AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT FOR JAMES P. PANEK

Exhibit 10.1

AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
FOR JAMES P. PANEK

     This Amended and Restated Executive Employment Agreement (the “ Agreement ”) is entered into by and between James P. Panek (hereinafter “ Executive ”) and VaxGen, Inc. (hereinafter “ VaxGen ” or the “ Company ”), effective as of February 1, 2009 (the “ Effective Date ”). This Agreement supersedes in its entirety all prior employment agreements between Executive and VaxGen, whether signed or unsigned, including the Amendment Number One To Amended And Restated Executive Employment Agreement Dated March 26, 2008 (the “ Prior Agreement ”). In consideration of the mutual promises made herein, VaxGen and Executive agree as follows:

      1.  Employment By The Company; Board Position . VaxGen hereby agrees to continue to employ Executive in the position of President, and Executive hereby accepts continued employment with VaxGen in the position of President, upon the terms and conditions set forth in this Agreement. As of the Effective Date, Executive will no longer be employed in the position of Chief Executive Officer. This Agreement will not effect Executive’s position as a Director on the Company’s Board of Directors (the “ Board ”).

      2.  Work Responsibilities and Work Schedule.

           (a) Title and Responsibilities. Executive shall continue to perform the functions and responsibilities of President as may be provided for that position in the Company’s by-laws and articles of incorporation, customarily associated with that position, and as may be assigned from time to time by the Board. Executive will continue to report to the Board. Executive’s primary office location will be the Company’s corporate headquarters.

           (b) Work Schedule. As of the Effective Date, Executive’s new work schedule shall be 62.5% of full-time (a regular work schedule of at least 25 hours a week). The parties acknowledge that this reduction does not result in a “separation from service” under Treasury Regulation Section 1.409A-1(h). The parties anticipate that Executive will be able to perform the duties of President within the above specified time commitments. However, Executive understands that because his position is classified as exempt, on occasion he may be required to work additional hours as required by his job duties and Executive will not be eligible for additional compensation or overtime.

           (c) Discretion to Modify. Executive’s position, title, job description, reporting relationship, office location, work schedule, duties and responsibilities may be modified from time to time in the sole discretion of VaxGen.

      3.  Compensation And Benefits.

           (a) Base Salary. Effective as of the Effective Date, VaxGen will pay Executive a base salary at the annualized rate of one hundred ninety-five thousand dollars ($195,000), less standard payroll deductions and withholdings and payable in accordance with

the Company’s regular payroll schedule. Such compensation is subject to review and potential change annually in the Board’s discretion.

           (b) One-Time Cash Payment. The Company will pay Executive a one-time cash payment of $193,050, less standard payroll deductions and withholdings (the “ Cash Payment ”). This Cash Payment is in consideration for Executive’s agreement to renegotiate his rights under the Prior Agreement to severance benefits (which Prior Agreement benefits are exempt from the application of Section 409A of the Code) in order to reduce the Prior Agreement cash severance payment as reflected in Section 10(b) of this Agreement. As a condition to Executive’s receipt of the Cash Payment, Executive must first sign, date, return to the Company, and not revoke, the Cash Payment Release attached hereto as Exhibit A on or before February 28, 2009. The Cash Payment will be paid within ten (10) business days after the Effective Date of the Cash Payment Release (as defined therein).

           (c) Stock Option Grant. This Agreement does not alter or affect any stock option grants provided to Executive by the Company as of the Effective Date, except as specifically provided in Section 10(b)(iii) hereof. Executive acknowledges that there are no commitments on behalf of the Company to grant to Executive any additional stock options. The Board will consider, on an annual basis and at the Board’s sole discretion, whether to grant additional stock options to Executive.

           (d) Benefits. Executive shall be entitled to participate in the Company’s employee benefit plans which may be in effect from time to time and provided by the Company to its senior officers generally, including paid holidays, leaves of absence, health insurance, dental insurance, life insurance, and other benefits, if any, in accordance with and subject to the eligibility requirements of such employee benefit plans and other applicable policies and procedures. Executive’s rights under such employee benefit plans, or the rights of Executive’s dependents, shall be governed solely by the terms of such plans and any applicable policies and procedures. As of the Effective Date, Executive shall accrue Paid Time Off (“ PTO ”) at a rate equal to 62.5% of the full-time rate that otherwise would apply if he was working a full-time schedule. The Company’s employee benefit plans, and policies and procedures related thereto, are subject to termination, modification or limitation at any time at the Company’s sole discretion.

