Common use of Release by the Executive Clause in Contracts

Release by the Executive. (a) The Executive hereby unconditionally, irrevocably and absolutely releases and discharges the Company, the Purchaser, each of their respective direct and indirect parents, affiliates and subsidiaries, and each of the foregoing’s respective officers, directors, shareholders, managers, employees, agents, investors, and representatives (collectively, the “Released Parties”) from any actions, causes of action, suits and claims of every kind and description whatsoever, whether known or unknown, which existed or may have existed at any time from the beginning of the world up to the Effective Date, related in any way to any transactions or occurrences involving the Company, or any parent or subsidiary of the Company or any person acting on behalf of or through the Company, and the Executive or any affiliate of Executive through the Effective Date, or any matter, cause or thing whatsoever which shall have arisen at any time from the beginning of the world up to the Effective Date, to the fullest extent permitted by law, including, but not limited to, the Executive’s employment with or service to the Company (as an employee, officer, director or otherwise), claims related to Section 13(b)(i) of the Employment Agreement (except claims for payment of the Payment), claims related to the Acquisition Agreement, the Offer to Purchase, that certain Agreement and Plan of Merger dated as of June 2, 2004, by and between JRT Acquisition, Inc. and the Company (the “JRT Acquisition Agreement”) or the termination of the JRT Acquisition Agreement, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising directly or indirectly out of or in any way connected with the any of the foregoing, Executive’s employment with or service to the Company or the ending of those relationships, or Executive’s ownership of Common Stock, other capital stock or stock options of the Company or Executive’s participation or non-participation in any employee benefit plans of the Company, or Purchaser’s acquisition of the Company, in each case except those claims and rights that are specifically excluded from this release below in this Section 2(a). Except as set forth herein, this release includes, but is not limited to, any claims for wages, compensation, bonuses, employment benefits, stock options, equity interests or damages of any kind whatsoever, arising out of any common law torts, arising out of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any theory of wrongful discharge, any theory of negligence, any theory of retaliation, any theory of discrimination or harassment in any form, any legal restriction on the Company’s right to terminate employees, or any federal, state, or other governmental statute, executive order, or ordinance, including, without limitation, Title VII of the Civil Rights Act of 1964 as amended, the Civil Rights Act of 1991, the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Americans with Disabilities Act, the Family and Medical Leave Act, the Employment Retirement Income Security Act, or any other legal limitation on or regulation of the employment relationship, any claims for breach of fiduciary duties, negligence or malfeasance, all claims for attorneys’ fees, costs and expenses. Notwithstanding anything to the contrary contained herein, the release set forth in this Section 2 shall not include only: (i) claims for those benefits and payments due to the Executive pursuant to employee benefit plans of the Company of which the Executive is a participant or pursuant to the Employment Agreement (other than Executive’s right under Section 13(b)(i) of the Employment Agreement), in accordance with the applicable terms thereof, including, without limitation, as described on Schedule 1 hereto; (ii) claims for payment of the Payment in accordance with this Agreement; (iii) any claim or right of indemnification by the Company under the organizational documents of the Company, by law or under the indemnification provisions of the Employment Agreement or any other applicable agreement with the Company, including any indemnification pursuant to any applicable laws; (iv) any claim or right under the Company’s directors and officers liability coverage; and (v) any claim or right with respect to payment for common stock or stock options of the Company tendered in accordance with the terms of the Offer to Purchase. The parties agree that the benefits and compensation due to Executive under the Employment Agreement and option plan include, but are not limited to, those described on Schedule 1 hereto, and the amounts for each item scheduled in Schedule 1 are the correct and only amounts owing the Executive for each such item.

