Common use of Executive’s Promises Clause in Contracts

Executive’s Promises. In exchange for the Company’s promises contained herein, the Executive hereby agrees that: (a) he will remain employed by the Company during the Term; (b) subject to the Parties’ mutual cooperation, he will perform his assigned duties and responsibilities to the best of his abilities during the Term provided that any determination by the Company to the contrary requires concurrence of the Audit Committee. Executive expressly understands and agrees that the Company may, subject to the prior approval of the Audit Committee, restructure certain of Executive’s duties throughout the Term of this Agreement in its sole discretion and that, in such case, Executive will assist the Company in any transition of duties or search for a successor to his position as Chief Accounting Officer; (c) in consideration of the payments and benefits provided to Executive hereunder the sufficiency of which Executive hereby acknowledges, Executive releases the 2 This second installment represents payments for or with respect to separation, bonus amounts, long-term incentive compensation (current and non-vested), and certain benefits (such as outplacement assistance). Company, any and all entities that are, have been, or may become associated with the Company in the future in any manner whatsoever (the “Related Entities”), and any past, present and future shareholders, directors, officers, employees, agents, attorneys, accountants, consultants, advisors or representatives of the Company (the “Related Individuals”) and/or the Related Entities, from any and all claims, charges, demands, suits, debts, loans, judgments, liens, obligations, damages, liabilities (including claims for indemnification or contribution), rights and causes of action of any nature whatsoever, known or unknown, at law or equity or otherwise, including, but not limited to, claims, charges, demands, suits, causes or rights of action relating to the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the Family and Medical Leave Act, breach of contract or public policy, wrongful or retaliatory discharge, whistle blower actions, claims for discrimination or retaliation, defamation or other personal or business injury of any kind, claims for discrimination, including claims under the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866, the Civil Rights Act of 1991, and the Employee Retirement Income Security Act of 1974, claims for personal injury, additional compensation or fringe benefits (including performance shares under a company long-term incentive plan to the extent not vested as of December 31, 2005), and any and all rights to or claims for continued employment, attorneys fees or damages (including, but not limited to, contract, compensatory, punitive or liquidated damages) or equitable relief, which he may ever have had up to the date of this Agreement or which his heirs, executors or assigns have up to the date of this Agreement, against any or all of them, whether known or unknown, on account of or arising out of or in any way or manner relating to, or based upon, his employment with the Company, or any facts, transactions, occurrences, acts, or omissions, products or services thereof or any other basis whatsoever. Executive specifically waives the benefit of any statute or rule of law which, if applied to the instant Agreement, would otherwise exclude from its binding effect any claims not now known by Executive to exist; (d) he will seek to withdraw and dismiss or close any and all Complaints he previously has filed against the Company or any of the Related Entities or Related Individuals and that he is willingly and voluntarily agreeing to do so; (e) he will not defame or make disparaging, negative or other similar remarks concerning the Company or any of the Related Entities or Related Individuals provided that this shall not apply to communications to the Supervisory Board, the Audit Committee, or any governmental agency; (f) he represents that he has not sought from the Company or any of its officers, directors, agents, or attorneys any tax advice relating to this Agreement and that he will indemnify and hold harmless the Company from any tax consequences arising from this Agreement; (g) he will execute Exhibit A to this Agreement in accordance with the time frame set forth in Section 2 (a) (ii) of this Agreement; and (h) he will cooperate fully with the Company and Related Entities in its/their prosecution or defense of, or participation in, any administrative, judicial or other proceeding arising from any charge, complaint or other legal action, which has been or may be filed and with any internal investigation. Executive shall reasonably cooperate with any and all representatives of the Company and its Related Entities in providing accurate and complete information to such representatives related to administrative, judicial or other actions in which the Company, its Related Entities or any of its or their owners, shareholders, predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, subsidiaries, affiliates (and agents, directors, officers, employees, representatives and attorneys of such subsidiaries and affiliates) and all persons acting by, through, under or in concert with any of them is a party. Such cooperation shall include, but not be limited to, meeting with representatives of the Company or its Related Entities upon reasonable notice at reasonable times and locations and providing accurate and complete information and testimony related to Executive’s employment with the Company to such representatives. Further, Executive shall notify W▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or S▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. if he is asked to assist, testify or provide information by or to any person, entity or agency, other than the Company or a Related Entity, in any such proceeding or investigation relating to the Company or a Related Entity; such notice to M▇. ▇▇▇▇▇▇▇▇ or M▇. ▇▇▇▇▇▇▇ shall be in writing and sent by telecopy (832-513-1791) within two (2) business days of the time the request for assistance, testimony or information is made to Executive.