           (e) Business Expenses. VaxGen shall reimburse Executive for all reasonable business expenses, including expenses incurred for travel on VaxGen business, in accordance with the policies and procedures of VaxGen, as may be adopted or amended from time to time at VaxGen’s sole discretion. To be eligible for reimbursement, Executive must submit business expense reimbursement requests to VaxGen on a monthly basis, which includes supporting documentation (including receipts) reasonably satisfactory to VaxGen.

           (f) Total Compensation. Executive agrees that the compensation stated above constitutes the full and exclusive monetary consideration and compensation for all services provided by Executive to the Company, and for all promises and obligations under this Agreement.

      4.  VaxGen Employment Policies . Executive’s employment relationship will be governed by the general employment policies and practices of the Company, and Executive agrees to abide by all such written policies, practices and procedures, as they may from time to time be adopted or modified by VaxGen at its sole discretion. Executive also agrees to review and abide by the policies in VaxGen’s Employee Handbook (as they may be modified by the Company from time to time) and to acknowledge in writing that Executive has read and will abide by the Employee Handbook.

      5.  Protection of Company Information. As a condition of his continued employment, Executive agrees to sign, contemporaneously with this Agreement, and to abide by the Employee’s Proprietary Information and Inventions Agreement (the “ Proprietary Information Agreement ”), a copy of which is attached hereto as Exhibit B. The Proprietary Information Agreement shall be deemed effective as of the commencement of Executive’s employment with the Company.

      6.  Indemnity Agreement. This Agreement does not alter or affect the Indemnity Agreement previously entered into between Executive and the Company, a copy of which is attached hereto as Exhibit C .

      7.  Outside Activities.

           (a) Non-Company Activities. Except for any outside activities consented to in writing by the Board, which consent will not be unreasonably withheld, Executive will not during the term of this Agreement undertake or engage in any other employment, occupation or business enterprise, other than ones in which Executive is a passive investor. Executive may engage in civic and not-for-profit activities so long as such activities do not materially interfere with the performance of Executive’s duties hereunder.

           (b) No Adverse Interests. During Executive’s employment, Executive agrees not to acquire, assume or participate in, directly or indirectly, any position, investment or interest known by Executive to be adverse or antagonistic to the Company’s interests, business or prospects, financial or otherwise, except as permitted by Section 7(c).

           (c) Noncompetition. During the term of Executive’s employment by the Company, except on behalf of the Company, Executive will not directly or indirectly, whether as an officer, director, stockholder, partner, proprietor, associate, representative, consultant, employee, or in any capacity whatsoever, engage in, become financially interested in, be employed by or have any business connection with any person, corporation, firm, partnership or other entity whatsoever which competes directly with the Company, anywhere throughout the world, in any line of business engaged in (or planned to be engaged in) by the Company; provided, however, that Executive may own, as a passive investor, securities of any competing public corporation, so long as Executive’s direct holdings in any one such corporation shall not in the aggregate constitute more than one percent (1%) of the voting stock of such corporation and any ownership interest in a competitor is disclosed in writing to the Board.

      8.  Former Employment and Third Party Agreements. Executive represents and warrants that Executive’s past and continued employment by the Company has not

conflicted and will not conflict with and will not be constrained by any prior employment or consulting agreement, noncompetition agreement, proprietary information agreement or other relationship with any third party. Executive further represents and warrants that Executive does not possess or control confidential information arising out of prior employment, consulting, or other third party relationships, which Executive will utilize in connection with Executive’s employment by the Company, except as expressly authorized by that third party. Executive further warrants that by entering into this Agreement with VaxGen, Executive is not violating any of the terms, agreements or covenants of any agreement with any third party, including but not limited to any previous employer, and that Executive is not under any contractual obligation that would restrict Executive’s activities on behalf of the Company.

