, an opportunity to be heard
before the Board. Any notice of termination given pursuant to
this Section 4.3 shall effect termination as of the date
specified in such notice or, in the event no such date is
specified, on the last day of the month in which such notice is
delivered or deemed delivered as provided in Section 10 below.
If Executive's employment under this Agreement is terminated
by the Company For Cause under this section, Executive shall be
entitled to receive only accrued base salary and other accrued
benefits required by law, prorated to the date of termination.
Executive will not be entitled to severance pay, pay in lieu of
notice or any other such compensation. Grounds for the Company to
terminate this Agreement For Cause shall be limited to the
occurrence of any of the following events without Board consent:
4.3.1 Executive is in material breach of any
provision of this Agreement and, except as otherwise provided in
this Section 4.3, such breach continues for a period of 30 days
after notice of such breach is given to Executive by the Company;
4.3.2 Executive's engaging or in any manner
participating in any activity which is directly competitive with
or intentionally injurious to the Company or which violates any
provision of Section 7 of this Agreement and such violation
continues for a period of ten days after notice of such violation
is given to Executive by the Company;
4.3.3 Executive's commission of any fraud against
the Company;
4.3.4 Intentional improper use or appropriation for
his personal use or benefit of any funds or properties of the
Company not authorized by the Board to be so used or appropriated
and the same has not been remedied within three days after notice
of such violation is given to Executive by the Company; and
4.3.5 Executive's conviction of any crime involving
dishonesty or moral turpitude.
4.4 WITHOUT CAUSE. The Company may terminate the
Executive's employment without cause ("Without Cause") upon
delivery of written notice to the Executive at any time. Any
notice of termination given pursuant to this Section 4.4 shall
effect termination not less than 60 days after the date of such
notice.
5. TERMINATION BY EXECUTIVE. Executive may terminate
Executive's employment with the Company (a) for Sufficient Reason
(as defined below in Section 5.1) within three hundred sixty-five
(365) consecutive days following the occurrence of an event or
events constituting such Sufficient Reason; or (b) without
Sufficient Reason.
5.1 "Sufficient Reason" shall mean any one or more of the
following events:
5.1.1 The occurrence of a Change in Control of the
Company (as defined below in Section 6.5);
5.1.2 The failure by the Company to comply with any
material provision of this Agreement and such failure has
continued for a period of ten days after notice of such failure
has been given by Executive to the Company;
5.1.3 The assignment to Executive of any duties
materially inconsistent with Executive's status as the Chairman,
President and Chief Executive Officer of the Company or the
reduction of Executive's authority as provided hereunder; and
5.1.4 The reduction by the Company in Executive's
base salary or as the same may be increased from time to time
under the terms of this Agreement, except for across-the-board
salary reductions approved by 66-2/3% of the Board similarly
affecting all management personnel of the Company; provided,
however, that in no event shall Executive's base salary be
reduced to an amount equal to less than 75% of the highest base
salary at any time in effect during Executive's employment
hereunder.
6. COMPENSATION UPON TERMINATION.
6.1 DEATH. If Executive's employment shall be terminated
by death, the Company shall pay to Executive's designee(s),
beneficiary(ies), or if there is no such designee or beneficiary,
to Executive's estate, an amount equal to Executive's base salary
and prior year's bonus for one (1) year.
6.2 DISABILITY. If Executive shall become disabled as
provided in Section 4.1, the Company shall continue to pay to
Executive an amount which, when combined with disability or
income-continuance benefits pursuant to a Company plan or
provided under state law and received by Executive, shall equal
but not exceed Executive's base salary, provided that Executive
has submitted claims for any and all such disability benefits to
which he may be entitled. For any waiting period during which
Executive receives no benefits under any disability plan, the
Company shall pay his entire base salary. The Company shall
continue to integrate such salary payments with benefits until
such time as Executive's employment is terminated in accordance
with Section 4.2 hereof. Upon any such termination, the Company
shall pay to Executive an amount equal to Executive's base salary
and prior year's bonus for one (1) year.