Executive’s Promises. In exchange for the Company’s promises contained herein, the Executive hereby agrees that: (a) he will remain employed by the Company during the Term; (b) subject to the Parties’ mutual cooperation, he will perform his assigned duties and responsibilities to the best of his abilities during the Term provided that any determination by the Company to the contrary requires concurrence of the Audit Committee. Executive expressly understands and agrees that the Company may, subject to the prior approval of the Audit Committee, restructure certain of Executive’s duties throughout the Term of this Agreement in its sole discretion and that, in such case, Executive will assist the Company in any transition of duties or search for a successor to his position as Chief Accounting Officer; (c) in consideration of the payments and benefits provided to Executive hereunder the sufficiency of which Executive hereby acknowledges, Executive releases the 2 This second installment represents payments for or with respect to separation, bonus amounts, long-term incentive compensation (current and non-vested), and certain benefits (such as outplacement assistance). Company, any and all entities that are, have been, or may become associated with the Company in the future in any manner whatsoever (the “Related Entities”), and any past, present and future shareholders, directors, officers, employees, agents, attorneys, accountants, consultants, advisors or representatives of the Company (the “Related Individuals”) and/or the Related Entities, from any and all claims, charges, demands, suits, debts, loans, judgments, liens, obligations, damages, liabilities (including claims for indemnification or contribution), rights and causes of action of any nature whatsoever, known or unknown, at law or equity or otherwise, including, but not limited to, claims, charges, demands, suits, causes or rights of action relating to the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the Family and Medical Leave Act, breach of contract or public policy, wrongful or retaliatory discharge, whistle blower actions, claims for discrimination or retaliation, defamation or other personal or business injury of any kind, claims for discrimination, including claims under the Age Discrimination in Employment Act of 1967, as amended by the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866, the Civil Rights Act of 1991, and the Employee Retirement Income Security Act of 1974, claims for personal injury, additional compensation or fringe benefits (including performance shares under a company long-term incentive plan to the extent not vested as of December 31, 2005), and any and all rights to or claims for continued employment, attorneys fees or damages (including, but not limited to, contract, compensatory, punitive or liquidated damages) or equitable relief, which he may ever have had up to the date of this Agreement or which his heirs, executors or assigns have up to the date of this Agreement, against any or all of them, whether known or unknown, on account of or arising out of or in any way or manner relating to, or based upon, his employment with the CompanyCompany or his separation from such employment, or any facts, transactions, occurrences, acts, or omissions, products or services thereof or any other basis whatsoever. Executive specifically waives the benefit of any statute or rule of law which, if applied to the instant Agreement, would otherwise exclude from its binding effect any claims not now known by Executive to exist; (db) his last day of employment is ___and that he has been paid in full for all work performed and is not entitled to any further salary or benefits, severance pay or benefits, incentive compensation, bonuses, or any other form of wages, compensation, or benefits; (c) he will not seek to withdraw and dismiss employment, reemployment, or close any and all Complaints he previously has filed against reinstatement with the Company or any of entity affiliated with the Related Entities Company (whether currently affiliated with the Company or Related Individuals affiliated with the Company in the future) and that he is willingly and voluntarily agreeing to do so; (e) he will not defame or make disparaging, negative or other similar remarks concerning apply for employment with the Company or any of the Related Entities or Related Individuals provided that this shall not apply to communications to the Supervisory Board, the Audit Committee, such affiliate at any time or any governmental agencylocation; (fd) he represents that he has not sought from the Company or any of its officers, directors, agents, or attorneys any tax advice relating to this Agreement and that he will indemnify and hold harmless the Company from any tax consequences arising from this Agreement; (ge) he represents that he has and will execute Exhibit A to this Agreement in accordance comply with the time frame any and all other obligations set forth in the Stay Bonus Agreement, including but not limited to Section 2 (a) (ii) 3 of this such Agreement; and (hf) he confirms that he will cooperate fully execute an Employee Invention and Confidential Information Agreement, a copy of which is attached hereto, contemporaneously with the Company and Related Entities in its/their prosecution or defense of, or participation in, any administrative, judicial or other proceeding arising from any charge, complaint or other legal action, which has been or may be filed and with any internal investigation. Executive shall reasonably cooperate with any and all representatives execution of the Company and its Related Entities in providing accurate and complete information to such representatives related to administrative, judicial or other actions in which the Company, its Related Entities or any of its or their owners, shareholders, predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, subsidiaries, affiliates (and agents, directors, officers, employees, representatives and attorneys of such subsidiaries and affiliates) and all persons acting by, through, under or in concert with any of them is a party. Such cooperation shall include, but not be limited to, meeting with representatives of the Company or its Related Entities upon reasonable notice at reasonable times and locations and providing accurate and complete information and testimony related to Executive’s employment with the Company to such representatives. Further, Executive shall notify W▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or S▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. if he is asked to assist, testify or provide information by or to any person, entity or agency, other than the Company or a Related Entity, in any such proceeding or investigation relating to the Company or a Related Entity; such notice to M▇. ▇▇▇▇▇▇▇▇ or M▇. ▇▇▇▇▇▇▇ shall be in writing and sent by telecopy (832-513-1791) within two (2) business days of the time the request for assistance, testimony or information is made to Executivethis document.