      9.  Noninterference.

          While employed by the Company and for a period of one (1) year immediately following the termination of Executive’s employment, Executive agrees that Executive will not, without the express consent of the Board, or in the course and scope of performing Executive’s duties for the Company, interfere with the business of the Company by, either directly or indirectly:

           (a) soliciting, recruiting, inducing, encouraging, or otherwise causing any employee of VaxGen to terminate his or her employment in order to become an employee, consultant or independent contractor to or for any other person or entity, or attempting to do so;

           (b) disclosing to any person or entity the names or addresses of, or any information pertaining to, any current or former employees of VaxGen, to the extent such names, addresses or other information are confidential or private; or

           (c) using Proprietary Information (as defined in the Proprietary Information Agreement) to call on, solicit or take away any clients or customers of VaxGen or any other persons, entities, or corporations with which VaxGen has had or contemplated any business transaction or relationship during Executive’s employment with VaxGen (such Proprietary Information to include, but not be limited to, investments, licenses, joint ventures, and agreements for development), or attempting to do so.

      10.  Termination Of Employment.

           (a) At-Will Employment Relationship. Executive’s employment relationship is at-will. This means that Executive’s employment and/or this Agreement may be terminated with or without Cause (as defined in Section 10(d)(ii)), and with or without advance notice, at any time by either Executive or by VaxGen. Nothing in this document shall limit the right to terminate employment at will or to terminate this Agreement at any time. This at-will employment relationship can only be changed in a written agreement approved by the Board and signed by Executive and the Chairman of the Board.

           (b) Severance Benefits Eligibility. In the event that Executive’s employment is terminated without Cause by the Company, or if Executive resigns for Good Reason pursuant to Section 10(c) hereof and such termination or resignation, as the case may be, is not due either to Executive’s death or disability and further constitutes a “separation from service” under

Treasury Regulations Section 1.409A-1(h), Executive shall be eligible to receive the following as Executive’s sole severance benefits (collectively, the “ Severance Benefits ”): (i) a lump sum payment of $193,050, less standard withholdings and deductions, and payable, subject to the provisions of this Section 10, within ten (10) business days after the later of (x) the effective date of such separation from service, or (y) the date on which the Separation Date Release (as defined below) becomes effective (the “ Severance Payment ”) (such later date, the “ Payment Date ”); (ii) health insurance continuation coverage (pursuant to the federal COBRA law or applicable state law) at Executive’s own expense; (iii) all stock option grants or other equity awards then held by Executive shall be subject to accelerated vesting such that all unvested shares will become fully vested and exercisable effective as of the date of the separation from service (the “ Accelerated Vesting ”); and (iv) payment of all accrued salary and all accrued and unused vacation, as well as accrued benefits under any written ERISA-qualified benefit plan (e.g., 401(k) plan), or written insurance policy, to which Executive has a vested right as of the termination date. As a condition of and prior to the receipt of all or any of the Severance Payment or Accelerated Vesting, Executive shall provide the Company with an effective general release of all known and unknown claims in the form attached hereto as Exhibit D (the “ Separation Date Release ”) not later than 60 days after the termination date.

           (c) Good Reason Resignation. Executive may resign for Good Reason due to the occurrence of any of the following without Executive’s consent: (i) material breach by the Company of any of the terms and provisions of this Agreement resulting in material harm to Executive; (ii) a material reduction of Executive’s authority, duties or responsibilities; (iii) relocation of Executive’s place of work that would increase Executive’s one-way commuting distance by more than fifty (50) miles over Executive’s commute immediately prior thereto; or (iv) a material reduction by VaxGen of Executive’s then-current base salary (except where such reduction is imposed uniformly on other senior executives of the Company). Notwithstanding the foregoing, a resignation of employment by Executive shall not constitute a resignation for Good Reason based on the conduct described above unless (A) within thirty (30) days following the occurrence of such conduct, Executive provides VaxGen’s Chief Executive Officer (or the Board in the case Executive is then serving as the Chief Executive Officer or there is no one serving as the Chief Executive Officer) with written notice specifying (x) the particulars of such conduct and (y) that Executive deems such conduct to be described in (i), (ii), (iii) or (iv) of this Section 10(c), (B) such conduct has not been cured within thirty (30) days following receipt by VaxGen’s Chief Executive Officer (or the Board in the case of Executive is then serving as the Chief Executive Officer or there is no one serving as the Chief Executive Officer) of such notice and (C) the resignation occurs within one hundred and twenty (120) days of the occurrence of such conduct. Executive’s resignation shall be effective on the date specified in the notice given hereunder, which date shall not be earlier than the earliest date permitted by the preceding sentence, nor later than the latest date permitted by the preceding sentence (unless such earlier or later resignation date is permitted by the Company).