6.3 CAUSE, WITHOUT SUFFICIENT REASON. If Executive's
employment shall be terminated by the Company For Cause, or if
Executive terminates employment hereunder without Sufficient
Reason, the Company shall pay Executive his base salary through
the date of termination at the rate in effect at the time of the
notice of termination, and the Company shall thereafter have no
further obligations to Executive under this Agreement.
6.4 WITHOUT CAUSE, SUFFICIENT REASON. If (a) Executive
shall terminate Executive's employment with the Company or the
New Company (as defined in Section 6.5 of this Agreement) for
Sufficient Reason under Section 5.1 of this Agreement; or (b) the
Company shall terminate Executive's employment Without Cause,
then upon Executive's furnishing to the Company (or the New
Company, as the case may be) an executed waiver and release of
claims (a form of which is attached hereto as Exhibit A),
Executive shall be entitled to the following:
6.4.1 Executive's base salary through the date of
termination;
6.4.2 Executive's annual base salary in effect at
the time of termination times five;
6.4.3 An amount equal to the prior calendar year's
bonus awarded to Executive times five;
6.4.4 Immediate vesting of all unvested stock
options of the Company held by Executive, and the continuation of
the period for exercise of all stock options of the Company held
by Executive until the final expiration of the original term of
such stock options; and
6.4.5 Continued receipt for three years of all
employee benefit plans and programs in which the Executive and
Executive's family were entitled to participate immediately prior
to the date of termination, provided that the Executive's
continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the
Executive's participation in any such plan or program is barred,
the Company shall arrange to provide the Executive with benefits
substantially similar to those which the Executive would
otherwise have been entitled to receive under such plans and
programs from which his continued participation is barred.
6.5 CHANGE IN CONTROL.
6.5.1 A "Change in Control" of the Company shall be
deemed to have occurred if and when:
(i) Any person or entity or group of persons
and/or entities acting in concert shall acquire, directly or
indirectly, beneficial ownership of more than twenty percent
(20%) of the outstanding shares of voting stock of the Company or
other securities of the Company convertible (after giving effect
to such conversion) into more than twenty percent (20%) of the
outstanding shares of voting stock of the Company; or
(ii) The Company is a participant in a merger or
consolidation in which the Company does not survive as an
independent company; or
(iii) The business or businesses of the
Company for which Executive's services are principally performed
are disposed of by the Company pursuant to a partial or complete
liquidation of the Company, a sale of assets or otherwise; or
(iv) During any period of two consecutive years
during the term of Executive's employment hereunder, individuals
who at the beginning of such period constitute the Board cease
for any reason to constitute at least a majority thereof, unless
the election of each director who was not a director at the
beginning of such period has been approved in advance by
directors representing at least two-thirds of the directors then
in office who were directors at the beginning of the period.
6.5.2 If any of the above four events occurs, then
for purposes of this Agreement, the Company or the Company's
successor will be considered the "New Company."
6.5.3 If within three hundred sixty-five (365) days
following the occurrence of a Change in Control, Executive's
employment with the New Company is terminated by the New Company
for any reason whatsoever other than as specified in Section 4.3,
upon Executive's furnishing to the New Company an executed waiver
and release of claims (Exhibit A), Executive shall be entitled to
the following:
(i) The New Company shall pay Executive's base
salary through the date of termination;
(ii) The New Company shall pay Executive his
annual base salary in effect immediately prior to the event or
events resulting in a Change in Control, times five;
(iii) The New Company shall pay Executive an
amount equal to five times the bonus awarded to Executive in the
calendar year immediately preceding the calendar year in which
the event or events resulting in a Change in Control occurred;
(iv) All unvested stock options of the New Company
held by Executive shall immediately vest, and the continuation of
the period for exercise of all stock options of the Company held
by Executive until the final expiration of the original term of
such stock options; and
(v) Executive shall continue to receive for three
years all employee benefit plans and programs in which the
Executive and Executive's family were entitled to participate
immediately prior to the date of termination, provided that the
Executive's continued participation is possible under the general
terms and provisions of such plans and programs. In the event
that the Executive's participation in any such plan or program is
barred, the New Company shall arrange to provide the Executive
with benefits substantially similar to those which the Executive
would otherwise have been entitled to receive under such plans
and programs from which his continued participation is barred.