Executive’s Promises. In exchange consideration for the Company’s promises contained herein, the Executive hereby agrees that: (aand payments described in Section 7(b) he will remain employed by the Company during the Term; (b) subject to the Parties’ mutual cooperation, he will perform his assigned duties and responsibilities to the best of his abilities during the Term provided that any determination by the Company to the contrary requires concurrence of the Audit Committee. Executive expressly understands and agrees that Employment Agreement, including without limitation the Company may, subject to the prior approval of the Audit Committee, restructure certain payment of Executive’s duties throughout 2015 Bonus in the Term gross amount of this Agreement $260,000, less lawfully required withholdings, to be paid over twelve (12) months following Executive’s Termination Date, along with the Additional Consideration described in its sole discretion and that, in such caseSection 5 below, Executive will assist the Company in any transition of duties or search for a successor to his position agrees as Chief Accounting Officer;follows: (c) in consideration of the payments and benefits provided to Executive hereunder the sufficiency of which 4.1 Executive hereby acknowledgescovenants not to ▇▇▇ and also waives, Executive releases the 2 This second installment represents payments for or with respect to separation, bonus amounts, long-term incentive compensation (current and non-vested), and certain benefits (such as outplacement assistance). forever discharges Company, any and all entities that areits parent company, have beendivisions, or may become associated with the Company in the future in any manner whatsoever (the “Related Entities”)subsidiaries, and any past, present and future shareholdersofficers, directors, officersagents, employees, agentsstockholders, attorneys, accountants, consultants, advisors or representatives of the Company (the “Related Individuals”) and/or the Related Entities, affiliates and successors from any and all claims, charges, demands, suits, debts, loans, judgments, liens, obligations, damages, liabilities (including claims for indemnification or contribution), rights and causes of action action, damages or costs of any nature whatsoevertype Executive may have against Company or its current and former parent company, known divisions, subsidiaries, officers, directors, employees, agents, stockholders, successors or unknown, at law or equity or otherwise, affiliates (the “Released Parties”) including, without limitation, those arising out of or relating to Executive's employment with Company and Executive's separation of employment with Company. This waiver and release includes, but is not limited to, claims, chargescauses of action, demandsdamages or costs, suitsincluding attorney’s fees, causes arising, without limitation, under or rights in relation to Company's employee handbook and personnel policies, or any oral or written representations or statements made by officers, directors, employees or agents of action Company, or under any state or federal law regulating wages, hours, compensation or employment, or any claim for breach of contract (including any contract claims arising out of or relating in any way to the SEmployment Agreement) or breach of the implied covenant of good faith and fair dealing, or any claim for stock, stock options, warrants, or phantom stock or equity of any kind or any claim for wrongful termination, or any discrimination claim on the basis of race, sex, sexual orientation, gender, age, religion, marital status, national origin, physical or mental disability, medical condition, or any claim arising under the federal Age Discrimination in Employment Act (“ADEA”), the Equal Pay Act, the California Family Rights Act, the Pregnancy Discrimination Act, the Family Medical Leave Act, the California Labor Code, the California Wage Orders, Title VII of the Civil Rights Act, the Fair Employment and Housing Act, the California Labor Code Private Attorneys General Act of 2004, the California Wage Orders, and Business and Professions Code Section 17200, et seq., the Federal Work Adjustment and Retraining Notification Act (or any similar state or foreign law), the Employee Retirement Income Security Act of 1974, the Americans With Disabilities Act, the California Constitution, the Genetic Information Non-Discrimination Act, the National Labor Relations Act, the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Fair Pay Act, the Fair Credit Reporting Act, the False Claims Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the Family and Medical Leave Act, breach of contract or public policythe California Business and Professions Code, wrongful or retaliatory discharge, whistle blower actions, claims for discrimination or retaliation, defamation or other personal or business injury of any kind, claims for discrimination, including claims under the Age Discrimination in Employment Act of 1967, as amended by and the Older Workers Benefit Protection ActAct (“OWBPA”), Title VII or any other state or federal statute or common law cause of action. Notwithstanding the foregoing, this Release does not release: (a) claims that cannot be released as a matter of law, (b) claims arising after the effective date of this release including those under the Employment Agreement, (c) claims to enforce any of Executive's rights to the severance payments and benefits described in Section 7(b) of the Employment Agreement, (d) claims for indemnification pursuant to Section 6 of the Employment Agreement, or (e) claims to enforce any of Executive's vested benefits under any employee benefit plan sponsored or provided by the Company. 