           (d) Termination for Cause.

                (i) No Severance. In the event Executive’s employment is terminated at any time for Cause, Executive will be entitled to payment of all accrued salary and accrued and unused vacation, but Executive will not be entitled to the Severance Benefits, pay in lieu of notice, or any other such compensation unless required by law.

                (ii) Cause Definition. For the purposes of this Agreement, “ Cause ” for termination shall mean any of the following: (A) fraud or conviction (including a no contest or guilty plea) of illegal criminal acts committed by Executive; (B) Executive’s material breach of any material provision of any written agreement with the Company, including but not limited to this Agreement or the Proprietary Information Agreement; (C) Executive’s material failure to perform Executive’s job duties as determined by the Board in its reasonable judgment, and after notice of such failure has been given to Executive by the Board and Executive has had a fifteen (15) business-day period within which to cure such failure; or (D) a material violation of any material VaxGen employment policy, including but not limited to the policies set forth in VaxGen’s Employee Handbook.

           (e) Voluntary or Mutual Termination. In the event Executive terminates Executive’s employment other than for Good Reason, or in the event that Executive’s employment terminates at the parties’ mutual agreement, Executive will be entitled to payment of all accrued salary and accrued and unused vacation, but Executive will not be entitled to Severance Benefits, pay in lieu of notice, or any other such compensation unless required by law.

           (f) Termination Due to Death or Disability. In the event of Executive’s death, Executive’s employment will terminate on the date thereof, and Executive and Executive’s heirs or estate will be entitled to payment of all accrued salary and accrued and unused vacation, but Executive will not be entitled to Severance Benefits, pay in lieu of notice or any other such compensation unless required by law. In addition, if Executive’s employment terminates due to his disability, Executive will be entitled to payment of all accrued salary and accrued and unused vacation, but Executive will not be entitled to Severance Benefits, pay in lieu of notice or any other such compensation unless required by law.

           (g) Excise Tax.

                (i)  Anything in this Agreement to the contrary notwithstanding, if any payment or benefit that Executive would receive pursuant to this Agreement or otherwise from the Company (“ Payment ”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “ Code ”), and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “ Excise Tax ”), then such Payment shall be equal to the Reduced Amount (defined below). The “ Reduced Amount ” shall be either (i) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax, or (ii) the full Payment, whichever amount after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax, results in Executive’s receipt, on an after-tax basis, of the greatest amount of the Payment to Executive. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of cash payments; cancellation of accelerated vesting of option grants; cancellation of accelerated vesting of other equity awards; and reduction of employee benefits. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant.

                (ii)  The accounting firm engaged by the Company for general audit purposes as of the day prior to the date on which the event that triggers the Payment occurs (the

“ Payment Event ”) shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Payment Event, the Board shall have the discretion to appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder.

                (iii)  The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as reasonably requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. The Company shall be entitled to rely upon the accounting firm’s determinations, which shall be final and binding.

           (h) Deferred Compensation. It is intended that all of the payments and benefits provided under this Agreement satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code provided under of Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5) and 1.409A-1(b)(9), and that this Agreement will be construed to the greatest extent possible as consistent with those provisions. If the Company (or, if applicable, the successor entity thereto) determines that any of the severance payments or benefits provided to Executive under this Agreement or otherwise (the “ Severance Payments ”) constitute “deferred compensation” under Code Section 409A and Executive is a “specified employee” (as such term is defined in Section 409A(a)(2)(B)(i)) of the Company or any successor entity thereto upon his separation from service, then, solely to the extent necessary to avoid the incurrence of the adverse personal tax consequences under Section 409A as a result of the payment of compensation upon his “separation from service”, the timing of the Severance Payments shall be delayed as follows: on the earlier to occur of (i) the date that is six months and one day after the date of the separation from service or (ii) the date of Executive’s death (such earlier date, the “ Delayed Initial Payment Date ”), the Company (or the successor entity thereto, as applicable) shall (A) pay to Executive a lump sum amount equal to the sum of the Severance Payments that Executive would otherwise have received through the Delayed Initial Payment Date if the commencement of the payment of the Severance Payments had not been delayed pursuant to this paragraph and (B) commence paying the balance of the Severance Payments in accordance with the applicable payment schedules set forth above. All payments hereunder are intended to constitute separate payments for purposes of Treasury Regulations Section 1.409A-2(b)(2).