All payments provided for in this Section 6 to be made to
Executive shall be made in one lump sum within thirty (30)
calendar days of Executive's date of termination unless otherwise
directed by Executive.
6.6 Prior to Executive's termination in accordance with
this Agreement, the Company agrees to (i) nominate Executive and
two of the Executive's designees for election to the Board and
the Board of each of the Company Affiliates, (ii) use the
Company's reasonable best efforts to support such nominations and
elections, (iii) take no action, by amendment of the Company's
charter documents or otherwise, to avoid or seek to avoid the
observance or performance of any of the terms to be observed or
performed by the Company hereunder and (iv) at all times in good
faith assist in the carrying out of all of the provisions herein
and in the taking of all such action as may be necessary or
appropriate in order to protect Executive's rights hereunder
against impairment.
7. CONFIDENTIAL INFORMATION; NONSOLICITATION.
7.1 Executive recognizes that his employment with the
Company will involve contact with information of substantial
value to the Company, which is not old and generally known in the
trade, and which gives the Company an advantage over its
competitors who do not know or use it, including but not limited
to, techniques, designs, drawings, processes, inventions,
developments, equipment, prototypes, sales and customer
information, and business and financial information relating to
the business, products, practices and techniques of the Company
(hereinafter referred to as "Confidential Information").
Executive will at all times regard and preserve as confidential
such Confidential Information obtained by Executive from whatever
source and will not, either during his employment with the
Company or thereafter, publish or disclose any part of such
Confidential Information in any manner at any time, or use the
same except on behalf of the Company, without the prior written
consent of the Company. Notwithstanding the foregoing sentence,
disclosure of Confidential Information shall not be precluded if
such information (i) is now, or hereafter becomes, through no act
or failure to act on the part of the Executive, generally known
or available, or (ii) is required to be disclosed by law.
7.2 While employed by the Company and for one (1) year
thereafter, the Executive agrees that, in order to protect the
Company's confidential and proprietary information from
unauthorized use, Executive will not, either directly or through
others, solicit or attempt to solicit (i) any employee,
consultant or independent contractor of the Company to terminate
his or her relationship with the Company in order to become an
employee, consultant or independent contractor to or for any
other person or business entity; or (ii) the business of any
customer, vendor or distributor of the Company which, at the time
of termination or one (1) year immediately prior thereto, was
listed on the Company's customer, vendor or distributor list.
8. SUCCESSORS. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement in form and substance
reasonably satisfactory to the Executive, to expressly assume and
agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if
no such succession had taken place. Failure of the Company to
obtain such an agreement prior to the effectiveness of any such
succession shall be a material breach of this Agreement and shall
entitle the Executive to compensation and all other benefits from
the Company in the same amount and on the same terms as he would
be entitled to hereunder if he terminated his employment for
Sufficient Reason hereunder.
9. ASSIGNMENT AND BINDING EFFECT. This Agreement shall be
binding upon and inure to the benefit of Executive and
Executive's heirs, executors, personal representatives, assigns,
administrators and legal representatives. Because of the unique
and personal nature of Executive's duties under this Agreement,
neither this Agreement nor any rights or obligations under this
Agreement shall be assignable by Executive. This Agreement shall
be binding upon and inure to the benefit of the Company and its
successors, assigns and legal representatives.
10. NOTICES. All notices or demands of any kind required or
permitted to be given by the Company or Executive under this
Agreement shall be given in writing and shall be personally
delivered (and receipted for) or mailed by certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Company: ▇▇▇▇▇▇-▇▇▇▇, Inc.
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇ ▇. Lourmeau, Esq.
▇▇▇▇▇▇ Godward LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Executive: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any such written notice shall be deemed received when personally
delivered or three (3) days after its deposit in the United
States mail as specified above. Either Party may change its
address for notices by giving notice to the other Party in the
manner specified in this section.
11. CHOICE OF LAW. This Agreement shall be construed and
interpreted in accordance with the laws of the State of
California, without regard to the conflict of laws provision
thereof.
12. INTEGRATION. This Agreement contains the complete, final
and exclusive agreement of the Parties relating to the subject
matter of this Agreement, and supersedes all prior oral and
written employment agreements or arrangements between the
Parties.