Release by the Executive. Except as otherwise expressly provided in this Agreement, the Executive, for himself and his heirs, executors, administrators, assigns, affiliates, successors and agents (acollectively, the "Executive's Affiliates") The Executive hereby unconditionally, irrevocably fully and absolutely without limitation releases and forever discharges the CompanyCommerce and its Related Entities, the Purchaser, and each of their respective direct and indirect parentsagents, affiliates and subsidiariesrepresentatives, and each of the foregoing’s respective shareholders, owners, officers, directors, shareholders, managers, employees, agentsconsultants, investorsattorneys, auditors, accountants, investigators, affiliates, successors and representatives assigns (collectively, the “Released Parties”) "Commerce Releasees"), both individually and collectively, from any and all rights, claims, demands, liabilities, actions, causes of action, suits damages, losses, costs, expenses and claims compensation, of every kind and description whatever nature whatsoever, whether known or unknown, fixed or contingent, which existed the Executive or any of the Executive's Affiliates has or may have existed at or may claim to have against the Commerce Releasees by reason of any time matter, cause, or thing whatsoever, from the beginning of the world up time to the Effective DateDate ("Claims"), related in including, without limiting the generality of the foregoing, any way Claims arising out of, based upon, or relating to the recruitment, hiring, employment, relocation, remuneration, investigation or termination of the Executive by any transactions of the Commerce Releasees, the Executive's tenure as an employee and/or an officer of any of the Commerce Releasees, any agreement or occurrences involving compensation arrangement between the CompanyExecutive and any of the Commerce Releasees, or any parent act or subsidiary occurrence in connection with any actual, existing, proposed, prospective or claimed ownership interest of the Company or any person acting on behalf nature of or through the Company, and the Executive or the Executive's Affiliates in equity capital or rights in equity capital or other securities of any affiliate of Executive through the Effective DateCommerce Releasees, or any matter, cause or thing whatsoever which shall have arisen at any time from in connection with the beginning of the world up to the Effective Date, to the fullest extent permitted by law, including, but not limited to, the Executive’s employment with or service to the Company (as an employee, officer, director or otherwise), claims related to Section 13(b)(i) of the Employment Agreement (except claims for payment of the Payment), claims related to the Acquisition Agreement, the Offer to Purchase, that certain Agreement and Plan of Merger dated as of June 2March 29, 2004, by and between JRT Acquisitionamong the Company, Skipping Stone Acquisition Corporation, Skipping Stone, Inc. and the Company holders of Skipping Stone, Inc. common stock (the “JRT Acquisition "Skipping Stone Merger Agreement”") and any other document or agreement referenced in the termination of Skipping Stone Merger Agreement (the JRT Acquisition Agreement, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising directly or indirectly out of or in any way connected with the any of the foregoing, Executive’s employment with or service to the Company or the ending of those relationships, or Executive’s ownership of Common Stock, other capital stock or stock options of the Company or Executive’s participation or non-participation in any employee benefit plans of the Company, or Purchaser’s acquisition of the Company, in each case except those claims and rights that are specifically excluded from this release below in this Section 2(a"Skipping Stone Agreements"). Except as set forth herein, this release includes, but is not limited to, any claims for wages, compensation, bonuses, employment benefits, stock options, equity interests or damages of any kind whatsoever, arising out of any common law torts, arising out of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any theory of wrongful discharge, any theory of negligence, any theory of retaliation, any theory of discrimination or harassment in any form, any legal restriction on the Company’s right to terminate employees, or any federal, state, or other governmental statute, executive order, or ordinance, including, without limitation, the delivery of the shares of Commerce's common stock due to him under the Skipping Stone Agreements, to the maximum extent permitted by law. The Executive specifically and expressly releases any Claims arising out of or based on: the California Fair Employment and Housing Act, as amended; Title VII of the Civil Rights Act of 1964 1964, as amended, the Civil Rights Act of 1991, the Civil Rights Act