           (i) Board Membership. In the event Executive’s employment with VaxGen is terminated for any reason, whether at the Company’s or Executive’s request, and Executive then is a member of the Board, Executive agrees, unless otherwise requested by the Board, to resign Executive’s membership on the Board effective as of the date of the termination of Executive’s employment.

      11.  General Provisions.

           (a) Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of California without regard to conflict of laws principles that would otherwise apply the law of another jurisdiction. Any ambiguity in this Agreement shall not be construed against either party as the drafter.

           (b) Complete Agreement. This Agreement, including its exhibits, constitutes the complete, final and exclusive embodiment of the entire agreement and understanding of the parties with regard to the subject matter hereof. It is entered into without reliance on any promise, warranty or representation other than those expressly contained herein, and it supersedes and replaces any and all prior or contemporaneous agreements, promises or representations between VaxGen and Executive, whether oral, written or implied, including but not limited to all previous employment agreements between the parties, whether signed or unsigned, and any amendments thereof. The terms of this Agreement and any changes in Executive’s employment terms (other than those employment terms expressly reserved to the Company’s or Board’s discretion in this Agreement), require a written amendment to the Agreement which is approved by the Board and signed by Executive and a duly authorized officer of the Company pursuant to authority expressly granted by the Board.

           (c) Waiver. Any waiver of a breach of this Agreement shall be in writing and shall not be deemed to be a waiver of any successive breach.

           (d) Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, and such invalid, illegal or unenforceable provision will be reformed, construed and enforced in such jurisdiction so as to render it valid, legal, and enforceable consistent with the general intent of the parties insofar as possible.

           (e) Voluntary Agreement. Executive and VaxGen represent and warrant that each has reviewed all aspects of this Agreement, has carefully read and fully understands all provisions of this Agreement, and is voluntarily entering into this Agreement. Each party represents and agrees that such party has had the opportunity to review any and all aspects of this Agreement with the legal and tax advisors of such party’s choice before executing this Agreement, and each party has had a full opportunity to negotiate the terms of this Agreement prior to signing this Agreement.

           (f) Headings. The headings and captions of the various paragraphs of this Agreement are placed herein for the convenience of the parties and the reader, do not constitute a substantive term or terms of this Agreement, and shall not be considered in the interpretation or application of this Agreement.

           (g) Counterparts. This Agreement may be executed in separate counterparts, any one of which need not contain signatures of more than one party, but all of which taken

together will constitute one and the same Agreement. Signatures transmitted via facsimile or PDF shall be deemed the equivalent of originals.

           (h) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and shall be enforceable by and against Executive and the Company, and their respective successors, assigns, heirs, executors and administrators; except that it is agreed that Executive may not assign any of Executive’s duties hereunder; and Executive may not assign any of Executive’s rights hereunder without the written consent of the Company, which shall not be unreasonably withheld.

           (i) Notices. Any notices provided hereunder must be in writing and shall be deemed effective upon, as applicable, the date of personal delivery (including personal delivery by facsimile transmission), the date of delivery by express delivery service (e.g. Federal Express), or the third day after mailing by certified or registered mail, return receipt requested, to the attention of the Chairman of the Board sent to the Company’s corporate headquarters, and to Executive at Executive’s address as listed on the Company’s payroll, or as otherwise provided in writing by Executive to the Board.

           (j) Alternative Dispute Resolution. To ensure rapid and economical resolution of any disputes which may arise concerning the relationship between Executive and the Company, the parties hereby agree that any and all claims, disputes or controversies of any nature whatsoever arising out of, or relating to, this Agreement and its enforcement, application, interpretation, performance, or execution, Executive’s employment with the Company, or the termination of such employment, shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration in San Francisco, California conducted before a single arbitrator by JAMS, Inc. (“ JAMS ”) or its successor, under the then applicable JAMS arbitration rules. The parties each acknowledge that by agreeing to this arbitration procedure, they waive the right to resolve any such dispute, claim or demand through a trial by jury or judge or by administrative proceeding . Executive will have the right to be represented by legal counsel at any arbitration proceeding. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be available under applicable law in a court proceeding; and (ii) issue a written statement signed by the arbitrator regarding the disposition of each claim and the relief, if any, awarded as to each claim, the reasons for the award, and the arbitrator’s essential findings and conclusions on which the award is based. The Company shall bear all JAMS’ arbitration fees and administrative costs. Nothing in this Agreement is intended to prevent either Executive or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any arbitration.

