Common use of Release by the Executive Clause in Contracts

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 (collectively, the "Executive's Affiliates") hereby fully and without limitation releases and forever discharges Commerce and its Related Entities, and each of their respective agents, representatives, shareholders, owners, officers, directors, employees, consultants, attorneys, auditors, accountants, investigators, affiliates, successors and assigns (collectively, the "Commerce Releasees"), both individually and collectively, from any and all rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of whatever nature whatsoever, known or unknown, fixed or contingent, which the Executive or any of the Executive's Affiliates has or may have or may claim to have against the Commerce Releasees by reason of any matter, cause, or thing whatsoever, from the beginning of time to the Effective Date ("Claims"), including, without limiting the generality of the foregoing, any Claims arising out of, based upon, or relating to the recruitment, hiring, employment, relocation, remuneration, investigation or termination of the Executive by any of the Commerce Releasees, the Executive's tenure as an employee and/or an officer of any of the Commerce Releasees, any agreement or compensation arrangement between the Executive and any of the Commerce Releasees, or any act or occurrence in connection with any actual, existing, proposed, prospective or claimed ownership interest of any nature of the Executive or the Executive's Affiliates in equity capital or rights in equity capital or other securities of any of the Commerce Releasees, or in connection with the Agreement and Plan of Merger dated March 29, 2004, by and among the Company, Skipping Stone Acquisition Corporation, Skipping Stone, Inc. and the holders of Skipping Stone, Inc. common stock (the "Skipping Stone Merger Agreement") and any other document or agreement referenced in the Skipping Stone Merger Agreement (the "Skipping Stone Agreements"), 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, as amended; the Americans With Disabilities Act; the National Labor Relations Act, as amended; the 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 state or federal law, rule or regulation dealing with the employment relationship or operating a publicly held business. Nothing contained in this Section 9 or any other provision of this Agreement shall release or waive any right that Executive has to reimbursement of expenses by Commerce or the Company with respect to which the Executive may 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 (collectively, the "Executive's Affiliates") hereby fully and without limitation releases and forever discharges Commerce and its Related Entities, and each of their respective agents, representatives, shareholders, owners, officers, directors, employees, consultants, attorneys, auditors, accountants, investigators, affiliates, successors and assigns (collectively, the "Commerce Releasees"), both individually and collectively, from any and all rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of whatever nature whatsoever, known or unknown, fixed or contingent, which the Executive or any of the Executive's Affiliates has or may have or may claim to have against the Commerce Releasees by reason of any matter, cause, or thing whatsoever, from the beginning of time to the Effective Date ("Claims"), including, without limiting the generality of the foregoing, any Claims arising out of, based upon, or relating to the recruitment, hiring, employment, relocation, remuneration, investigation or termination of the Executive by any of the Commerce Releasees, the Executive's tenure as an employee and/or an officer of any of the Commerce Releasees, any agreement or compensation arrangement between the Executive and any of the Commerce ReleaseesReleasees (including, without limitation, the Employment Agreement), or any act or occurrence in connection with any actual, existing, proposed, prospective or claimed ownership interest of any nature of the Executive or the Executive's Affiliates in equity capital or rights in equity capital or other securities of any of the Commerce Releasees, or in connection with the Agreement and Plan of Merger dated March 29, 2004, by and among the Company, Skipping Stone Acquisition Corporation, Skipping Stone, Inc. and the holders of Skipping Stone, Inc. common stock (the "Skipping Stone Merger Agreement") and any other document or agreement referenced in the Skipping Stone Merger Agreement (the "Skipping Stone Agreements"), 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, as amended; the Americans With Disabilities Act; the National Labor Relations Act, as amended; the 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 state or federal law, rule or regulation dealing with the employment relationship or operating a publicly held business. Nothing contained in this Section 9 11 or any other provision of this Agreement shall release or waive any right that Executive has to indemnification and/or reimbursement of expenses by Commerce or the Company with respect to which the Executive may be eligibleeligible as provided in Section 10(c), above.