of 1866, 42 U.S.C. § 1981, ; the Americans with With Disabilities Act, ; the Family and Medical Leave National Labor Relations Act, as amended; the Employment Retirement Income Security Equal Pay Act; ERISA; any provision of the California Labor Code; the California common law on fraud, misrepresentation, negligence, defamation, infliction of emotional distress or other tort, breach of contract or covenant, violation of public policy or wrongful termination; state or federal wage and hour laws; or any other legal limitation on state or federal law, rule or regulation of dealing with the employment relationship, any claims for breach of fiduciary duties, negligence relationship or malfeasance, all claims for attorneys’ fees, costs and expensesoperating a publicly held business. Notwithstanding anything to the contrary Nothing contained herein, the release set forth in this Section 2 9 or any other provision of this Agreement shall not include only: (i) claims for those benefits and payments due release or waive any right that Executive has to the Executive pursuant to employee benefit plans reimbursement of expenses by Commerce or the Company of with respect to which the Executive is a participant or pursuant to the Employment Agreement (other than Executive’s right under Section 13(b)(i) of the Employment Agreement), in accordance with the applicable terms thereof, including, without limitation, as described on Schedule 1 hereto; (ii) claims for payment of the Payment in accordance with this Agreement; (iii) any claim or right of indemnification by the Company under the organizational documents of the Company, by law or under the indemnification provisions of the Employment Agreement or any other applicable agreement with the Company, including any indemnification pursuant to any applicable laws; (iv) any claim or right under the Company’s directors and officers liability coverage; and (v) any claim or right with respect to payment for common stock or stock options of the Company tendered in accordance with the terms of the Offer to Purchase. The parties agree that the benefits and compensation due to Executive under the Employment Agreement and option plan include, but are not limited to, those described on Schedule 1 hereto, and the amounts for each item scheduled in Schedule 1 are the correct and only amounts owing the Executive for each such itemmay be eligible.

Release by the Executive. Except as otherwise expressly provided in this Agreement, the Executive, for himself and his heirs, executors, administrators, assigns, affiliates, successors and agents (acollectively, the "Executive's Affiliates") The Executive hereby unconditionally, irrevocably fully and absolutely without limitation releases and forever discharges the CompanyCommerce and its Related Entities, the Purchaser, and each of their respective direct and indirect parentsagents, affiliates and subsidiariesrepresentatives, and each of the foregoing’s respective shareholders, owners, officers, directors, shareholders, managers, employees, agentsconsultants, investorsattorneys, auditors, accountants, investigators, affiliates, successors and representatives assigns (collectively, the “Released Parties”) "Commerce Releasees"), both individually and collectively, from any and all rights, claims, demands, liabilities, actions, causes of action, suits damages, losses, costs, expenses and claims compensation, of every kind and description whatever nature whatsoever, whether known or unknown, fixed or contingent, which existed the Executive or any of the Executive's Affiliates has or may have existed at or may claim to have against the Commerce Releasees by reason of any time matter, cause, or thing whatsoever, from the beginning of the world up time to the Effective DateDate ("Claims"), related in including, without limiting the generality of the foregoing, any way Claims arising out of, based upon, or relating to the recruitment, hiring, employment, relocation, remuneration, investigation or termination of the Executive by any transactions of the Commerce Releasees, the Executive's tenure as an employee and/or an officer of any of the Commerce Releasees, any agreement or occurrences involving compensation arrangement between the CompanyExecutive and any of the Commerce Releasees (including, without limitation, the Employment Agreement), or any parent act or subsidiary occurrence in connection with any actual, existing, proposed, prospective or claimed ownership interest of the Company or any person acting on behalf nature of or through the Company, and the Executive or the Executive's Affiliates in equity capital or rights in equity capital or other securities of any affiliate of Executive through the Effective DateCommerce Releasees, or any matter, cause or thing whatsoever which shall have arisen at any time from in connection with the beginning of the world up to the