13. AMENDMENT. This Agreement cannot be amended or modified
except by a written agreement signed by Executive and the
Company.
14. WAIVER. No term, covenant or condition of this Agreement or
any breach thereof shall be deemed waived, except with the
written consent of the Party against whom the waiver in claimed,
and any waiver or any such term, covenant, condition or breach
shall not be deemed to be a waiver of any preceding or succeeding
breach of the same or any other term, covenant, condition or
breach.
15. SEVERABILITY. The finding by a court of competent
jurisdiction of the unenforceability, invalidity or illegality of
any provision of this Agreement shall not render any other
provision of this Agreement unenforceable, invalid or illegal.
Such court shall have the authority to modify or replace the
invalid or unenforceable term or provision with a valid and
enforceable term or provision which most accurately represents
the parties' intention with respect to the invalid or
unenforceable term or provision.
16. INTERPRETATION; CONSTRUCTION. The headings set forth in
this Agreement are for convenience of reference only and shall
not be used in interpreting this Agreement. This Agreement has
been drafted by legal counsel representing the Company, but
Executive has been encouraged, and has consulted with, his own
independent counsel and tax advisors with respect to the terms of
this Agreement. The Parties acknowledge that each Party and its
counsel has reviewed and revised, or had an opportunity to review
and revise, this Agreement, and the normal rule of construction
to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of
this Agreement.
17. REPRESENTATIONS AND WARRANTIES. Executive represents and
warrants that, to the best of Executive's knowledge, he is not
restricted or prohibited, contractually or otherwise, from
entering into and performing each of the terms and covenants
contained in this Agreement, and that his execution and
performance of this Agreement will not violate or breach any
other agreements between Executive and any other person or
entity.
18. COUNTERPARTS. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, all of
which together shall contribute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the date first above written.
THE COMPANY:
▇▇▇▇▇▇-▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
VICE PRESIDENT AND CONTROLLER
EXECUTIVE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
In exchange for payment to me of amounts pursuant to
Sections 6.4 and 6.5 (and for the other benefits provided
therein) of my Employment Agreement (the "Agreement"), to which
this form is attached, I hereby furnish ____________ (the
"Company") with the following release and waiver.
I hereby release, and forever discharge the Company, its
officers, directors, agents, employees, stockholders, successors,
assigns and affiliates, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses,
attorneys' fees, damages, indemnities and obligations of every
kind and nature, in law, equity, or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising at
any time prior to and including my employment termination date
with respect to any claims relating to my employment and the
termination of my employment, including but not limited to,
claims pursuant to any federal, state or local law relating to
employment, including, but not limited to, discrimination claims,
claims under the California Fair Employment and Housing Act, and
the Federal Age Discrimination in Employment Act of 1967, as
amended ("ADEA"), or claims for wrongful termination, breach of
the covenant of good faith, contract claims, tort claims, and
wage or benefit claims, including but not limited to, claims for
salary, bonuses, commissions, stock, stock options, vacation pay,
fringe benefits, severance pay or any form of compensation (other
than the obligations under Sections 6.4 and 6.5 of the
Agreement.)
I also acknowledge that I have read and understand Section
1542 of the California Civil Code which reads as follows: "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." I hereby expressly
waive and relinquish all rights and benefits under that section
and any law of any jurisdiction of similar effect with respect to
any claims I may have against the Company.
I acknowledge that, among other rights, I am waiving and
releasing any rights I may have under ADEA, that this waiver and
release is knowing and voluntary, and that the consideration
given for this waiver and release is in addition to anything of
value to which I was already entitled as an employee of the
Company. I further acknowledge that I have been advised, as
required by the Older Workers Benefit Protection Act, that: (a)
the waiver and release granted herein does not relate to claims
which may arise after this agreement is executed; (b) I have the
right to consult with an attorney prior to executing this
agreement (although I may choose voluntarily not to do so); (c) I
have twenty-one (21) days from the date I receive this agreement,
in which to consider this agreement (although I may choose
voluntarily to execute this agreement earlier); (d) I have seven
(7) days following the execution of this agreement to revoke my
consent to the agreement; and (e) this agreement shall not be
effective until the seven (7) day revocation period has expired.
Date: By:
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