Release by the Executive. Except as otherwise expressly provided in this Agreement(a) The Executive hereby unconditionally, irrevocably and absolutely releases and discharges the Company, the ExecutivePurchaser, for himself each of their respective direct and his heirsindirect parents, executorsaffiliates and subsidiaries, administratorsand each of the foregoing’s respective officers, assignsdirectors, affiliatesshareholders, successors managers, employees, agents, investors, and agents representatives (collectively, the "Executive's Affiliates"“Released Parties”) hereby fully and without limitation releases and forever discharges Commerce and its Related Entities, and each of their respective agents, representatives, shareholders, owners, officers, directors, employees, consultants, attorneys, auditors, accountants, investigators, affiliates, successors and assigns (collectively, the "Commerce Releasees"), both individually and collectively, from any and all rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses suits and compensation, claims of whatever nature every kind and description whatsoever, whether known or unknown, fixed which existed or contingentmay have existed at any time from the beginning of the world up to the Effective Date, which 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 Executive's Affiliates has Effective Date, or may have or may claim to have against the Commerce Releasees by reason of any matter, cause, cause or thing whatsoever, whatsoever which shall have arisen at any time from the beginning of time the world up to the Effective Date ("Claims")Date, to the fullest extent permitted by law, including, without limiting the generality of the foregoing, any Claims arising out of, based upon, or relating to the recruitment, hiring, employment, relocation, remuneration, investigation or termination of the Executive by any of the Commerce Releaseesbut not limited to, the Executive's tenure ’s employment with or service to the Company (as an employee and/or an officer of any employee, officer, director or otherwise), claims related to Section 13(b)(i) of the Commerce Releasees, any agreement or compensation arrangement between the Executive and any Employment Agreement (except claims for payment of the Commerce ReleaseesPayment), or any act or occurrence in connection with any actualclaims related to the Acquisition Agreement, existingthe Offer to Purchase, proposed, prospective or claimed ownership interest of any nature of the Executive or the Executive's Affiliates in equity capital or rights in equity capital or other securities of any of the Commerce Releasees, or in connection with the that certain Agreement and Plan of Merger dated March 29as of June 2, 2004, by and among the Company, Skipping Stone Acquisition Corporation, Skipping Stonebetween JRT Acquisition, Inc. and the holders of Skipping Stone, Inc. common stock Company (the "Skipping Stone Merger “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 document capital stock or agreement referenced stock options of the Company or Executive’s participation or non-participation in any employee benefit plans of the Skipping Stone Merger Agreement (Company, or Purchaser’s acquisition of the "Skipping Stone Agreements"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, 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 National Labor Relations Family and Medical Leave Act, as amended; the Equal Pay Employment Retirement Income Security 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 state or federal law, rule legal limitation on or regulation dealing with of the employment relationship relationship, any claims for breach of fiduciary duties, negligence or operating a publicly held businessmalfeasance, all claims for attorneys’ fees, costs and expenses. Nothing Notwithstanding anything to the contrary contained herein, the release set forth in this Section 9 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 provision of this Agreement shall release applicable agreement with the Company, including any indemnification pursuant to any applicable laws; (iv) any claim or waive right under the Company’s directors and officers liability coverage; and (v) any claim or right that Executive has to reimbursement of expenses by Commerce or the Company with respect to which 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 may be eligiblefor 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 (collectively, the "Executive's Affiliates") hereby fully and without limitation releases and forever discharges Commerce and its Related Entities, and each of their respective agents, representatives, shareholders, owners, officers, directors, employees, consultants, attorneys, auditors, accountants, investigators, affiliates, successors and assigns (collectively, the "Commerce Company Releasees"), both individually and collectively, from any and all rights, claims, demands, liabilities, actions, causes of action, damages, losses, costs, expenses and compensation, of whatever nature whatsoever, known or unknown, fixed or contingent, which the Executive or any of the Executive's Affiliates has or may have or may claim to have against the Commerce Company Releasees by reason of any matter, cause, or thing whatsoever, from the beginning first date the Executive was an employee, officer or director of time 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, any Claims arising out of, based upon, or relating to the recruitment, hiring, employment, relocation, remuneration, investigation or termination of the Executive by any of the Commerce Company Releasees, the Executive's tenure as an employee and/or an officer of any of the Commerce Company Releasees, any agreement or compensation arrangement between the Executive and any of the Commerce ReleaseesCompany Releasees (including, without limitation, the Employment Agreement), or any act or occurrence in connection with any actual, existing, proposed, prospective or claimed ownership interest of any nature of the Executive or the Executive's Affiliates in equity capital or rights in equity capital or other securities of any of the Commerce Releasees, or in connection with the Agreement and Plan of Merger dated March 29, 2004, by and among the Company, Skipping Stone Acquisition Corporation, Skipping Stone, Inc. and the holders of Skipping Stone, Inc. common stock (the "Skipping Stone Merger Agreement") and any other document or agreement referenced in the Skipping Stone Merger Agreement (the "Skipping Stone Agreements"), including, without limitation, the delivery of the shares of Commerce's common stock due to him under the Skipping Stone Agreements, Company Releasees 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, as amended; the Americans With Disabilities Act; the National Labor Relations Act, as amended; the 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 state or federal law, rule or regulation dealing with the employment relationship or operating a publicly held business. Nothing contained in this Section 9 or any other provision of this Agreement shall release or waive any right that Executive has to reimbursement of expenses by Commerce or the Company with respect to which the Executive may be eligible.permitted