Effective Date, to the fullest extent permitted by law, including, but not limited to, the Executive’s employment with or service to the Company (as an employee, officer, director or otherwise), claims related to Section 13(b)(i) of the Employment Agreement (except claims for payment of the Payment), claims related to the Acquisition Agreement, the Offer to Purchase, that certain Agreement and Plan of Merger dated as of June 2March 29, 2004, by and between JRT Acquisitionamong the Company, Skipping Stone Acquisition Corporation, Skipping Stone, Inc. and the Company holders of Skipping Stone, Inc. common stock (the “JRT Acquisition "Skipping Stone Merger Agreement”") and any other document or agreement referenced in the termination of Skipping Stone Merger Agreement (the JRT Acquisition Agreement, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising directly or indirectly out of or in any way connected with the any of the foregoing, Executive’s employment with or service to the Company or the ending of those relationships, or Executive’s ownership of Common Stock, other capital stock or stock options of the Company or Executive’s participation or non-participation in any employee benefit plans of the Company, or Purchaser’s acquisition of the Company, in each case except those claims and rights that are specifically excluded from this release below in this Section 2(a"Skipping Stone Agreements"). Except as set forth herein, this release includes, but is not limited to, any claims for wages, compensation, bonuses, employment benefits, stock options, equity interests or damages of any kind whatsoever, arising out of any common law torts, arising out of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any theory of wrongful discharge, any theory of negligence, any theory of retaliation, any theory of discrimination or harassment in any form, any legal restriction on the Company’s right to terminate employees, or any federal, state, or other governmental statute, executive order, or ordinance, including, without limitation, the delivery of the shares of Commerce's common stock due to him under the Skipping Stone Agreements, to the maximum extent permitted by law. The Executive specifically and expressly releases any Claims arising out of or based on: the California Fair Employment and Housing Act, as amended; Title VII of the Civil Rights Act of 1964 1964, as amended, the Civil Rights Act of 1991, the Civil Rights Act of 1866, 42 U.S.C. § 1981, ; the Americans with With Disabilities Act, ; the Family and Medical Leave National Labor Relations Act, as amended; the Employment Retirement Income Security Equal Pay Act; ERISA; any provision of the California Labor Code; the California common law on fraud, misrepresentation, negligence, defamation, infliction of emotional distress or other tort, breach of contract or covenant, violation of public policy or wrongful termination; state or federal wage and hour laws; or any other legal limitation on state or federal law, rule or regulation of dealing with the employment relationship, any claims for breach of fiduciary duties, negligence relationship or malfeasance, all claims for attorneys’ fees, costs and expensesoperating a publicly held business. Notwithstanding anything to the contrary Nothing contained herein, the release set forth in this Section 2 11 or any other provision of this Agreement shall not include only: (i) claims for those benefits and payments due release or waive any right that Executive has to the Executive pursuant to employee benefit plans indemnification and/or reimbursement of expenses by Commerce or the Company of with respect to which the Executive is a participant or pursuant to the Employment Agreement (other than Executive’s right under may be eligible as provided in Section 13(b)(i) of the Employment Agreement10(c), in accordance with the applicable terms thereof, including, without limitation, as described on Schedule 1 hereto; (ii) claims for payment of the Payment in accordance with this Agreement; (iii) any claim or right of indemnification by the Company under the organizational documents of the Company, by law or under the indemnification provisions of the Employment Agreement or any other applicable agreement with the Company, including any indemnification pursuant to any applicable laws; (iv) any claim or right under the Company’s directors and officers liability coverage; and (v) any claim or right with respect to payment for common stock or stock options of the Company tendered in accordance with the terms of the Offer to Purchase. The parties agree that the benefits and compensation due to Executive under the Employment Agreement and option plan include, but are not limited to, those described on Schedule 1 hereto, and the amounts for each item scheduled in Schedule 1 are the correct and only amounts owing the Executive for each such itemabove.