4.2 The waiver and release set forth in paragraph 4.1 applies to claims of which Executive does not currently have knowledge and Executive specifically waives the benefit of the provisions of Section 1542 of the Civil Rights Act of 1964, Section 1981 Code of the Civil Rights Act State of 1866California which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the Civil Rights Act debtor.” Executive hereby expressly waives and relinquishes all rights and benefits under any law or legal principle of 1991similar effect to Section 1542 in any jurisdiction with respect to the waiver and release set forth in paragraph 4.1. Executive acknowledges that he may later discover facts in addition to or different from those which Executive now knows, or believes to be true, with respect to any of the subject matters of this Release, but that it is nevertheless Executive’s intention to settle and release any and all claims described in paragraph 4.1. 4.3 Executive has not suffered nor aggravated any known on-the-job injuries for which Executive has not already filed a Workers' Compensation claim. 4.4 Executive represents and warrants that no claims have been filed by him or on his behalf against any Released Party prior to the Employee Retirement Income Security Act effectiveness of 1974this Release. Additionally, claims for personal injury, additional compensation or fringe benefits (including performance shares under a company long-term incentive plan to the extent not vested as there is a claim filed (or subsequently filed in breach of December 31, 2005paragraph 4.1), then any such claim will be “dismissed with prejudice” and Executive shall promptly pay all fees and costs associated with obtaining the dismissal, or in connection with the dismissal, including reasonable legal fees. Nothing in this Release shall: (a) prohibit Executive from making a future claim with or cooperating with the Equal Employment Opportunity Commission or any similar state or federal agency provided, however, that should Executive pursue such an administrative action against any of the Releasees, to the maximum extent allowed by law, Executive acknowledges and all rights agrees that Executive will not seek, nor will Executive be entitled to recover, any monetary damages from any such proceeding, or claims for continued employment(b) prohibit Executive from reporting possible violations of federal law or regulation to any governmental agency or entity, attorneys fees or damages (including, but not limited to, contractthe Department of Justice, compensatorythe Securities and Exchange Commission, punitive or liquidated damages) or equitable relief, which he may ever have had up to the date of this Agreement or which his heirs, executors or assigns have up to the date of this Agreement, against Congress and any or all of them, whether known or unknown, on account of or arising out of or in any way or manner relating toagency Inspector General, or based upon, his employment with making other disclosures that are protected under the Company, whistleblower provisions of federal law or any facts, transactions, occurrences, acts, or omissions, products or services thereof or any other basis whatsoever. regulation. 4.5 Executive specifically waives the benefit agrees that nothing in this Release shall be construed as an admission of liability of any statute or rule of law which, if applied to the instant Agreement, would otherwise exclude from its binding effect any claims not now known kind by Executive to exist; (d) he will seek to withdraw and dismiss or close any and all Complaints he previously has filed against the Company or any of the Related Entities or Related Individuals and that he is willingly and voluntarily agreeing to do so; (e) he will not defame or make disparaging, negative or other similar remarks concerning the Company or any of the Related Entities or Related Individuals provided that this shall not apply to communications to the Supervisory Board, the Audit Committee, or any governmental agency; (f) he represents that he has not sought from the Company or any of its officers, directors, agents, or attorneys any tax advice relating to this Agreement and that he will indemnify and hold harmless the Company from any tax consequences arising from this Agreement; (g) he will execute Exhibit A to this Agreement in accordance with the time frame set forth in Section 2 (a) (ii) of this Agreement; and (h) he will cooperate fully with the Company and Related Entities in its/their prosecution or defense of, or participation in, any administrative, judicial or other proceeding arising from any charge, complaint or other legal action, which has been or may be filed and with any internal investigation. Executive shall reasonably cooperate with any and all representatives of the Company and its Related Entities in providing accurate and complete information to such representatives related to administrative, judicial or other actions in which the Company, its Related Entities or any of its or their owners, shareholders, predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, subsidiaries, affiliates (and agents, directors, officers, employees, representatives and attorneys of such subsidiaries and affiliates) and all persons acting by, through, under or in concert with any of them is a party. Such cooperation shall include, but not be limited to, meeting with representatives of the Company or its Related Entities upon reasonable notice at reasonable times and locations and providing accurate and complete information and testimony related to Executive’s employment with the Company to such representatives. Further, Executive shall notify W▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or S▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. if he is asked to assist, testify or provide information by or to any person, entity or agency, other than the Company or a Related Entity, in any such proceeding or investigation relating to the Company or a Related Entity; such notice to M▇. ▇▇▇▇▇▇▇▇ or M▇. ▇▇▇▇▇▇▇ shall be in writing and sent by telecopy (832-513-1791) within two (2) business days of the time the request for assistance, testimony or information is made to Executive.