           (k) Right To Work. As required by law, this Agreement is subject to satisfactory proof of Executive’s right to work in the United States.

           In Witness Whereof , the parties have executed this Agreement on the dates specified below.

Exhibit A – Cash Payment Release
Exhibit B – Employee’s Proprietary Information and Inventions Agreement
Exhibit C – Indemnity Agreement
Exhibit D – Form of Separation Date Release

Exhibit A

CASH PAYMENT RELEASE

     In consideration of the Cash Payment to be provided to me by VaxGen, Inc. (the “ Company ”), and as required by the Amended and Restated Executive Employment Agreement between the Company and me effective as of February 1, 2009 (the “ Agreement ”), I hereby give the following Cash Payment Release (the “ Cash Payment Release ”).

     I hereby generally and completely release the Company and its directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, affiliates, and assigns (collectively, the “ Released Parties ”) from any and all claims, liabilities and obligations, both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring at any time prior to or contemporaneous with my signing of this Cash Payment Release. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to my employment with the Company; (2) all claims related to my compensation or benefits from the Company, including salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership or equity interests in the Company; (3) all claims for breach of contract and breach of the implied covenant of good faith and fair dealing, including, but not limited to, claims based on or arising from the Agreement; (4) all tort claims, including claims for fraud, defamation, emotional distress, and discharge in violation of public policy; and (5) all federal, state, and local statutory claims, including claims for discrimination, harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990, the federal Age Discrimination in Employment Act (as amended) (“ ADEA ”), the federal Family and Medical Leave Act (“ FMLA ”), the California Family Rights Act (“ CFRA ”), and the California Fair Employment and Housing Act (as amended).

     Notwithstanding the foregoing, I am not releasing the Company from the following (the “ Excluded Claims ”): (1) any obligation it may otherwise have to indemnify me for my acts within the course and scope of my employment with the Company, pursuant to the articles and bylaws of the Company, the Indemnity Agreement, or applicable law; (2) any obligations under the Agreement or otherwise that arise after I sign the Cash Payment Release; or (3) any rights which are not waivable as a matter of law. In addition, nothing in this Cash Payment Release prevents me from filing, cooperating with, or participating in any proceeding before the Equal Employment Opportunity Commission, the Department of Labor, the California Department of Fair Employment and Housing, or another government agency, except that I hereby waive my right to any monetary benefits in connection with any such claim, charge or proceeding. I hereby represent and warrant that, other than the Excluded Claims, I am not aware of any claims I have or might have against any of the Released Parties that are not included in this Cash Payment Release.

     I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under the ADEA, and that the consideration given for the waiver and release in the preceding paragraph is in addition to anything of value to which I am already entitled. I further acknowledge that I have been advised by this writing that: (1) my waiver and release do not

apply to any rights or claims that may arise after the date I sign this Cash Payment Release; (2) I should consult with an attorney prior to signing this Cash Payment Release (although I may choose voluntarily not to do so); (3) I have twenty-one (21) days to consider this Cash Payment Release (although I may choose voluntarily to sign it earlier); (4) I have seven (7) days following the date I sign this Cash Payment Release to revoke it by providing written notice of revocation to the Chairman of the Company’s Board of Directors; and (5) this Cash Payment Release will not be effective until the date upon which the revocation period has expired, which will be the eighth calendar day after the date I sign it (the “ Effective Date ”).

     I UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. I 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 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 debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law or legal principle of similar effect in any jurisdiction with respect to my release of claims herein, including but not limited to the release of unknown and unsuspected claims.

     I hereby represent that, except for the current pay period and accrued but unused paid time off, I have no unpaid wages due or owed me by the Company, and that I have no dispute regarding wages due or owed to me by the Company.