Release by the Executive. Except as otherwise expressly provided in this Agreement, the Executive, for himself and his heirs, executors, administrators, assigns, affiliates, successors and agents (acollectively, the "Executive's Affiliates") The Executive hereby unconditionally, irrevocably fully and absolutely without limitation releases and forever discharges the CompanyCommerce and its Related Entities, the Purchaser, and each of their respective direct and indirect parentsagents, affiliates and subsidiariesrepresentatives, and each of the foregoing’s respective officers, directors, shareholders, managers, employees, agentsconsultants, investorsattorneys, auditors, accountants, investigators, affiliates, successors and representatives assigns (collectively, the “Released Parties”) "Company Releasees"), both individually and collectively, from any and all rights, claims, demands, liabilities, actions, causes of action, suits and claims of every kind and description whatsoeverdamages, whether known or unknown, which existed or may have existed at any time from the beginning of the world up to the Effective Date, related in any way to any transactions or occurrences involving the Company, or any parent or subsidiary of the Company or any person acting on behalf of or through the Company, and the Executive or any affiliate of Executive through the Effective Date, or any matter, cause or thing whatsoever which shall have arisen at any time from the beginning of the world up to the Effective Date, to the fullest extent permitted by law, including, but not limited to, the Executive’s employment with or service to the Company (as an employee, officer, director or otherwise), claims related to Section 13(b)(i) of the Employment Agreement (except claims for payment of the Payment), claims related to the Acquisition Agreement, the Offer to Purchase, that certain Agreement and Plan of Merger dated as of June 2, 2004, by and between JRT Acquisition, Inc. and the Company (the “JRT Acquisition Agreement”) or the termination of the JRT Acquisition Agreement, and all other losses, liabilitiescosts, claimsexpenses and compensation, charges, demands and causes of actionwhatever nature whatsoever, known or unknown, suspected fixed or unsuspectedcontingent, arising directly which the Executive or indirectly out any of the Executive's Affiliates has or in may have or may claim to have against the Company Releasees by reason of any way connected with matter, cause, or thing whatsoever, from the any first date the Executive was an employee, officer or director of Commerce and its Related Entities, or the predecessors of Commerce and its Related Entities, to the Effective Date ("Claims"), including, without limiting the generality of the foregoing, Executive’s employment with any Claims arising out of, based upon, or service relating to the Company or the ending of those relationshipsrecruitment, hiring, employment, or Executive’s ownership termination of Common Stock, other capital stock or stock options the Executive by any of the Company or Releasees, the Executive’s participation or non-participation in 's tenure as an employee and/or an officer of any employee benefit plans of the CompanyCompany Releasees, any agreement or Purchaser’s acquisition compensation arrangement between the Executive and any of the Company, in each case except those claims and rights that are specifically excluded from this release below in this Section 2(a). Except as set forth herein, this release includes, but is not limited to, any claims for wages, compensation, bonuses, employment benefits, stock options, equity interests or damages of any kind whatsoever, arising out of any common law torts, arising out of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any theory of wrongful discharge, any theory of negligence, any theory of retaliation, any theory of discrimination or harassment in any form, any legal restriction on the Company’s right to terminate employees, or any federal, state, or other governmental statute, executive order, or ordinance, Company Releasees (including, without limitation, Title VII of the Civil Rights Act of 1964 as amended, the Civil Rights Act of 1991, the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Americans with Disabilities Act, the Family and Medical Leave Act, the Employment Retirement Income Security Act, or any other legal limitation on or regulation of the employment relationship, any claims for breach of fiduciary duties, negligence or malfeasance, all claims for attorneys’ fees, costs and expenses. Notwithstanding anything to the contrary contained herein, the release set forth in this Section 2 shall not include only: (i) claims for those benefits and payments due to the Executive pursuant to employee benefit plans of the Company of which the Executive is a participant or pursuant to the Employment Agreement (other than Executive’s right under Section 13(b)(i) of the Employment Agreement), or any act or occurrence in accordance connection with the applicable terms thereofany actual, includingexisting, without limitationproposed, as described on Schedule 1 hereto; (ii) claims for payment prospective or claimed ownership interest of any nature of the Payment Executive or the Executive's Affiliates in accordance with this Agreement; (iii) equity capital or rights in equity capital or other securities of any claim or right of indemnification by the Company under the organizational documents of the Company, by law or under the indemnification provisions of the Employment Agreement or any other applicable agreement with the Company, including any indemnification pursuant to any applicable laws; (iv) any claim or right under the Company’s directors and officers liability coverage; and (v) any claim or right with respect to payment for common stock or stock options of the Company tendered in accordance with Releasees to the terms of the Offer to Purchase. The parties agree that the benefits and compensation due to Executive under the Employment Agreement and option plan include, but are not limited to, those described on Schedule 1 hereto, and the amounts for each item scheduled in Schedule 1 are the correct and only amounts owing the Executive for each such item.maximum extent permitted